Outliving civil rights.

• Author: Kohn, Nina A.

TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF THE ELDER PROTECTION SYSTEM III. CONSTITUTIONAL RIGHTS & MANDATORY REPORTING A. Overview of Mandatory Reporting Laws B. Existing Critiques of Mandatory Reporting C. A Rights-Based Critique of Mandatory Reporting 1. Informational Privacy Rights a. Type of Record b. Information to be Disclosed c. Potential Harm from Subsequent Disclosure d. Injury to the Relationship e. Adequacy of Safeguards f. Need for Access g. The Sum of the Factors 2. Additional Constitutional Rights D. Conclusion IV. PROHIBITIONS ON ELDER SEXUAL ABUSE A. Overview of Laws Prohibiting Elder Sexual Abuse B. Existing Critiques of Elder Sexual Abuse Prohibitions C. A Rights-Based Critique of Elder Sexual Abuse Prohibitions 1. The Nature of the Undermined Right 2. The Permissibility of the Burden D. Conclusion V. IMPLICATIONS OF OVERLOOKING OLDER ADULTS' CONSTITUTIONAL RIGHTS A. The Value of a Rights Discourse B. An Alternative, Rights-Conscious Framework VI. CONCLUSION I. INTRODUCTION

The past two decades have witnessed a surge of interest in protecting senior citizens from victimization. As social service providers and policymakers have become increasingly aware of and sensitized to the problems of elder abuse and neglect--problems estimated to affect three to five percent of seniors annually in the United States (1)--they have responded by advocating for new laws to protect senior citizens from mistreatment. States have, in turn, enacted a variety of new statutes aimed at protecting older adults. Although well-intentioned, many of these statutes take a paternalistic approach that has serious-and potentially unjustifiable--civil rights implications for the seniors they are designed to protect. For example, some limit older adults' substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults' informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state. The effect is that, in some states, a person's constitutional rights will be curtailed simply because he or she attains the age of sixty or sixty-five.

Although paternalistic elder protection statutes have repeatedly been critiqued, the burdens that they impose on legal rights have largely been ignored and consequently their legal permissibility has gone unchallenged. In this Article, I fill that conspicuous gap by providing a constitutionally based critique of several important categories of elder protection statutes. In so doing, I demonstrate the real, tangible, and largely overlooked rights implications of current legislative approaches addressing elder mistreatment, and show that a subset of the statutes designed to address elder mistreatment may be unconstitutional.

My primary aim, however, is not to show why courts might reasonably find certain elder protection statutes to be unconstitutional, although this is one of the Article's key contributions. Rather, it is to show that identifying the burdens such statutes impose on older adults' constitutional rights, (2) and labeling them as such, has the potential to fundamentally change legislative approaches to elder mistreatment. The United States is a country founded on liberal ideals where the political discourse is dominated by competing notions of liberalism. Consistent with this tradition, in the legislative realm and in the court of popular opinion, "rights" can function as trump cards in a way that mere "values" cannot (3) Thus, even where arguments about the constitutional implications of an elder protection statute might not lead courts to declare it unconstitutional, a recognition of such implications may have sufficient rhetorical and persuasive power to cause policymakers to reject it as undesirable or politically impractical.

With these goals in mind, the Article proceeds with five major Parts. Part II provides an overview of the current legal framework addressing the problem of elder mistreatment. Parts III and IV analyze two distinct types of laws designed to protect elders, revealing the serious--and potentially unconstitutional--implications they can have for older adults' constitutional rights. Part V calls for recognizing and labeling these implications of current elder protection laws as burdens on constitutional rights and explores how doing so could fundamentally shift the focus of elder protection legislation.

