Special Focus Issue - Elder Abuse
Accomodating the Elderly in Court
by Jean W. DiMotto
A profound effect of the victims' rights
legislation1 passed in recent years is the
increased mindfulness of attorneys and judges to the needs and
perspective of crime victims. The once-absent elderly victim now is more
likely to be present during court proceedings or, at the very least,
through the written or oral statements to the prosecutor that are
conveyed in court.
Accommodating Elderly Victims
With the noticeable increase in elder abuse prosecutions, judges are
well advised to consider these environmental, case management, and
procedural strategies to better accommodate the elderly adult victim
while preserving the rights of the defendant (whether or not an elder).
If judges do not consider these strategies sua sponte, counsel should
consider requesting them whenever such strategies would be
appropriate.
- Ensure that the courtroom is equipped to accommodate elder adults,
especially those who are frail or have disabilities. This includes
comfortable chairs, wheelchair accessibility, and microphones with
volumes loud enough for people with hearing deficits.
- Consider the viability of conducting court proceedings in locations
or by means that allow the participation of the homebound, bedbound, or
hospitalized elder victim, for example, in the setting where the alleged
victim currently is located (as is done in mental commitment hearings)
or via video-conferencing.
- Be flexible in scheduling the time of day for court proceedings,
since the capacity of older adults may fluctuate with the time of day,
medications, physical condition, capability, and time needed to get to
court.
- Take frequent breaks during court proceedings in view of the
physical needs and diminished stamina of some elderly adults.
- Expedite handling of elder abuse cases. This guideline should be
followed for any domestic violence case, but elder adults may be nearing
the end of their lives, and if they are frail or losing their capacity
to recall and testify about the alleged incident, give scheduling
priority to the case.2
- Join3 cases of elder abuse whenever
appropriate. Use the Circuit Court Access Program (CCAP)
to access any other cases against the defendant involving the same
alleged victim.) Joinder is strongly favored in the case law4 and has been found proper even when the evidence
in one case is extremely inflammatory,5 the
defendant asserts incompatible defenses to the joined charges,6 or the defendant intends to testify in only one of
the joined cases.7
- Use pretrial orders, including nonmonetary conditions of
bail/bond,8 to protect the elderly victim
from further harm or intimidation (subtle or aggressive) during the
pendency of the case. These may include no contact orders, orders to
continue taking prescribed medication, and orders to avoid alcohol or
illegal substances. It should be noted that elders as a generational
group respect the authority of courts and court orders and therefore,
accused elder abusers are likely to comply with court orders.
Deciding the appropriateness of pretrial orders can involve complex
considerations in elder abuse cases if the defendant is the elderly
spouse of the victim.9 Likewise, and perhaps
more so, sentencing a convicted elderly abuser depends on balancing
complex and sometimes competing interests.
Sentencing considerations
Paramount sentencing considerations are protecting victims from harm
and holding defendants of any age accountable for their criminal acts.
The following are additional considerations for judges and attorneys
when appropriate sentences are being determined or apt pretrial orders
are being crafted.10
- Is the defendant a risk to society in general, other relatives, or
neighbors in addition to the elderly victim?
- If the victim wants to maintain the relationship with the abuser,
can this be accomplished without further endangering the victim?
- Are temporary separate living arrangements available?
- Should visitation, with or without supervision, be authorized?
- Are interventional social services available for the abuser?
- Are there any other rehabilitative options for the abuser,
especially the middle-aged child who abuses the elderly parent (for
example, job search, job training skills, education, literacy
training)?11
- Can the elder abuse victim be linked with social services?
- Is Adult Protective Services involved?
- Is an aging coalition or network available?
- Should the victim be encouraged to use or be referred to a domestic
violence program or shelter, or a victim-assistance program?
- Can the victim be made whole as a result of sentencing?
- Is restitution needed?
- Can the victim's property be restored or returned?
- Can the abuser's property be attached or income garnished?
- Is a restorative justice program appropriate?
- If a probationary disposition is ordered, should the court require
periodic court reviews to monitor abuser compliance and victim
safety?
- Does the sentence reflect that the courts and society recognize
elder abuse as a crime?
- Does the sentence of an elderly abuser indicate that the courts and
society take elder abuse seriously? Or, does the sentence indicate that
an elderly convicted abuser is viewed more sympathetically than the
elderly harmed victim?
These last two questions are especially important for judges to
consider when there has been abuse throughout a marriage that does not
come to the attention of law enforcement or the criminal justice system
until late in the couple's life. The tendency then is to question the
victim's complicity, wonder why no professional has ever picked upon the
possibility of abuse and intervened earlier, and to excuse the conduct
by reasoning that punishing an elderly abuser seems futile and even
cruel. Advocates for elderly abuse victims report that it is not
uncommon for elderly abusers to tell their spouses that no judge is
going to put them in jail, as a way to prevent the spouse from reporting
the abuse.
Conclusion
As our population ages, the criminal justice system is called upon to
meet the challenges of criminal abuse of our elders. Let us be mindful
of our elders' contributions (regardless of whether pay was given for
those contributions), respectful of their lives and choices, and both
compassionate and firm in our justice when their bodily integrity has
been unlawfully interfered with.
Hon. Jean W. DiMotto ,
Marquette 1984, is a Milwaukee County circuit court judge.
Endnotes
1 Wis.
Const. art. I, § 9m; Wis. Stat. Ch. 950; Wis. Stat.
§§ 971.10(3)(b)3, 971.095.
2 Betsy J. Abramson,
"Procedural Innovations for Courts Handling Elder Abuse Cases." Adapted
from Lori A. Stiegel, "Recommended Guidelines for State Courts Handling
Cases Involving Elder Abuse," American Bar Association,
1995.
3 Wis. Stat. § 971.12.
4 State v. Hall, 103
Wis. 2d 125, 141, 307 N.W.2d 289 (1981); State v. Hoffman, 106 Wis. 2d
185, 208, 316 N.W.2d 143 (Ct. App. 1982); State v. Bellows, 218
Wis. 2d 614, 622, 582 N.W.2d 53 (1998).
5 State v. Nelson,
146 Wis. 2d 442, 456-57, 432 N.W.2d 115 (Ct. App. 1988).
6 State v. Locke,
177 Wis. 2d 590, 596-69, 502 N.W.2d 891 (Ct. App. 1993).
7 State v. Hall, 103
Wis. 2d 125, 130-31, 307 N.W.2d 289 (1981); State v. Nelson,
146 Wis. 2d 442, 455-58, 432 N.W.2d 115 (Ct. App. 1988).
8 Wis. Stat. § 969.01(4).
9 See William E. Hanrahan, Elder
Abuse: A Prosecutor's View, Wis. Law., Sept. 2000.
10 See supra note
2.
11 See Hanrahan,
supra note 9.
Wisconsin
Lawyer