Special Focus Issue - Elder Abuse
A Prosecutor's View of Elder Abuse
by William E. Hanrahan
The elderly are becoming an increasing presence
in criminal courts statewide. Whether as crime victims, witnesses, or
even criminal defendants, the changing demographics of our communities
are slowly transforming the criminal justice system. From the minute
they enter the courthouse, some senior citizens find that the justice
system may not be adequately equipped to accommodate their basic right
to be heard. In addition to removing many of the
physical barriers resulting from age-related disabilities, Wisconsin
courts have increasingly allowed for lawyers' innovations in presenting
their elderly clients' claims in a more dignified and responsive
manner.
Increasingly, the elderly lead an isolated existence, away from
mainstream society. Often they are housed in age-segregated communities
where the ever-growing costs associated with an aging population can be
more effectively contained. The reduced presence of the aged in our
neighborhoods has lessened our daily exposure and interaction with them.
In the absence of a true experiential base, we have grown ever more
dependent upon social myth and the widely held stereotypes of the aged
as passive, confused, nonviolent, and asexual beings.
The courtroom is, in some sense, a microcosm of the larger society.
As such, it is inescapable that certain preconceptions will be shared by
the various players in the legal forum, from the jury in its
deliberations to the judge in pronouncing sentence. The testimony and
character of the elderly witness, crime victim, and criminal defendant
may be judged and compromised by factors not within their control.
Although often the result of good intentions, the human consequences to
the marginalized senior citizen and to society in general, are no less
devastating than the more well-recognized, overt prejudices.
A primary challenge of a prosecutor in elder abuse cases is to
transcend the familiar veneer of aging. The prosecutor must demonstrate
that the elderly individual on the witness stand is, indeed, a fully
functioning human being, capable of experiencing the full range of human
potential, from the most elevated and venerable aspirations to the most
despicable antisocial actions. Only by laying such a foundation is a
prosecutor able to cultivate the shared vision of humanity necessary to
assure that courtroom decision-making is predicated upon the truth.
A Taxonomy of the Unthinkable
In Wisconsin, abuse of the elderly is divided into three categories:
1) physical abuse, 2) material abuse, and 3) neglect.1 Prosecutors who are experienced in crimes against
the elderly often will substitute, in a sort of law enforcement
shorthand, the imagery of recurring and familiar themes of elder abuse
for those officially recognized categories. Domestic abuse has its
"boomerang child" cases and its "lifetime abuse" situations. Crimes of
neglect often take on the faces of the "inept volunteer" or a pattern of
"institutional neglect." The final category consists of a variety of
"parasites and predators" who are unrelated to the elder, yet often are
adept at gaining the victim's trust before they willfully exploit it for
their own gain.
Domestic Abuse
The Boomerang Child. In cases of domestic abuse,
perhaps the most frequently occurring scenario is that of the
40-something son who has returned home after a failed marriage, an
unsuccessful career, or a bout with chemical dependency. The son returns
home, most often to his mother, seeking a return to the uncomplicated
solace of childhood and the safety net of funds accumulated by her
lifetime of thrift. This delayed mother and child reunion often is
complicated by the presence of mental illness.2 Explosive acts of anger followed by subtle and
overt verbal manipulations typify the dynamics of these relationships.
Not accustomed to the interference of outsiders, elderly victims may
reject the intervention of the courts or refuse participation in any
prosecution of their children. Guilt is all that results from
introspection, as the nature versus nurture inquiry always ends, in the
victims' minds, with all fingers pointing directly back at themselves,
the parents.
A lifetime of abuse
The next most pronounced type of abuse is that typically suffered by
elderly women at the hands of their abusive husbands. Contrary to the
present statistical trend in abusive relationships, spousal abuse in
later life occurs, invariably, in the context of a long-term
marriage.3 Most often, the abuser has
engaged in acts of physical and emotional abuse over the entire course
of the marriage. Only in later years has the abuse come to light, as the
minor push or slap in the course of an argument, due to the frailties of
advanced age, now may result in significant injury. The victim, although
empowered by a changing societal perspective on family violence, still
believes, at some level, that she is responsible for her predicament.
Often she will believe that reporting the abuse will be a betrayal to
the family or would not serve any useful purpose at this stage in
life.
