Elder Abuse Law in California - Penal Code 368 PC
Elder abuse, a serious offense described under California Penal Code 368, encompasses a wide range of actions that can occur in various settings. While often associated with domestic violence, elder abuse can also occur in other contexts, underscoring its pervasive and serious nature.
California law provides special protection to victims over 65, recognizing the increasing prevalence of elder abuse cases. This provision aims to reassure seniors and their families that the legal system is committed to their safety and well-being.
The proactive stance of the Los Angeles County District Attorney's Office is evident in its dedicated unit that investigates elder abuse cases, specializing in the aggressive prosecution of all senior abuse allegations.
It should be noted victims of elder abuse don't only include senior citizens – but also someone who is a “dependent.” It protects any dependent adult with a mental or physical limitation that impairs their ability to perform routine activities.
Most PC 368 elder abuse defendants are members of the family or caregivers. An elder abuse crime occurs in different ways – such as physical, mental, or financial. In simple terms, it's a crime to willfully cause or allow an elder or dependent to suffer unjustifiable pain.
You don't have to abuse an elder to be charged under PC 386 directly. For example, if you are a caregiver and knowingly allow an elder to be abused – you could face criminal charges.
Physical abuse comes in a variety of forms – such as abrasions, bruises, neglect, abandonment, or sexual abuse. Emotional abuse means some type of mental suffering – such as ridicule or isolation.
Financial abuse includes stealing, embezzlement, and defrauding their property – such as forgery or identity theft. Elder abuse cases often include a situation where you have been accused of taking advantage, neglecting, or abusing an elder that is under your care. Sometimes, domestic violence can be filed as a felony based on different factors.
California Penal Code 368(b) PC defines the serious crime of domestic violence against a disabled person or dependent adult. This category falls under the broader and equally serious issue of elder abuse.
Our Los Angeles criminal defense lawyers have provided an overview below to give readers useful information about elder abuse, which is described under Penal Code 368.
Definition of Penal Code 368 Elder Abuse
California Penal Code 368 elder abuse is defined as follows:
- Anyone who knows, or should know, an elder or dependent adult who, under circumstances likely to produce great bodily harm or death, willfully causes or allows them to suffer or inflict unjustifiable physical pain or mental suffering, or having care or them, willfully causes or allows the elder to be injured, or places them in a situation in where their health is endangered.
In order to convict you of PC 368 elder abuse, the prosecutor must prove – beyond a reasonable doubt – all the certain elements of the crime in CALCRIM 831. Jury Instructions:
- The victim was 65 years old or older:
- You knew, or should have known, the victim was at least 65 years old at the time of the abuse
- You willfully caused unjustified physical pain or mental suffering on the victim, or you allowed someone else to do so
- Your conduct occurred under circumstances that might have endangered the health or life of the elder
Willfully means your conduct was on purpose – not an accident. Unjustifiable pain or mental suffering is described as causing some form of unnecessary pain – or excessive conduct under the circumstances.
It should be noted that the elder doesn't have to actually suffer a great bodily injury—only that you placed them in a situation where it could have happened and had a legal duty to act.
Many domestic violence cases are prosecuted without the victim's cooperation. This means that even in domestic violence cases where the victim refuses to testify, the prosecution can still obtain conviction without the victim's testimony.
Caregiver Elder Abuse
Suppose you are a caregiver of an elder or dependent adult. In that case, the prosecutor will need to prove you willfully or negligently caused their injuries or placed them in a dangerous situation likely to cause injury – while you had care or custody of the victim.
Criminal negligence is described as an act, or lack of acts, that creates a substantial risk of great bodily injury or death. For example, if you fail to provide an elder with their prescribed medication, you could face PC 368 elder abuse charges.
A false imprisonment charge can be filed against you in a situation where you unlawfully deprive someone of their liberty. This essentially means intentionally detaining another person without a legal right to do so, and they aren't allowed to leave when they want to.
Penalties for Penal Code 368 Elder Abuse
Penal Code 368 elder abuse is a “wobbler,” meaning the prosecutor can file the case as either a misdemeanor or felony crime – depending on the type of abuse and criminal record.
If you are convicted of a misdemeanor, you will face up to one year in county jail, a fine of up to $6,000, restitution, counseling, and informal probation. If you are convicted of a felony, you will face up to four years in a California state prison, a $10,000 fine, counseling, restitution, and formal probation.
If the victim sustained serious injuries, you could be facing a great bodily injury enhancement (GBI) under California Penal Code 12022.7.
In PC 368 elder abuse cases where the victim suffers great bodily injury, the penalties will be increased, and you will face a “strike” under California's Three Strikes Law.
Fighting Elder Abuse Charges
If you were accused of Penal Code 368 elder abuse, our Los Angeles criminal defense attorneys have a range of potential strategies to fight the charges. It should be noted that most defendants are family members with an emotional connection to the victim – making these types of cases a sensitive matter. The most common defenses include:
False Allegation
PC 368 elder abuse charges are sometimes filed against an innocent person. We might be able to make an argument the alleged victim is lying or suffers from a physical or mental condition that could give outward signs of neglect or physical abuse. Also, police and social workers often overreact to reports of elder abuse and will pursue a case with very little evidence.
Victim's Injury was an accident.
Recall the definition of PC 368 elder abuse that states you have to willfully cause unjustifiable physical pain or mental suffering on the elderly victim. We might be able to challenge this key factor by showing the injuries on the elder were caused by an accident, and you never had a willful intent to harm them.
Self-defense
We might be able to make a reasonable argument that although the alleged victim was an elderly person, you were only acting in self-defense or defense of someone else. Just because someone is elderly doesn't mean they can still get physically aggressive and place you at risk of harm.
Perhaps we can show with evidence you had a belief you were in danger of suffering great bodily injury and had to use immediate force to avoid the threat.
If you are facing allegations of elder abuse in violation of California Penal Code 368, contact our criminal defense law firm to review the details and legal options. We have a record of success defending our clients against elder abuse and any type of domestic violence-related case. Call our law firm for a free case evaluation at (424) 372-3112.
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