Penal Code 368 PC is the California statute that defines the crime of "elder abuse." Specifically, this section states that
"Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000) upon a first conviction or a fine not to exceed ten thousand dollars ($10,000) upon a second or subsequent conviction, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years."
Under Penal Code 368 PC, California's elder abuse statute, "elder abuse" can be any of the following . . . directed at anyone who is sixty-five (65) years of age or older:
- physical abuse (infliction of unjustifiable pain or injury on a senior victim),
- emotional abuse (sometimes seen in the form of mental suffering through isolation or ridicule),
- neglect and endangerment (willfully placing the elder or dependent adult in a situation where his/her health or safety is endangered), and/or
- financial exploitation (also known assenior fraud or elder
More specific examples of scenarios that can lead to charges of elder abuse in California include:
- A nursing home work sexually molesting a resident at the home,
- An adult son deliberately withholding medication that he is supposed to give his elderly mother, and
- A man taking advantage of his elderly aunt's senility to divert her Social Security checks to his own use.
When elder abuse is prosecuted as a misdemeanor, potential penalties include up to one (1) year in county jail and a fine of thousands of dollars. If it is prosecuted as a felony, the defendant may be sentenced to state prison for two (2) to four (4) years.3
The penalties for California elder abuse (Penal Code 368) are steep...and, as we discuss below, prosecutors are quite vigilant about prosecuting cases of suspected elder abuse. Because defendants are often caregivers of elderly people, they are usually busy people with a good deal of stress in their lives...and a complicated emotional relationship to the alleged victim. So facing elder abuse charges can be a devastating experience.
Luckily, there are a number of legal defenses that can help to fight these charges. These include:
- false accusations,
- mistaken identity, and
- insufficient evidence.
Because California elder abuse law is complex...and is an area of the law that is ripe for false accusations and wrongful arrests...it is important to consult with an attorney who has experience handling these types of offenses.
Having prosecuted and successfully defended against California elder abuse crimes, our criminal defense lawyers understand the most effective ways to fight your elder abuse charges.
In an effort to help you better understand the specifics of California elder abuse law, our California criminal defense attorneys4 will address the following:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
Elder abuse (sometimes interchangeably referred to as "senior abuse") is on the rise, affecting people from every social, economic, and ethnic background. One source estimates that 1 out of every 7 senior citizens in America has been a victim of elder abuse.5 As America's population ages, reports of elder abuse...both true and false...are only likely to increase.
Those accused of violating California elder abuse laws are typically either family members of ... or caregivers for ... the alleged elderly victim.
Under the California elder abuse statute, elder abuse consists of:
- physical abuse (which includes inflicting physical injuries and/or sexual abuse, neglect, abandonment, and abduction),
- financial abuse (which is committed via fraud or theft), or
- any other treatment that results in physical and/or mental pain or suffering.6
Why do elders receive increased protection?
The California Legislature first addressed elder abuse in the early 1980s. The Legislature acknowledged in 1982 that "dependent adults"-meaning people who, because of either their age or disability, are dependent on others to meet their daily needs- are frequently confused, medicated, and/or otherwise mentally or physically impaired. Because of this...and the related fact that they are therefore less able to protect themselves and/or to understand or report criminal conduct...they should receive special legal protection.7
Then in 1983...in response to a request from the Santa Ana Police Department...the Legislature enacted Penal Code 368 PC. Law enforcement agencies requested this statute because they didn't have a Penal Code section that allowed them to prosecute those who were reportedly abusing or neglecting "dependent adults."8
Recognizing that "dependent adults" are often as vulnerable as children when it comes to being abused, lawmakers used the same language that they had previously used for child abuse statutes, simply replacing the word "child" with the term "dependent adult."9
Finally, in 1986, the Legislature amended Penal Code 368 PC to include all "elders" -- not just those who are "dependent." This amendment expanded the scope of coverage from "dependent adults" who, because of age or mental or physical disability, were unable to care for their own personal needs... to any person over 65, regardless of his/her mental or physical abilities.10 Today, both classes of persons receive this special protection under California elder abuse law.11
Reporting and prosecuting criminal elder abuse charges
Many prosecuting agencies have special units that handle California's elder abuse charges. These units "vertically" prosecute these special cases, which means that a specially trained deputy prosecutor will oversee the entire case, from the initial filing of charges to trial and sentencing.
