Elder abuse is an epidemic of silence that is ravaging the most vulnerable segment of California. It is shocking to note that Adult Protective Services has received more than 15,000 reports of elder and dependent adult abuse each month, and many more cases are not reported. This is not only physical abuse. It involves neglect, emotional abuse, and financial abuse, and older people are left without their dignity, their savings, and their peace of mind. The drastic effect on the victims, who are usually alone and frightened, requires prompt and firm legal action.
When you or someone you love is being accused of elder abuse, or you suspect that the rights of an elder are being impaired, it may be overwhelming to find your way around the complicated legal environment of California. At CCLG: Los Angeles Criminal Attorney, we are committed to representing you and protecting your rights. Call our criminal defense lawyers now and schedule a free consultation.
Understanding Elder Abuse As Outlined Under Penal Code 368
Penal Code 368 is the enabling law that criminalizes neglect, abuse, or endangerment of any individual 65 years of age or older in California. This law aims to safeguard a vulnerable population group, including a broad spectrum of malicious behaviors. In particular, PC 368 deals with:
- Physical abuse, including assault or battery
- Emotional abuse, which may include psychological torture or isolation
- Financial abuse, including theft, fraud, or exploitation of the assets of the elderly
The sweeping nature of the statute guarantees that several different types of abuse of the elderly are actionable in courts, reflecting the effort made by the state to protect its elderly population.
Another important aspect of Penal Code 368 is that it is a wobbler offence. A ‘wobbler’ is a crime that may be charged either as a misdemeanor or a felony at the prosecutor’s discretion, depending on the case specifics to file the crime as a misdemeanor or as a felony, depending on the details of the case. There are a few main factors that have a strong impact on this decision.
Of primary importance is the degree of the supposed injury caused to the elder; those cases where serious bodily injury, severe emotional distress or substantial monetary loss was involved are much more likely to be prosecuted as felonies. Also, the criminal history of the defendant is a factor, as those with a previous conviction, particularly one that involves violence or a prior case of elder abuse, are more likely to be charged with a felony.
Furthermore, the facts of the case, such as whether the abuse was isolated or a series of repeated mistreatment, the length of the abuse, and any extreme situations, will inform the decision of the prosecutor. A felony conviction under PC 368 is much more serious with possible state prison time, higher fines and a strike on the defendant’s record under the California Three Strikes statute.
Understanding Elder Abuse: Theories of Guilt
A defendant may be found guilty under Penal Code 368 based on two distinct legal theories that address different types of culpability.
Theory 1: Knowing Abuse or Endangerment
The initial theory focuses on someone who knowingly makes or allows an elderly person to endure. This means that the individual is guilty of an act or omission that led to the elder suffering unreasonable physical or mental anguish. For example, a direct attack on an elder or intentional deprivation of the required care would be classified as such since a perpetrator’s actions were deliberate. This is meant to do the act itself, not necessarily break the law.
Theory 2: Criminal Negligence Endangering an Elder
The second guilt theory is criminal negligence that puts an elder at risk. This criterion is different from mere carelessness or a mistake. Instead, criminal negligence is conduct that is reckless and puts the elder at high risk of dying or suffering significant bodily injury. It points to a blatant departure from the standard of care that a reasonable person would take under similar circumstances, and it reflects a lack of care for the possible repercussions to the well-being of the elderly.
A case in point may be a caregiver who, through gross inattention or negligence of safety measures, places a vulnerable elderly person in a dangerous position, which reasonably results in significant injury even without direct intent to harm. The distinguishing factor is that the recklessness is extreme, thus making it a crime rather than simple negligence.
Categories of Conduct That Result in a PC 368 Charge
Prosecutors may file Penal Code 368 charges following a variety of abusive actions against any person aged 65 or older. These forms of behavior exemplify the many forms elder abuse takes, and consist of both direct and indirect actions, in addition to inaction where there is a need to act. These distinctions are the most important to understand the scope of the elder abuse laws in California.
- Physical Abuse or Endangerment
Physical abuse under PC 368 entails the deliberate cause of physical suffering, injury, or unwarranted pain to an elder. This could include explicit violence, like hitting, slapping, or pushing, as well as less obvious forms of abuse, like unreasonable use of physical restraints.
