Running head: Elder Abuse and the Criminal Justice System Essay
Running head: Elder Abuse and the Criminal Justice System
The abuse of the elderly is not a new problem, but it is a growing problem with the increase of the elderly population as well as the growing stress and socioeconomic stagnation of much of the middle class. This population is especially vulnerable as they become less capable of supporting themselves physically, mentally, and financially.
Less attention has been paid to elder abuse than has been to either domestic violence or child abuse, and for the reported cases, there are many that go unreported, or aren’t discovered until the victim has expired. Neglect, physical abuse, and financial manipulation are the most common abuses, and each can be perpetrated by a trusted family member, stranger, clergy, or even a unreputable business. Not only do the victims suffer from the actual victimization, but they often suffer ancillary effects, such as emotional trauma. Often, those who commit these offenses are given light sentences, many times merely probation¸ which does not serve to inhibit the abuser, nor does it send a message of intolerance to any potential abusers. Often, family members are given more latitude then they deserve in these cases, as well.
Although there has been little done at the national level, states have been addressing the issue, and more recently, it has garnered some Federal attention, especially since the Patient Protection and Affordable Care Act of 2010. In our national tradition of vocal response to civil liberty and safety issues, however, there has been more attention to this issue which will be very important as we see such a large number of citizens reaching elderly status.
The baby boomers, the largest living generation in the US, are becoming elderly. The issue of maintaining quality of life and both filial and social relationships becomes vital in the last stages of life, where people tend to have more needs while exhibiting decreasing mental and physical capabilities. Some of these folks have lost spouses who served as caregivers, or simply live alone, and some have been committed to the care of nursing facilities or other institutions to help provide for elderly needs and medical care. These people lived independent lives and were self-sufficient, but many become reliant upon others, even strangers, to sustain their lives and manage their welfare. Unfortunately, this segment of the population is vulnerable to a variety of manipulation and abuse. There are agencies and law enforcement policies to address this problem on state levels, but more work must be done to ensure that the elderly are protected.
There are at least one half million reported cases of elder abuses every year in the US. Like many other sensitive crimes, researchers have estimated this number is realistically only 25% of the actual number of elder abuse incidents. The Centers for Disease Control and Prevention has estimated there are between one and two million elderly people over 65 who have suffered from abuse, neglect, or exploitation by those they depended on for care. There are several types of abuse and abusers that have been classified by various agencies designed to protect the elderly. Physical abuse is the act of inflicting physical injury pain or impairment. This includes restraining the victim as well as using physical force. Sexual abuse, as for other populations, is non-consensual sexual contact or activity. Psychological abuse is intentionally causing anguish through threat, degradation, humiliation or other verbal or non-verbal action intended to manipulate or cause emotional pain. Domestic violence is used to control a close family member or loved one, it may include any of the above types of abuse.
Neglect is the purposeful act of ignoring care-giving responsibilities, and may include starvation, medical mismanagement or injury related to lack of mobility. Self-neglect is an unfortunate aspect of this, as some elderly will neglect their own needs and either refuse or don’t request needed assistance with daily living or health. Both self-neglect, and neglect which is committed by another person may not be reported nearly as much as it occurs, however. Financial abuse is sometimes perpetrated by strangers and business professionals and is the non-consensual or illegal use of a person’s money or property. Family members are often accused of this type of abuse, as they have proximity to the victim, as well as access to more than many strangers may have. Rather than conning a victim, a family member may find it easy to extract or embezzle money through the false sense of security, noting concern about financial welfare or offers to provide assistance on money management.
In addition to the obvious effects of abuse, such as injury, loss of property, and decrease in health, abused elderly also suffer emotionally. They can end up losing both dignity and security, as well as trust in caregivers, sometimes resulting in self-neglect with the concern over further abuse being inflicted upon them. Abusers are often able to hide their victimization through public acts of kindness and private threats of more violence or other types of abuse. Abused elders have been shown to have shorter life expectancies than non-abused older people. (National Committee on the Prevention of Elder Abuse, 2008) Abusers can be close family members and friends, nursing homes and other medical professionals, financial institutions, and even some churches. Abusers often have stress factors which contribute to the climate of abuse, such as poverty, drug or alcohol addiction, or a cycle of abuse in their own families, and sometimes the motivation is merely violent tendencies or greed.