Another small, but increasing subcategory of spousal abuser is the
individual who has demonstrated no history of physical abuse; however,
in his advanced age he has begun to exhibit profound behavioral changes,
mood swings, and acts of violent aggression. Known generally as frontal
lobe dementia, the various forms of this debilitating disorder include
memory loss, disinhibition, and irritability.4 Some researchers suggest that as many as 50
percent of all elderly criminals suffer from some form of mental
illness, including the various forms of dementia, depression, and
chemical dependency.5
Neglect
The Inept Volunteer. For the isolated elder whose
spouse has passed away and the immediate family has moved on, there may
be no alternative to reliance upon extended family or acquaintances to
meet his or her increasing need for daily care. Often, the only
available volunteer willing to assume these duties is, ironically, the
one who is least equipped for the job. In the beginning, the elder
provides a small stipend for the tasks accomplished; later in this
progression, the elder has entrusted the entirety of his or her funds to
the caregiver. Gradually, the caregiver grows weary, often discovering
that the elder's pleas and complaints can be regularly ignored without
any apparent consequences. At this point, the caregiver often begins to
overcompensate him or herself out of the elder's funds, while decreasing
the level of care for the now-dependent senior. The typical neglected
ward will begin to suffer from a variety of related maladies, including
poor hygiene, resulting in painful bedsores, malnutrition, dehydration,
and the rapid decline of cognitive abilities.
Curiously, a preponderance of available literature describes this
general category as "self neglect." The infirmed senior who refuses to
burden a de facto caregiver with responsibility for increasing medical
needs frequently is unaware of the extent of his or her physical and
mental incapacitation. The insidious onset of the infirmities of aging
also may blind the caregiver to the changing nature of his or her
relationship to the elder. Consequently, cases in this category often
challenge prosecutors to determine where "self neglect" ends and
reasonable expectations of caregiver intervention begin.
Institutional Neglect. The growth of Wisconsin's
elderly population has been matched by the expansion of residential and
health care service providers. This industry has been consistently able
to provide an unmatched quality of care to residents while keeping
rising costs under control. A major challenge facing this highly
regulated industry has been the recruitment, training, and retention of
qualified staff. A few unscrupulous providers have, however, through
their practices, been able to cut costs and increase profits. These
operators may run their facility on a skeleton crew of largely
unqualified and untrained staff. The residents, in addition to suffering
the same consequences of neglect, often are the targets of intentional
crimes, including battery, theft, and even sexual assault.
Predators and Parasites
Street Crimes. In Wisconsin's cities, especially in
densely populated, highly transient neighborhoods, lifelong residents
have, literally, become prisoners in their own homes out of fear of
victimization. Those who formerly viewed a walk to the bank or market as
their weekly opportunity to socialize and maintain a sense of community
now have significantly limited their social contacts rather than risk an
encounter with a typically young and increasingly violent offender.
Remarkably, in speaking with police and prosecutors, these street
criminals frequently will recount, openly and without shame, the fact
that they specifically selected an elderly person for attack because of
their unique vulnerability.
Con Artists. A trusting elder, not accustomed to the
complexities of the business world, after the death of a
business-handling spouse, or, as the result of the infirmities of aging,
is ripe for the exploitation of a variety of con artists. From the
proverbial tin men and home improvement schemes, to the more subtle
manipulations of a rogue funeral director, to the misrepresentations of
nationally known prize promotions, there is no shortage of individuals,
like the common street thug, that purposely target the vulnerability of
the senior citizen.
It is a sad commentary that these categories are, by no means, an
exhaustive listing of the many ways in which the dignity of life is
compromised for the elderly. But, for virtually every conceivable
factual situation to cross a prosecutor's desk, Wisconsin law provides a
strong and effective framework within which to seek justice.
Innovations in Wisconsin Law
Detection of Elder Abuse. Under Wisconsin law,
generally speaking, the reporting of elder abuse is strongly encouraged
but not mandated.6 Wisconsin Statute section
46.90(2)
provides a variety of protections for the good-faith reporter of
individual acts of abuse, as well as for the institutional
whistle-blower. This statute also requires social service agencies and
law enforcement to fine-tune their working relationships and endeavor to
provide a seamless web of protection to at-risk seniors.
