Every year, thousands of older Americans experience the pain of domestic abuse from family members and caregivers. The elderly persons are those with the age of 65 years and above. Their age renders them susceptible and vulnerable targets of money fraud, sexual abuse, and neglect.
Abusing an elderly person in Orange County has serious consequences, and there is the possibility of penalty enhancement if you cause their death.
Not all charges against defendants are genuine. Jealous relatives, clumsy investigators, and rogue cops could accuse you of offenses you never committed. And, that is the reason you need the help of a defense lawyer who has experience with elder abuse cases.
If charged with California Penal Code 368 PC, you could contact Orange County Criminal Lawyer. We set ourselves apart from the rest of lawyers by performing thorough investigations, building the best defenses, and having a deep understanding of the laws in California.
Definition of Elder Abuse in California
California Penal Code 386 PC defines and stipulates elder abuse laws. Also known as elder abuse, elder abuse cases are reported daily and affect people from all walks of life. The National Center on Elder Abuse (NCEA) states that approximately one in every seven aging American residents suffers elder abuse.
It is not uncommon to discover that most of the elder abuse lawsuits involve relatives or caregivers of senior citizens.
According to Penal Code 368 PC, elder abuse involves financial and physical abuse or other treatment that could cause emotional or mental trauma to victims. Typically, senior citizens are persons above the age of 65 years.
With physical abuse, the suspects get accused of causing bodily harm, neglecting, abandoning, abducting, or sexually abusing the plaintiffs. Financial elder abuse involves stealing money from or defrauding the victims.
Types of Elder Abuse
There are many ways you could get accused of exploiting or mistreating senior citizens.
- Elder Financial Abuse
Material and financial exploitation involves various activities like theft, fraud, conning, and unlawful ways of getting material and monetary gains from unsuspecting older Americans.
You commit elder abuse if you cash checks without approval, frog signatures, misuse funds belonging to the elderly, or lure the victim to sign fraudulent documents. Violation of PC 368 is also evident where you take advantage of your guardianship.
Telemarketers could also prey on vulnerable elderly persons who are about to own homes. Here, the con artist disguised as a telemarketer deceives the victim to sign a title deed to the said home with the promise of a future payoff. Usually, the promised payoffs never reach the victims.
Neglect occurs when you, as the legal caregiver, fail to perform your duty to offer optimal care of a senior citizen. Caregivers’ duties involve providing older people with daily needs like clothing, safety, hygiene, housing, water, and nutrition. The elderly people also need emotional stability; hence, you commit a crime if you are not available emotionally to offer essential comfort.
Neglect could also happen in care or nursing facilities where attendants fail to care for elderly persons as required.
California law explains that neglect is either active or passive. Active negligence is where you intentionally cease to fulfill your caregiving duty. In contrast, passive neglect happens when you are unavailable, for any reason, to offer your caregiver duties to the elderly persons. The main reasons that could make you unable to provide care in passive neglect include insufficient care resources or depression.
Self-neglect refers to a form of elder abuse but without the involvement of a perpetrator. The crime happens when an older citizen’s safety and health are at stake after they fail to care for themselves. However, senior citizens must be mentally sane before they can get charged.
The abuse involves failing to provide necessities like a safe shelter, healthy food, clean water, sufficient hygiene, and taking medicines after prescriptions. Since this form of abuse doesn’t involve culprits, the adult protective services (APS) handles such a case.
- Physical Abuse
Any form of physical force you use and could cause harm, impairment, or physical pain to an older person is referred to as physical abuse.
Actions that the law could consider as physical abuse are like kicking, burning, shaking, striking, slapping, pinching, pushing, beating, and hitting. You could also commit elder physical elder abuse through force-feeding, false arrest, and giving medicine using excessive force.
You could get charged with physical abuse following a slight physical contact, as elderly people are weak and incur injuries easily. For instance, a senior citizen can sustain bruises following a tight grip, mainly if you acted against their will or had the intent to inflict injuries.
- Sexual Abuse
You commit sexual abuse to an older person when you initiate any sexual contact without their consent. Sexual abuse could also occur if the said person cannot give consent or suffers a mental condition, and you initiate sexual contact.
Acts considered as sexual abuse or nonconsensual contact include rape, sexual battery, forced nudity, sexually explicit photographing, or uninvited touching.
- Psychological and Emotional Abuse
Mental and emotional abuse involves acts that result in older people's sorrow, emotional trauma, and distress. You could instigate emotional abuse through acts such as hurling insults, issuing threats, assaulting someone else verbally, intimidation, handling dependent persons like kids, harassment, and humiliation.
You could cause emotional pain to a senior citizen not only through verbal assaults but also via isolation and silent treatment. If a senior citizen fears because you beat them before, they could suffer psychological trauma too.
As a guardian or caregiver, your work is to see to it that the aging citizen under your care has access to necessities and special ones if need be.
If you leave the older America to care for themselves, you violate PC 368.
What Evidence Should Prosecutors Provide against Your Elder Abuse Charges?
The prosecution bears the burden to provide proof beyond a reasonable doubt that you abused an older person if charged with elder abuse.
