Elder abuse is subjecting a person 65 years or older to emotional sexual or physical maltreatment. Financial exploitation and neglect are also considered a form of abuse to these individuals. Elder abuse laws aim at protecting senior citizens from abuse of any kind. However, sometimes you may be falsely accused and convicted for this offense. If you or your loved one is facing elder abuse charges, it is critical to seek legal representation from a criminal defense attorney. Our attorneys from the California Criminal Lawyer Group will competently handle your case in any court within San Jose, CA. We skillfully defend you to help you possibly avoid the harsh penalties associated with a conviction for elder abuse.
Overview of Elder Abuse in California
Under California Penal Code 368, you will get charged with elder abuse for inflicting physical, emotional, or sexual pain on an elder. Also, neglecting an individual who is 65 years old or above and committing financial fraud against them is prosecuted under elder abuse laws. You are likely to be charged for elder abuse if you are a caregiver of the elders in a nursing home. Also, if you are a relative responsible for taking care of the senior citizen.
Older people do not always report abuse since they may be embarrassed about the situation. Some are not even aware that what they are going through is abuse. The general signs that are considered when charging you with elder abuse include:
- Untreated and worsening medical conditions
- Lack of necessities including food and clothing
- Insect infestations and elder living in unsanitary conditions
- Unexplained physical injuries
- Signs of medical mismanagement
- Dehydration and malnutrition.
- Depression and withdrawal
To get convicted for elder abuse, the prosecutor has to prove the following elements of crime without a reasonable doubt:
- You willfully, deliberately or with criminal negligence caused injuries to the elder. Under California law, criminal negligence is not just a matter of mistake in judgment or carelessness. You are considered negligent for ignoring the obvious risks that your actions pose to other people. To get convicted under Penal Code 368, the prosecutor must show that you acted in a way that a reasonable person wouldn’t. As a result of these actions, the senior citizen suffered from unjustifiable mental or physical pain. Elder abuse law is complicated; that’s why it is critical to have legal guidance at your side when battling these charges.
- You were aware that the circumstances of your conduct were likely to cause harm or injury to the individual. It is essential to understand that even when the individual did not suffer significant bodily injury, you can get charged with elder abuse for putting the victim in danger.
- You were aware or had a reason to know that the individual you abused was over 65 years. Elder abuse is charged to individuals who cause harm to a person over 65 years. If your victim were below this age limit, you would get charged with other offenses other than elder abuse.
Types of Elder Abuse
Elder abuse can occur in different ways, including:
Physical abuse of an elder commonly known as elder maltreatment is any action that inflicts bodily injury of a senior citizen. Most elder physical abuse is perpetrated by primary caregivers, doctors, or even relatives. The following are some actions that may cause you to be charged with physical abuse of an elder:
- Scratches that cause injury and pain to the victim.
- Threatening the elder with weapons or firearms
- Inappropriate and unnecessary restraining of an elder under your custody
- Pushing, striking, or slapping the victim. This is seen in bruises broken bones and dislocated joints
- Causing burns. This is evident unexplainable scald marks and burns sores
However, these signs could as a result of a medical condition or any other factor besides physical abuse. If you are facing elder abuse charges, consult a criminal defense attorney to help you navigate the case.
Emotional and Mental Abuse of an Elder
Any action that inflicts psychological or emotional pain to an elder is prosecuted under Penal Code 368 of California. Emotional abuse could be caused by acts such as throwing insults at the elder or lowering their self-esteem. Also, constant maltreatment of an elder can cause mental and psychological problems. If an elder under your care manifests any of the following signs, you could get charged with psychological elder abuse:
- Unexplainable change in behavior
- Mumbling to themselves and looking disturbed
- Having trouble falling asleep
- Withdrawal and always looking frightened
- Depression and lack of interest in things they loved to do
Elder neglect occurs when a caregiver fails to meet the needs of an older adult who cannot take care of themselves. Sometimes you can get charged for elder abuse by neglect for withholding food, medication, or even leaving them in harm's way. If an elder is under your care, you are expected to provide them with all the basic needs they need to go through life. Also, you can cause psychological neglect by leaving the senior citizen for long periods.
Older people do not always report neglect for fear of getting stereotyped by society. Others are mentally incapacitated and don’t realize the abuse. The prosecutor will use these signs to prove that the elder under your care has been suffering neglect
- Absence of necessities such as food water and proper housing and utilities
- Untreated or worsening medical or mental conditions
- Poor hygiene and parasite infestations
- Missing equipment like walkers or glasses
- Elder has shown signs of depression and attempts to their lives could be a sign of neglect
Sometimes you may not even notice you are acting in an abusive way towards the victim, but you may find yourself facing these charges.
