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Does California’s Penal Code 368 Apply to Elder Sexual Abuse?

By December 6, 2018January 22nd, 2019Blog
Does California’s Penal Code 368 Apply to Elder Sexual Abuse

According to the U.S. Census Bureau, California has the largest number of elderly residents in the country, making up 13.9% of the state’s population. The California Attorney General’s Office estimates that 200,000 seniors and dependent adults are abused each year.

Many cases of elder sexual abuse often go unreported due to the survivor’s mental state, mistrust of the authorities, or fear of retaliation. Any form of elder abuse or abuse of a dependent adult is illegal in the state of California and punishable by law. Elder abuse is also grounds for pursuing civil litigation against responsible entities such as long-term care facilities or nursing homes.  

What Is the Law Regarding Elder Abuse?

California’s Penal Code, Section 368 specifically defines the crime of elder abuse and outlines particular punishments for those who harm elders (persons 65 years or older) and dependent adults (persons between the ages of 18 and 64, who have physical or mental limitations which restrict their ability to carry out normal activities or to protect their rights). The law acknowledges that special consideration and protection should be extended to elders, “not unlike the special protections provided for minor children,” because elders and dependent adults may be on medication, physically or mentally impaired, or otherwise incompetent to protect themselves, report criminal conduct, or testify in court.

The law states that any person who knows or reasonably should know that a person is an elder or dependent adult and who willfully causes or permits them to suffer, be injured, placed in a situation in which their health is endangered, or inflicts unjustifiable physical pain or mental suffering, is punishable by imprisonment in a county jail for up to one year, by a fine of up to $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

Punishment increases by three years if a victim under the age of 70 suffers great bodily and by five years if that victim is age 70 or older. If actions by the perpetrator cause death, up to an additional seven years is added to the sentence. Additional fines and imprisonment may be issued depending on the type of perpetrated abuse.   

Does California’s Penal Code 368 Apply to Elder Sexual Abuse?

Though “abuse” is vaguely defined under California Penal Code, Section 368, elder sexual abuse falls under legal definitions of abuse previously defined in the Penal Code as well as other types of abuse, including:

Physical abuse:

  • Assault (Section 240)
  • Battery (Section 242)
  • Assault with a deadly weapon or force (Section 245)
  • Unreasonable physical constraint or deprivation of food and water

Sexual assault:

  • Sexual battery (Section 243.4)
  • Rape (Section 261)
  • Rape in concert (Section 264.1)
  • Spousal rape (Section 262)
  • Incest (Section 285)
  • Sodomy (Section 286)
  • Sexual penetration (Section 289)
  • Lewd or lascivious acts (Section 288)
  • Use of medication for punishment

Special Protections and Services for Abused Seniors

The Area Agency on Aging provides protective services for elders endangered by sexual abuse. Every report received must be investigated—immediately for emergencies or within 72 hours for non-emergencies—to determine if the victim requires emergency, priority, or non-priority protection from abuse, neglect, exploitation, or abandonment. The APS works with local police, firefighters, paramedics, nurses, and physicians to provide the necessary care to recover from victimization.

Following their investigation, a written service plan is presented to the victim for their approval. In most cases, the elderly victim must consent to protection services. Protection may also be provided as part of a court order, upon request from the court-appointed caretaker, or implemented by emergency service personnel to prevent imminent risk of serious physical injury or death.

A civil attorney will work closely with Adult Protective Services to remove a victim from harm’s way and provide restraining or protection orders if the case warrants it. Oftentimes, prosecutors won’t pursue a case if the victim is unavailable to testify. However, an experienced civil attorney may be able to overcome this obstacle by presenting evidence to establish mental capacity and providing testimony from treating physicians, expert witnesses, and loved ones who can attest to the harm caused by the alleged incident.

What to Do If You or a Loved One Has Experienced Elder Sexual Abuse

While California’s Penal Code 368 applies to the criminal punishment for perpetrators of elder sexual abuse, victims of elder sexual abuse can also pursue financial compensation in civil court for medical bills, therapy bills, emotional pain and suffering, repayment of stolen or damaged property, repayment for lost investments, transportation or relocation expenses, legal fee repayment, and/or wrongful death benefits related to the abuse.  

Beyond the obvious perpetrator of the abuse, the civil justice system allows for multiple parties to be prosecuted when elder sexual abuse occurs at a long-term care facility. Suing a nursing home, for example, is often a more effective strategy to recover damages, as they have insurance and more funding available to pay than an individual. Even if an arbitration agreement was signed upon admission into a long-term care facility, survivors of elder sexual abuse can still seek justice. It is important institutions be held accountable for enabling elder sexual abuse to remedy the hazardous environment being created and prevent future harm from befalling other elders and dependent adults.

Lewis & Llewellyn has assisted plaintiffs in both public and private disputes. The law is designed to protect elders and dependent adults from sexual abuse but nursing homes may try to shield themselves from liability by seeking refuge behind binding arbitration agreements. Our multi-million-dollar track record is a testament to our commitment to achieving justice for our clients. If you or a loved one has experienced elder abuse while in the care of a nursing home, contact us or call +1 (415) 800-0590 for a free, no-cost evaluation of your case.

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