These pieces of evidence or legally known as elements, are split into misdemeanor and felony elder abuse under Penal Code 368 PC.
Elements that the prosecution need to prove in a felony elder abuse lawsuit are:
- Your crime commission was intended. The prosecutor has to show you willfully caused sorrow and pain or allowed some else to perform the acts to a senior citizen
- Your actions could cause physical harm or even death to the victim
- You have full knowledge that person under your guardianship was over the age of 65 years and above
Elements for the crime of misdemeanor elder abuse are similar to those of felony elder abuse, but there is a slight disparity. These include:
- Your crime commission was intended. The prosecutor has to prove you willfully caused sorrow and pain or allowed some else to perform the acts to a senior citizen
- You have full knowledge that person under your guardianship was over the age of 65 years and above
- Your actions could endanger the victim’s health or life
You had conscious intention to perform an act if you are said to do it willfully.
You would subject yourself to the criminal liability of elder abuse if you acted willfully and negligently.
Unlike typical carelessness, criminal negligence is more severe as your acts exhibit a total disregard for the elderly person's life and health.
Note that you cannot get convicted for violating PC 368 through criminal negligence if you have other lawful duties to handle.
Consider hiring an experienced criminal lawyer to represent you in court if charged with elder abuse. See, California Penal Code 368 is complicated if you don't have in-depth knowledge of this type of law.
What are the Penalties for California Penal Code 368 PC?
A wobbler crime under California law, penalties for PC 368 depends on whether your offense was a felony or misdemeanor.
Misdemeanor Elder Abuse
Penalties for PC 368 misdemeanor elder abuse are less severe compared to those of felony abuse. They are:
- Summary or informal probation
- Serving jail-time at the county jail for a period not exceeding one year
- A possible fine of up to $6,000. You pay a fine of $10,000 if convicted for a second misdemeanor offense
- Guidance and counseling
- Compensation to the older person you abused
Felony Elder Abuse
Possible penalties for felony elder abuse are higher than those of misdemeanor elder abuse. They are:
- Formal probation
- Serving jail time in the California State Prison for a period not more than four years and not less than two years
- The court enhances your punishments to an extra three to seven years if the senior citizen you abused incurred severe physical harm or died
- You could get subjected to California’s Three Strikes Law if you cause severe bodily injuries to an older American
- Possible fines that don’t exceed $10,000
- Compensation to the victim
- Guidance and counseling
Legal Defenses for Elder Abuse - PC 368 Charges
Often, elder abuse suspects get accused falsely and charged in court. There are instances where the plaintiff is telling blatant lies. Also, some conditions older people suffer, have serious effects that appear like the signs of neglect and physical harm.
To make matters worse, cops, physicians, and social workers don’t undergo training to know the difference between signs or physical abuse and those of accidents, aging, or ailments. All that they do is report suspected abuse and take you to court.
See, elder laws are complex to understand. If an elderly person has signs of physical injuries or trauma, the doctors or law enforcers must find someone liable, or they get charged. To avoid getting convicted, the law enforcers arrest you, the caregiver/ guardian for neglect and abuse even if you are innocent.
Other times the older people claim to get abused, and little or no investigation is done, and that's how they get away with self-neglect liability.
With a competent criminal lawyer, you could prove your innocence and have these elder abuse allegations dismissed or reduced. Below are standard legal defense options you could use.
An Isolated Case
Caring for an older person comes with myriad demands and needs lots of sacrifices every day. You need to offer comfort, food, clean after them, carry them to every place, follow their medication, if any, to the letter.
Your criminal attorney could help convince the jury, judge, and prosecution that you had no intention of abusing the senior citizen.
You could also argue that you underwent an emotional breakdown before your arrest, and if convinced, the judge could lessen your sentence.
Lack of Evidence
Like in other criminal lawsuits, the prosecution must provide proof beyond a reasonable doubt that you violated Penal Code 368.
That means that the evidence should prove that no other realistic explanation exists other than your abuse actions.
You are innocent if the prosecution has insufficient evidence to validate the neglect or accusation. Here, your criminal lawyer could argue on the grounds of a reasonable doubt against your charges.
With a knowledgeable defense attorney, you could contact an expert who would testify that the signs of physical abuse could result from the aging process, an accident, or an ailment. The expert/ specialist, together with witnesses that your lawyer gathers, could testify that the senior citizen is confused, delusional, or paranoid and that the allegations carry no substantial facts.
The prosecution could also accuse you of neglecting the senior citizen; hence, putting him in a position that could cause harm to them. Here, you could provide proof in the court of how well you took care of the accuser. Your go-to shreds of evidence to prove your innocence include doctors’ reports and records, bills of air conditioning, or even hospital receipts for prescription drugs.
If found guilty for neglecting the accuser, your lawyer could try going around the allegations to gain sympathy.
The court cannot sentence you for physical abuse if the prosecution cannot prove that you performed your actions willfully. The senior citizens' injuries could result from an accident and not because of your negligence.