Many of these agencies (such as the Orange County District Attorney's Office) provide direct telephone numbers to their elder abuse units so that the public can easily report suspected criminal activity. However, most elder abuse cases are referred to these agencies by the police.
The police receive elder abuse complaints from a variety of sources...from concerned family members or friends of the alleged elderly victim...from Adult Protective Services...and from doctors or other caregivers.
Once the prosecuting agency receives the report, it must decide whether to file or reject the charges...or whether to instruct a detective to investigate the allegations further.
As Riverside criminal defense lawyer Michael Scafiddi explains12,
"Elder abuse allegations...like many other California crimes...are frequently directed at innocent individuals. Sometimes the alleged elderly victim is confused and makes unfounded claims. Sometimes an angry or jealous family member reports another family member in order to gain control over the senior citizen's finances. And sometimes well-meaning friends or family report a caregiver without sufficient justification."
Who decides which agency prosecutes a reported elder
It depends. Factors include
- where the alleged elder abuse takes place,
- whether the offense is a felony or a misdemeanor, and
- the exact type of abuse that is alleged.
Some special elder abuse enforcement units will only prosecute felony) senior abuse allegations. Similarly, some agencies will only handle misdemeanor elder abuse allegations. Some, like the California Attorney General, will only handle California elder abuse cases that involve nursing homes or other residential treatment facilities.
And while physical, emotional, and financial elder abuse are all prosecuted as criminal acts, some of the elder abuse task forces limit themselves even within these areas.
The Los Angeles District Attorney's Elder Abuse Unit, for example, only prosecutes allegations of financial elder abuse if the monetary amount reportedly taken either is in the thousands of dollars or involved a very sophisticated level of fraud or theft.
And, on that note, this article focuses specifically on physical elder abuse. We address California financial senior fraud and exploitation and California nursing home abuse in separate articles.
Similarly, this article only addresses California's criminal elder abuse laws. It is important to recognize that violating California's elder abuse laws can subject an offender to both civil and criminal penalties.
If someone is suing you for personal injury or wrongful death charges arising out of allegations of senior abuse, it is advisable to speak with a California civil defense attorney as well.
In order to convict you of violating California's senior abuse laws under Penal Code 368 PC, California's criminal elder abuse statute, the prosecutor must prove certain facts (otherwise known as "elements of the crime").
If you are charged with felony elder abuse, the elements are as follows:
- you willfully or with criminal negligence either (a) personally subjected an elder 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 was an elder (i.e., a person 65 years of age or older).13
If you are charged with misdemeanor elder abuse, the elements are almost the same...but with one critical difference. They are:
- you willfully or with criminal negligence either (a) personally subjected an elder to unjustifiable physical pain or mental suffering or (b) allowed another person to do so,
- you knew or reasonably should have known that the alleged victim was an elder (i.e., a person 65 years of age or older), and
- your conduct occurred under circumstances that may have endangered the life or health of the elder (instead of circumstances likely to produce great bodily injury or death).14
Let's take a closer look at some of these elements to better understand California elder abuse law.
If you do something willfully, you do it deliberately or on purpose.15
Example: Tanya is a single mother who also takes care of her elderly bedridden mother. One day, frustrated with her mother's constant demands and lack of gratitude, Tanya deliberately hits her mother in the face. This was a willful act and may be elder abuse...depending on whether, under the circumstances, Tanya's act may have endangered her mother's life or health.
You can be guilty of elder abuse if your conduct was either willful or criminally negligent.16
Criminal negligence is more than ordinary carelessness or a mistake in judgment. For purposes of violating California's elder abuse law, you act negligently when you act so unreasonably that your actions reflect a disregard for human life.17
Example: Janis's 79-year-old mother lives with her. The mother cannot move or feed herself due to extreme Alzheimer's disease. For almost two weeks, Janis does not give her mother any food or water and does not clean or move her...so she almost dies from bedsores and dehydration.
Janis is guilty of California Penal Code 368 felony elder abuse because her conduct was "criminally negligent."18
Example: Nora's elderly aunt has just moved in with her family. Nora is a busy working mother. Nora's aunt takes more than 10 medications every day, and Nora is now responsible for managing them. One day, Nora mixes up several of the medications and gives her aunt too much of one pill...which makes the aunt very ill and lands her in the hospital.
Nora's actions were the result of ordinarily carelessness and a simple mistake. Therefore, she was not criminally negligent and cannot be convicted of elder abuse.
