Individuals above 65 years of age are considered elderly and vulnerable members of society. Penal Code 368 defines and sets out punishments for any action that inflicts emotional or mental distress, physical harm, or is aimed at exploiting an elderly individual financially. Through the DA’s office, the state will seek a conviction under PC 368 should you be accused of elderly abuse. This move does not stop the elderly individual or his/her family from seeking civil liability, a proceeding separate from criminal prosecution.
Criminal charges for elder abuse could result in misdemeanor or felony consequences. Both outcomes can significantly impact your social-economic life. Should you face elder abuse charges, contact an experienced attorney immediately. At the Michele Ferroni Pasadena Criminal Attorney Law Firm, we are ready to offer assistance. Contact our Pasadena team today if you face prosecution for a PC 368 violation.
Understanding Elder Abuse
One commits elder abuse when you subject an individual above 65 years of age to emotional, physical, mental, or sexual mistreatment accomplished through abandoning or neglecting the senior or exploiting him/her for financial gain. These actions constitute a crime under PC 368 and a civil violation of the Welfare and Institutions Code 15610.
Note: Self-neglect also amounts to abuse. It occurs when an elderly individual fails to execute essential self-care activities. However, Adult Protective Services (APS) takes charge and deals with the issue in this situation instead of the DA’s office.
Elder abuse occurs both in homes and within nursing homes.
Family members are the likely culprits of elder abuse in the home setup. The elders could be isolated from the rest of the world and denied access to adequate healthcare. Further, family members could misappropriate the elder's funds.
As for nursing homes, most elder abuse cases list nurses and caregivers as the perpetrators of the offense. The residents could be subjected to emotional and mental distress, denied access to proper care, and sexual abuse.
The abovementioned adverse experiences suffered by elders form the types of elder abuses that are the basis of the charges you face under PC 368 and civil action under the Welfare and Institutions Code 15610.
Types of Elder Abuse
While elder abuse takes various forms, it is generally accepted that the following are the primary forms of abuse individuals above 65 years suffer.
Physical abuse is defined as exerting force on an individual that results in injury, impairment, or physical pain to the victim. Activities including hitting, slapping, beating, pushing, pinching, shaking, burning, kicking, or striking the elderly individual are forms of physical abuse. They are enough to convince the DA to pursue charges under PC 368. Further, making contact, however slight, in a menacing manner is enough to warrant criminal proceedings.
Sexual abuse is best defined as non-consensual sexual contact. Consent is pivotal. Therefore, if the elder is also incapable of giving consent because they are mentally incapable of understanding the action or confused, you could face prosecution for elder abuse.
Common forms of sexual abuse considered include:
Forced participation in sexually explicit photography — Additionally, taking sexually explicit photos of elders without their knowledge is also a PC 368 violation.
Other forms of sexual assault.
Emotional or Psychological Abuse
Any activity that results in mental anguish or pain amounts to emotional or psychological abuse. Emotional or psychological abuse includes both verbal and non-verbal forms. Insults, threats, humiliation, intimidation, harassment, or treating the seniors as children amount to verbal abuse. On the other hand, non-verbal forms include abandoning, isolating the senior, or giving him/her a silent treatment.
Neglect is the failure by a caregiver to fulfill his/her duty to provide the senior with proper care.
Neglect is both active and passive. Active neglect occurs when the caregiver withholds care. On the other hand, you passively neglect an elder’s care when you cannot fulfill your obligations because you are stressed or lack the resources to care for the senior.
Financial exploitation is also referred to as elder financial abuse or senior fraud. Under this, the prosecution considers embezzlement, misappropriation, or theft of the elder’s finances and assets.
Who Prosecutes Elder Abuse Offenses
The elders are considered a vulnerable group in our society. Thus, several agencies protect the rights and welfare of seniors. The DA’s office has special units that specifically handle elder abuse cases.
Prosecution of elder abuse cases starts from the reporting stage. An incident of elder abuse will be reported to the law enforcement officers. The offices then forward the report to the DA’s office, where they decide whether to reject the case, instruct detectives to investigate the matter further, or file charges.
If satisfied they have a case against you, the DA will charge you with a PC 368 violation.
Elements Prosecutors Must Prove in an Elder Abuse Case
You will only be found guilty of elder abuse if the prosecution proves the following elements beyond a reasonable doubt.
Misdemeanor Violation of PC 368
Prosecutors must prove:
You willfully or with criminal negligence subjected a senior to unjustifiable mental suffering or physical pain — Criminal negligence points to unreasonable actions and reflects a disregard for human life. Criminal negligence goes beyond ordinary negligence
You owed the senior a duty of care.
Your actions could have endangered the senior’s life or health
You knew or should have reasonably known that the victim was or older than 65 years
Felony Violation of PC 368
If you face felony violation charges, prosecutors must prove the following.
You willfully or with criminal negligence subjected a senior to unjustifiable mental or physical pain.