You commit sexual abuse on an elder by forcing them to have intercourse or any other sexual contact. Also making the individual watch pornography or taking their clothes off in your presence is considered an act of sexual abuse. When you sexually abuse an elder who is under your care, you violate their trust and can cause them both physical and psychological trauma.
This type of abuse is common in nursing homes where most elders are isolated from the family. Also, some are mentally challenged or confused and may not be in a position to report the incident. Sexual abuse can manifest itself in both emotional and physical symptoms depending on the nature of the injury. Some of the common symptoms would be:
- Torn or bloody inner-wear
- Unexplained incidences of sexually transmitted infections
- Bruises around the genitals and other private parts of the body
- Vaginal bleeding and difficulty in sitting or walking
- Withdrawal and depression
- Anxiety and excessive fear of a family member or caregiver
Elder sexual abuse is a severe offense under California criminal law. It is crucial to have legal representation when charged with this offense.
Under California Penal Code 368(d) financial elder abuse is theft or embezzlement of money and property from a senior citizen. In most instances, senior fraud is committed by close family members and caregivers. Sometimes the elders may be too embarrassed to report their family members or are too isolated to communicate to relevant authorities. Elder financial abuse can occur in any of the following ways:
- Telemarketing fraud. This is one of the most accessible forms of fraud committed against elders. You will get convicted for this offense if you solstice an elder to donate to a fake charity.
- Credit card insurance fraud. This occurs when you contact an elder with false credit card information intending to defraud them. This is considered an act of elder abuse.
- Real estate elder abuse. If you try to trap an older adult in a real estate loan that they cannot repay, you will be charged with financial elder abuse.
- Home repair fraud. Taking money from a senior for a home care service that you do not perform is senior fraud
- Offering false prizes. This occurs If you lie to a senior citizen that they have won money and ask them to wire some amount so they can get their reward.
- Use of fake documents. Most scammers will use fraudulent documents to acquire a power of attorney over property belonging to someone else
Some of the elements of the crime that a prosecutor should prove before convicting you for senior fraud are:
- You were involved in financial fraud, forgery or embezzlement
- The money or property involved belonged to an individual 65 years or older
- You were the elder’s caregiver, and you had a reason to know that the person you defrauded was an elder.
If the prosecutor cannot prove each of the above elements without a reasonable doubt, you cannot get convicted for this offense. Financial elder abuse may result in both criminal and civil consequences. It is therefore essential to have legal representation by your side. A conviction for elder financial abuse is charged the same as theft. The severity of the penalties will depend on the value of property or money you took from the elder.
Penalties for Violating California Penal Code 368
Elder abuse is a wobbler which can be charged as a felony or a misdemeanor. This decision will be made about the specific facts of your case and your criminal history. If you are charged with a felony elder abuse, you will face one or all of the following punishments:
- A prison sentence of up to four years. If the violation resulted in significant bodily injury or death, you would get up to 7 years of additional sentence.
- Fines not exceeding $10,000
- Formal probation where you get supervision from your probation officer.
- You will be required to compensate the victim for the injuries you caused,
When the damages you caused were not severe, your offense will be charged as a misdemeanor. A misdemeanor carries penalties, including:
- Informal probation
- Jail sentence of up to one year in a county jail
- Informal probation
- Fines of up to $6,000 for a first offense and $10,000 for a subsequent misdemeanor elder abuse
- You may also be required to attend counseling sessions
Legal Defense Against Elder Abuse Charges
You can get charged and convicted for elder abuse even when you haven’t committed the offense. Elders suffer from many conditions whose symptoms are similar to those of neglect or physical abuse. Also, the accusers may lie about you for other personal reasons. Doctors, social workers, and the police cannot distinguish the signs of elder abuse. Thus you can find yourself facing false elder abuse charges. Fortunately, getting charged der Penal Code 368 of California does not always mean you will get convicted. With the help of your criminal defense attorney, you can preset the following defenses for your criminal case:
Lack of Criminal Intent
It should be clear that you had the intention to harm the victim in one way or another, to get convicted under California Penal Code 368. When the victim was not under your care, it may be difficult for the prosecutor to prove that you acted willfully. If you caused injury to the individual, but not intentionally, you may have a chance to argue your chance using this defense.
Lack of Sufficient Evidence
To get convicted for Elder abuse, the prosecutor must prove without a reasonable doubt that willingly caused physical, emotional, or mental pain to the elder. There should not be an alternative reason to explain the elder’s injury other than your actions. If the prosecutor has no evidence to support their allegations against you, you cannot get convicted for this offense. Your defense attorney can argue that there is reasonable doubt about your guilt.
