Vol. 73, No. 9, September 2000

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.

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).