You owed the elderly individual a legal duty of care
Your actions could have likely resulted in great bodily harm or death of the elderly individual — Great bodily harm refers to significant physical injuries
You knew or should have reasonably known that the victim was or older than 65 years
Defenses Applicable in an Elder Abuse Case
There are several defenses your attorney can use to challenge the elder abuse case. Here is a look at some of the more common strategies.
Lack of Willful Intent
You must have acted deliberately or willfully to be found guilty of a PC 368 violation. If your actions were not deliberate, your attorney would use this strategy in your defense. For example, the elderly individual’s suffering resulted from an accidental act.
You Were Falsely Accused
Failure to report any suspected elder abuse could result in misdemeanor charges. While the intention is to report any harm inflicted on the elderly as another way of ensuring the elderly receive proper care, some health care providers, social workers, nursing home residents, and visitors have falsely accused defendants of elder abuse in the past.
Most false accusations are based on:
A wrong interpretation of the situation
Comments made by a depressed elderly individual whose depression is not caused by the care he/she receives at home or the care facility
Cryptic messages from the senior which the accusing party interprets as a cry for help
Reports by fellow caregivers as an act of revenge or aiming at communicating their displeasure, rage, or unwillingness to work with you
Trust that the Michele Ferroni Pasadena Criminal Attorney Law Firm will investigate the allegations to establish the true position. If you are falsely accused, we will use this strategy in your defense.
Prosecutors should present evidence of the victim’s mental, emotional, or physical suffering for you to be found guilty. Alternatively, prosecutors need to demonstrate that your actions significantly increased the risk of suffering a great bodily injury to the elderly individual. Failure to which your attorney will challenge the allegations using the no abuse defense strategy. Your attorney will argue that the alleged victim suffered no harm or abuse.
Lack of Evidence
Prosecutors must establish a clear link between your actions and the senior’s injuries or psychological distress. Alternatively, prosecutors must prove that your actions put the senior at significant risk of suffering great bodily injury. It is not enough that the elderly individual suffered an injury and that you were the caregiver.
Failure by the prosecution to prove this link is an opportunity for your attorney to challenge the allegations using this strategy.
Penalties For Elder Abuse in California
Convictions under PC 368 either result in misdemeanor or felony penalties. The DA decides which charges to introduce.
Note: The DA could pursue felony charges if you have prior convictions.
Misdemeanor violations are punishable by:
A jail sentence of up to one year — Alternatively, the judge could issue probation terms instead of time behind bars.
A fine not exceeding $6,000 and/or
Restitution to the victim
Attendance of a court-mandated approved program
Felony offenses, on the other hand, are punishable by:
A prison sentence of up to four years. Similar to misdemeanor violations, a judge could issue probation terms as an alternative to time behind bars
A fine of up to $10,000 and/or
Restitution paid to the victims
Attendance of a court-mandated approved program
If the victim suffered great bodily injury, three to seven years would be added to your prison sentence to be served consecutively.
Impact of a Conviction on Immigration Status and Gun Rights
Immigrants form a significant number of caregivers in the US. Therefore, it is understandable for a defendant to worry about his/her immigration status if accused of elder abuse.
A violation of PC 368 could result in adverse immigration consequences. Elder abuse is a crime involving moral turpitude (CIMT). Elder abuse is featured in the CIMT list because it is vile and depraved conduct that a reasonable individual would not engage in.
Non-citizens accused of elder abuse will have their immigration status revoked. You will then be deported to your country of origin and denied re-entry to the US.
Further, California law prohibits felons from owning or possessing a gun. You will be required to surrender your firearm to the police after your conviction. After serving your sentence, you will not be allowed to possess or own a gun. If found with one, you could face firearm violation charges.
Expungement of Your Elder Abuse Conviction
Can you have your elder abuse conviction expunged?
Yes, you can.
An expungement eliminates the restrictions and obstacles convicts face when looking for jobs, credit facilities, or housing. Your potential employers and any other individual who runs a criminal background check will not see your criminal record once expunged. Additionally, you do not have to disclose your conviction or that it was expunged in the following circumstances:
Should you run for public office
When applying for a professional license or a position as a government employee
When applying for a contract or license with the State Lottery Commission
While expungement prevents anyone who runs a background check from seeing your conviction, it remains a crucial factor in subsequent trials. The DA will use the elder abuse conviction to seek additional penalties in your subsequent criminal charges.
According to PC 1203.4, you can have your conviction expunged provided that you did not serve time in prison for the offense. If you were convicted on misdemeanor charges, you qualify for expungement. Further, if you were convicted on felony charges but served a probation sentence instead of prison time, you are eligible to have your record expunged.
Facing criminal prosecution does not prevent the victim of elder abuse or their loved ones from pursuing civil action against you. In the criminal proceedings, the state seeks criminal punishment for your acts through the DA's office. However, in civil actions, the victim or his/her loved one seeks compensation for the injury or anguish your actions occasioned. The plaintiff files the lawsuit under California Welfare and Institutions Code 15600.