In 1988, the US Administration on Aging was created as a national organization to begin to address the problem, and was made a permanent government agency in 1992 under Title II of the Older Americans Act. This agency created the National Committee on the Prevention of Elder Abuse, which provides information, conducts and compiles research, trains professionals in the field, shares new successful practices, manages a forum for professionals, and provides consultation on program development. The Report from the Ohio Commission on the Prevention of Injury 2003 has provided a valuable acronym for helping to determine these stress factors: “SAVED”. S – stress, often caused by little support or training and caregivers feeling overwhelmed by increased responsibility and the lack of training to administer the care that their elderly needs. A- alcohol increases risk of many things, certainly the propensity for abuse.
Having the added impairment can cause caregivers to mistreat or violate the elder. V – previous violence is an indicator of future violence. Past abusers and those who have suffered abuse themselves are at risk, sometimes the elder has committed abuse on the caregiver in the past, retribution is a concern. E – Emotional and psychiatric illness can make one vulnerable to abuse from those who seek to take advantage of someone. Also, the elderly person may act in an abusive manner, created an atmosphere of retaliation. D – dependency, isolation, and family dynamics are other signs of abuse and manipulation. Isolating someone and creating an environment in which they are dependent increases their vulnerability and limits their interaction with others who may be able to identify or address the abuse.
Abusers can be criminally prosecuted for physical and other abuses against the elderly, including medical negligence by doctors and family manipulation. In some states, the sentence is enhanced if the victim is over 65, serving as a deterrent to other abusers. They can also be brought up on civil actions, by the victim or their family if the victim is living or deceased. Punitive and compensatory damages may be recovered in these cases.
Elderly abuse statutes differ throughout the country, with support and consultation from various government and social welfare organizations. The Administration on Aging¸ National Committee for the Prevention of Elder Abuse, AARP, National Center on Elder Abuse and others have all been instrumental in increasing awareness and prevention, as well as training others on handling both care-giving and the management of cases involving elder abuse. The laws for elder abuse differ between states, but there are general standards. There are laws that create Adult Protective Services units (APS), which provide services to adults in environments of abuse and neglect. There are laws governing the reporting of this type of crime, and laws which prohibit and penalize maltreatment of older adults.
Often there are increased levels of punishment for those who commit crimes against the elderly. When the Affordable Care Act was passed in 2010, there was a provision enacted called the Elder Justice Act with the help of the Senate Special Committee on Aging. This act establishes leadership in Health and Human Services, provides grants to support research and training, prosecution, and forensic scientists. It also provides regulations and mandatory reporting of crime against those in assistant living and other elderly facilities. The Older Americans Act further protects our older citizens from maltreatment and financial manipulation.
There are no federal organized efforts to collect statistics, this data is generally provided through independent research. The data that has been compiled from various sources indicates a good number of informative and notable statistics. One in every 14 cases of elder abuse, for example, happens in the victim’s domicile. Over 20,000 cases of abuse in nursing homes were reported in 2003. Over 5 million elders have been the victim of financial abuse and fraud. Unfortunately, the sentences that abusers receive are not always strong enough to serve as a deterrent.
In California, for example, misdemeanor elder abuse will result in up to one year in county jail. A conviction of felony elder abuse will result in two to four years in county jail. If an elder abuse victim sustains great bodily injury or dies, up to an additional four to seven years in state prison may be added. More commonly, the convicted gets probation for a period of three to five years and impose a sentence of up to one year in county jail. probation with no jail time, but community service, a work release program, or counseling, or formal probation and assign a probation officer.
