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Top Defense Strategies in Criminal Elder Abuse Cases

Posted in General FAQ'S on February 28, 2017

According to the National Council on Aging (NCOA), as many as five million elders may suffer abuse in the United States every year. In most cases, family members are the abusers. Considering the statistics, families and caregivers often cast a suspicious eye on anything that seems out of the ordinary. A professional caregiver or family member could easily face false or greatly exaggerated abuse charges.

The state of California takes elder abuse seriously. It classifies the crime as a “wobbler” offense, meaning the district attorney can choose to charge the crime as a misdemeanor or a felony offense depending on the circumstances. California will consider the elder abuse statute, Penal Code Section 368, if a victim is 65 or older. Under the law, financial exploitation, physical abuse, and emotional abuse may all result in elder abuse charges. Neglect, sexual assault, intimidation, and stealing fall into recognized elder abuse categories.

The Prosecution’s Strategy

In elder abuse cases, the prosecution must prove the following elements beyond a reasonable doubt:

  • The defendant owed the elder a reasonable duty of care.
  • The defendant inflicted physical, emotional, or financial suffering on the elder either willfully or with criminal negligence OR the defendant allowed someone else to inflict suffering on the elder.
  • The defendant knows or should have known that the individual was over the age of 65.

In addition to these three elements, the prosecution must either prove:

  • Misdemeanor elder abuse. The defendant’s behavior did or would have endangered the elder, OR
  • Felony elder abuse. The defendant’s behavior did or would have likely caused significant harm or death.

To develop a strong defense strategy, defendants must understand the prosecution’s approach to the case. The defense only needs to introduce reasonable doubt of these elements to contest the prosecution’s case.

Possible Elder Neglect Defense Strategies

Depending on the circumstances of the case, an attorney may recommend one of the following defense strategies:

  • False charges. The law forces certain professionals to report suspected abuse instances. Individuals may accidentally or purposely accuse someone of abuse without knowing all the facts. If the defense can prove the defendant did not commit the act in question, the prosecution will lose its case.  
  • Lack of intent or criminal negligence. If the defendant did not mean to cause harm or the defendant used ordinary care around the elder, the prosecution cannot prove elder abuse. If a caretaker or family member caused symptoms of neglect through ordinary negligence or through no fault of his own, the individual cannot face liability for criminal negligence.
  • Lack of age awareness. A defendant must know the victim was 65 or older to receive an elder abuse conviction. If the defense can prove the defendant reasonably thought the victim appeared and/or acted younger than 65, the prosecution may not pursue an elder abuse claim.
  • Self-defense. Some elder abuse cases involve mentally unstable and irrational elders. A caretaker, family member, or other individual who acts to protect himself or others from injury is not guilty of elder abuse.
  • Lack of evidence. Without irrefutable proof the crime took place, a jury cannot convict someone of elder abuse. If the alleged victim cannot rationally corroborate the accusations and physical proof of abuse does not exist, circumstantial evidence cannot prove abuse beyond reasonable doubt.

Elder abuse charges may involve evidence of bruising, and/or witness testimony regarding an elder’s personality and behavioral changes. Caretakers and family members, in particular, face accusation vulnerability under California’s current laws.

Testimony from medical and elder experts may help to disprove abuse. Many injuries and incidents can arise as a natural part of the aging process and not from intentional acts of abuse. An elder abuse attorney must consider each element of the case carefully to choose the right defense strategy and prevent innocent individuals from suffering under the stigma and penalties of a false conviction.