If you commit a crime against a person with a disability in San Francisco, be prepared for harsh consequences if you're convicted.
Adults with physical or mental disabilities can be particularly vulnerable to crime. Because of this, California law provides specific protections for the disabled (referred to in the law as “dependent adults”) and more severe penalties for those who commit crimes against them.
As the California legislature put in Penal Code Section 368(a):
“…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.”
Physical or Emotional Abuse
The physical or emotional abuse of individuals with a disability can be prosecuted either as a felony or a misdemeanor depending on the nature of the abuse and the seriousness of the harm done. Penal Code Sections 368(b) and 368(c).
To be convicted of felony for physically or emotionally abusing a “dependent adult,” prosecutors must prove that:
- you willfully or with criminal negligence either (a) personally subjected a dependent adult to unjustifiable physical pain or mental suffering or (b) allowed another person to do so,
- your conduct occurred under circumstances that were likely to produce great bodily injury or death, and
- you knew or reasonably should have known that the alleged victim is a dependent adult.
The distinction between felony and misdemeanor charges is in that second element. If the alleged conduct was likely to endanger the health of the alleged victim, rather than likely to result in great bodily injury or death, it can be prosecuted as a California misdemeanor.
Note that the abuse that can get you convicted are not only willful and intentional acts, but those committed with “criminal negligence under California law.”
Also note that it is also a crime to have sex with an incompetent person. Learn more in our article, "Is it 'rape' to have sex with a mentally retarded person in California?"
Penalties for Crimes Against the Disabled
If you are convicted of a felony pursuant to Section 368(b), the consequences can be severe, especially if the disabled victim suffered “great bodily injury under California law” or death or was over 70 years old. The penalty for a felony elder conviction of abuse against a disabled person are:
- imprisonment in a county jail for up to one year, or
- a fine of up to $6,000, or
- by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.
If the abuse resulted in “great bodily injury,” the penalties set forth above are supplemented by additional time in a state prison. Specifically,
- an additional three years if the victim is under 70 years of age.
- an additional five years if the victim is 70 years of age or older.
If the abuse resulted in the individual's death,
- an additional five years if the victim is under 70 years of age.
- an additional seven years if the victim is 70 years of age or older.
The penalties for a misdemeanor conviction under Section 368 are:
- informal probation (otherwise known as summary probation),
- up to one year in a county jail,
- a fine of up to $6,000 (or $10,000 for a second or subsequent offense),
Charges of abuse of the disabled are not exclusive. If you commit an offense against a disabled person in San Francisco, you can be charged under Section 368 along with other applicable criminal offenses such as murder, rape, battery, or domestic violence which carry their own penalties.
Given the serious consequences of a conviction for a crime against a disabled person, it is crucial that you retain an experienced San Francisco criminal defense attorney if you are facing such charges. Give us a call today.