Elder Abuse Law in California - Penal Code 368 PC
Elder abuse is described under California Penal Code 368 and covers a wide range of offenses that could occur in different situations. Elder abuse cases frequently fall under the umbrella of domestic violence, but also occur in other environments.
In California, a victim over 65 years old is provided special protection as “senior abuse” cases have become more common.
There is a separate unit within the Los Angeles County District Attorney's Office than investigate elder abuse cases – and they specialize in 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 a member of the family or a caregiver. An elder abuse crime occurs in different ways – such as physical, mental, or financial. In simple terms, it's a crime willfully cause or allow an elder or dependent to suffer unjustifiable pain.
You don't have to directly abuse an elder to be charged under PC 386. 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.
To give readers useful information about elder abuse described under Penal Code 368, our Los Angeles criminal defense lawyers are providing an overview below.
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 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 time of the abuse
- You willfully caused unjustified physical pain or mental suffering on 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 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 you had a legal duty to act.
Caregiver Elder Abuse
If you are a caregiver of an elder or dependent adult – the prosecutor will need to prove you willfully or negligently caused their injuries or placed them under 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 create 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 personal 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 type of abuse and criminal record.
If you are convicted of a misdemeanor, you will be facing up to one year in county jail, a fine up to $6,000, restitution, counseling, informal probation. If you are convicted of a felony, you will be facing up to four years in a California state prison, $10,000 fine, counseling, restitution, 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 are facing 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 range of potential strategies to fight the charges. It should be noted that most defendants are a family member with an emotional connection to the victim – making these types cases a sensitive matter. The most common defenses include:
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 overact to reports of elder abuse and will pursue a case with very little evidence.
Victim Injury was an accident
Recall the definition of PC 368 elder abuse that states you have to willfully cause unjustifiable physical pain or metal suffering on 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.
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.