Elder Abuse and the Criminal Justice System: New Awareness ...

Generations Volume XXIV, Number 2. Pages 52-58

Elder Abuse and
the Criminal Justice System:
New Awareness, New Responses

By Candace J. Heisler

Criminal investigation Innovative criminal statutes, of perpetrators, and rela-
and prosecution of tionship to domestic and
elder abuse is a recent phe- family violence. Increas-

nomenon. Traditionally, cooperation between law ingly, professionals in a
abuse, neglect, and Wnan- variety of Welds have come

cial exploitation of elderly enforcement and other to believe that in serious
and vulnerable adults by cases, only the criminal

family members, friends, community agencies, and justice system may be
and Wduciaries, if recog- capable of stopping the

nized and reported at all, training for law enforcement abuse, protecting the vic-
were reported to adult tim, and holding the

protective services agen- personnel. oVender accountable
cies and the long-term-care (Attorney General’s Task

ombudsman programs, Force on Family Violence,

community organizations, 1984; Heisler 1991; U.S.

and occasionally, to professional licensing Department of Justice, 1998a). Criminal cases

boards. Because elder abuse was rarely viewed as are relatively few and tend to be repetitive, seri-

criminal conduct, litigation historically has been ous, and life-threatening incidents. Prosecution

brought in civil courts as applications for remains an exceptional outcome.

guardianship, civil suits for damages, and will In recognition that elder abuse is not only

contests (Heisler and Tewksbury, 1991; Heisler, an act against its individual victim with enor-

1991; U.S. Department of Justice, 1998a). Law mous personal consequences, but also an anti-

enforcement did not view the issue as a serious social act against the entire community, some

problem and lacked training and experience in states have enacted statutes that criminalize var-

handling cases (Plotkin, 1988). The criminal jus- ious acts of elder abuse. While the exact cost of

tice system, including law enforcement, prose- elder abuse is unknown, studies show that

cution, judges, and probation oYcers, simply between 820,000 and over 2 million incidents

were not viewed as playing a role. of elder abuse occur every year (Tatara,

The last decade has seen a signiWcant change Kuzmeskus, and Duckhorn, 1997). Costs of vic-

due at least in part to new information on the timization include actual dollar losses from fraud

forms and consequences of elder abuse, proWles and theft, medical care, repair of damaged or

52 Summer 2000 ©2003 The American Society on Aging

Volume XXIV, Number 2. Pages 52-58 Abuse and Neglect of Older People

destroyed property, housing and maintenance investment advice, and when he feared loss of 53
for victims left destitute, investigation (and control over her assets, he married her.
other) costs incurred by adult protective ser-
vices, long-term-care ombudsman programs, In another case, a lonely, confused, and
public and private guardians, law enforcement, socially isolated older man met a new acquain-
court investigators, prosecution and probation tance at a neighborhood restaurant in San Fran-
agencies, legal defense fees, court costs, and cus- cisco. In short order, she professed great
todial and supervision costs for probation and aVection and love for him, and he quickly mar-
correctional oYcials. ried her. He bought her a home in another com-
munity, which the two never shared, added her
Traditional responses assume that victims do as a joint tenant to his bank accounts and other
not want help from the criminal justice system. assets, and made a will in her favor. The new
While this may be true for many victims, there wife was the mother of children by her long-
are others who want law enforcement to inves- term common-law, or putative, husband.
tigate their cases and prosecution to charge their
abusers (Korbin et al., 1991). Excluding elder- Sometimes oVenders target neighborhoods
abuse cases from the criminal justice system where older people live, working alone or in
shuts the courthouse door and denies older bands. They use a variety of scams, represent-
people the full protection of the law aVorded ing themselves as home repair contractors, util-
younger people. Victims suVer serious conse- ity department employees, or workers from a
quences from criminal abuse; they may be governmental agency. They gain the older per-
injured, left destitute, or even killed (Plotkin, son’s trust and quickly collect money for ser-
1988; Nerenberg, 1999). Studies have shown vices that are never performed or steal valuables
that abuse victims suVer earlier mortality than from the elder’s home (Sklar, 1999).
elders who are not abuse victims (Lachs and
Pillemer, 1998). Perpetrators whose actions are Home healthcare workers have also exploited
referred to the criminal justice system are rarely vulnerable older people. For example, in one
caregivers under stress who are unable to bal- San Francisco case, a nurse caring for a disabled
ance the competing demands of home, family, older woman stole her money and other valu-
job, and ailing relative. Instead, most perpetra- ables. The nurse was prosecuted and placed on
tors are like people who engage in other kinds probation. She then befriended an elderly man,
of criminal conduct: They are motivated by married him, and began looting his assets. She
greed, personal gain, self-justiWcation, a desire to was prosecuted for another series of thefts and
exercise control, and opportunity. And like other burglaries from friends and associates. These
kinds of perpetrators, they often target people new crimes and the acts against her husband
they believe to be vulnerable. Examples of actual became the basis for revoking her probation
criminal cases illustrate this point. and sending her to prison.

