Vol. 73, No. 9, September 2000

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?
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• 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.

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.

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