Elder Abuse

Fundamentals of Criminal Law by Adam J. McKee

Elder abuse is when an older person is harmed or mistreated. It can be physical, emotional, or even financial. Imagine a grandparent being hurt, scammed, or yelled at by someone they trust. That’s elder abuse. Often, the abusers are family members, caregivers, or other trusted individuals. It’s a crime that hurts our most vulnerable, and understanding it helps protect those we love.

The Harm Legislation Wants to Prevent

When we talk about elder abuse, we’re highlighting a significant societal issue. Legislatures seek to protect the rights, dignity, and safety of senior citizens. This population, due to age-related vulnerabilities, may struggle with defending themselves, making them an easy target for exploitation.

Laws against elder abuse recognize the unique nature of this harm. Unlike many other victims, elders may be more isolated and dependent on their abusers. There’s a moral duty to protect the elderly, who’ve contributed to society and now deserve respect and security in their twilight years. Not only is there a tangible harm in terms of physical injury or financial loss, but there’s also the intangible harm. The mental and emotional trauma suffered can be deep-seated, affecting their trust in others and their overall well-being. Hence, the laws are in place not just to punish the offenders but to prevent such heinous acts and give elderly individuals the safety they merit.

Classification in Legal Codes

Most legal codes classify elder abuse under a category for crimes against vulnerable populations. These codes can have different degrees of elder abuse, varying from misdemeanors to felonies, depending on the severity and the intent behind the act. Some jurisdictions also have specialized statutes addressing elder abuse separately, focusing on its unique nature.

Fitting into Broader Categories of Crimes

Elder abuse is versatile in its classification. While it chiefly slots under crimes against persons, given its direct harm to the elderly individual, it can also be classified under crimes against property, especially when there’s financial exploitation involved. Instances where the elder is sexually abused will categorize the crime under sexual crimes. Thus, elder abuse can straddle multiple categories, emphasizing its complex and multidimensional nature.

Historical Trace of Elder Abuse

The concept of protecting the elderly isn’t new. Ancient civilizations like the Greeks and Romans had provisions that emphasized respect and care for the elderly. The Twelve Tables of Roman Law, for example, stipulated the need to provide for older family members.

However, it was under English common law, influenced significantly by the works of Sir William Blackstone, that the protection of vulnerable populations, including the elderly, became more pronounced. In Blackstone’s “Commentaries on the Laws of England,” he elucidated the duty of care towards those unable to protect themselves.

As societies progressed, the recognition of elder abuse as a distinct category emerged. Before modern legal definitions, elder abuse was likely subsumed under other categories of harm or was unaddressed due to societal norms. It’s the shifts in societal attitudes, with the influence of legal scholars like Blackstone and the precedence from ancient codes, that led to our current understanding and laws against elder abuse.

Model Penal Code (MPC) Definition of Elder Abuse

The Model Penal Code, though not specifically drafted with a distinct category for elder abuse, touches on offenses that can encapsulate this crime. Under various sections, acts of physical harm, theft, fraud, or neglect can be construed to apply to elder abuse cases.

Physical Harm

Under MPC § 210.1 (Assault), it describes the act of causing bodily harm to another person intentionally, recklessly, or negligently. In the context of elder abuse, this section can be applied when physical force or violence is inflicted on an elderly individual.

Fraud and Financial Exploitation

MPC § 223.3 (Theft by Deception) defines acts where one intentionally deceives another to obtain property. Elderly individuals, often more vulnerable to deception, can be victims under this section when they’re financially exploited.

Neglect and Endangerment

MPC § 208 (Endangering Welfare of Incompetent) explains the offense of knowingly acting in a way that endangers an incompetent person’s welfare. This can be extended to scenarios where the elderly, especially those suffering from mental disorders or physical incapacities, are neglected or left in harmful situations.