California Welfare and Institutions Code 15600 allows for the victim of elder abuse to sue the liable party in pursuit of compensatory and punitive damages. Under the law:
Individuals who are 65 years and over and
A dependent adult aged between 18 and 65 years old can sue if abused.
Dependent adults are individuals with physical or mental limitations that restrict their ability to perform everyday duties.
Civil claims in elder abuse situations are only successful if plaintiffs prove that:
You owed a duty of care to them,
The plaintiff was either 65 years old or older or is a dependent adult
You failed to exercise due care, and the plaintiff suffered an injury, anguish, or financial loss.
It bears emphasizing that criminal proceedings and civil action are independent of each other. Therefore, any results of either do not have a bearing on the other.
Offenses Related to Elder Abuse
Some of the crimes related to PC 368 violations include:
Battery — PC 242
Rape — PC 261, and
Criminal threats — PC 422
Under PC 242, it is an offense to touch another offensively or inflict unlawful force or violence on another individual. If you are a caretaker and you slap, hit, choke or punch an elder, you could be charged with elder abuse and battery.
Note: You can be charged with a PC 242 violation even if the victim did not suffer pain or injury. All that is required is that you offensively touch the senior.
The DA must prove the following.
You willfully touched the senior — Slight touch or touching the elderly individual directly or indirectly using an object or through his/her clothing is enough to result in battery charges.
Your touch was offensive — Offensive touching includes violent, rude, angry, or disrespectful touching.
Simple battery, a PC 242 violation, is a misdemeanor offense punishable by a six-month-long jail sentence or summary probation instead of time in jail. Additionally, you will part with fines of up to $2,000.
It is a crime to use threats, force, or fraud to have non-consensual sexual intercourse with another. Rape cases are prevalent in nursing homes. Most victims either lack the mental capacity to give consent or are too scared to resist.
Prosecutors will introduce the victim’s account, a witness account supported by wounds or bruising around the genital area, among other considerations.
Prosecutors will have to prove that:
You committed an act of sexual intercourse with the senior
The victim did not consent to the sexual act
You were not married to the victim at the time of the offense
You accomplished the offense through force, coercion, violence, fraud, retribution, or the threat of inflicting bodily harm.
Rape is a serious allegation and one that should not be taken lightly. The offense is a felony, and the penalties are severe. If convicted, you could:
Spend up to eight years in prison or serve formal probation
Face an additional three to five years in prison if the victim suffered great bodily injury
Be required to register as a lifelong sex offender
Caregivers issue threats to seniors they are tasked with caring for. These threats are issued out of frustration because of the mistreatment by elderly individuals.
PC 422 makes it an offense to instill fear of physical violence, death, or to carry out a threat against an individual. You will only be found guilty if the prosecution proves the following elements of the crime.
You willfully threatened to inflict great bodily harm or kill the elderly individual illegally.
You issued the threats orally, in writing, or through an electronic communication device.
You intended for your statements to be understood as a threat and to be communicated to the alleged victim.
The threat was immediate, clear, unconditional, and particular that it communicated a serious intention to carry out the threat.
The threat caused the victim to fear for his/her life or safety and/or that of his/her family
The fear was reasonable given the circumstances.
Note: Both conditional and empty threats qualify as criminal threats.
Conditional threats are formulated as a condition. The victim risks suffering injury or harm if he/she does not honor a condition you set.
For example, Peter, a caregiver, threatens James, a resident in the nursing home, with a slap should James fail to finish his food. In this situation, Peter conveyed his intention to slap James which is enough to result in PC 422 violation charges.
Empty threats are conveyed without the intention to carry them out. They serve to scare the victim rather than inflict harm or injury to the victim. Whether you intended to actualize the threat is irrelevant in empty threats. Of importance is whether you conveyed the threat in a manner the recipient reasonably believes you intended to actualize the threat.
PC 422 violations are wobblers; you can be either charged with a misdemeanor or a felony violation. The DA also considers your criminal past to inform him/her decided to pursue misdemeanor or felony charges.
If convicted of a misdemeanor violation, you could spend up to one year in jail and pay a fine of up to $1,000. You will spend time in prison if convicted on felony charges. You could spend up to three years in prison and part with a fine not exceeding $10,000. Further, if you use a dangerous weapon to communicate the threat, the judge will add one more year to your prison sentence to be served consecutively.
You risk facing penalties for each threat if you made it on more than one occasion, threatened multiple individuals, or aimed for different objectives.
Contact a Criminal Defense Attorney Near Me
The elderly in our community are vulnerable and deserve the best care and attention. That is why elder abuse allegations are serious. Prosecutors jump at the earliest opportunity to secure a conviction. Thus, you need legal representation capable of challenging the PC 368 violation charges and securing you the best legal outcome.
The Michele Ferroni Pasadena Criminal Attorney Law Firm is ready to help. If you or a loved one is accused of elder abuse in Pasadena, turn to our team. Give us a call today at 626-628-0564 for a free case assessment.