The Wnancial arena is a common area of Examples of physical abuse and neglect are
abuse. In one case, an elderly woman, the owner of course the most sensational. In South Car-
of several valuable pieces of real estate, was olina, a 91-year-old woman who was cared for
befriended by a long-time tenant who isolated by her children in their home was neglected for
her, convinced her that her “enemies” intended so long that she developed a decubitus ulcer
to harm her, and took over her assets. He that exposed her spine. Bobby pins used to hold
invested in high-risk investment schemes, redec- pads in place had become embedded in her skin.
orated the mansion he occupied, and bought a Bodily waste was in the ulcer, and the smell was
French chateau. He employed his own friends overwhelming. She died of sepsis.
to provide personal care to the woman and drill
her to pass a mental health assessment indicat- In southern California, two brothers allowed
ing that she was competent to make decisions their father to “rot” to death in bed until he died
about her Wnancial aVairs. He hired a friend of from neglect, malnutrition, dehydration, and
his who was a certiWed accountant to give her septic shock from bedsores. The 68-year-old vic-
tim was paralyzed, bedridden, and unable to
©2003 The American Society on Aging control his bodily functions. His sons lived in his
rented home and used his pension checks to pay

Summer 2000

Generations Volume XXIV, Number 2. Pages 52-58

the bills. One son was responsible for managing prosecution, fearful of retribution or placement
the income; the other was responsible for pro- in a nursing home, and protective of family and
viding personal care. The father was not fed, friends who have mistreated them (U.S.
given water, taken to the bathroom, or cleaned. Department of Justice, 1998a). Placing respon-
The family knew that he needed medical care sibility for the decision to prosecute on the vic-
but did not provide it (Wright, 1991). tim increases the person’s anxiety and fear, and
may place the person in greater danger or harm
In San Francisco, an 84-year-old woman with from the abuser. Once the perpetrator learns
dementia was admitted to a hospital with breath- that the decision about what will happen rests
ing diYculties and covered with bruises, with the victim and not with the state, as in most
described by one expert as similar to those sus- other crimes, the abuser is likely to threaten,
tained by airplane crash victims. The attack was cajole, promise, abduct, or harm—whatever is
committed by her son. necessary to get the desired outcome.

