Penal Code 368 PC - Elder Abuse Laws in California
Elder abuse is defined under California Penal Code 368 and covers various situations when someone could be charged with this crime. Victims 65 years or older are given special protections as abuse cases continue to rise.
These types of criminal charges, often related to domestic violence, are severe. The Los Angeles County District Attorney's Office has a separate unit specializing in prosecuting elder abuse cases, also known as “senior abuse.”
Notably, the victims under this law don't always have to be senior citizens but also someone who is a dependant with mental or physical limitations that impair their ability to perform routine daily activities.
Defendants of elder abuse cases are frequently family members or a caregiver. Elder abuse occurs in many forms, including physical, mental, or financial abuse. Further, it's also a crime to willfully cause or allow an elderly or dependent individual to suffer unjustifiable pain.
Physical abuse includes causing injuries, such as bruising or abrasions, but also includes bruises, fractures, or burns. Physical abuse also includes the following:
- abandonment, or
- sexual abuse.
Emotional abuse includes mental suffering, such as ridicule or isolation. Financial abuse involves embezzlement and fraud, such as identity theft, credit card fraud, and forgery. Let's review this state law in more detail below.
What Does the Law Say?
Asnoted,Penal Code 368 PC is the California statute defining severe elder abuse crime: anyone at least 65 years old. A dependent adult is anyone between 18 and 64 years old with physical or mental limitations restricting their ability to carry out everyday activities.
PC 368 says, “(a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out everyday activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.
(b)(1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under the circumstances likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elderly or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable….”
(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70.
(B) Five years if the victim is 70 years of age or older.
(3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
What Are the Elements of the Crime?
To be convicted of PC 368 elder abuse, the prosecutor must prove, beyond a reasonable doubt, certain elements of the crime, including the following:
- The victim was age 65 years or older,
- You knew or should have known they were at least 65,
- You willfully caused unjustified physical pain or mental suffering, OR
- You allowed someone else to do so, OR
- Your conduct could have endangered their health or life;
- You had a legal duty to act.
“Willfully” means it was on purpose or deliberate. Unjustifiable pain or mental suffering means causing pain that is not necessary, or that is excessive.
“Great bodily harm” means a significant physical injury. Notably, however, the elder does not have to actually suffer an injury, only that they were placed in a situation where it could have happened.
A typical example of elder abuse is when a normally loving and caring family member becomes overwhelmed with all the demands of caring for an elderly person. Then, quickly, they lose their temper and physically assault them.
Suppose you are a caregiver of an elderly or dependent adult. In that case, the prosecutor must prove that while having care or custody of them, you willfully or negligently placed them in a dangerous situation likely to cause injury.
Criminal negligence means your conduct, or lack of action, created a substantial risk of great bodily injury or death. For example, a caregiver failing to give an elder their prescribed medication could be considered negligent and enough to support PC 368 elder abuse charges.
What Are the Penalties for PC 368?
Penal Code 368 PC, elder abuse, is a “wobbler” that can be filed as either a misdemeanor or felony crime, depending on the case details.
If convicted of a misdemeanor, the penalties include the following:
- up to one year in county jail,
- a fine of up to $6,000 fine,
- victim restitution,
- informal probation.
If convicted of a felony elder abuse, the penalties include the following:
- up to four years in state prison,
- a fine of up to $10,000 fine,
- victim restitution,
- formal probation.
Suppose the victim suffers great bodily injury. In that case, the penalties will be increased you could face a “strike” under California's three strikes law.
What Are the Defenses for PC 368?
Suppose you are facing charges of violating Penal Code 368 PC. In that case, our Los Angeles criminal defense lawyers can use different strategies for the best possible outcome, as discussed below.
Perhaps we can argue that you are the victim of a false accusation. Sometimes, elder abuse charges are filed against innocent people. Maybe the alleged victim is lying or suffers from physical or mental conditions that may give signs of neglect or physical abuse. Perhaps the elderly victim is senile, paranoid, or delusional.
Perhaps we can argue that the injury was an accident. Under the law, you must deliberately cause unjustifiable physical pain or mental suffering to an elderly victim. Maybe we can prove the injuries resulted from an accident, and you did not intend to harm.
Perhaps there is a lack of evidence to obtain a conviction. Maybe we can cast some doubt by calling on experts to testify that the signs of abuse are consistent with an illness or age.
Perhaps we can argue self-defense. Maybe you were acting in self-defense or defense of another individual after the elderly person became physically aggressive and put you at risk of harm.
If you have been accused of elder abuse, you should immediately contact our law firm for a free case evaluation. We have a track record of success defending people against elder abuse offenses. To review the details of your elder abuse case, contact us by phone or using the contact form. The Hedding Law Firm is located in Los Angeles, CA.