Impact of Criminal Justice on Elder Abuse

Abstract

Elder abuse is a complex and multifaceted problem. Although the majority of elder abuse still does take place in the domestic setting, increasing numbers of cases are occurring within the healthcare or nursing home setting. Measuring elder abuse is difficult due to inconsistent reporting, and the fact that most cases of elder abuse remain unreported. Responding to elder abuse requires cooperation between multiple agencies and organizations within criminal justice, the legal system, public health, and healthcare services. The impact of the criminal justice system has been to prevent and respond to elder abuse.
Introduction and Background
Criminalizing elder abuse is a relatively new phenomenon. Prior to 2000, elder abuse was construed as a private, family concern (Heisler, 2012). Just as attitudes toward child abuse and domestic violence changed during the 20th century, public attitudes and responses to elder abuse are finally shifting in the 21st century. As the senior population of the United States grows by the minute, elder abuse becomes an increasingly important issue from the perspective of healthcare and criminal justice systems.
However, it is not a simple matter to start transferring responsibility suddenly to the criminal justice system. Criminal justice system responses to elder abuse depend on having clear public policies in place. Furthermore, local, state, and federal laws need to provide a framework for responding effectively to elder abuse within the criminal justice system. Elder abuse is a multifaceted, complex problem that needs to be addressed in a multidisciplinary fashion, involving scholars, legislators, policy analysts, healthcare workers, attorneys, judges, and law enforcement agencies. Responses to elder abuse also require public attention and awareness, and knowledge of the special needs of diverse elder populations and their communities.
Elder abuse is highly prevalent, but notoriously difficult to measure due to a number of intervening variables. The first impediment to successful measuring of elder abuse prevalence is defining elder abuse. Some cases of elder abuse are relatively straightforward to define, but other cases, such as those involving financial abuse, also need to be taken into consideration when measuring prevalence. With so many different variables and different techniques used to measure elder abuse, it has been difficult to develop cohesive policy interventions.
Second, most elder abuse cases are not reported (Blowers, 2005). Some reports indicate as few as one in 27 cases are reported (Blowers, 2005, p. 1). However they are counted, numbers of cases are staggering, with over 500,000 non-institutionalized individuals 60 or older estimated to be the victims of abuse and/or neglect, and 1-2 million cases of abuse, exploitation, or neglect every year in total in the United States alone (Blowers, 2005, p. 1).
Defining Elder Abuse
Definitions of elder abuse are changing, to include a broader range of abusive and exploitative activities ranging from neglect to financial manipulation. The broadest definition of elder abuse is “any action or inaction by any person that causes harm or risk of harm to an older person,” (British Columbia Ministry of Public Safety and Solicitor General, n.d., p. 2). Evidence from geriatric and cognitive science is crucial to defining elder abuse more broadly and reliably. For example, financial abuse is more commonly being considered as a criminal form of elder abuse. As Wood, Rakela, Liu, et al (2014) point out, research on “specific cognitive domains linked to financial capacity including memory, calculation, and executive functioning” is necessary for defining elder financial abuse (p. 414). Some of the most obvious types of elder abuse include “intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors, neglect and self neglect,” (British Columbia Ministry of Public Safety and Solicitor General, n.d., p. 2). Which types of elder abuse can or should be criminalized is at the heart of the debate over the role of the criminal justice system in elder abuse cases. Severity and duration of the abuse might also factor into definitions of elder abuse. It may also be important to consider each case separately, rather than presuming that all cases fit under the same rubric.
Contexts of Elder Abuse
Elder abuse occurs in a number of different contexts, the main ones being at home and in nursing homes or healthcare facilities. The vast majority of cases occur domestically, though. As Blowers (2015) points out, “ an overwhelmingly large proportion of elder abuse, neglect, and mistreatment cases occur when the victim is living at home and most often the perpetrator is a family member or caretaker,” (Blowers, 2015, p. 1). However, it is important not to generalize about the contextual variables or about the perpetrators. Perpetrators are diverse, as are the situations that surround elder abuse. Perpetrators are “heterogeneous with important differences across types of abuse,” (Jackson, 2014, p. 265).
Financial exploitation is a common context of elder abuse. According to the NCPEA (2008), perpetrators of financial abuse of elders include caregivers, unscrupulous businesspersons, or persons with malicious intent. Caregivers and loved ones may perpetrate elder abuse by misappropriating funds, forging signatures, diverting inheritance funds, and disenfranchising the elder and/or siblings from financial entitlements (NCPEA, 2008).