It is also important to understand that prosecutors can only convict you of elder abuse by criminal negligence if you have a legal duty to act.19
This is one of the reasons why we say that elder abuse law is complex. Even though it might appear as though you have a legal duty to intervene, that's not always the case...which is why consulting with a California criminal defense attorney who has expertise defending elder abuse cases is critical.
Example: Bob, an elderly stroke victim, lives with his son Richard. Bob's daughter Susan used to be Bob's caretaker and visits Richard's house regularly. On a few occasions Susan expresses concern about the care that her brother Richard is providing to Bob.
One day Bob is found dead in his bedroom in Richard's house. It appears that Bob was the victim of severe neglect and died of septic shock due to bedsores, compounded by malnutrition and dehydration.20
Prosecutors file elder abuse charges against Susan ... but, according to the Supreme Court of California, Susan is not guilty of the California crime of elder abuse. While she certainly had a moral duty to report her father's abuse, she had no legal duty to control her brother's behavior ... and therefore ian't guilty under Penal Code 368 PC.21
Unjustifiable pain or mental suffering
Unjustifiable pain or mental suffering is just that...pain or suffering that isn't necessary or that is excessive under the circumstances.22
Circumstances likely to produce great bodily harm
"California's domestic violence laws " means a significant or substantial physical injury.23 It does not refer to trivial or insignificant harm.
However, it is important to understand that it isn't necessary that the elder actually suffer great bodily harm...only that the elder be placed in a situation where he/she was likely to suffer such an injury (for felony senior abuse only).24
Example: Jackie is the home health care provider for an unpleasant elderly woman named Peggy. Peggy regularly insults Jackie and treats her poorly. Jackie finds herself wishing that Peggy would die and stops giving Peggy her necessary heart medications.
Peggy's son discovers this fact and has Jackie arrested for elder abuse. Jackie may be guilty ... even though Peggy doesn't appear to have suffered any injury from going for a few days without her medication. Withholding the drugs was probably likely to cause a substantial injury...and would therefore be enough to charge Jackie with felony elder abuse.
Elder abuse is a "wobbler" in California law ... which means that prosecutors can charge it either as a misdemeanor or as a felony .25 The most important considerations in making this decision include
- the facts of your specific case, and
- your criminal history.
Whether the crime is charged as a misdemeanor or a felony determines the potential penalties under the California elder abuse law.
If convicted of California Penal Code 368 misdemeanor elder abuse, you may face any or all of the following penalties:
- informal probation (otherwise known as summary probation),
- a maximum one-year county jail sentence,
- a maximum fine of $6,000 (or $10,000 for a second or subsequent offense),
- restitution to the victim, and/or
If convicted of California Penal Code 368 felony elder abuse, you may face any or all of the following penalties:
- formal probation,
- two (2) to four (4) years in the California State Prison (with an additional and consecutive three (3) to seven (7) year sentence if the victim actually suffers great bodily injury or death and a potential strike under California's Three Strikes Law under the same scenario)27 ,
- up to $10,000 in fines,
- restitution, and/or
Senior abuse charges are often falsely alleged against innocent people. Sometimes the accuser is intentionally lying. But other times, these false charges result because seniors frequently suffer from conditions and diseases that mimic the signs of physical abuse and neglect.
To compound this problem further, social workers, police, and even doctors aren't always trained to distinguish between signs of abuse and signs of an accident, illness, or age...but they are required to report suspected abuse.29
If any of these individuals (or other "mandated reporters") fail to report suspected abuse or neglect, they can face their own criminal charges...but they face no ramifications if they report someone who turns out to be innocent.30 Consequently, often times these people report suspected abuse with little support or investigation in an effort to protect themselves against their own liability.
Fortunately, there are a variety of legal defenses to the California crime of elder abuse that a California criminal defense lawyer can present on your behalf in an effort to reduce, dismiss, or beat your elder abuse charges. The following are some of the most common.
The injury was the result of an accident
If you didn't willfully injure the elder victim and your conduct didn't rise to the level of criminal negligence, prosecutors can't convict you of violating California elder abuse law.31 This is similar to the California legal defense of "accident."
Example: Pablo is a home health care provider who takes care of a 90-year-old man named Stanley. While Pablo is transferring Stanley from his wheelchair to his bed, he accidentally drops Stanley...which causes Stanley to break his hip.