Also, you can call in experts to testify that the alleged signs of abuse on the elder are more likely to e of a medical condition or just the age. If you are facing elder neglect charges, you can produce evidence to show how much you have cared for them. By giving receipt from doctor visits, you can prove that you have done nothing short of ensuring the welfare of the individual. Even when the allegations against you are correct, you can try using this defense to seek some empathy from the judge.
Mistaken identification is one of the leading causes of wrongful convictions. Especially if you are the elder’s primary caregiver, you may be wrongly identified as the perpetrator of the abuse against the elder. As a caregiver to the senior citizen, you are expected to ensure that no harm befalls them. Therefore, the elder may get abused by someone else, but you end up getting charged for that offense.
Claiming that the injury was an Accident
The prosecutor cannot convict you for elder abuse if your general conduct does not portray any level of criminal negligence. Individuals who are over the age of 65 years are quite fragile and can get hurt at the slightest impact. Under California law, if you caused injury to an elder through an accident or a misfortune you cannot get convicted under penal code 368 of California
You Acted in Self-defense or Defense for Other Individuals
Most senior citizens may be short-tempered and may act violently or aggressively to their caregivers. If you caused injury to an elder in an attempt to defend yourself or another person, you could not be held criminally liable for elder abuse. To use this defense in your criminal case, you must have had a reason to believe that you or another person were in danger. For this defense to be effective, you must have used only the necessary force against the senior.
The victim was not 65 years or Older
To be convicted under California Penal Code section 368, you must have caused injury or neglect to a person over the age of 65 years. If the victim was under the age of 65, you will not get convicted under elder abuse laws. Also, you must have known the victim’s age while committing the offense against them. Lack of knowledge of the victim’s age can also be used as a defense. However, you may still get convicted for other crimes such as rape or battery.
Offenses Charged Alongside Elder Abuse
Depending on the circumstances and nature of the offense you committed, there are a variety of other crimes that may be charged instead of or alongside elder abuse. The following are some offenses that are frequently committed in connection with elder abuse:
Under California Penal Code 261, it is considered an act of rape if you engage in non-consensual sex with someone else. If you participate in such an act with an elder either by using threats, fraud, or force, you will face both elder use and rape charges. You will be charged with rape alongside elder abuse when you are caught having sex with a senior citizen who is unable to give sexual consent. This may still be the case if you engage in sexual activity with an elder who depends on others or is too weak to defend themselves.
Under California law, rape is charged as a felony. A conviction for rape carries a sentence of up to 8 years in state prison. This sentence will be an addition to the penalties you get from elder abuse charges.
Willful and unlawful use of force to hurt someone else is an offense under Penal Code 242 of California. Prosecutors can charge you with both battery and elder abuse if you used the power to attack them and cause physical injury. The battery is a wobbler which carries a sentence of up to 6 months in a county jail for a misdemeanor. However, a battery that causes significant bodily injury is charged as a felony, which could cost you four years in state prison.
California Penal Code 422 – Criminal Threats
You will be prosecuted under California Penal Code 422 besides elder abuse if:
- You threaten to inflict injury or harm to a senior citizen
- As a result, you put the elder in fear
- You fulfill your threats ad cause physical harm on the elder
In addition to the penalties you get for elder abuse, a criminal threat charge may lead to one year of jail time.
If the injuries you inflicted on the elder caused death, you will face both elder abuse and murder charges. Murder will accompany elder abuse if your actions were intentional. Also, you may get charged with involuntary manslaughter if the elder’s death was as a result of negligence rather than malice afterthought.
California Penal Code 401 – Aiding a Suicide
Elderly individuals, especially those in nursing homes, have suicidal thoughts. This is because most of them suffer terminal illnesses and feel like their families have neglected them. If you help the individual to commit suicide or encourage them in any way, you will be guilty under Penal Code 401.
Aiding a suicide is a felony punishable by a potential prison sentence not exceeding three years. When an elder commits suicide, the relatives may end up blaming the caregiver for aiding the act. If you are facing these charges, it is crucial to seek legal representation from a competent criminal defense attorney.
Find a San Jose Criminal Attorney Near Me
Elder abuse laws are complex, and they seek to prosecute individuals who cause harm to persons over the age of 65 years. A conviction for elder abuse attracts severe penalties, which may include jail sentence and hefty fines. However, facing these charges does not always mean you will get convicted. With the help of a competent criminal defense attorney, you can bring forth defenses that may help lessen the charges against you. Fortunately, attorneys from the California Criminal Lawyer Group are ready to help you by offering consultation and representation services for your case. Call us today at 408-777-6630 from any location within San Jose, CA, and we will help you contest the criminal charges you are facing.