Unscrupulous business practitioners can be health service providers or senior living facilities overcharging for services, or billing for unused services. While these types of behaviors fall more into the category of general fraud, they can be conceptualized as elder abuse given the unique circumstances of elder cognition and behavior (Wood, Rakela, Liu, et al, 2014). Similarly, malicious or predatory individuals might seek out elders as victims of business scams due to the vulnerability of this population. Elders with memory or cognitive impairments are at an especially high risk for financial abuse. Types of financial abuse range from pledges of romantic or companionship interests, promises to provide services like housekeeping, or email and other online scams (NCPEA, 2008). Conceptualizing financial abuse of elders as a criminal justice concern helps to raise awareness of the prevalence of the problem and free up resources to prosecute offenders. The criminal justice system can thereby help prevent instances of elder abuse by creating and enforcing the legal framework for responding to elder abuse of all types.
Perceptions of Elder Abuse
It is important to change public perceptions of elder abuse, in order to view it as a criminal justice issue. Perceptions of elder abuse determine how people recognize warning signs, what behaviors are classified as elder abuse, and how people respond to elder abuse. Responding to elder abuse can take different forms, including the use of the criminal justice system. Moreover, different perceptions of elder abuse also impact a person’s sense of agency and also their beliefs about community resources available to elders or their family members (Roberto, Teaster, McPherson, et al, 2015).
Because the majority of cases occur within the home with a family member or primary caretaker as the perpetrator, elder abuse has until recently, and often still is, construed as a “family issue” and not a criminal justice one (Blowers, 2015, p. 1). Framing elder abuse as a family issue is problematic because it reduces the chance for elders to have a sense of agency. The elder or victim might have negative perceptions of the criminal justice system, too, not believing that the criminal justice system will help or worrying that the criminal justice system might put their caregiver or loved one in jail. “Perceptions of elder abuse are shaped by experiential, cultural, contextual, and generational variables that influence both individuals' abilities to recognize elder abuse and their likelihood to report concerns to authorities,” (Roberto, Teaster, McPherson, et al, 2015, p. 9).
Types of Interventions Available
The two most important types of interventions for elder abuse include the criminal justice system and the healthcare system. Ideally, the criminal justice system and the healthcare system work in tandem to improve awareness, access, and response efficacy. It is important to develop a multifaceted approach to conceptualizing and responding to elder abuse, because it is a complex and heterogeneous issue. “Multiple conceptualizations can and must co-exist, a framework which is consistent with the multidisciplinary team approach becoming prevalent in the field,” (Jackson, 2016, p. 1). Currently, interventions that use the criminal justice system involve law enforcement and legal counsel.
Role of law enforcement in cases of elder abuse includes ensuring the victim is safe by enforcing restraining orders and performing checks on the person’s wellbeing (NCPEA, 2008). Law enforcement should also provide “leverage and assistance to other professionals in fulfilling their mandates to investigate and intervene,” (NCPEA, 2008). Arrests can be made when necessary, and alternative sanctions such as access to psychological counseling or victim encounters can also be provided by law enforcement. Law enforcement can also intervene by ensuring that the perpetrator, such as a caregiver, is behaving in accordance with the law by regularly visiting the domicile (NCPEA, 2008).
Legal counsel plays a major role when responding to elder abuse in a criminal justice context. The role of legal counsel is to offer information related to how to seek protective services in the case of physical abuse, how to prosecute an individual or institution perpetrating the abuse, how to seek financial retribution for financial abuse, and how to ensure future safety through mechanisms of the law. The role of the judiciary is to understand the ramifications of elder abuse for the individual and community, to recognize the warning signs of abuse, and to develop appropriate responses to elder abuse on a case-by-case basis. Both the judiciary and the legal counsel must also have an understanding of scientific literature about geriatric psychology and behavior, in order to make informed decisions.
The role of public health and advocacy programs and agents is to design effective public awareness campaigns, disseminate information to the community, distribute information to local advocacy groups, senior care centers, and healthcare agencies, and to deliver a consistent message about how to recognize and conceptualize elder abuse. Public health and advocacy programs interface with the criminal justice system, relieving some of the logistical burdens on the latter and also providing information about geriatric issues.