II. OVERVIEW OF THE ELDER PROTECTION SYSTEM

Elder mistreatment is a phenomenon that includes physical, psychological, and sexual abuse, as well as financial exploitation of older adults. The term is also frequently used to describe self-neglect, a phenomenon in which individuals fail to meet their own health, safety, or personal hygiene needs. Elder mistreatment is not only a source of injury and of great emotional and physical pain, but is also associated with significantly enhanced mortality rates. (4)

Although the problem of elder mistreatment is not new, governmental authorities failed to recognize it until the middle of the twentieth century. The issue first received meaningful attention in the context of concerns about mistreatment of vulnerable adults in general. In 1953, the American Public Welfare Association (APWA) formally identified a need for protective services for physically or mentally challenged adults. (5) In the two decades that followed, through the efforts of the APWA and advocates in the social work field, federal legislation was passed to fund demonstration projects to provide services to physically and mentally challenged adults. (6) These efforts paved the way for Congress' passage in 1974 of Title XX of the Social Security Act, (7) which effectively required all states to create adult protective service (APS) units. (8) These units originally focused on self-care and dementia issues, but have evolved so that today they place elder abuse, neglect, and exploitation front and center in their work. (9)

Interest in elder abuse temporarily waned following the passage of Title XX, but reemerged after a series of hearings on the topic in the late 1970s sparked congressional interest in the issue. (10) This resurgence of interest in elder abuse was marked by a change in how elder abuse was perceived. Instead of previous conceptions of elder abuse as an issue of vulnerability, elder abuse was now treated as an issue of age. (11) Terms such as "granny bashing" (12) and "elder abuse" entered the political lexicon.

Characterizing the abuse of elders as an "age" issue encouraged policymakers to look to another, already existing, age-based protection regime in designing a response. Policies aimed at protecting children from abuse and neglect became the frame of reference and so the adult protective system came to be in large part modeled on child protective systems. (13) This frame of reference has had a profound effect on the design of elder protection laws. In some cases, laws designed to protect children were adopted in the elder mistreatment context with little more tailoring than substituting the word "elder" for "child." For example, the concept of mandatory reporting, discussed at length in Part III, was borrowed from mandatory child abuse reporting schemes largely without consideration of whether it was appropriate for the senior population. (14) As discussed in more detail later in this Article, the result has been a heavily paternalistic elder protection system. (15)

Although the first wave of interest in elder mistreatment was characterized by federal legislative leadership, legislative action following the reemergence of the issue in the late 1970s occurred, and continues to occur, primarily at the state level. All fifty states have enacted at least some form of legislation to address elder mistreatment. (16) This legislative activity has been facilitated by a vocal, passionate network of aging-focused service providers and advocates, armed with reports of abused elders--fathers starved to death, mothers raped by drug-abusing sons, nursing home residents rotting with bedsores, older men seduced by professional "girlfriends" (17)--that shock the conscience and have evoked bipartisan outrage, sympathy, and desire to take action. (18)

Today, despite continued agitation for comprehensive federal legislation to address elder mistreatment, the legal framework for elder protection exists predominantly at the state level. Although there is considerable variation among the states, the vast majority of laws aimed at protecting older adults fall into one of three categories. First, there are laws that create and govern state APS units, which are charged with providing services to vulnerable adults. APS agencies are generally viewed as the front-line responders to the problem of elder mistreatment because they both investigate reports of elder mistreatment and offer victim services. (19) In general, APS may only provide services with the consent of the alleged victim. Under certain circumstances, however, APS may be authorized to provide victim services without the alleged victim's consent and notwithstanding the alleged victim's explicit objection. (20) Second, there are elder abuse reporting laws that permit or require certain persons to report certain types of mistreatment to a government agency, typically APS. (21) A third category of elder protection laws consists of statutes that specifically prohibit or specially penalize (or both) certain treatment of older adults. Some create new crimes for which perpetrators of elder mistreatment can be held liable; others provide for enhanced penalties for those convicted of crimes involving elderly or otherwise vulnerable victims. Together, these three types of laws create the core of what this Article will refer to as the "elder protection system."

The development of these broad, state-level elder protection systems is cause for some celebration...