Criminal justice professionals see domestic PROMISING PRACTICES:
violence cases involving elderly spouses. Some LEGISLATION AND TRAINING
occur in long-term marriages, with abuse hav-
ing lasting over decades, and others occur in Across the country, jurisdictions are devel-
new marriages. Some incidents even occur after oping a variety of promising practices to better
the battering spouse has died or become inca- investigate and prosecute cases of abuse of older
pacitated and the adult son steps into his father’s and vulnerable adults. These practices include
shoes and attacks his mother. In each of these enactment of specialized laws and increased
forms, the abuse is usually perpetrated to accom- training.
plish power and control over the victim.
For example, many states have created speciWc
DIFFICULTY INVESTIGATING laws and sentencing enhancements for prose-
AND PROSECUTING cuting abuse of the elderly and vulnerable that
can be used in addition to laws against tradi-
While such incidents are serious, investiga- tional crimes such as theft, homicide, or assault
tion and prosecution are diYcult. For example, and battery (Stiegel, 1995). Some statutes, like
many are never discovered because elder abuse those enacted in California, apply to crimes
is often not reported. When cases are Wnally dis- against any person aged 65 and older. Others,
covered, evidence may have been destroyed or like Florida’s, require special prosecution if the
changed; witnesses may have disappeared, for- person is age 60 or older and suVers “from the
gotten important information, or died; and inWrmities of aging as manifested by advanced
assets may have been plundered. What is more, age or organic brain damage, or other physical,
oYcers and prosecutors often lack experience mental, or emotional dysfunctioning to the
and training in developing cases (Heisler, 1991). extent that the ability of the person to provide
Other agencies with expertise and evidence may adequately for the person’s own care or protec-
be unfamiliar with the criminal justice system tion is impaired.”
and may lack working relationships with key
participants (Nerenberg and Heisler, 1998; Sentencing provisions vary. For example, in
Heisler, 1989). Elder abuse may be viewed as a response to growing awareness of elder abuse
civil rather than a criminal concern, especially and, speciWcally, to the neglect case described
when legal instruments such as trusts, powers of above, the South Carolina legislature changed
attorney, real estate documents, and securities are elder neglect from a misdemeanor to a felony
involved (Sklar, 1999). Disproving consent and for which thirty years in prison is the maximum
establishing competency to testify and prior sentence. In California, sentences for people
capacity can be diYcult. Victims may be viewed convicted of speciWc crimes against the elderly
as incompetent to testify or untrustworthy. have been increased (Penal Code Section 667.9).
If a suspect is convicted of speciWc Wnancial
In fact, a variety of issues arise when cases crimes against the elderly, restitution must be
rely upon the participation and testimony of ordered, and if a person inXicts great bodily
victims. Victims are often ambivalent about
©2003 The American Society on Aging
54 Summer 2000