Mandatory Arrest. Wisconsin's mandatory arrest
statute strives to provide a consistent response to those elders who are
victims of domestic abuse. In the process, the ordinarily broad
discretion of both police and prosecutor is significantly
limited.7 The boomerang child and the
lifetime abuser will no longer receive the proverbial "slap on the
wrist" from responding law enforcement; they will be arrested.
Immediately upon arrest, an automatic protective order is issued, the
violation of which could result in additional or enhanced
offenses.8 For some who have endured the
devastation of years of unspoken abuse, the arrest of the abuser brings
a welcome relief, needed support, and hope for the future.
Mandatory Report of Wounds. A seldom-used reporting
law in this state requires certain health care workers to report wounds
that are believed to have been the result of a crime.9 Emergency rooms statewide have a reporting
protocol for shootings and cases involving stab wounds. Few, however,
have recognized the obligation to report "any wound" that they
reasonably believe to have been intentionally or recklessly inflicted
against the wishes of the victim. Such an intervention may provide early
detection of a potentially hazardous environment for the senior.
Evidence
Elder abuse cases often do not reach the prosecutor's desk until
months, maybe years, after the criminal activity occurred. The social
worker, health care aide, and bank official who attempted to assist the
elder in the beginning each had a unique interest in the victim's
affairs. None may have considered the future needs of law enforcement to
preserve evidence. Now, the prosecutor attempts to locate and follow the
trail of evidence that invariably accompanies such crimes.
Witness Statements. Perhaps the most important
evidence in elder abuse cases are the words of the victim and of the
accused. The description of recent injuries given to an emergency room
nurse, the screams of pain overheard by a neighbor, and the frantic call
to 911 all may be admissible under exceptions to the hearsay
rule.10 Once those statements are found to
fall within a "firmly rooted hearsay exception," the Confrontation
Clause is satisfied.11 If the witness's
physical or mental state has degenerated, such memorialized statements
may be used as substantive evidence when the witness provides an
inconsistent statement on the witness stand.12 Additionally, under certain circumstances,
videotaped depositions of the elderly victim/witness may be allowable in
the criminal case.13 The number and variety
of such mechanisms have evolved to provide that the powerful accusatory
words of the elderly victim ultimately will be heard by those judging
the abuser.
Physical Evidence. In the absence of a competent
complaining witness, or memorialized accusatory statements, cases of
elder abuse often can be demonstrated through the use of an evidentiary
timeline. Physical injury and illness often is dutifully chronicled by
health care providers. Such records frequently are accompanied by the
charted explanation of the maladies' origins offered by the
caregiver/abuser. A thorough review of these records may provide
evidence of a disturbing pattern of physical abuse or neglect that,
because of the abuser's systemic manipulations, had gone undetected by
health care providers.
Prosecutors report that cases of physical abuse and neglect almost
invariably are accompanied by some degree of financial exploitation.
Tracking the relative wealth of the abuser and the elderly victim
through bank records, credit card activity, and the acquisition or sales
of property may provide an interesting and probative corollary to an
established pattern of injury and illness. Creative investigators may
uncover clues in public records, agency reports, and from the fruits of
the civil discovery process in parallel litigation.
Ultimately, evidence must be gleaned from the seemingly disjointed
activities of various agencies, businesses, and law enforcement. It then
must be painstakingly assembled in such a manner as to clearly identify
the insidious pattern of exploitation of the elderly victim.
What if ... ?
The strengths of Wisconsin law are clear and provide ready
intervention for the at-risk senior. For those who work in the system,
however, it is not difficult to imagine a less than optimal outcome for
some elderly victims. Take the example of the elderly woman who is being
treated for a broken hip and minor lacerations. She has an immediate
need for emergency treatment and maintains a basic expectation of
privacy. In the course of treatment, she admits to the ER nurse that her
injury occurred when her son shoved her to the ground during an
argument. The nurse, who is obligated to report that injury, calls the
sheriff. The responding police agency then is required to arrest the
son, her primary caregiver. A social worker who is assigned to the case
then may be required to find a suitable institution to care for the
victim outside of her home. The local prosecutor, following the
statutorily mandated office policy, must issue criminal charges,
notwithstanding the victim's nonconsent to the prosecution of her son.
At trial, relying upon statements made in confidence to her physician,
the prosecutor impeaches the victim's testimony. The son is convicted
and, at sentencing, this only remaining family member is hauled off to
prison. In reality, the victim now has been sentenced, against her clear
and unmistakable wishes, to life confined in an uncomfortable and
unfamiliar institution.