The role of healthcare workers is multifaceted, and includes training staff in senior care and general hospital facilities. Staff needs to be made aware of the warning signs of elder abuse, both in terms of staff perpetrators but also in terms of how to identify family and caregiver perpetrators. Similarly, healthcare workers need to empower their elder patients, particularly those with diminished cognitive or physical functioning. Serving as patient advocates, healthcare workers need to establish lines of communication between the elder and a legal team or a law enforcement agency.
Barriers to Taking Action
Even when the criminal justice system is committed to addressing cases of elder abuse, there may be significant barriers to intervention or taking action. There may also be structural and institutional barriers, such as a lack of effective laws in place, or a lack of funding for social services. The difficulties or inabilities to define elder abuse also impede access to services. Most importantly, elders are often reluctant to report elder abuse or are systematically powerless: lacking the physical or cognitive functioning necessary to access the criminal justice system or any social service. Many victims of elder abuse might be reluctant to access the criminal justice system or to seek help in any way because of fears of what they system might do to their primary caregiver, especially if that caregiver is a loved one. “The tendency to label all elder abuse perpetrators as the “bad guys” has diminished our ability to respond effectively,” (Jackson, 2014, p. 265).
Some barriers to intervention are logistical, pragmatic, or structural. For example, Blowers (2015) points out that not all criminal justice resources are located in accessible areas, central or handicap accessible. Environmental factors, like the staff attitudes, staff welcoming, or too many bureaucratic barriers and impediments might also reduce the likelihood of accessing criminal justice or social service interventions. Lack of information, both in terms of the fact that help is available and how to seek and receive help, is one of the most important barriers to taking action. Elders might not know that they are being abused, especially in cases of financial abuse. Also, there may be no one there to advocate on behalf of the individual or help them to seek appropriate legal assistance. Healthcare organizations might also lack the information elders need, or fail to provide the means by which elders can seek justice for abuse. In some cases, healthcare workers, as well as criminal justice system actors, are woefully untrained in or unaware of the specific issues surrounding elder abuse (Heisler & Stiegel, 2002). Too often, the criminal justice system acts independently of other professional and community organizations that could provide information, institutional supports, resources sharing, or other key functions.
Benefits of Using the Criminal Justice System
The criminal justice system needs to become more involved in elder abuse from an ethical and rights-based perspective, as well as for pragmatic purposes. One of the benefits of using the criminal justice system is that it can lead to more uniform and consistent laws that protect elders from abuse and provide elders with legal recourse. Benson (2010) identifies three main functions of elder abuse laws. The first function is to create legislation on the state and/or federal level for funding adult protective services and related publically funded agencies. These types of agencies are often the “front line responders,” (Benson, 2010). Even when law enforcement officers are actual front line responders, law enforcement frequently refers elder abuse cases to adult protective service agencies (Benson, 2010).
Second, laws related to elder abuse can require healthcare workers or any adult to report cases of elder abuse, in the same way that certain people are required by law to report child abuse. Third, laws against elder abuse provide clear guidelines for how the criminal justice system can respond, and clear outlines of the rights elders have, who can be held liable for abuse, and the sanctions or penalties placed on the perpetrators.
Conceptualizing elder abuse as a criminal justice issue is important for changing social norms, and for ensuring the safety and wellbeing of all seniors. “The criminal justice system can provide a powerful tool for protecting victims of elder abuse by communicating a message to the offender that the conduct is unlawful and reprehensible and by assisting the offender in ending the criminal behavior,” (Heisler, 1991, p. 5).
Limitations of the Criminal Justice System
Elder abuse absolutely needs to be framed as a criminal justice issue, but in some situations, the criminal justice system might not be the most appropriate line of defense. Not all cases can be criminalized, for one. Second, the criminal justice system is not yet robust enough to handle many cases of elder abuse. Until legislation is strengthened and made more uniform, the criminal justice system can be constrained to act. Also, the criminal justice system presents impediments such as lengthy time frames of handling cases, in lack of knowledge about social services that can be provided to victims.
Many of the criminal justice system programs and policies for responding to elder abuse are ineffective, inefficient, or not based on emerging literature. As Benson (2010) points out, many of the current law enforcement and criminal justice responses are based on the child protective services model. The child protective services or domestic violence model might offer important parallels, but there are critical differences that need to be taken into account, especially with regard to geriatric psychology, impaired judgment or cognitive functioning, impaired physical ability to access services, and also respect for autonomy (Benson, 2010). Because the criminal justice system is only one means of responding to elder abuse, it is important to create interagency task forces that recognize the complexity and diversity of elder abuse cases.
