Penal Code 368 PC – California Elder Abuse Laws

Updated February 5, 2020

Under Penal Code 368 PC, California law defines the crime of elder abuse as physical or emotional abuse, neglect, or financial exploitation of a victim who is 65 years of age or older. The offense can be prosecuted as a misdemeanor or a felony, and is punishable by up to 4 years of jail or prison.

PC 368 states that a “person who knows…that a person is an elder or dependent adult and who…willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering… [is guilty of a crime].”

Examples

• not feeding an 80-year-old parent who cannot care for himself.
• a caretaker ridiculing an elder patient for being wheelchair-bound.
• a person using fraud to convince a 90-year-old neighbor to make him the sole beneficiary in the elder’s will.

Defenses

A defendant can fight an elder abuse charge with a legal defense. Common defenses include:

• no willful act,
• no abuse, and/or
• falsely accused.

Penalties

A violation of this statute is charged as either;

• a misdemeanor, or
• a felony

depending on the facts of the case.

A misdemeanor conviction is punishable by imprisonment in county jail for up to one year.

A felony conviction is punishable by custody in state prison for up to four years.

In lieu of jail time, a judge can award either:

• misdemeanor (or summary) probation, or
• felony (or formal) probation.

Our California criminal defense attorneys will answer the following 10 key questions in this article:

• 1. How does California law define elder abuse?
  • 1.1. Misdemeanor elder abuse
  • 1.2. Felony elder abuse
  • 1.3. Abuse
  • 1.4. Willfully and criminal negligence
• 2. Who prosecutes senior abuse cases?
• 3. Are there defenses to Penal Code 368?
  • 3.1. No willful act
  • 3.2. No abuse
  • 3.3. Falsely accused
• 4. What are the penalties?
• 5. Are there immigration consequences?
• 6. Can a person get a conviction expunged?
• 7. Does a conviction affect gun rights?
• 8. What are some resources for victims of elder abuse?
• 9. Can victims file civil lawsuits?
• 10. Are there related offenses?
  • 10.1. Battery – PC 242
  • 10.2. Rape – PC 261
  • 10.3. Criminal threats – PC 422

1. How does California law define elder abuse?

A prosecutor has to prove different things under 368 PC:

• depending on whether he wants to convict a defendant of,
• misdemeanor elder abuse or felony abuse.

Note also that questions often arise under this statute on the meaning of:

• “abuse,” and
• “willfully” and “criminal negligence.”

1.1. Misdemeanor elder abuse

A prosecutor has to prove the following to convict a person of misdemeanor elder abuse:

1. the defendant willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct could have endangered the life or health of the elderly person, and
3. the accused knew or should have known that the victim was 65 years old or older.¹

“Unjustifiable physical pain or mental suffering” means:

• pain or suffering that,
• is not necessary or that is excessive under the circumstances.²

1.2. Felony elder abuse

A prosecutor must prove the following to convict a person of felony elder abuse:

1. the defendant willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct was likely to produce great bodily injury or death, and
3. the accused knew or should have known the victim was 65 years old or older.³

“Unjustifiable physical pain or mental suffering” means the same as with misdemeanor abuse.

1.3. Abuse

“Elder abuse” can mean any of the following:

• physical abuse (which is infliction of unjustifiable pain or injury on a senior victim),
• emotional abuse (which can take the form of isolation or ridicule),
• neglect and endangerment (which means placing the senior in a situation that endangers his health and safety), an
• financial exploitation (which is also known as senior fraud or elder financial abuse).⁴

Note that a prosecutor must prove the following to convict a person of financial abuse:

1. the defendant committed a financial crime (e.g., theft, fraud, or embezzlement),
2. the property stolen belonged to a person who is 65 or older, and
3. the defendant was a caretaker for this person or knew that the victim was elderly.⁵

Example: Roman works in a nursing home where all the residents are over the age of 65. Roman occasionally takes lose money that he finds in the drawers of the residents.

Here, Roman is guilty of elder financial abuse. He unlawfully took money from seniors when he knew that all the victims were 65 or older.

1.4. Willfully and criminal negligence

For purposes of this statue, “willfully” means to do something:

• deliberately, or
• on purpose.⁶

“Criminal negligence” means that:

• a person acts so unreasonably that,
• his actions reflect a disregard for human life.⁷

Example: Janis’s 79-year-old mom lives with her. The mother cannot move or feed herself due to extreme Alzheimer’s disease. For almost two weeks, Janis does not giver her mom any food or water. The mother almost dies from dehydration.

Here, the facts show that Janis actions rise to the level of criminal negligence,

Note that a prosecutor cannot prove criminal negligence unless:

• the defendant had,
• a legal duty to act.⁸

Example: Bob is an elderly stroke victim that lives with his son Richard. Bob’s daughter, Susan, used to be his caretaker but she no longer is. But she still visits with Bob and Richard.

On a few occasions, she expresses concern about the care her brother is providing to her dad. One day Bob is found dead in his bedroom in Richard’s house. He died of septic shock that was caused by bedsores, malnutrition, and dehydration. Police arrest Susan and charge her with elder abuse.

Here, Susan is not guilty of a crime. She had no legal duty to take care of her father or control her brother’s behavior.