In addition to direct harm, there may be a charge for creating a state of affairs highly likely to result in injury, showing endangerment. Leaving a weak elderly person who needs constant care around a dangerous staircase, or failing to tie a bedridden patient, resulting in a fall and injury, would be an example of physical endangerment as defined by this statute. It is not only the immediate infliction of harm that is of concern, but also the contribution of the perpetrator to the establishment of dangerous situations.
- Emotional Abuse
Although emotional abuse does not produce any physical signs, it causes profound mental pain and is a dangerous crime under PC 368. This category includes actions meant to instill fear, distress or humiliation. Examples include:
- Exposing an elder to constant fear of violence or desertion
- Extreme mockery, which can cause a loss of dignity
- A systematic social exclusion that includes not letting the elder communicate with his/her family or friends, or not letting them use communication gadgets.
These charges are based on the prolonged nature of this behavior that leads to a high degree of psychological distress. The prosecutors usually seek behavioral patterns that indicate a conscious effort to inflict mental distress.
- Criminal Neglect
Criminal neglect involves a failure of an individual with a legal duty of care to supply the required sustenance, medical care or safe environment to an elder, resulting in endangering or causing an elder to suffer. This behavior is unlike direct abuse because it is based on omission instead of a direct harmful action.
For example, a live-in daycare provider who repeatedly neglects to provide proper food and water, prescribed medication, or basic hygienic care, which leads to malnutrition, untreated disease, or bedsores, may have criminal negligence complaints. The main component is the obvious legal duty of care and a gross departure from that duty, which shows the reckless indifference to the welfare of the elderly.
- Financial Exploitation
Financial exploitation is the exploitation of the resources and assets of an elder, including embezzlement, theft, or fraud. This type of elder abuse is usually charged in specific subsections of PC 368, that is, PC 368(d) or (e).
PC 368(d) applies to those who are not caretakers and commit a financial crime against an elder. In contrast, PC 368(e) applies against caretakers who take advantage of their position of trust to obtain financial gain. This can be done by forging an elder’s signature on financial documents, using their credit cards without their consent or coercing them to alter their will or transfer property.
The cases often relate to complicated financial evidence, and are usually complex and require thorough financial analysis to determine misappropriation or fraud.
What The Prosecution Must Prove Against You
To convict you of elder abuse under California Penal Code 368, the prosecution faces an uphill task of establishing all the elements of the offense beyond a reasonable doubt. This high legal requirement helps ensure you are not denied freedom without overwhelming evidence of your guilt. All crime elements must be diligently proven to the satisfaction of the jury or the judge.
- Status of the Victim
The initial building block a prosecutor should establish is the victim’s age during the purported crime. In particular, the prosecution has to prove that the individual you supposedly abused was 65 years old or more. This is usually a simple factual finding, which birth certificates, identification papers, or a credible witness may establish.
Unless there is direct evidence of the victim being over this age limit, a PC 368 count against you cannot hold, no matter how serious the harm is committed or the result.
- Your Action or Inaction
In addition to the status of the victim, the prosecution must prove beyond any reasonable doubt that you committed a specific act of abuse or, on the other hand, you did not perform, as the law mandated you, a particular act, which led to the injury or endangerment of the elder. This includes providing evidence of the physical abuse, emotional torture, financial exploitation or neglect that was perpetrated.
For example, in the case of alleged physical abuse, prosecutors may present medical documentation, witness testimony, or photos of injuries. In a neglect situation, the prosecution would outline what you had neglected to do, like providing food, medication or a safe living environment and how this directly affected the elderly.
- Your Mental State (Mens Rea)
Your mental state, or mens rea, is often the most contested element in elder abuse cases and represents a significant battleground for your defence.The prosecution must prove that you acted with one of the following mental states: willfully, with criminal negligence, or with fraudulent intent (specifically for financial abuse).
Proving that you acted willfully means demonstrating that you acted with a purpose or willingness to commit the act, even if you did not intend to violate the law. Criminal negligence, a much higher bar than simple carelessness, requires proof that you acted with a reckless disregard for the elder’s safety, creating a high risk of death or significant bodily harm.