With the increased efforts of state programs designed to address the issues of aging and elder abuse and neglect, there have been new initiatives in identifying potential risks, providing training for nursing and clinical staff and family members, increased the amount and visibility of resources to assist elders and families, and encouragement of reporting. Many of the models used for elder abuse programs are modifications of child abuse methods, which are instrumental in protecting our seniors, but specific studies and more information is needed. In many cases, prevention is more difficult due to the filial proximity of the abusers and victims, and the situations which can create an atmosphere of abuse tend to be different that those who commit these crimes on children. The motivation is often different, also, financial abuse and manipulation is an elder-specific issue, and is often addressed in civil and probate situations.
The Consumer Financial Protection Bureau (CFPB) has current initiatives for financial professionals and advisors to provide guidance to caregivers. Congress mandated the creation of state Medicaid Fraud Control Units to help protect seniors against Medicaid fraud in the 90’s. The well-known Meals on Wheels Association has also been very supportive in prevention of elder abuse and neglect. In response to the growing concern, states have begun initiatives to help address this issue. A new California law will deal with “undue influence.” This is abuse which causes the victim to act or to not act in a manner that is detrimental to themselves or their situation. It consists of manipulation of a person’s free will and influences them by controlling their decision-making capabilities. To show undue influence, there are conditions which must be met in the case: First, how vulnerable the victim is and whether the influencer knew or should have known of this vulnerability are considered. There are many ways to show vulnerability, including evidence of illness, disability, or dependency.
Second, if the influencer had apparent authority over the victim is considered. Some examples of authority status are doctors, lawyers, and family members. Third, the actions or tactics of the influencer are considered; for example, controlling a victim’s necessities, using intimidation, or starting changes to personal or property rights of the victim. Lastly, how unfair the result of this influence was is considered. In Iowa, concerns have been expressed over those who are generally independent, but can subject to abuse, such as those who live alone and not under nursing care. Reports from advocates of elderly say that elder abuse – especially financial exploitation — in Iowa and the rest of the nation is “under acknowledged, under identified and under reported.” (Boshart 2013) one of the recommendations of the advocates was to establish “safe havens,” such as shelters where victims can be removed from their homes where they are vulnerable, and have a safe place to stay.
This is predicated upon the fact that they are independent, and therefore capable of leaving their homes and seeking shelter, and like in many other situations, awareness is also very important. Not only do victims or potential victims need to understand when they are being manipulated, but they also must be aware that there are organizations which can help them with their unique problem. It is clear that our nation needs to invest time and effort into the understanding, treatment and sentencing in issues of elder abuse. Although most elderly no longer make the same contributions to our society as they did prior to aging, they deserve our respect and protection. The more public exposure this issue gets, the easier and faster it will be to address it effectively.
Boshart, R. (2013, November 15) Elder abuse law changes eyed in Iowa, WCF Courier.Retrieved August 15, 2014.from http://wcfcourier.com/news/local/govt-andpolitics/elder-abuse-lawchanges-eyed-in-iowa/article_f1efae9f-d3d0-5d9c-ae02 e7dc2576a187.html
Elder Abuse: Consequences. (2014, January 14). Centers for Disease Control and Prevention. Retrieved August 12, 2014, from http://www.cdc.gov/violenceprevention/elderabuse/consequences.html Elder Abuse Explained. (n.d.). Elder Abuse. Retrieved August 12, 2014, from http://elder-law.laws.com/elder-abuse Navigation. (n.d.). NCPEA. Retrieved August 12, 2014, from http://www.preventelderabuse.org/elderabuse/ Prosecuting Elder Abuse Cases. (n.d.). National Institute of Justice. Retrieved August 12, 2014, from http://www.nij.gov/journals/265/Pages/elder-abuse-prosecuting.aspx Statistics/Data. (n.d.). Statistics/Data. Retrieved August 11, 2014, from http://www.ncea.aoa.gov/Library/Data/index.aspx