Pablo is not guilty of elder abuse...because his conduct was not willful or criminally negligent.
False accusations / wrongful arrest
As previously stated, there are a number of reasons why someone may have falsely accused you of elder abuse. Sometimes jealous family members accuse a caregiver of abuse, because the elder has bestowed large sums of money or other gifts upon that individual. Perhaps the allegations were honestly made, but the injuries simply weren't the result of abuse.
Along these same lines, you may have been falsely accused based on a case of mistaken identity. It could very well be that the senior in question was abused...just not by you. If, for example, you are the primary caregiver, others would probably assume that you were responsible.
Similarly, if, for example, you and your elderly parent were at odds about the elder's estate...and soon after the argument, the elder showed signs of abuse...other family members may incorrectly assume that you were the abuser.
In order to convict you of elder abuse, the prosecutor must prove "beyond a reasonable doubt" that you are guilty. This means that there is no reasonable explanation for the elder's injuries other than the fact that you abused him or her.
If there is nothing to corroborate the alleged abuse or neglect, your California criminal defense attorney may be able to cast a reasonable doubt as to your guilt.
Many times defense lawyers will call in an expert to testify that the alleged signs of abuse were more consistent with illness, accident or simply age. Sometimes an expert (or other witnesses) will testify that the elder is paranoid, delusional, or even senile, and that his/her accusations are not based on real facts.
If you are accused of neglecting the elder (which placed him in a harmful situation), you could bring in evidence to demonstrate how you've routinely cared for him/her. You could do this by providing receipts for prescription drugs, heating and air conditioning bills, records from doctor visits...anything revealing that you are not guilty of neglect, but rather have more than adequately cared for the alleged elder victim.
And even if you are guilty of senior abuse...and there's no way to get around that fact...you try to gain empathy and explain that:
The abuse was an isolated incident
Anyone who has cared for an elderly person...especially an elderly relative...understands the physical and emotional demands that you face on a regular (if not daily) basis.
If you can convince the judge, prosecutor, and/or jury that your actions were an isolated (and unintentional) event, triggered by an emotional breakdown, you may garner sympathy...and a lesser or reduced charge and/or sentence.
Depending on the circumstances of the alleged offense, there are a variety of crimes that may be closely related to Penal Code 368, either
- because they share elements with elder abuse, or
- because they are frequently committed in connection with elder abuse.
Examples of these offenses include (but are by no means limited to) the following:
California Penal Code 242 PC battery is the unlawful and willful use of force or violence upon another.32 If you intentionally commit physical elder abuse by hitting or otherwise violently attacking an elderly person...prosecutors could charge you with both elder abuse and battery.
If battery does not cause serious bodily injury to the victim, it is usually a
misdemeanor subjecting you to up to a fine of up to two thousand dollars ($2,000), up to six (6) months in county jail, or both. But if it results in serious bodily injury, then it is a wobbler punishable by either up to one (1) year in county jail...or up to four (4) years in prison if it is tried as a felony.34
If you have nonconsensual sexual intercourse with an elder, accomplished by means of force, threats, or fraud, prosecutors could charge you with both California Penal Code 261 PC rape35 and California elder abuse.
This offense usually arises when someone finds out that another person is having sex with an elder who is incapacitated or incapable of giving consent. That said, more typical forcible "rape" scenarios also take place with elders who are too weak to fight the attack.
Rape in California is a felony and can lead to a sentence of three (3), six (6), or eight (8) years in state prison.36 This would be in addition to any penalties you would face for elder abuse.
Similarly, if you engage in nonconsensual sexual acts (other than intercourse) with an elder who is dependent on others due to his/her declining mental/physical abilities, prosecutors could charge you with elder abuse and Penal Code 288 lewd or lascivious acts.37
If you are accused of killing an elder, prosecutors could charge you with both elder abuse and either California Penal Code 187 PC murder38 (if the killing is done with "malice aforethought") .... or California Penal Code 192 PC involuntary
manslaughter (if, for example, the elder died due to your criminal negligence).39
- You threaten to harm an elder,
- the elder is actually placed in fear, and
- you actually carry out your threat and inflict an injury on the elder,
prosecutors could charge you with elder abuse and California Penal Code 422 PC criminal threats.40
In addition to the penalties for elder abuse, a criminal threats charge can lead to imprisonment in a county jail for up to one (1) year, or imprisonment in state prison.41
If you are accused of elder abuse and the elder is your spouse, significant other, parent, grandparent, or roommate, prosecutors could charge you with elder abuse under California's domestic violence laws.42 These laws will typically increase the maximum penalties above those normally associated with the crime of senior abuse.