For financial exploitation, the prosecution must show that you acted with a fraudulent intent to deprive the elder of their property. This requires presenting evidence of your deceit, misrepresentation, or a scheme to acquire the elder’s assets unlawfully.
- Your Relationship or Duty of Care
A critical component, particularly in neglect cases, is establishing your relationship to the victim and your corresponding legal “duty of care.” A duty of care is not automatically assumed. The prosecution must prove its existence. This duty can arise through various means:
- A familial relationship where you assumed responsibility, for example, as an adult child caring for an ailing parent
- A contractual agreement like, as a paid caregiver or through a nursing home
- By law, for example, if you were a conservator
If the prosecution cannot demonstrate that you had a clear legal duty to care for the alleged victim, especially in alleged neglect, the charges against you may not hold. This element often becomes a crucial defense point, as proving the absence of such a duty can undermine the neglect prosecution.
- Causation
The prosecution must establish a clear causal link between your actions or inactions and the resulting harm suffered by the elder.This means proving that your conduct was a direct and substantial factor in causing the elder’s injury, suffering, or endangerment. The harm must not have occurred independently or been primarily caused by other unrelated factors.
For instance, if an elder falls and breaks a hip, the prosecution must show that the fall was a direct result of your neglect, like your failure to provide necessary walking aids or clear pathways, rather than an unforeseen accident or a pre-existing medical condition unrelated to your conduct. This element ensures that you are held accountable only for harms directly attributable to your proven abusive or negligent behavior.
The Penalties for a Conviction
A conviction for elder abuse under California Penal Code 368 carries significant and often life-altering penalties, varying based on whether the offense is charged as a misdemeanor or a felony. These consequences are designed to reflect the seriousness of harming a vulnerable senior.
Misdemeanor Penalties
If you are convicted of misdemeanor elder abuse, the penalties can include:
- Up to one year of incarceration in a county jail
- Fines of up to $6,000
A misdemeanor conviction typically results in summary (or informal) probation, which involves court-ordered conditions you must fulfil.
Furthermore, you will likely be mandated to attend counseling, often focusing on anger management or domestic violence prevention, to address the underlying issues contributing to the abuse.
These consequences, while less severe than felony penalties, substantially impact your freedom and financial well-being.
Felony Penalties
For a felony conviction of elder abuse, the consequences become far more severe. Depending on the specific circumstances and the court’s discretion, you could face:
- A state prison sentence of 2, 3, or 4 years
- Fines of up to $10,000
Unlike misdemeanor cases, felony convictions typically involve formal probation, where you are supervised by a probation officer and subject to stricter conditions.
A felony record will permanently impact your life, affecting employment, housing, and other opportunities.
Sentencing Enhancements
PC 368 penalties can increase significantly through sentencing enhancements. A judge can impose additional prison terms on your base sentence if certain aggravating factors are proven.
A significant enhancement is for “great bodily injury” (GBI). If your actions caused the elder to suffer GBI, an additional 3 to 7 years can be added to your prison sentence, depending on the victim’s age and the extent of the injury.
Even more severe is the “death” enhancement. If the elder dies as a direct result of the abuse, you could face an additional 5 to 11 years in state prison. These enhancements can transform an already serious sentence into a decades-long incarceration.
Collateral Consequences
Beyond direct incarceration and fines, a PC 368 conviction carries numerous collateral consequences that can profoundly affect your life.
- A felony conviction results in a permanent criminal record, significantly hindering future employment prospects and housing applications.
- If the conviction involves great bodily injury, it will constitute a “strike” under California’s Three Strikes Law, meaning any future felony conviction will carry a doubled sentence, and a third strike could lead to a life sentence.
- For professionals, especially those in healthcare or caregiving roles, a conviction almost certainly leads to losing professional licenses and ending their careers. Furthermore, a permanent restraining order will likely be issued, prohibiting you from having contact with the elder victim, severing familial ties indefinitely.