Volume XXIV, Number 2. Pages 52-58 Abuse and Neglect of Older People

injury on a person 70 years of age or older, the Prosecutors are also establishing specialized 55
sentence is increased by Wve years. elder-abuse responses including vertical prose-
cution, whereby one attorney handles the same
To improve the training of law enforcement case and victim from beginning to end (U.S.
oYcers, some states now provide special train- Department of Justice, 1998a; Nerenberg and
ing on elder abuse, aging, and investigation. Heisler, 1998). The attorneys receive specialized
For example, California now requires that every training to increase their success in prosecuting
oYcer at a supervisory or lower level assigned cases. Examples include the district attorney’s
to Weld or investigative duties complete a cer- oYces in San Diego, Los Angeles, Washington
tiWed elder-abuse training course. Florida and State, and Illinois. In addition, every state’s Medi-
South Carolina have created training guides on caid fraud unit of the state attorney general’s
elder abuse, neglect, and exploitation. The oYce has investigators and prosecutors who
Police Executive Research Forum (1993) cre- handle matters arising in institutional settings.
ated a manual for law enforcement that con-
tains a training curriculum and a sample With increasing awareness of the special needs
departmental policy statement on elder abuse. of older vulnerable adult victims, victim-wit-
Finally, the California Commission on Police ness assistance programs across the country are
OYcer Standards and Training created a tele- developing specialized responses. Programs pro-
course on elder abuse that is widely dissemi- vide training and recruitment of older employ-
nated to law enforcement agencies throughout ees and volunteers, set up oYces away from the
the state and elsewhere. courthouse or in oYce locations frequented by
older people, and use forms, brochures, and
Prosecutors are increasingly receiving train- posters suited to the needs of the target popu-
ing in handling elder-abuse cases. For example, lation (Nerenberg, 1999; U.S. Department of
courses have been oVered in California, Ari- Justice, 1998b).The California Victim Witness
zona, Washington, Minnesota, Wisconsin, Vir- Coordinating Council now mandates elder-
ginia, Delaware, Texas, and Tennessee. In abuse training for all advocates at entry and
addition, the National College of District Attor- advanced levels. In addition, the American Bar
neys oVers workshops on elder abuse as part of Association Commission on the Legal Prob-
its annual conference on domestic violence. lems of the Elderly has developed a training cur-
riculum on elder abuse for victims’ advocates.
PROMISING PRACTICES:
SPECIALIZED HANDLING OF CASES PROMISING PRACTICES:
CASE BUILDING
Because of the complexity of the cases and
special requirements of victims, some agencies One of the greatest changes in the Weld is in
now provide specialized handling of elder-abuse the area of case building. Traditionally cases have
cases. A number of law enforcement agencies been reported to law enforcement agencies,
have created special units to receive complaints which investigated the situation, interviewed
and work with older vulnerable adults. Elder- the witnesses, collected the evidence, and made
service oYcers in Chicago and in Hillsborough an arrest. The case was then turned over to the
County, Florida, are just two examples. Other prosecution, which Wled the case and presented
agencies have investigators who specialize in it in court. Law enforcement and the prosecu-
building elder-abuse cases. The Los Angeles tion worked independently; no other agencies
Police Department Elder Persons’ Estate Unit were involved. While this approach may be an
has two full-time detectives who investigate eVective way to handle street robberies, mug-
cases of Wnancial abuse. They have recovered gings, vehicle thefts, and burglaries, it is wholly
over $55 million in the course of their investi- inadequate in cases of elder abuse. Cases are
gations. In Delaware, the Elder Abuse and rarely reported to law enforcement. Agencies
Exploitation Project of the state attorney gen- in a variety of disciplines often have evidence
eral’s oYce investigates complex Wnancial elder- needed to build a case, but these agencies are
abuse cases and conducts national training on not traditional partners of the criminal justice
case building (Nerenberg, 1996).
Summer 2000
©2003 The American Society on Aging

Generations Volume XXIV, Number 2. Pages 52-58

system. Victims may need support through the ifornia, the public guardian intending to Wle for
process, as well as immediate assistance with conservatorship (guardianship in most other
activities of daily living, preserving assets, or states) can Wle a certiWcate of intent. Thereafter,
stopping Wnancial transactions already begun. a Wnancial institution can provide information
about property solely owned by the proposed
Increasingly, professionals in criminal justice conservatee and can surrender any property in
are working with a variety of groups and agen- danger of loss, waste, misappropriation, or
cies to identify suspected criminal conduct, injury under a stipulation of the state probate
build the case against the suspected perpetrator, code. Where the public guardian and law
and meet the needs of the victim. In a num- enforcement oYcials work as team members,
ber of jurisdictions, criminal justice agencies this section allows for the protection and secur-
participate in multidisciplinary teams to eval- ing of assets. California prosecutors use the
uate cases, share information, and divide tasks state’s money-laundering statute to obtain court
(Nerenberg, 1995; U.S. Department of Justice, orders for injunctive relief to obtain appoint-
1998b). The San Francisco Inter-Agency Inves- ment of a receiver to preserve property and other
tigations Task Force is an example. The team assets in the possession of the defendant that
is composed of representatives from law may be used to satisfy a subsequent order for
enforcement, prosecution, adult protective ser- restitution. Other prosecutors Wle civil and crim-
vices, county mental health agencies, the city inal actions to pursue unlawful business prac-
attorney’s oYce, the public guardian’s oYce, tices and to obtain orders prohibiting the
and community public health agencies. The disposition, waste, or encumbering of assets.
group discusses cases and determines who has
relevant information. While some information Agencies are also seeking court orders to pro-
is conWdential or privileged and therefore not hibit contact between the victim and suspect.
subject to disclosure, knowledge that infor- Once charges are Wled, prosecutors often request
mation exists allows for its subsequent discov- criminal court no-contact orders. Violation of
ery pursuant to subpoena or other court order. these orders constitutes a separate crime. In
The task force also evaluates the victim’s needs some jurisdictions such as California, oYcers
and in appropriate cases determines which can also obtain emergency protective orders
agency or agencies will assist the victim (Wolf ordering the suspect to vacate the residence and
and Pillemer, 1994). refrain from any contact if there has been vio-
lence or the credible threat of violence.
Other cooperative models include Wduciary
abuse specialist teams (fast), which are now PROMISING PRACTICES:
operating in California. The teams are com- COURT PROCEDURES
posed of representatives from law enforcement,
adult protective services, the long-term-care Court procedures are also changing. Many
ombudsman program, the oYce of the public states accord early trial-setting dates to cases
guardian, the district attorney, the city attorney, involving older people—within thirty days after
private conservators, health and mental health arraignment. In contrast, cases not subject to
providers, and volunteers who are experts in this preference must be commenced within sixty
the areas of banking, real estate, insurance, mort- days after arraignment. Additionally, many states
gages, tax, and estate planning. The experts pro- permit the use of special procedures to obtain
vide information, case consultation, and advice and retain for later use the testimony of an
on transactions that are part of Wnancial abuse elderly or vulnerable adult (Frauens, 1999). In
cases under review. These teams have been such cases, the examination of the victim (or
invaluable in identifying and building criminal witness) is conducted by the prosecution and
cases (Nerenberg, 1996). the defense in the presence of the judge who
rules on all evidentiary matters. The testimony
With increased expertise in Wnancial abuses, is under oath and transcribed by a court reporter.
agencies are developing new strategies to pre- Testimony is often videotaped. The proceed-
serve and freeze assets to prevent additional ings can be conducted wherever the victim is
losses (Nerenberg, 1996). For example, in Cal-