Wrongful Arrest and False Accusations
Someone else could falsely accuse you of abusing an older person because of various reasons. If the cops and social workers do flimsy investigations to ascertain the genuineness of the accusations, your wrongful arrest could happen.
A jealous relative could falsely claim that you, the caregiver, abused an older citizen because the elderly person could have entrusted you with property and huge amounts of money.
The accuser could make lawful allegations, but the victim's physical harm did not result from physical abuse.
Here, there is a dire need to hire a competent lawyer in Orange County, California. Your criminal attorney should have enough expertise with your type of criminal charges.
Another legal defense and almost similar to the false accusation is mistaken identity. The accuser could file a lawsuit for genuine physical elder abuse allegations, but you are not the one who committed the crime. The situation is common where you are the caregiver, and everyone considers you as the first suspect or liable.
An excellent example of a mistaken identity situation is where you and an older relative under your care argue, and later the victim shows bruises on the skin. Other relatives could presume you are the abuser even without evidence backing their claims.
It’s human nature to defend themselves when in danger. It could happen that an elderly person, even if frail, becomes aggressive and wants to inflict harm to you. When you use force to avoid them causing harm to you, they instead sustain injuries. The elderly person could accuse you of physical abuse, and that gives you the burden to prove you acted in self-defense.
A criminal lawyer can show the court that you acted using force to thwart a threat, but you did not use unnecessary force.
Related Offenses for California Elder Abuse
California Penal Code 368 is among the laws that touch on elderly abuse. There are many more such laws that the court could charge you with their violation together with or in place of PC 368. The close relation between these laws is because:
- PC 368 and related offenses share similar elements
- Often, defendants commit elder abuse together with related offenses
- Battery – California PC 242
The law refers battery to the willful and unlawful use of unnecessary force on your victim. If you willfully attack and harm a senior citizen, you subject yourself to criminal liability for PC 368 and PC 242 offenses.
PC 242 is a wobbler, and the judge imposes penalties depending on the extent of harm done to accusers.
The court would consider your case as a misdemeanor if you didn't inflict severe injuries on the plaintiff. Possible punishment for misdemeanor elder battery is a fine not exceeding $2,000 and not more than six months of jail time in county jail.
Your battery charges would escalate to a felony battery if the elderly person incurred severe injuries. The potential punishment for your felony conviction includes servicing jail time for a period not exceeding one year and four years for a second-time felony.
- Rape – California PC 261
Rape as a crime related to PC 368, happens when you use force, intimidations, or fraudulent means to have nonconsensual sex contact with a senior citizen.
Usually, you commit the offense when you take advantage of a senior citizen who is senile, harmed, and cannot give consent.
PC 261 is a felony in California can possible charges include serving jail time in state prison for three, six, or eight years.
The judge could add other charges like lewd acts – PC 288 if you have nonconsensual sex with the dependent because of their degraded physical or mental state.
- Murder – California PC 187 & Involuntary Manslaughter – California PC 192
Other charges the prosecution could add along PC 368, if committed with negligence or malice aforethought leading to the death of a senior citizen, are involuntary murder or murder.
- Criminal Threats – California PC 422
Criminal threats occur when you instill fear in an elderly person through threatening to inflict injuries on them. The prosecutor also has the jurisdiction to charge you with PC 422 if you willfully cause injuries to a senior after issuing threats to them.
Possible penalties for criminal threat charges include serving jail time for not less than one year in California State Prison.
- Domestic Violence in California
Domestic violence primarily involves spouses and family members. So, if you are a spouse or a relative to an elderly person, you subject yourself to both elder abuse and domestic violence crimes, if you harm the victim. The law recognizes family members like grandparents, parents, or roommates.
- Aiding Commission of Suicide – California PC 401
It is not uncommon for elderly persons to suffer from chronic and terminal ailments. When some of them cannot bear with the pain any longer, they contemplate committing suicide.
Your work as a caregiver is to offer care and prevent such incidents from occurring. But if you or a family member supports the elderly person in their plans to commit suicide, the prosecution could charge you with aiding or encouraging a suicide under California PC 401.
Also, when a senior citizen commits suicide under your care, their family members and relatives most likely accuse you of abuse and aiding with the suicide.
California Penal Code 401 PC is a felony crime that carries harsh penalties. If convicted, you could spend time in state prison for not more than three years.
Contact an Orange County Criminal Lawyer Near Me
Until now, you realize how strict California law is on elder abuse claims. If arrested, the prosecution tries every means to have you convicted, especially when they bear the burden of proof. The ball is now on your side to prove your innocence. Therefore, you genuinely need defense in the court from a talented criminal lawyer.
Choosing Orange County Criminal Lawyer not only saves you the trouble of understanding how the California judiciary system works but also amplifies the chances of your case dismissal or lower penalties.
Whether you are a caregiver in a homecare facility, a family member, the spouse, or a guardian trusted with the care of a senior citizen in Orange County, you could get charged with elder abuse.
Whatever the reason for your charges, we have an able team who work relentlessly on behalf of our clients. Make a call today for a private conversation and a zero-cost consultation at 714-262-4833.