Elder (in)justice: a critique of the criminalization of elder abuse.

• Author: Kohn, Nina A.

ABSTRACT

The past two decades have seen a rapid proliferation of laws and policies that facilitate a criminal justice response to elder abuse. Drawing on feminist critiques of the criminal justice response to domestic violence, this Article argues that the criminalization of elder abuse can protect elder abuse victims and improve public attitudes toward elder mistreatment. However, it warns that by failing to engage elder abuse victims in the punishment process and criminalizing certain consensual interactions involving older adults, the current criminal justice system response to elder abuse threatens to oppress victims, perpetuate negative stereotypes about older adults, and undermine the delivery of victim services. It therefore posits that the debate over how to address elder abuse must move beyond the question of whether the criminal justice system should respond to elder abuse to thinking critically about how the system should do so. Finally, it suggests that the criminal justice system response to elder abuse could be improved by being informed by those working in parallel domains, including domestic violence.

TABLE OF CONTENTS I. INTRODUCTION II. THE CRIMINAL JUSTICE SYSTEM RESPONSE TO ELDER ABUSE A. The Problem of Elder Abuse B. The Public Policy Response to Elder Abuse C. The Creation of Crimes Targeting Elder Abuse III. THE CONSEQUENCES OF THE CRIMINAL JUSTICE SYSTEM RESPONSE A. The Relevance of the Domestic Violence Response B. Learning from the Domestic Violence Response 1. The Promise of the Criminal Justice Response 2. The Threat of the Criminal Justice Response IV. CONCLUSION I. INTRODUCTION

Each year, over ten percent of older Americans experience abuse or neglect. (1) Confronted with this evidence and a burgeoning elderly population, the criminal justice system is rapidly embracing elder abuse as a criminal justice concern. (2) As a result, criminal justice system resources are increasingly allocated to elder mistreatment issues and state legislatures have enacted legislation specifically aimed at facilitating the prosecution of elder abuse. (3) Consistent with this pattern, there is a growing sense that elder abuse prosecution is essential to achieving "elder justice," a term used to refer to the right of older adults to be free from mistreatment. (4)

Despite the tremendous growth of the criminal justice response to elder abuse, the legal academy has been almost entirely silent on this trend. This Article fills the void by providing the first substantive critique of the criminal justice response to elder abuse. Drawing on feminist critiques of criminal laws and policies related to domestic violence, the Article finds that the emerging criminal justice response to elder abuse holds the promise of protecting certain elder abuse victims and of positively affecting public attitudes towards elder abuse. However, it also argues that the experience with domestic violence policy suggests that these benefits may come at considerable cost. Specifically, by allowing the state to act without the active participation of victims--and even over their objections--and by differentiating among victims based on chronological age, the criminal justice system response is poised to further victimize elder abuse victims, promote negative stereotypes about older adults, and undermine efforts to provide services to elder abuse victims. The Article therefore calls for a reconsideration of whether current elder abuse policy is properly balancing the competing goals of elder abuse prosecution.

The Article proceeds in three major Parts. Part II describes the problem of elder abuse and the nature of the public policy response to it, focusing in particular on the emergence and substance of the criminal justice system response to elder abuse. Part III describes why and how the experience with the criminal justice response to domestic violence can inform elder abuse policy. Specifically, it shows that by shifting power from elder abuse victims to the state, the current response to elder abuse threatens to disempower, disengage, and disenfranchise older adults in a manner that serves to limit, not protect, their rights. Finally, Part IV argues that there is a need to reconsider the design of criminal justice responses to elder abuse in order to minimize the trade-off between achieving state accountability and public attitudinal change on one hand, and supporting victim autonomy and combating ageism on the other.

2. TIIE CRIMINAL JUSTICE SYSTEM RESPONSE TO ELDER ABUSE

   The public response to elder abuse in the United States has evolved over the past half century. A defining characteristic of modern elder abuse policy is that elder abuse is seen as a crime, and that the criminal justice system is therefore seen as a critical actor in the public response to elder abuse. To understand this approach, its potential value, and its potential implications, one must first understand the phenomenon of elder abuse and how the new criminal justice response fits into the larger context of elder abuse policy. Therefore, this Part describes the problem of elder abuse, the general framework of the public response to it, and how the criminal justice response fits into this larger context. It then highlights and describes a central component of the modern criminal justice system response to elder abuse: the creation of elder abuse targeted crimes.

