Prosecutorial Practices, Elder Abuse

Like domestic violence, elder abuse was treated as a social service and public welfare matter rather than criminal conduct for many decades. Perpetrators were viewed as stressed caregivers with loving, close relationships with the elders for whom they provided care. The needs of older individuals were added to the caregiver's existing responsibilities to family, partners, and job. Professionals and community members believed that often the burden became so great that the exhausted caregivers lashed out or neglected the older person. It was believed that the victim was significantly impaired and could or would not participate in the criminal justice system. If legal action was required, the civil justice system responded with protective orders and guardianships.

The professional understanding of elder abuse has changed. More recent research no longer supports the stressed caregiver as primary explanation for elder abuse. Some elder abuse is criminal behavior, so a justice response is required. Many states have enacted specific laws criminalizing elder abuse. Some states have created sentencing enhancements or presumptions in favor of more serious sentences for perpetrators of elder abuse. Domestic violence laws, previously not applied when the parties were elderly, are increasingly used as well. Only 2 decades ago, prosecutions were rare and when undertaken were often unsuccessful; today, prosecutions are more common and convictions more frequent.

Prosecution of elder abuse cases has drawn from the experiences learned handling domestic violence cases. These experiences include the use of criminal protective and stay-away orders to keep suspects separated from victims, vertical prosecution in which the same prosecutor handles a case from beginning to end, and the creation of specific elder abuse prosecution units with specially trained attorneys, investigators, and advocates. Some victim witness assistance programs have designated specific advocates to assist elderly crime victims, and some states have established grant programs to fund units and develop and support specialized training.

The role of the victim has changed as well. In the past, cases were not pursued when the victim of elder abuse asked to drop charges. Today, prosecutors decide whether to proceed based on the sufficiency of the evidence. Although victim desires are considered, the decision whether to take criminal action now rests with the prosecution.

Given the dynamics of elder abuse and the inability of some elderly victims to participate in criminal cases, considerable prosecution effort has been spent on building cases in which the victim is not called to testify or in which reducing the role of the victim must be considered in a prosecution. Many states have enacted procedures that allow for the early collection and preservation of victim testimony. In some cases, when required, the taking of testimony at the victim's location rather than at the courthouse is permitted. Testimony can be videotaped for use at a later trial in which the victim is unavailable.

Prosecutors in some communities work with local adult protective services (APS) workers in rapid response teams to respond to calls of suspected elder financial abuse. The APS caseworker focuses on [Page 564]client needs and investigating and substantiating allegations while the prosecution investigator determines if a crime has occurred and secures the crime scene, the evidence, and the remaining assets. Prosecutors have undertaken efforts to educate and involve community members and professionals in identifying and responding to elder abuse. Some communities have increased the identification and reporting of elder abuse by having prosecutors work with bank officials. Other prosecutors have worked with local clergy to increase recognition and response to elder abuse.

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