This scenario raises obvious public policy concerns. The most
fundamental question is whether such victims actually are safer as a
result of this massive intervention, or whether, in the future, they
simply will be deterred from promptly seeking medical attention and
being candid with the treating physician. In Wisconsin, the conventional
black and white views of criminal justice have begun to yield to an
ever-growing presence of gray. Alternative intervention strategies have
been made available to both condemn the societal transgression and
protect the rights of the aggrieved. The Wisconsin model allows for
increased levels of coordination between service providers while
maintaining the flexibility to aggressively intervene with sensitivity
and common sense.
Courtroom Innovations
Coordination of Prosecution Activities. The
Wisconsin Department of Justice Office of Crime Victim Services
presently has a full-time elder abuse specialist who provides technical
assistance to prosecutors, social workers, and law enforcement
statewide. County District Attorney offices also maintain a staff of
victim/witness specialists who coordinate social service, law
enforcement, and courtroom activities. In some locations, these
specialists will provide on-scene counseling for distraught elderly
victims.
Protective Orders. Wisconsin law provides the
opportunity for granting various ex parte restraining orders for elderly
victims of crime.14 Such orders provide the
basis for exerting control over the offender's manipulations, including
overt threats, harassment, and the employ of guilt. Criminal penalties,
ranging from simple forfeitures to felonies, may be imposed for the
accused's failure to comply with these orders.
Additionally, the circuit court has the broad authority to fashion
appropriate conditions of bond under Chapter
969 of the Wisconsin Statutes for individuals charged with a crime
involving elder abuse. In addition to placing restrictions upon travel
and the criminal defendant's ability to associate with certain
individuals, in cases of elder abuse, courts may impose certain
nonmonetary conditions to assure the protection of the victim, integrity
of the investigation, and the effectiveness of social service
intervention. If the offender attempts to interfere with a social
worker's visit, fails a drug test, or even sends a dozen roses with a
manipulative letter of apology, the prosecutor could issue additional
criminal bail jumping charges.15
Remedies: One Size Does Not Fit All
The Wisconsin Legislature has provided prosecutors and courts with a
wide array of remedial options in criminal cases of elder abuse.
Penalties vary from the severely punitive to informal dispositions
involving the principles of restorative justice. Our criminal justice
system has evolved to accommodate both the unique human dynamics of the
case and the individual needs of the elderly victim.
Enhanced Penalty for Theft. To the crack-addicted
visitor at a nursing home, the old railroad watch, pocket knife, and
gold religious medallion represent just a few bucks at the pawn shop.
For the old man who traded a lifetime of worldly possessions for a
handful of mementos kept in his bedside nightstand, these objects
represent his life, and they help to maintain his grip on reality.
Stealing this property from a senior, regardless of the dollar value, is
a felony in Wisconsin under one felony enhancement scheme.16
Institutional Abusers Beware. In recognition of the
unique vulnerability of a resident of a care facility, Wisconsin Statute
section 940.295
provides a powerful tool for prosecuting a variety of abuses against the
elderly. This section provides significant penalties for intentional,
reckless, and negligent actions of employees, whether they even result
in demonstrable harm to the elder. Additionally, an employee of such a
facility who has any sexual contact with a patient, even consensual, may
be subject to felony prosecution under Wisconsin Statute section 940.225(2)(g).
The Wisconsin Supreme Court, in its sweeping decision in State v.
Serebin,17 found that austerity
measures undertaken by nursing home management, including staff
reductions and food serving decreases, could constitute criminal elder
abuse where residents suffered from bedsores and weight loss, even
absent expert testimony regarding causation.
A Formidable Deterrent. Those who are not employees
of a care facility, and who maltreat the elderly, are similarly faced
with potentially severe penalties for their neglect and abuse of those
who suffer from the infirmities of aging.18
The sweeping prohibitions include acts of "restraint, isolation, or
confinement that cause or could reasonably be expected to cause ...
mental or emotional damage."19 In cases of
simple battery under section 940.19,
when the victim is over age 62, a rebuttable presumption exists that the
abuser has "created a substantial risk of great bodily harm,"
potentially resulting in conviction for a Class D felony. Thus, the
boomerang child who slaps his mother causing her to fall to the ground
may be facing a felony prison sentence this time rather than a simple
misdemeanor. And, the inept volunteer who, for personal convenience,
confines grandpa to his bedroom every day, may soon experience a similar
loss of liberty when convicted of Abuse of a Vulnerable Adult.