   1. The Problem of Elder Abuse

      Elder abuse is a complex social phenomenon that includes physical abuse, psychological abuse, sexual abuse, financial exploitation, and neglect of older adults. (5) While those who study elder abuse rightfully decry the lack of comprehensive data on its incidence, the existing evidence suggests that elder abuse is a common experience later in life. (6) A 2009 national telephone survey of non-institutionalized persons aged sixty and older in the continental United States found that in the previous year, 1.6% had experienced physical abuse, (7) 4.6% had experienced emotional mistreatment, (8) 0.6% had experienced sexual mistreatment, (9) and 5.1% had experienced potential neglect (10) (defined as "instances where an older adult identified a specific essential need that was not being met" (11)). Overall, 11% had experienced at least one of these forms of mistreatment in the past year, (12) and approximately 1.4% had experienced more than one. (13) In addition, more than 5% were experiencing financial exploitation by a family member. (14) Notably, the study likely underestimates the overall incidence of elder abuse. Not only did it rely on self-reporting, but it excluded from its sample older adults with significant cognitive impairment. (15) Other studies suggest that rates of abuse may be as high as nearly 50% within that population. (16)

      Elder abuse does not occur uniformly throughout the U.S. population. (17) Rather, the 2009 study found that elderly women are at greater risk than are elderly men for physical abuse, sexual mistreatment, and potential neglect. (18) This finding is consistent with earlier studies reporting that victims of elder abuse are disproportionately female. (19) Other apparent risk factors for elder abuse victimization include social isolation, (20) residence in a shared living arrangement, (21) and, although the evidence is subject to debate, dementia. (22)

      Perpetrators of domestic elder abuse (i.e., elder abuse which occurs outside of an institutional setting) are disproportionately family members of the victim (primarily adult children and spouses of the victim. (23) Female victims of elder abuse are particularly likely to be abused by a family member. (24) Thus, a significant portion of elder abuse, especially of elder abuse against women, is simultaneously domestic violence. (25) Relative to the general population, perpetrators of elder abuse are also disproportionately likely to suffer from substance abuse, mental illness, and emotional problems, (26) and are more likely to be financially dependent on their victim. (27) Current evidence also suggests that men are disproportionately the perpetrators of elder abuse. (28)

      Notably, there appears to be a relationship between perpetrators' gender and victims' gender. Although men are more likely than women to offend against both males and females, they are even more likely to offend against male victims. (29) This may reflect the fact that male elder abuse victims are more likely to be abused by strangers or acquaintances than are female elder abuse victims. (30)

   2. The Public Policy Response to Elder Abuse

      Although elder abuse is not a modern phenomenon, the issue did not receive organized attention in the United States until the 1950s, and it was not until the 1970s that meaningful legislation addressing the problem began to be enacted. (31) Since the late 1970s, however, there has been a wave of state legislation aimed at addressing the problem of elder abuse, and states continue to adopt laws aimed at elder abuse at a rapid rate. Most recently, this legislation has trended toward the enactment of new criminal statutes targeted at holding perpetrators of elder abuse criminally responsible.

      Elder abuse historically was seen as an issue to be addressed by providing social services to victims and their caregivers, not as a criminal justice concern. (32) Indeed, when the issue first garnered governmental attention, it was in the context of a push for protective services for physically and mentally challenged adults. (33) Over the past two decades (and especially the past decade), however, it appears elder justice has come to be seen as a criminal justice concern, a shift attributable in large part to the emergence of passionate advocacy efforts around elder mistreatment. Advocates, including influential prosecutors, have worked hard to raise awareness at the federal, state, and local level that the acts constituting elder abuse can be classified as crimes and prosecuted as such. (34)...