California Penal Code 368 covers the crime of elder abuse, which is alternatively known as senior abuse. Someone qualifies as “elderly” or “senior” under this penal code if they are 65 years of age or older. As the name indicates, this crime occurs when an individual has knowledge that a person is 65 or older and willfully causes or permits that elderly person to suffer, or inflicts unjustifiable physical pain or mental suffering on the elderly individual. California Penal Code § 368 also covers situations where an individual willfully causes or permits an elderly individual to be put into a situation in which the elderly individual’s health is endangered.
Elder abuse is also a crime that is covered under civil law (namely Welfare & Institutions Code 15610), but for our purposes here, we will focus on the criminal element of the offense. Covered under California Penal Code § 368 is a wide variety of potential offenses, as elder abuse is a broad enough and vague enough term to encompass a myriad of actions.
The most common forms of elder abuse are also the same types of abuse commonly found afflicting those under 65 years of age as well, namely:
In addition to the age requirement, there is also a dependency clause written into the penal code. California Penal Code 368(a) states:
The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.
This inclusion of “dependent adults” widens the category of protection out from those just 65 and older to include anyone between the ages of 18 and 64 who is dependent in some way due to a mental or physical impairment or mental incompetence. These impairments or incompetencies are responsible for restricting the individual’s ability to carry out their normal daily activities or protect their rights in some way.
Elder abuse can be charged as either a misdemeanor or a felony offense. If charged as a felony, as noted in California’s Criminal Jury Instructions, the prosecutor must prove three different elements in order to convict an individual of the crime:
If the elder abuse is charged as a misdemeanor offense, the elements remain largely the same, but there are some differences. The elements that a prosecutor must prove for a misdemeanor charge of elder abuse include:
As can be seen, the elements are substantially the same, however the third element is slightly altered. Instead of requiring a likelihood that the individual’s actions would result in great bodily injury or death, the element is only that the conduct in question may result in an endangerment of the life or health of the elderly or dependent person. This change in language to endangerment as opposed to result and the change from likely to may shows that for a misdemeanor, there is the allowance for more uncertainty.
As noted above, elder abuse can be treated as either a misdemeanor or a felony in California. This is what is known as a “wobbler” offense, and therefore carries with it two different sets of potential punishments.
For a misdemeanor charge of elder abuse, an individual will be facing a combination of the following: summary probation, a county jail sentence of up to one year, a fine of up to $6,000, payments of any applicable restitution to the alleged victim, and potential ordered counseling to address any underlying issues related to the abuse.
For a felony charge of elder abuse, the penalties increase. The formerly summary probation (otherwise known as informal probation) transforms into formal probation requiring checking in with a probation officer. The prison sentence changes venues from county jail to California State Prison, and increases in duration from between two to four years at the very least. This can increase from here, including an additional three to seven years added on for offenses involving a victim who was made to endure great bodily injury or death. In these same circumstances, the individual would also potentially receive a “strike” under California’s “Three Strikes Law”. The potential fines also increase from up to $6,000 for a misdemeanor to up to $10,000. Restitution and counseling remain as potential penalties under the felony charge.
Given the type of potential victim’s inherently involved in elder abuse charges, there is a higher likelihood of evidence being mistaken for signs of abuse. As those in the elderly community can often find themselves suffering from medical conditions that can result in bruises or other types of physical damage, coupled with the fact that people in this community can also often be suffering from diminution in mental capacities, the field of elder abuse is ripe for false or inaccurate claims being levied against individuals. Either through mistake or false positive diagnoses of abuse given physical symptoms, people can find themselves wrongly accused of this crime. As such, there are a few legal defenses that can aid an individual if they find themselves in such a predicament.
The best defense involves the element of willfulness inherent in the crime of elder abuse. If there is a lack of willfulness, for example if the resulting abuse or injury came about through an accident, then this can be an effective defense to a charge of elder abuse. Without the requisite intention, an individual should not be found guilty of this crime.
Another good defense involves mistaken identity. Again, because people who are elderly or dependent can often be suffering from diminished mental capacities, there is a higher possibility that a mistake in identity or even a mistake as to what occurred could have a part to play. Coupled with this is the defense related to false accusations. Often, the family surrounding an elderly person finds themselves at odds with each other about myriad issues, from how best to care for the individual to how to divide up the individual’s assets. As such, cracks in familial relations can be the catalyst for false accusations of abuse. As such, awareness of such issues before they arise can help prepare an individual to properly defend themselves if faced with such an accusation.
Regardless of the scenario, PC 368, Elder Abuse is a serious charge. To ensure the best possible outcome for your case, it is important to discuss your situation with an effective Criminal Defense Attorney.
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