Alternatives. Beyond the necessary heavy-handed
approaches to prosecution, the state Legislature has incorporated
principles of restorative justice into some criminal court dispositions
of certain cases of elder abuse. Specifically in cases of domestic
abuse, the offender may be granted the opportunity to work to regain the
trust of the elderly victim and of society through a deferred
prosecution agreement.20 The prosecutor, in
exercising broad discretionary powers, may, for example, require the
offender to complete various treatment programs, attend elder care
training, and refrain from using alcohol and controlled substances for a
specified time. The exertion of such leverage on behalf of an elderly
victim can prove empowering in an inherently imbalanced relationship, as
failure on the part of the abuser ultimately could result in felony
charges and a prison sentence.
The Wisconsin prosecutor, as a quasi-judicial officer, has a duty to
seek "simply justice" in cases of elder abuse.21 Therefore, Wisconsin law provides prosecutors
with a panoply of legal tools to accommodate the seemingly infinite
variety of human suffering and to effectuate the goals of a just
society.
Conclusion
Daily, growing numbers of baby boomers are joining the ranks of the
senior citizenry. No longer complacent with the criminal justice system
of the past, their presence is transforming the courtroom into a
receptive institution, willing to recognize their special status in
society and able to protect them in the onset of inevitable
vulnerability. In Wisconsin, victims' rights legislation, mandatory
arrest, and laws requiring prompt intervention in acts of elder abuse,
unequivocally bespeak our commitment to our seniors; the enhancement of
criminal sentences and stiff penalties available demonstrate our disdain
for those who would violate the vulnerable; and our legislative
commitment to restoring shattered homes through principles of
restorative justice, provide an informal and compassionate alternative
to the prosecution of certain offenders.
William E. Hanrahan,
Hamline 1988, is an assistant attorney general in the Criminal
Litigation Unit. He formerly was an Assistant District Attorney in
Milwaukee County, where he directed the Domestic Violence Unit. The
views expressed herein are not necessarily those of the Wisconsin
Department of Justice.
Endnotes
1 Wis. Stat. § 46.90.
2 Abuser – chemical
dependency and major mental illness; victim – depression. Kurrle,
Sadler & Cameron, Patterns of Elder Abuse, Med. J. Nov.16; 157(10):
673-76 (Aug. 1992); Coyne, Reichman & Berbig, The Relationship
Between Dementia and Elder Abuse, Am. J. Psychiatry, 150(4): 643-46
(Apr. 1993); Paveza, Cohen, Eisdorfer, et al., Severe Family Violence
and Alzheimer's Disease: Prevalence and Risk Factors, Gerontologist
32(4): 493-97 (Aug. 1992).
3 Gelles, Richard, Regina
Lackner & Glenn Wolfner, Men Who Batter: The Risk Markers, Violence
Update: 4(12): 1-2, 4, 10 (1994).
4 24 Ca. J. Neurol. Sci.,
29-36 (1997).
5 35 Medical Post, 19 (May
18, 1999).
6 Wis. Stat. § 46.90.
7 Wis. Stat. § 968.075.
8 Wis. Stat. § 968.075(5).
9 Wis. Stat. § 146.995.
10 Wis. Stat. § 908.03(2)
& (4).
11 State v. Wyss,
125 Wis. 2d 681, 710 (1985) (overruled on other grounds) State v.
Poellinger, 152 Wis. 2d 493 (1990).
12 Wis. Stat. § 908.01(4)(a)(1),
Vogel v. State, 96 Wis. 2d 372, 386 (1980).
13 Wis. Stat. §§
885.40
- 885.47.
14 Wis. Stat. Ch. 813; Wis.
Stat. § 968.075(5).
15 Wis. Stat. § 946.49.
16 Wis. Stat. § 943.20(3)(a)(6).
17 119 Wis. 2d 837, 350
N.W.2d 65 (1984).
18 Wis. Stat. § 940.285.
19 Id.
20 Wis. Stat. § 971.37.
21 O'Neil v.
State, 189 Wis. 2d 259, 207 N.W.2d 280 (1926).
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