California’s Elder Abuse Statute

1. Introduction to California’s Elder Abuse Law

In the state of California, elder abuse is a serious crime. The state has enacted legislation to specifically address and penalize those who abuse or neglect elderly individuals. California’s elder abuse law is primarily detailed in the Penal Code Section 368.

Definitions and Provisions

2.1. Who is an “Elder”?

According to California Penal Code 368, an elder is anyone who is 65 years of age or older.

2.2. Types of Abuse Covered

The statute recognizes a variety of abuses against the elderly:

  • Physical Abuse: Inflicting pain or injury on an elder.
  • Neglect: The failure to provide necessary care, protection, and assistance.
  • Financial Abuse: Illegal or unethical misuse of an elder’s money, property, or assets.
  • Emotional and Psychological Abuse: Inflicting mental pain, distress, or anguish through verbal or non-verbal acts.


3.1. Physical Abuse or Neglect

If convicted of elder abuse involving physical pain or mental suffering, the offender can face:

  • Misdemeanor: Up to one year in county jail and/or a fine of up to $6,000.
  • Felony: Imprisonment for 2 to 4 years, and fines. If the victim suffers great bodily harm or death, the imprisonment can increase by an additional 3 to 7 years.

3.2. Financial Abuse

Convictions can lead to:

  • Misdemeanor: Up to one year in county jail and/or a fine.
  • Felony: Imprisonment and significant fines.

Enhancements and Aggravating Factors

Within California’s legal framework on elder abuse, as outlined in Penal Code Section 368, enhancements and aggravating factors play a pivotal role in determining the severity of penalties. These are particular conditions that can amplify the prescribed legal repercussions for the accused. For instance, under this specific statute, if the abuse meted out to the elder results in pronounced injury or tragically culminates in their death, the penalties levied against the perpetrator are markedly escalated.

Additionally, the unique health status of the elderly victim is taken into account. Should the senior have pre-existing medical conditions rendering them particularly defenseless or more susceptible to harm, this heightened vulnerability is recognized as an aggravating factor in the judicial proceedings. Such considerations reflect California’s commitment to safeguarding its elderly population and ensuring that those who exploit their frailties face stringent consequences.

Reporting and Duty

Professionals in caregiving roles or positions of trust with the elderly, such as doctors or staff at nursing homes, are mandated reporters. They have a legal duty to report suspected elder abuse to appropriate authorities.


Elder abuse encompasses a range of mistreatments targeted towards the elderly, from physical harm and emotional torment to financial deceit. Disturbingly, the perpetrators often include those closest to the victims: family, caregivers, and trusted associates. Recognizing the gravity of this issue, legislation across various jurisdictions aims to shield senior citizens from such malevolent acts, given their increased vulnerability due to age and potential isolation.

In dissecting the nature of this crime, elder abuse typically aligns with offenses against vulnerable individuals. Legal codes may categorize it from misdemeanors to felonies based on the act’s severity and intent. In some jurisdictions, specialized statutes further delve into the intricacies of elder abuse. Historically, the ethos of safeguarding the elderly is deeply entrenched, with ancient civilizations setting the precedent. English common law, particularly Blackstone’s commentaries, provides a foundational understanding of this protective sentiment.

The Model Penal Code (MPC), while not singularly focused on elder abuse, encompasses sections addressing crimes often synonymous with it, like assault, theft by deception, and endangerment of the incompetent. Meanwhile, states like California have instituted rigorous elder abuse statutes. As per California’s Penal Code Section 368, elders, defined as individuals aged 65 or older, are safeguarded against a spectrum of abuses, each carrying distinct penalties. Notably, in circumstances where the victim’s pre-existing health conditions or the severity of the abuse exacerbates their vulnerability, California’s legal provisions mete out intensified penalties.

Moreover, individuals in caregiving capacities bear the onus of reporting suspected abuse, accentuating the collective responsibility to protect the elderly.

Modification History

File Created:  07/17/2018

Last Modified:  10/12/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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