2. Who prosecutes senior abuse cases?

Many prosecuting agencies (like a county’s District Attorney’s Office) have:

• special units,
• that handle elder abuse charges.

This means that a specially trained deputy prosecutor will prosecute most senior abuse cases.

Police will refer a case to these units and then a prosecutor will decide whether to:

• file charges,
• reject the case, or
• instruct a detective to investigate the allegations further.

Certain factors will determine which agency prosecutes a senior abuse case. Some of these include:

• where the alleged abuse took place,
• whether the offense was a misdemeanor or a felony, and
• the exact type of abuse that is alleged.

3. Are there defenses to Penal Code 368?

A defendant may assert a legal defense to challenge an abuse charge.

Three common defenses are:

1. no willful act,
2. no abuse, and/or
3. falsely accused.

3.1. No willful act

Recall that in many of these cases a prosecutor has to prove that a defendant acted willfully. This means it is always a defense for an accused to say that he did not act deliberately. Perhaps, for example, a senior was injured as a result of the defendant’s accidental conduct.

3.2. No abuse

Also recall that there has to be some type of abuse in these cases, like neglect. It is a defense, therefore, for an accused to say that:

• a senior did not suffer from,
• any type of abuse or harm.

Once again, for example, maybe an accident caused harm to an elder, and not an abusive act.

3.3. Falsely accused

False accusations do take place under these laws. Sometimes jealous family members wrongfully accuse caregivers of abuse. Mean spirited neighbors also falsely accuse siblings of elder abuse. This means an accused can raise the defense that he was unjustly blamed.

4. What are the penalties?

Misdemeanor elder abuse is punishable by:

• custody in county jail for up to one year,
• a maximum fine of $6,000, and/or
• restitution to the victim.⁹

Felony elder abuse is punishable by:

• imprisonment in state prison for up to four years,
• a maximum fine of up to $10,000, and/or
• restitution.¹⁰

Further, if a felony, and the victim actually suffers great bodily injury, then:

• the defendant can get,
• an additional seven years in prison.¹¹

5. Are there immigration consequences?

A 368 PC conviction may have negative immigration consequences.

Depending on the facts of the case:

• the abuse of a senior may,
• get labeled as a crime involving moral turpitude (CIMT).¹²

This is a problem because a CIMT can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

Therefore, a PC 368 conviction could have damaging immigration consequences.

6. Can a person get a conviction expunged?

A person can get an expungement of an abuse conviction, but:

• only if convicted of misdemeanor abuse,
• and not felony abuse.

Felony convictions cannot be expunged if the person was sentenced to state prison.

However, a misdemeanor conviction can get expunged provided that the defendant:

• successfully completes probation, or
• successfully completes a jail term (whichever is applicable).

7. Does a conviction affect gun rights?

A conviction under Penal Code may negate a defendant’s gun rights.

California law says that it is illegal for convicted felons to:

• own a gun, or
• possess a gun.

This means that:

• if a defendant is convicted of felony senior abuse,
• he will be stripped of his gun rights.

8. What are some resources for victims of elder abuse?

There are many resources available for victims of senior abuse. Some of these are:

• the Center of Excellence on Elder Abuse and Neglect,
• Recognizing and Reporting Elder Abuse article,
• A Guide for Preventing Abuse in Long Term Care Facilities, and
• the website of the California Advocates for Nursing Home Reform.

The following websites are also helpful:

• Victim Connect,
• Eldercare Locator, and
• California’s Victim Compensation Board.

9. Can victims file civil lawsuits?

An elder abuse victim can file a civil lawsuit against an abuser. A suit can get filed per California Welfare and Institutions Code 15600.

This statute says the following parties can sue if abused:

1. any person 65 years of age or older, or
2. a “dependent” adult between the ages of 18 and 64.

A “dependent adult” is anyone that:

• has physical and mental limitations that,
• restrict his ability to carry out normal activities.

Note that for either of these parties to have a civil claim, the following must be true:

• the defendant had care or custody,
• of the elderly or dependent adult.¹³

Most of these suits get filed against health care providers. If a suit is successful a plaintiff may recover:

• compensatory damages, and
• punitive damages (in some cases).

10. Are there related offenses?

There are three crimes related to elder abuse. These are:

1. battery – PC 242,
2. rape – PC 261, and
3. criminal threats – PC 422.

10.1. Battery – PC 242

Penal Code 242 PC is the California statute that defines the crime of battery.

Simple battery consists of:

• any willful and unlawful use of force or violence,
• on someone else.

The offense can occur even if the defendant didn’t cause the “victim” pain or injury of any kind.

Battery of a senior would constitute as elder abuse.

10.2. Rape – PC 261

Penal Code 261 PC is the California statute that defines the offense of “rape.”

A person commits this crime if he/she has nonconsensual sexual intercourse with another person by means of threats, force or fraud.

Like elder abuse, people get unjustly blamed for this offense. Therefore, a defense for this crime is that the defendant was falsely accused.

10.3. Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when a person threatens to kill or physically harm someone and:

1. the “victim” is thereby placed in a state of fear,
2. the threat is specific and unequivocal, and
3. the accused communicated the threat verbally, in writing, or via an electronically transmitted device.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

In Colorado? Learn about elder abuse laws (CRS 18-6.5-103).

In Nevada? Learn about elder abuse laws (NRS 200.5099).

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