Conclusion and Recommendations
Overall, the impact of using the criminal justice system to address elder abuse has been to increase awareness, and help agencies coordinate their resources and services. The most important recommendations for using the criminal justice system to respond to elder abuse, and for improving criminal justice responses include the coordination of information and resources, the structural integration of law enforcement and healthcare systems, the creation and funding of multidisciplinary task forces for addressing elder abuse from multiple domains, and providing more effective and current training for all stakeholders including law enforcement, the judiciary, legal teams, and healthcare workers.
Information Coordination
Coordinating information is the cornerstone of an effective criminal justice response to elder abuse. Law enforcement needs to have access to information about the services available in that community, the laws about elder abuse, and knowledge of what constitutes elder abuse. To coordinate information, public health and geriatrics organizations need to compile information sheets that are written specifically for a criminal justice audience. Information needs to be shared and coordinated between multiple actors including attorneys and judges, as well as healthcare providers.
Resource Coordination
Availability and judicious use of human and financial resources should never become an impediment to effective senior care services. This is as true for elder abuse as for any other aspect of elder care. Therefore, coordinating resources among agencies is the most strategic way to manage resources and ensure that all seniors are protected, and have access to the criminal justice system when needed. By coordinating resources, criminal justice systems are not overburdened by unnecessary roles and are better equipped to respond to elder abuse cases. Resources can be coordinated by sharing the same information sources, and reducing redundancies in the response systems.
Structural integration
Integrating the healthcare system with the criminal justice system needs to take place in order to generate greater awareness of the problem, and allow for improved reporting services. Structurally integrating healthcare, senior care services, and criminal justice usually means devising special task forces, agencies, or professional positions (Heisler & Stiegel, 2002; Heisler, 2012). Specialized elder courts, which are being used in some jurisdictions, are another possible method of structural integration (Blowers, 2015). Multidisciplinary task forces can be implemented at the local or community level, as well as at the state or federal level (Heisler & Stiegel, 2002). Most researchers and policy analysts advocate a team-oriented approach similar to that used in domestic violence (Blowers, 2015, Jackson, 2016, NCPEA, 2008).
Training
Better training for law enforcement, attorneys, judges, and healthcare workers is needed in order to more effectively prevent and mitigate elder abuse. “It is important that police officers be familiar with the processes of aging and the special problems of elders when they respond to calls for service, calls involving abuse and neglect,” (Blowers, 2015, p. 7). Members of the judiciary and the court system cannot be exempt from training programs. As Blowers (2015) points out, “all too often, judges and courthouse staff lack sufficient understanding of the aging process and have not given careful consideration to the problems of elders engaged in the legal system,” (p. 7). The NCPEA (2008) also suggests training programs for law enforcement and other key players.
Community Policing
Community policing is the best model of law enforcement when it comes to preventing and responding to elder abuse (Blowers, 2015; Heisler & Stiegel, 2002). With a community policing model, witnesses of elder abuse feel more empowered to report what they see, and law enforcement also offers easy methods of reporting that facilitate information sharing.
Patient Advocacy
Healthcare organizations and healthcare workers need to assume a patient advocacy role. Any suspected cases of elder abuse need to be reported via appropriate methods, and the elder needs to be directed to the services available in the community. When the elder is unable to access those services directly, the healthcare worker assumes the role of advocate, helping the elder receive the legal counsel and support. Also, healthcare workers need to inform the elder about how the criminal justice system works in their case, to let them know that a multidisciplinary team will be there for assistance, and that their loved one might not go to jail if charges are being placed.
Public Awareness
It is critical to promote public awareness, to help all members of the community recognize the signs of elder abuse and know how to seek legal counsel or social services. For example, fact sheets and public service announcements can better define elder abuse, and show which agencies or services are available at the community, state, and federal level.
Strengthen Elder Abuse Laws
Heisler & Stiegel (2002) also point out the importance of strengthening elder abuse laws at the state and federal level, making those laws more consistent across states and between the state and federal government.
Increase System Accessibility
Finally, the criminal justice system needs to be more accessible, logistically and physically. Elders with physical or cognitive impairments have rights and needs that are not being met. For example, the NCPEA (2008) advises “the use of videotaped testimony for victims who are unable to come to court.”






References

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