Elder Abuse Laws

Elder Abuse Laws

Numerous accounts of maltreatment led policy makers to pass a series of laws intended to protect elderly victim. The passage of the federal Older Americans Act of 1965 (OAA) (3) and the creation of the Vulnerable Elder Rights Protection Program (4) in 1992 were instrumental in promoting state laws to address the needs and concerns of the elderly. The Vulnerable Elder Rights Protection Program legislation promoted advocacy efforts through ombudsmen offices; abuse, neglect and exploitation prevention programs; and legal assistance on behalf of older Americans. It also offered federal funding incentives which made it possible for states to develop and maintain programs designed to assist the elderly. In many respects, state elder abuse laws are patterned after legislation designed to address the problem of child abuse and neglect, and, like the response to child maltreatment, often involve the combined efforts of both criminal justice officials and social services staff.

Criminal Elder Abuse Laws

In an effort to deter crimes against elderly victims, and to express society's abhorrence toward such offenses, many state legislatures have created special offenses involving crimes against the elderly. Laws criminalizing abuse of the elderly are in effect in all states and the District of Columbia. Generally, these laws define the conduct which constitutes a specific form of abuse, and may make a distinction between abuse committed in a domestic, as opposed to an institutional, setting. At least two states -- Massachusetts and North Carolina -- have laws which subject anyone over the age of 18 who has sufficient means, but neglects or refuses to support a parent who is unable to support him/herself due to age or disability, to a fine or imprisonment. (5)

In some states, elder abuse laws are incorporated into assault, battery, domestic violence or sexual assault statutes, and a sentencing enhancement imposed if the victim is over a specified age. Illinois uses a combination approach, enacting separate crimes for aggravated battery of a senior citizen and for criminal neglect or financial exploitation of an elderly person, but including the age of the victim as a special classification under its aggravated criminal sexual assault and abuse laws.

Mandatory Reporting

One of the earliest legislative trends to assist older victims mandated the reporting of elder abuse. The vast majority of states now require certain classes of professionals to report suspected abuse and neglect. The most common categories of mandatory reporters are medical professionals, health care providers, mental health counselors, service providers, and virtually all government agents who come in contact with the elderly. Most require such individuals to report evidence that leads them to "reasonably believe" that the elderly person in question is the victim of abuse or neglect. A few states have established 24 hour hotlines in an attempt to make reporting of abuse easier in order to secure the safety of the victim as quickly as possible. While most statutes establish penalties for those who fail to report, many also provide immunity from civil suits or prosecution to those who make reports in "good faith" -- even if those reports can not be substantiated, to further encourage reporting of suspected abuse.

Although such laws have helped to increase the reporting of elder abuse -- up 150 percent from 1986 to 1996 -- it is still believed to be widely underreported. (6) Training programs to increase public awareness and better prepare those required by law to report have been implemented in California, Florida, and Mississippi, in an attempt to further promote reporting of elder abuse.

Investigation and Intervention

Most states empower both social service and law enforcement agencies to investigate reports, intervene, and even remove elderly victims from abusive circumstances. In some jurisdictions, multidisciplinary teams are being used -- combining the knowledge of medical, mental health, social service, legal, and law enforcement professionals to better evaluate an elderly victim's needs. Appropriate protective services can then be offered to elder abuse victims. In some states, such as Colorado, a restraining order may be imposed to prohibit further emotional abuse of an elderly victim.

In an attempt to further improve intervention mechanisms, Tennessee has created an innovative Victimization Prevention Program, an extension of the Tennessee State University's Center for Aging's program on the prevention and treatment of elder abuse, neglect and criminal victimization. (7) The program is designed to: collect data on the problems of elderly abuse, neglect and criminal victimization; engage in prevention activities through presentations at churches, community centers, schools, and senior citizen centers; conduct workshops for government employees and police, as well as for the elderly and their families; and implement an advocacy program to assist victims in responding to and recovering from abuse, neglect and criminal victimization. Hopefully, this program's research findings will provide the basis for the development of stronger assistance and prevention initiatives designed specifically to aid elderly victims.

Special Provisions for Institutional Abuse

Many states have created distinct measures to address abuse in institutional settings. Authorities are granted special powers to investigate reports of abuse in nursing homes and care facilities, and to revoke or deny operating permits to institutions which violate laws or allow their employees to commit offenses against the elderly in their care. Provisions to protect employees who report institutional abuse from retaliation by their employers are becoming more common. All states and the District of Columbia have established ombudsman programs to receive, investigate, and resolve the grievances of patients residing in long-term care facilities.

States are also beginning to establish registries of caregivers and medical personnel convicted of elder abuse to allow potential employers to conduct more complete criminal history background checks of applicants for positions involving care of the elderly. Missouri maintains an employee disqualification list of persons who have misappropriated funds or property of a resident while employed in a long-term care facility.

