Hastings Law Journal
This Note proposes amending California's elder abuse law. Currently, California Penal Code sections 368(b) and (c) allow the prosecution of any person who willfully causes or permits a person they know to be an elder or dependent adult "to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." The failing of this law is its focus on the subjective experience of the elder or dependent adult victim. Because the law only allows punishment where the victim suffers or experiences unjustifiable physical pain or mental suffering, there are numerous circumstances that allow a perpetrator of abuse to escape prosecution. These include where the victim refuses or is unable to assist the prosecution due to shame, stoicism, recalcitrance, reliance on their abuser, diminishing mental faculties, or death. Without the victim's participation, the prosecution may be unable to prove every element of the offense, which would allow the abuser to escape justice.
This Note proposes amending both subsections of California's elder abuse law to add an alternative objective element that focuses on the victim's injury, rather than on the victim's subjective experience of the injury. This simple amendment would close the glaring loophole in California's otherwise very protective elder abuse law; truly setting the gold standard for prosecuting elder abuse.
Prosecuting Elder Abuse: Setting the Gold Standard in the Golden State,
60 Hastings L.J. 431
Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss2/9