How to Fight Elder Abuse Charges
Facing elder abuse charges in California can be a daunting experience, but several robust legal defense strategies exist to challenge the prosecution’s case.Understanding these approaches is critical, as they offer avenues to fight the accusations and protect your rights.
- False Allegations or Ulterior Motive
A common and often powerful defense involves demonstrating that the accusations against you are false or motivated by an ulterior motive.
Sadly, disputes within families, particularly concerning inheritance, property, or contentious divorces, can sometimes lead to an elder being manipulated into making false claims. Similarly, disgruntled caregivers might fabricate abuse allegations out of revenge or to gain leverage in a separate dispute. Your defense will meticulously investigate the accuser’s credibility, examining inconsistencies in their statements, their history of disputes, and any potential financial or personal gain they stand to achieve from your conviction. Revealing a clear motive for false accusation can significantly undermine the prosecution’s case by casting doubt on the accuser’s reliability.
- Lack of Criminal Negligence or Intent
To secure a conviction, the prosecution must prove a specific mental state: willful action, criminal negligence, or fraudulent intent. Your attorney could argue that any harm was merely a tragic accident or the result of ordinary negligence, not a deliberate or reckless act. For example, if you provided care and an incident led to an injury, your attorney can demonstrate that you exercised reasonable care and that the outcome was an unforeseen, unfortunate event.
This defense challenges the prosecution’s ability to meet the high bar of proving criminal negligence (conduct so reckless it shows a disregard for human life) or the specific intent to cause harm or defraud. Proving that your actions were a simple mistake, rather than a willful or criminally negligent act, can be decisive.
- Other Factors Caused the Elder’s Injuries
Many elders, due to their age and existing health conditions, are susceptible to injuries that are not a result of abuse. This defense focuses on presenting expert evidence to demonstrate that the elder’s injuries stemmed from pre-existing medical conditions or other innocent causes. For example, medical records and testimony from geriatric specialists can show that bruises or fractures were:
- A consequence of fragile bones, like those from osteoporosis
- Side effects of necessary medications, like blood thinners, that increase bruising
Frequent, accidental falls are common in individuals with mobility issues or cognitive decline. This approach effectively breaks the chain of causation that the prosecution attempts to establish between your actions and the elder’s harm, arguing that the injuries would have occurred irrespective of your conduct.
- Consent (Primarily for Financial Abuse)
In cases of alleged financial exploitation, a critical defense is to prove that the elder was mentally competent and willingly consented to the financial transactions in question. This defense asserts that the money or property you received was a legitimate gift, fair payment for services rendered, for example, caregiving, household management, or a valid loan understood and agreed upon by the elder.
Your defense will gather evidence, including signed documents, bank records, witness testimony, or evidence of the elder’s cognitive capacity during the transaction to demonstrate that they understood and freely agreed to the arrangement. This challenges the prosecution’s claim of fraud or exploitation by showing a consensual transfer of assets.
- The Elder’s Own Conduct or Self-Neglect
Sometimes, an elder’s decline or injuries can be attributed to their own choices or self-neglect, despite efforts made by a caregiver. This defense argues that you diligently attempted to provide appropriate care. However, the elder actively refused treatment, medication, or necessary assistance, thereby contributing to or directly causing their deterioration or injury.This could involve an elder refusing to eat, take prescribed drugs, follow medical advice, or allow assistance with personal hygiene or mobility, leading to health complications or accidents.
Documentation of your attempts to provide care, the elder’s refusal, and expert testimony on self-neglect can be crucial in demonstrating that you fulfilled your duty and that the adverse outcomes were beyond your control.
Find a Criminal Defence Attorney Near Me
Elder abuse is a grave betrayal of trust, leaving devastating physical, emotional, and financial scars on our most vulnerable citizens. California’s PC 368 is a vital shield, yet false accusations and complex circumstances can ensnare innocent individuals. Understanding your legal options is paramount if you or a loved one faces these serious charges. CCLG: Los Angeles Criminal Attorney is prepared to examine every detail meticulously, challenge the prosecution’s claims, and build a robust defence tailored to your unique situation. Do not face this battle alone. Secure experienced legal counsel to protect your future and uphold justice by contacting us at 323-922-3418.