A number of states have passed residents' bills of rights which prohibit mental and physical abuse of patients and encourage the filing of grievances or complaints by or on behalf of the resident. Florida law authorizes the commencement of a civil action for the violation of a resident's rights. (8)

A successful plaintiff may be awarded punitive damages when the respondent's conduct was a malicious, willful disregard of the older patient's rights.

Other Crimes Against the Elderly

In addition to specific elder abuse crimes,many states are addressingother crimes directed at older victims.

Special Classification under General Crime

Special classifications for elderly victims are often included in a state's robbery, assault, battery, murder, and even carjacking statutes. A few states, such as Iowa and Oregon, have chosen to include age as a hate violence characteristic. States are also starting to address telemarketing schemes and consumer fraud crimes which often seem to target especially vulnerable victims, including the elderly.

Sentencing Enhancements

Other states impose sentencing enhancements -- increased penalties -- when the victim is elderly. In Nevada, an offender who commits a crime against a person over the age of 60 is subject to a prison term twice as long as that normally allowed for the same offense. A Louisiana law mandates that all violent crimes against the elderly be punished by a minimum of five years imprisonment with no opportunity for parole. Georgia imposes an enhanced penalty for unfair or deceptive business practices directed toward the elderly. A number of states consider the victim's advanced age to be an aggravating factor to be taken into account when determining a sentence.

Special Trial Provisions

An elderly victim's availability as a witness is often limited due to mobility problems resulting from advanced age and related health concerns. Videotaping depositions is one option available to elderly victims/witnesses who cannot attend court to testify in person. Giving civil and/or criminal cases involving an older victim or witness docket priority is a method that states such as California, Colorado, Nevada and New York have adopted to address potential time limitations in such cases. In addition, services for physically challenged elderly persons, such as support attendants and interpreters for the hearing impaired, are provided in certain states to make court appearances more manageable and less traumatic.

Compensation and Restitution

All victims of violent crime are allowed to file for compensation in order to recoup the economic losses they suffer as a result of such crime. However, many of these programs have created "minimum loss standards" ranging from $100 to $200, precluding claims for lesser amounts. Other compensation programs require victims to absorb the first $100 or $200 of their loss in much the same way as a deductible is paid in conjunction with private insurance policies. Mindful of the economic hardship even a small financial loss might inflict upon elderly victims with fixed incomes, many states have waived minimum loss and deductibility provisions in cases where the victim is 65 years of age or older. The specific age does vary from state to state.

While many programs will not compensate victims for the loss of personal property, most states have created an exception when the property lost is considered essential to elderly crime victims (such as eye-glasses, dentures, hearing aids, or other medical equipment). A few states have even compensated home-bound victims for the loss of their television sets or radios.

Restitution laws of some states also contain special provisions for elderly victims. In California, restitution for medical and psychological treatment is mandatory for victims of assault, battery, or assault with a deadly weapon for victims over the age of 65. Rhode Island mandates restitution for breaking and entering the dwelling of an elderly victim. The Juvenile Court in Louisiana may distribute unclaimed restitution to elderly victims of other, non-violent crimes for whom restitution has been ordered but not paid.

Civil Remedies

A few states have special provisions for the bringing of civil actions by the elderly. If an older person in Nevada suffers personal injury or death caused by abuse or neglect or suffers a loss of money or property by exploitation, the offender may be ordered to pay up to two times the actual damages incurred. If the offender acted with recklessness, oppression, fraud, or malice, the court shall order the person to pay the attorney's fees and costs of the person who initiated the lawsuit. In Georgia, the elderly may recover actual and punitive damages and attorney's fees for injury resulting from unfair or deceptive business practices.

Conclusion

While significant strides have been made in recent years to address the needs and concerns of elderly victims, there is still much to be done. Public education, mandatory reporting, special training for criminal justice and social services professionals, and stiffer penalties for offenders who target the elderly are just a few of the legislative programmatic prevention tools currently being utilized.

For more information on laws in your area, contact your local prosecutor or adult protective services agency.

(All statutes discussed in this summary are current through 1997 and are tracked through the National Center for Victims of Crime's Legislative Database, which is updated annually.)

Bibliography

Byers, Bryan and James E. Hendricks. (1993). Adult Protective Services: Research and Practice. Springfield, IL: Thomas Books.

Hunzeker, Donna. (1990). State Legislative Response to Crimes Against the Elderly. Denver, CO: National Conference of State Legislatures.

National Center for Victims of Crime. (1997). "Elder Abuse.", Arlington, VA.

For additional information, please contact:

Administration on Aging
330 Independence Avenue, SW
Washington, DC 29201
(202) 245 - 0641

American Association of Retired Persons
601 E Street, NW
Washington, DC 20049
(202) 434 - 2277

Commission on Legal Problems of the Elderly
American Bar Association
1800 M Street, NW
Washington, DC 20036
(202) 331 - 2297

National Center on Elder Abuse