Elder Sexual Abuse |
Leaving an elderly family member or loved one in the care of a nursing home facility or a professional caregiver is hard enough. No one should ever have to later discover that their loved one fell prey to a sexual predator.
Elder sexual abuse is the initiation of physical or sexual contact with an elderly person, when that contact is unwanted or nonconsensual. The abuse also includes any sexual conduct with an elderly person who is unable to give consent due to medical conditions such as Alzheimer’s or dementia. Regardless of the severity of the conduct, if it is sexual in nature and nonconsensual, it is abuse.
Elder Sexual and Physical Abuse in California
Stories of elder sexual abuse are all too common in California. In November 2018, a 54-year-old Bakersfield man was arrested for barging into an elderly woman’s home, exposing himself, refusing to leave, and assaulting her. In 2017, a 28-year-old live-in Sacramento caregiver was found guilty of sexual and elder abuse of a 65-year-old stroke survivor. He received the maximum sentence of 45 years in state prison. Not only are elders in California experiencing abuse from individuals, there are also cases where elders are being abused while in the care of nursing home facilities. For instance, a Monterey nursing home settled with an 88-year-old woman who was institutionalized for a short time to recover from a stroke, when she was assaulted by an unknown assailant and given an incurable sexually transmitted disease.
These cases are just some that have been brought to light but many cases of elder abuse go unreported. Here is a list of the most recent statistics regarding California elder abuse:
- Thirteen percent of the total complaints to the California Office of the State Long-Term Care Ombudsman involve elder abuse, gross neglect, or exploitation—over twice the national rate of 5%.
- Of the six million elder abuse reports in the nation, 11% are filed in California.
- Elder abuse is a growing problem in Merced County, where the number of reported cases has shot up 20% each year, for the past four years. Officials fear far more cases go unreported for fear of retaliation.
- In 2016, there were 780 violent crimes committed against the elderly population of San Diego County.
Elder abuse in San Francisco rose by 33% from 2014 to 2015, and 70% from 2013-2017, but police investigations declined due to “lack of resources.”
Here are a few additional national statistics to consider:
- According to the Institute on Aging, one in 10 elders will experience physical, psychological, or sexual violence, neglect, or financial exploitation.
- The Institute on Aging also reports that 80% of women with disabilities will be sexually abused at some point in their lifetimes.
- According to RAINN, only 28% of elderly victims report sexual abuse to the authorities.
A 2017 investigation found more than 1,000 nursing homes in the country had been cited for mishandling suspected cases of sexual abuse and rape.
In some cases, California law protects your right to file as a “Jane or John Doe.” This can keep your identity private, while still allowing you to pursue justice. Contact us to discreetly discuss your case.
California Laws Against Elder Abuse
- California Welfare & Institution Code 15630-15632 (Elder Abuse & Dependent Adult Abuse Civil Protection Act): Mandated reporters for abuse include: anyone who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether compensated directly or not, including: administrators, supervisors, facility staff members, health practitioners, clergy members, county agency employees, and local law enforcement personnel. Abuse resulting in serious bodily injury must be reported within two hours and non-urgent matters must be reported within two working days.
- California Welfare & Institution Code 15700 (Protective Placements and Custody of Endangered Adults): It is the state’s responsibility to protect vulnerable elder and dependent adults who have been subject to abuse, neglect, or abandonment.
- California Welfare & Institution Code 15703-15705 (Protective Services): If law enforcement suspects immediate endangerment, the elder may be taken into protective custody and transported to the hospital for medical attention, in addition to initiating adult protective proceedings.
- California Penal Code 11174.4-11174.9 (Elder Death Review Teams): Each county may establish its own investigative teams to look into suspicious elder deaths. These teams may be comprised of forensic pathologists, medical personnel, coroners, district and civil attorneys, adult protective services staff, county health department staff, local law enforcement, a long-term care ombudsman, geriatric mental health counselors, and criminologists. Death review team documents are strictly confidential and may not be shared with third parties unless the majority of the team deems the disclosure fit.
- California Penal Code 368 (Crimes Against Elders and Dependent Adults): Elder abuse is defined by physical, emotional, sexual, or financial abuse or neglect of a person 65 or older or a disabled/dependent adult of any age. Misdemeanor offenses are punishable by up to a year in county jail and fines up to $6,000. Felony convictions are punishable by two, three, or four years in jail and fines up to $10,000. Enhancements may include an additional three years if the victim sustains great bodily injury, an additional four years if the victim was over 70 years old, or an additional five years if the victim dies from the abuse.
If you or someone you know may have a claim against a nursing home facility or a healthcare provider stemming from the sexual abuse of an elderly individual, Lewis & Llewellyn would like to help you assess your options and, if necessary, aggressively pursue fair compensation through the civil justice system.
Exploring Your Legal Options
The law allows two areas of recourse for victims of elder abuse. Criminal litigation overseen by a State District Attorney focuses on determining the guilt of a suspect and punishing wrongdoers according to the law. Once you file a police report, the DA will determine whether the case has enough merit to pursue. If accepted, the criminal charges will proceed as The State of California v. The Defendant. The DA must be confident that he or she can prove your narrative of events “beyond a reasonable doubt.” The final resolution may include fines paid to the state, a prison sentence, probationary monitoring, and inclusion on a sexual offender registry.
You may elect to file a civil lawsuit in addition to pressing charges. Civil attorneys often work closely with the District Attorney’s office to help build a substantial case. An unsuccessful criminal lawsuit does not preclude a person from pursuing civil litigation. If the defendant is found liable for causing injury and loss, financial restitution will be ordered by the courts, paid directly to the victim. In addition to the individual perpetrator, parties with knowledge of the abuse who failed to take reasonable steps to report or stop it can be held liable as well.
Elders may file a civil lawsuit to obtain compensation to cover medical expenses, therapy for psychological damage, loss of enjoyment in life, and emotional trauma. Living spouses can file a separate claim for loss of consortium. Caregivers may file for lost wages, emotional hardship, and/or wrongful death if a loved one is sexually abused.
California allows up to two years to file a civil claim for elder abuse. Exceptions can be made if the victim has a mental or physical incapacitation, and if the injury did not manifest itself until a later date. Lewis & Llewellyn frequently overcome statute of limitations objections, but it is wise to speak with a qualified attorney as soon as possible.
Did you know there are no upfront costs with Lewis & Llewellyn?
Every case review and consultation is free. Should we decide to take on your case, you will sign a contract defining payment, but no money is collected. Any fees required are factored into the settlement or compensation amount.
You have nothing to lose and everything to gain from speaking with an experienced attorney regarding your legal options.
Contact a California Elder Sexual Abuse Attorney
Experience matters. Lewis & Llewellyn has a long track record of prosecuting sexual abuse offenses, from matters involving young children to crimes against our respected elders. These cases can be complex with entrenched third party interests working hard to dodge liability and protect their reputations and funds.
In cases as sensitive as those involving sexual abuse, you need a winning team. The Daily Journal named Lewis & Llewellyn “Giant Slayers” as one of California’s top boutique law firms and listed both Paul Lewellyn (in 2016) and Marc Lewis (in 2017) among their annual “Top 40 Under 40” list of attorneys. Benchmark Litigation has ranked us among the most “highly recommended” California law firms for 2019.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.