Elder Abuse Crimes and Penalties

Many states have enacted special laws or harsher penalties for crimes committed against elderly victims.

The abuse of the elderly runs the gamut from financial scams and physical neglect to serious assaults and sexual abuse.

The Elder Abuse Problem

Laws typically define elder abuse to include physical and emotional abuse, financial exploitation, sexual abuse, and neglect of people age 60 or older. It's estimated that at least 1 in 10 elderly adults suffer from abuse every year, but far fewer are reported and prosecuted. The National Center on Elder Abuse (NCEA) provides resources and compiles statistics on this growing population and the increasing prevalence of elder abuse.

Both criminal and civil laws aim to protect elderly adults from abuse. This article will discuss criminal penalties. If you have additional questions, check out Nolo's Elder Law topic page for more articles and resources.

Criminal Laws Prohibiting Elder Abuse

State laws differ in their approach to elder abuse crimes. Some states have enacted statutes that specifically address and allow enhanced penalties for crimes against elderly individuals. Others might prosecute crimes under their general statutes against assault, financial exploitation, fraud, or theft (among other crimes), and either provide a statutory enhancement (increased penalty) or allow judges to consider a victim's advanced age as an aggravating factor in sentencing decisions. In many states, lawmakers use a variety of these approaches. Here are a few examples.

Crimes specific to elderly victims. The California Penal Code makes it a crime to willfully inflict pain or mental suffering on an elder or dependent adult under circumstances likely to produce great bodily harm. (Cal. Penal Code § 368 (2020).)

Statutory enhancement for elderly victims. In Minnesota, simple assault carries a misdemeanor penalty, but when committed against a member of a protected class (such as police, school teachers, or the elderly), the penalty increases to a gross misdemeanor. (Minn. Stat. §§ 609.2231, 609.224 (2020).)

Aggravating factor in sentencing. Kansas law allows judges to sentence a convicted offender above the presumptive (recommended) sentence if certain aggravating factors exist, including that "the victim was particularly vulnerable due to age." So, if the offender scams an elderly victim out of their retirement, the court could look at the victim's age when imposing a sentence for theft or fraud. (Kan. Stat. § 21-6815 (2020).)

Common Issues and Terminology Arising in Elder Abuse Cases

States use different terminology to define elderly individuals, including elder(ly) adult, older adult, or aged person. The law might also define "elderly" as a certain age, say 60 and older or 65 and older. Some states use terms to include other adults who are disabled or vulnerable, such as endangered, at-risk, protected, dependent, or vulnerable adults.

Crimes against elderly adults can be committed by anyone—caregivers, family, neighbors, healthcare workers, acquaintances, or strangers. Criminal neglect cases usually specify the defendant must be a caregiver of some sort, with a legal or familial duty to care for the elderly victim. But other crimes—assault, theft, fraud, sexual abuse, murder—don't require any type of relationship between the defendant and victim.

Depending on the wording of the statute, some crimes require that the defendant know or should have known the victim was within the protected age range. Others require the defendant to be motivated by the victim's age in committing the crime. In some states, the law doesn't specify if the defendant's knowledge or intent is an element of the crime (but the court might read in such a requirement). You'll need to consult an attorney to learn how a particular law works in your state.

Common Crimes Against Elderly Victims

While any crime can be committed against an elderly person, below are some of the most common crimes targeted at elderly victims.

Abuse. Abuse refers to the intentional infliction of physical pain, injury, mental or emotional distress, fear, intimidation, unreasonable confinement, or sexual abuse against an elderly or vulnerable individual.

Assault. A person commits assault by intentionally inflicting or attempting to inflict bodily harm on another or by placing another in fear of immediate bodily harm.

Financial exploitation or embezzlement. Exploitation (embezzlement) generally refers to the unlawful use or conversion of another's money, property, or financial assets by a person who is entrusted with responsibility for those resources or who stands in a position of trust. To exploit the elderly person, the individual might improperly use resources overseen by them or exploit the elderly person by means of misrepresentations, harassment, coercion, undue influence, or duress.

Fraud. Fraud can take many forms including false representations, deceit, swindling, and schemes that are intended to wrongfully take or use another's money, property, assets, or funds. Common fraud scams targeted at elderly victims include tech support scams, sweepstakes or lottery scams, charitable scams, mortgage scams, and government impersonation scams.

Neglect. Criminal neglect can be committed by a caregiver responsible for the care and supervision of the elderly adult. Neglect can involve intentional (1) failure to provide an elderly person with necessary provisions, such as food, water, clothing, and shelter, (2) failure to provide or seek medical care for an elderly adult's physical or mental health needs, or (3) acts or omissions that place an elderly adult at risk of harm. Abandonment or confinement may fit in this category as well.

Sexual assault. Sexual assault or abuse occurs when a perpetrator engages in sexual contact without a person's consent or ability to give consent.

Theft or robbery. Theft involves the unauthorized taking of another's property (money, vehicles, personal items, real property, deeds, or legal or financial interests) with the intent of permanently depriving the owner of their property. A person can commit theft by physically taking property, through false representations, or by misappropriating it to their own use. Robbery typically involves theft directly from a person using force or threats of harm.

Penalties for Elder Abuse Crimes

The penalties for elder abuse and related crimes will depend on several factors, such as the severity of the crime, the harm done to the victim, and the defendant's prior criminal history. And each state defines its crimes and penalties differently.

Crime severity. A defendant who commits a sexual assault against an elderly victim will receive a harsher sentence than if the crime had been for minor theft. In general, person offenses (those involving bodily harm or fear of bodily harm) tend to carry harsher penalties than property offenses (those involving injury to or loss of property).

Victim harm. Offenses involving bodily harm to a victim generally impose penalties that increase as the level of harm increases. An assault resulting in bruising or bodily injury might be a misdemeanor, but if the attacker broke the person's arm or stabbed the victim, the penalty will likely be a felony. The same theory applies to theft and property offenses. The more money a defendant steals, the greater the penalty will be. And if the offender was a person in a position of trust (such as a financial advisor or power of attorney), the penalties also typically increase.

Past convictions. In general, a prior criminal record can result in (1) an enhanced penalty (for instance, repeat misdemeanor assaults might be charged as a felony) or (2) can be used in sentencing decisions (for instance, a first-time offender might receive probation time, whereas the habitual offender might end up in prison).

Penalties. For any crime, penalties can include incarceration, fines, and restitution (compensation to the victim). Most misdemeanors carry jail time up to a year (sometimes longer). A defendant convicted of a felony faces possible time in prison. In some cases, a judge may suspend a sentence of incarceration and place a defendant on probation with conditions. If the crime resulted in financial harm to the victim, the court will typically order the defendant to pay restitution to the victim.

Impact on Probate Actions

Referred to as slayer statutes, many states prohibit killers from inheriting from their victims. Some states also have laws that disqualify a defendant convicted of elder abuse from inheriting from their victim. Of the states with elder abuse disqualification statutes, some apply to both physical and financial abuse, while others apply only to physical abuse. (See Cal. Prob. Code §§ 250 to 259; Wash. Rev. Stat. §§ 11.84.010 to .030 (2020).)

Getting Help

For those facing criminal charges, speak to a criminal defense attorney in your area. An attorney can help explain the charges, the criminal justice process, and the possible consequences.

If you suspect elder abuse, contact a local Adult Protective Services office. In life-threatening cases, call 911.

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