56 Summer 2000 ©2003 The American Society on Aging

Volume XXIV, Number 2. Pages 52-58 Abuse and Neglect of Older People

best accommodated—a hospital, private resi- in the case and work cooperatively with law 57
dence, or nursing home. Then, if the victim or enforcement and community partners. Advo-
witness is unavailable at trial, the record of this cates with victim witness assistance programs
examination is oVered in place of the live court must work with the victim from the earliest pos-
testimony. Other states have similar provisions sible moment to provide the person with accu-
for obtaining testimony. rate and consistent information about the
criminal justice process and to coordinate the
Some states have relaxed the rules of hearsay delivery of services with aging services organi-
for the statement of an elderly person. Illinois, zations. When victims want or need assistance,
California, and Delaware permit the introduc- adult protective services agencies and other aging
tion of the hearsay statement of an elderly or services must be included.
vulnerable victim in lieu of their live testimony
(U.S. Department of Justice, 1998a). Elder abuse has been called the crime of the
nineties. As criminal justice professionals have
PROMISING PRACTICES: become more familiar with it, many have real-
THE ROLE OF THE VICTIM ized that traditional investigative and prosecu-
tion responses are inadequate. New approaches,
Finally, criminal justice agencies are chang- laws, and rules of court have evolved that make
ing their approach to case building by rethink- the goals of victim and public safety, making
ing the role of the victim in case presentation. It the victim whole, and oVender accountability
is unrealistic to expect older and vulnerable vic- more attainable.
tims to provide testimony in many cases.
Reliance on the victim’s participation means that Candace J. Heisler, J.D., is an attorney in San
many criminal acts go unprosecuted and encour- Francisco, Calif.
ages the defense to delay cases until the victim
dies or becomes so disabled or distraught that he REFERENCES
or she cannot testify. Instead, drawing on mod-
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participation at all or which reduce reliance on
the victim as the primary witness. Florida Department of Elder AVairs and West Cen-
tral Florida Area Agency on Aging. 1999. A First Respon-
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lowing: that law enforcement oYcials carefully Persons and Disabled Adults, 3rd ed.
document all crime scenes, obtain transcripts of
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58 Summer 2000 ©2003 The American Society on Aging