NCALL 20th Anniversary Blog Series
Candace Heisler
An elderly woman was brought to the emergency department covered in bruises from the top of her head to the bottom of her feet. She had been in the care of her son for just a day after a stay in a local nursing home. She died a few weeks later of underlying cancer. She never was able to speak about what had happened.
A woman who came to the US as a young woman had worked and saved all her life. While she spent nothing on herself and ate discarded food from restaurants, she amassed a multimillion-dollar estate which she invested in real estate. A tenant in one of her buildings befriended her, gained her trust and dependence as she became increasingly demented, and married her in order to take control of her fortune.
Prosecutors today would agree that cases like these are not unique, but they were in the 1980s and early 1990s when elder abuse prosecution units and laws were in their infancy. And while child abuse and domestic violence prosecution units existed across the country, specialized elder abuse units rarely did. There was so much we did not know. In the first case mentioned at the beginning of this blog, law enforcement did almost no investigation and after talking with the woman’s son, decided there was nothing further to do. Fortunately, a committed prosecution investigator assumed responsibility for the case and, with help from more than a dozen involved community agencies, developed the evidence which led to the son’s conviction.
The second case mentioned above was referred by a civil attorney representing the woman’s family who was seeking conservatorship (called guardianship in other states) of person and estate. Initially, the prosecutor’s office thought that the transactions were all with the consent and willing participation of the woman. Anything that may have been untoward was viewed as a civil matter. That opinion changed only when the civil attorney brought forth dozens of boxes of financial records, obtained an independent comprehensive capacity assessment, and led the District Attorney’s Office to additional evidence and witnesses. Ultimately the tenant (by then the new husband) was prosecuted and convicted.
These cases and others highlight the many challenges to successful prosecution, such as:
- The complex interpersonal dynamics between victim and perpetrator which require prosecutors to build cases which do not rely on the victim’s participation;
- Understanding that some victims cannot speak or tell us what has happened;
- Victims may have capacity issues affecting their ability to understand financial transactions and give legal consent;
- The limits of authority to act on another’s behalf when appointed an agent under a power of attorney or guardianship;
- How suspects use undue influence tactics to deceive or manipulate a victim;
- The medical complexities of the aging body which can complicate determining whether a condition is the result of abuse or an age-related change that mirrors abuse;
- How medications can create conditions that mirror or hide abuse; and
- Determining if someone is a caregiver and if they had the ability to provide proper care
Historically, holding offenders accountable was complicated by procedural obstacles. Statutes did not always set forth specialized crimes for elder abuse and while there were sometimes other crimes that could be charged, there were sometimes problems charging criminal neglect cases. In the absence of specific elder abuse laws, any convictions were for crimes that did not indicate that a victim was vulnerable or elderly allowing caregivers to continue to work in settings with access to other vulnerable victims. Few states had procedures to memorialize the testimony of elderly or vulnerable victims early in the court process. The result was the delaying of court dates until the victim was too ill to come to court, had forgotten what had occurred, or had died.
California was an early state to establish an elder abuse crime. In 1983 the legislature enacted what is now Penal Code Section 368. The then-legislative findings state: “The Legislature finds and declares that crimes against elders…are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders…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.”[1] The statute then established the crimes of infliction of physical pain or mental suffering, caretaker neglect, financial abuse, and false imprisonment.”
With the new law it was possible to determine the number and nature of such cases and the resources prosecutors needed to manage those cases, including victim advocates with expertise working with older victims. It was also possible to quantify the special expertise needed to handle these cases, including involvement in community multidisciplinary efforts to address individual cases as well as systemic responses. We had access to experts, including forensic accountants, to make sense of the financial records. Geriatric mental health professionals could conduct capacity evaluations to determine whether an older victim was competent to testify, and had the capacity to understand financial transactions, consent to a gift or loan, refuse medical treatment, or agree to sexual contact.
Dr. Rosalie Wolf, considered by many to the “mother of elder abuse” said that multidisciplinary response is the hallmark of elder abuse prevention and intervention. As prosecutors gained experience handling elder abuse cases the need to work with community agencies, including Adult Protective Services (APS), became evident. Sadly, some of our early experiences led to misunderstanding and conflict and did not serve victims well. Criminal justice agencies expected APS to investigate the case and bring us a completed investigation ready for arrest and prosecution. Few of us really understood their role, including what they could and could not do. But as we worked in a multidisciplinary way with community allies, communication, trust, and expectations improved. A good example was the first case mentioned above. As the badly bruised and comatose woman lay in the hospital, the coordinator of the community multidisciplinary team contacted me. She said that a lot of agencies were upset by the case and asked what were we doing to prosecute. She invited me to a meeting of the MDT to discuss the case.
That meeting changed the way our community addressed elder abuse matters. Once the prosecutor and community agencies came together, our common purpose became clear to everyone. More than a dozen agencies were represented and all knew about the elderly victim and her son. They had had concerns long before she arrived at the hospital and could trace her history until the day before she was assaulted. And they had files with names and dates and history. I left that meeting with a list of documents to be subpoenaed and the representatives left knowing the case would be fully investigated. Today prosecutors frequently work with multidisciplinary teams to review cases, train and cross train, and engage in prevention and awareness efforts.
The last lesson of the early days of elder abuse prosecution was the need for training. In those days little or no training existed for prosecutors or law enforcement. We were faced with common myths about elder abuse: that the existence of a power of attorney document justified what was actually theft; that there can be no prosecution if there is no victim available to testify; and that if a victim says they gave consent, there is no crime. Beliefs persisted that no criminal case could be brought if a civil case had been filed, or if the perpetrator returned the funds or property. Training was needed to debunk these myths and to provide an adequate foundation to handle often-complex elder abuse cases. Training also had to bring together multidisciplinary professionals so everyone received the same information, and so professionals such as geriatricians and geriatric mental health professionals — whose expertise is critical to handling elder abuse cases — could educate others.
One of the earliest prosecutor trainings was convened by the California District Attorneys Association more than 20 years ago. In those early days the class was small but did include a multidisciplinary audience. Today the meeting is an annual national symposium drawing hundreds of professionals from across the US. Additionally, a number of state prosecutor associations now offer elder abuse training as the awareness of elder abuse and the need for prosecutor-focused training has grown. Each has played an important role in readying prosecutors to handle the growing number of elder abuse prosecutions.
But nothing has matched the Office on Violence Against Women (OVW) Abuse in Later Life grant program for its comprehensive and visionary approach to training criminal justice professionals to handle elder abuse life cases. The grant includes training for first responders, detectives, judges, prosecutors, and victim services professionals including APS, community and system-based advocates, and others who may interact with older victims. With a focus on victim safety and offender accountability, trainings for criminal justice system professionals and judges focus on the critical skills that each discipline needs to handle cases of abuse in later life.
This month the National Institute on the Prosecution of Elder Abuse (NIPEA) was held in San Antonio. Over 3 days prosecutors from across the United States will discuss the dynamics of abuse in later life that can affect prosecutorial decision making. Attendees will learn about working with older victims, ethical issues, charging and case presentation, and using real cases of neglect and financial abuse, how to prosecute cases. Faculty includes a geriatrician and a geriatric psychiatrist who will describe the aging body and brain, distinguishing abuse from other causation, and the effects of brain diseases on decision making. At the end of the course prosecutors will have a deeper understanding of how to effectively handle elder abuse cases.
As I look back to those early days of prosecution and see the changes in how we think about abuse in later life today, I see a world where it is safer to grow old. That world is now inhabited by prosecutors skilled and committed to doing justice at a level previously unimaginable.
[1] This language has been updated to state: “The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.