Proving Elder Abuse In Sexual Assault Cases

Elder Abuse – Sexual Assault

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Separate and distinct from civil penalties for sexual elder abuse, most, if not all states, make it a separate crime to commit a sexual assault and battery on an elder which is usually defined as any person over 60 years of age.

According to a CNN study published on February 17, 2017 on sexual elder abuse, nearly 300 nursing homes were officially cited for failing to adequately protect long term care residents from sexual abuse between the years 2010 and 2015. The report states that the federal government has cited more than 1,000 long term care facilities for failing to prevent alleged cases of sexual abuse. Ironically, the sexual elder abuse report was published just one day before President Trump’s State of the Union speech proposing massive spending cuts in federal programs that will adversely impact the poor and the elderly.

According to the National Institute of Justice (NIJ), sexual abuse is one of the least studied aspects of elder abuse. Based on one sponsored study, “Forensic Markers in Elder Female Sexual Abuse Cases,” the study suggests that the older the victim, the less likely the offender will be formally charged with the crime, unless it can be shown that the elder has physical signs of trauma, such the presence of sexually transmitted diseases, vaginal infections, anal bleeding, bruising around the breasts and genital area, and torn or bloodied undergarments.

Prosecuting Sexual Assault Cases

Different Types Of Statutes

These types of criminal statutes provide prosecutors with independent discretion on whether to charge the crime as a felony or misdemeanor. Misdemeanors are crimes punishable by incarceration for up to one year. A felony however, is punishable by incarceration in excess of one year. Those convicted of a felony must serve the time in state prison.

Decision To File Elder Abuse Charges

The prosecutor bases the determination on whether to file criminal charges based on the specific circumstances of the case and is usually predicated on whether the prosecutor has a good faith belief there is a significant chance of obtaining a conviction in the case.

The determination on whether to charge the crime is multifactorial and includes among other things, whether the elder victim is credible, makes a good witness and is able to recall the events with reasonable specificity. The later issue can be particularly challenging if the victim is suffering from dementia or other forms of memory loss. Others filing factors in the determination in whether to file criminal charges focus on the defendants profile, occupation and whether the accused has a criminal history of sexual assault or violence. The prosecutor will of course want to show, as in most criminal cases, that there was motive and opportunity to commit the crime.

Other then the ability to accurately recall the event, another determining factor in prosecuting elder sexual assault crimes is whether the victim, at the time of the sexual assault, was mentally or physically incapacitated. If so, this is considered a serious aggravating factor.

Specifically, if the sexual battery involved an elderly victim who did not have mental capacity or was unable to physically resist or be conscious of what was happening at the time of the assault, the case will usually be charged as a felony with significant enhanced penalties. The emphasis on the criminal investigation and prosecution in these types of cases will focus on the available physical evidence and whether the defendant had the opportunity to commit the crime.

Notwithstanding whether the defendant is charged with a misdemeanor or a felony, the prosecutor must, as a matter of legal proof, convince a jury that the crime had been committed beyond any reasonable doubt. This requires that each and every element of the crime be sufficiently proved based on this heightened standard.

What Prosecutors Need To Prove

Touched an intimate part of the victim in which the victim did not consent to the touching (or that the consent was under duress) and that the touching was done for the sexual arousal and/or gratification of the accused.

In California for example, should the sexual elder abuser be convicted of a misdemeanor, the penalties are:

Misdemeanor probation, otherwise known as “summary” probation;

Up to 6 months in County Jail;

Up to $2,000 in fines ($3,000 if the accuser is your employee);

Registration as a Sex Offender;

Successful completion of a Batterer’s Class, or

Community service.

If convicted of felony sexual assault the following penalties:

Formal probation involving a probation officer;

2-4 years in a California state prison;

Up to $10,000 in fines;

Registration as a “Sex Offender”

Finally, most state elder abuse laws also include substantial penalty-enhancers depending on the age of the elder and the degree and frequency of physical abuse committed against the elder victim.

A Bleak Picture

Sadly, the elder sexual abuse problem is only going to get worse as the elderly population is slated to double between 2010 and 2050, while the  funds to protect the poor and elderly decline.

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