Elderly people suffering from terminal or painful chronic illnesses sometimes contemplate suicide. But if a caregiver or relative encourages an elder to kill him/herself, or deliberately helps him/her do so, that person can be charged with Penal Code 401 PC aiding or encouraging a suicide.43
In addition, when an elderly person kills him/herself, relatives often look for someone to blame and end up unfairly accusing a caregiver of assisting with the suicide--even if s/he did not do so, or only did so unwittingly.
This offense is a felony, with a potential state prison sentence of up to three (3) years--despite the fact that it is often committed by people who are trying to help their "victims"!44
As you can see, violating California's elder abuse laws can subject you to a variety of offenses and a variety of penalties. As a result, it is imperative that you consult with a defense attorney who understands the complex issues that California elder abuse charges often trigger.
Call us for help
If you or a loved one is charged with Penal Code 368 PC elder abuse and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
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1 California Penal Code 368 PC - Elder abuse.
2 See same.
3 See same.
4 Our Los Angeles criminal defense attorneys have local criminal law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
5 State Bar of California, What Should I Know About Elder Abuse?
6 California Welfare and Institutions Code 15610.07 WIC -- Elder abuse. ( "'Abuse of an elder or a dependent adult' means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.")
7 People v. Heitzman (1994) 9 Cal.4th 189, 201.
8 See same at 202.
9 See same.
10 See same at 203.
11 California Welfare and Institutions Code 15600 WIC - Elder abuse. ("(a) The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons. (b) The Legislature further recognizes that a significant number of these persons are elderly. The Legislature desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment. (c) The Legislature further recognizes that a significant number of these persons have developmental disabilities and that mental and verbal limitations often leave them vulnerable to abuse and incapable of asking for help and protection.")
See also California Penal Code 368
12 Riverside criminal defense lawyer Michael Scafiddi is a former police officer who now uses that inside knowledge to help defend clients accused of violating California elder abuse laws. He practices criminal defense primarily in San Bernardino and Riverside Counties, and makes appearances at the Murrieta Southwest Justice Center and in Banning, Fontana, Joshua Tree, Barstow, and Victorville.
13 California Jury Instructions - Criminal "(CALJIC") 9.38 - Felony elder abuse.
14 CALJIC 16.172 - Misdemeanor elder abuse.
15 CALJIC 1.20 - Willfully, defined.
16 CALJIC 9.38 - Felony elder abuse.
17 People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 61.
18 People v. Manis (1992) 10 Cal.App.4th 110, 114.
20 See same at 194.
21 See same at 215.
22 People v. Curtiss (1931) 116 Cal.App.Supp. 771, 300 P. 801, 804.
23 Penal Code 12022.7 PC
24 People v. Cortes (1999) 71 Cal.App.4th 62, 80.
25 California Penal Code 368 PC - Elder abuse.
26 See same.
27 California Penal Code 667.5 PC - Prior prison terms; enhancement of prison terms for new offenses.
See also California Penal Code 667
28 California Penal Code 368 PC - Elder abuse.
See also California Penal Code 672
See also California Penal Code 11160 PC - Reporting duties for suspected elder abuse.
30 See California Welfare and Institutional Code 15630 WIC, endnote 28 above.
See also California Penal Code 11161.9 PC - Immunity from liability.
See also California Penal Code 11162 PC - Violation for failing to report suspected elder abuse.
31 CALJIC 16.172 - Misdemeanor elder abuse; CALJIC 9.38 - Felony elder abuse.
32 California Penal Code 242
33 California Penal Code 243
35 California Penal Code 261 PC - Rape defined.
36 California Penal Code 264 PC - Rape; punishment.
37 California Penal Code 288 PC - Lewd or lascivious acts.
38 California Penal Code 187 PC - Murder.
39 California Penal Code 192(b) PC - Involuntary manslaughter.
40 California Penal Code 422 PC - Criminal threats.
41 See same.
42 California domestic violence laws punish a variety of offenses that are committed against one's family member or other protected persons...including the offense of elder abuse. Penalties for violating California domestic violence laws often include counseling, restraining orders, fines, and a county jail or state prison sentence.
43 Penal Code 401 PC - Aiding a suicide.