Understanding California Penal Code 368
California Penal Code 368 defines elder abuse and lays out a range of penalties for it depending on severity. PC 368 was put in place to protect elders and dependent adults from being harmed. It is the codification of law in California that makes it illegal to deny the rights of an elderly person or a dependent adult. PC 368 not only applies to a person directly harming an elder person, it also makes it illegal to not prevent harm from befalling an elderly person. This includes not reporting abuse when you know it is taking place.
You can read the text of PC 368 in full here, but we will summarize it for you.
What Is Elder Abuse?
We have a full blog post just about the definition of elder abuse here, but a quick refresher; Elder abuse is defined as any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult. This includes physical harm, mental harm, financial harm, and the absence of aid. PC 368 covers the full spectrum of offenses that can be perpetrated against an elderly person.
History of PC 368
California enacted what became Penal Code 368 in 1983, its first criminal statute crafted to protect vulnerable adults specifically. The statute originally applied only to adults considered unable to provide for their own welfare, but was expanded to include all adults over the age of 65, regardless of perceived abilities. In 1998 and 2004, the code was amended to include protection against financial forms of abuse as well. Today, PC 368 covers seven types of elder abuse in California.
What is considered elderly abuse under PC 368?
- Physical abuse. Any use of physical force that may result in bodily injury, physical pain, or impairment. Physical constraint, improper dosing of medication, withholding of necessities like food and water, or forced discomfort are all examples of elder physical abuse.
- Emotional abuse. Infliction of torment or distress through verbal or non-verbal acts. This can include beratement, forced isolation, gaslighting or humiliation.
- Abandonment. Dereliction of care for an elderly person by those ruled responsible for elder care by the state. This could be a family member, a social worker or an assisted living professional.
- Financial abuse. Use of an elder’s funds, property, or assets through coercion, deception, or any other unauthorized form.
- Sexual abuse. Any non-consensual sexual act of any kind with an elderly person, not limited to physical touching. Depending on the victim’s mental and physical state, the ability to consent can also be argued.
- Neglect. Failure to fulfill any part of a person’s obligations or duties to an elderly person. Whether intentional or unintentional, a withholding of care necessary to maintain an elderly person’s basic standards of life is considered neglect. Examples of this form of elder abuse can include not providing food, water, and utilities, bathing, or safety.
- Self-neglect. Withholding or ignoring response to behaviors of an elderly person that threaten the elder’s health or safety. These are actions or inactions on the part of the elder that bring themselves harm. This can be not monitoring the victim’s medication intake, poor personal hygiene, or nutrition.
Who is covered by PC 368?
An elderly person as defined by Penal Code Section 368 is anyone older than 65. Depending on the nature of the crime, another harsher tier of penalties are applied when the victim is over the age of 70. Regardless of the victim’s physical or mental well-being, harm against an elderly person falls under PC 368. Also covered in PC 638 are dependent adults, which are defined as adults between 18-64 (non-elderly) who require the aid of another adult for care because of physical, mental, or emotional degradation.
Who Can Be Charged with Elder Abuse?
Anyone suspected of violating elder abuse laws in California, regardless of their relationship to the victim, can be charged under PC 368. These can include:
- Relatives – Spouses, children, anyone related to the victim that is expected to provide care. According to the National Council on Aging, “In almost 60% of elder abuse and neglect incidents, the perpetrator is a family member.”
- Nursing home doctors, nurses, and other employees.
- Anyone aware that elder abuse may be happening but does not report it.
Who Is Responsible For Reporting Elder Abuse?
Any person who thinks elder abuse may be happening is duty bound to report it, but some roles are required by law to report elder abuse, and can be held responsible for negligence if they fail to report it.
Who Is A Mandated Reporter?
Article 3 of the Elder Abuse and Dependent Adult Civil Protection Act states:
“Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.”
Mandated reporters are required by law to report their suspicions of elder abuse within 48 hours. If reported by phone or an internet report, a written report must then follow within 48 hours.
What are the repercussions of elder abuse?
Misdemeanor elder abuse penalties include up to one year in county jail and a fine of up to $6,000.
Felony elder abuse brings much harsher penalties. People found guilty of elder abuse in California can be sentenced to up to four years in state prison. If the elderly victim has suffered bodily harm, your prison term could be increased by three years for victims under 70 years of age and five years for victims 70 years and older. That is on top of the original four years. Death stemming from elder abuse brings with it increases of up to seven years tacked on to the four mentioned previously.
For a civil case, California Civil Code 3345 provides for the possibility of receiving treble damages for a victim who is elderly. “Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding.”
This means whatever the statute covering the crime would normally award for a non-elderly victim, because of their advanced age and added vulnerability, elderly victims can be awarded up to three times the authorized amount. This is to act as a deterrent for people to commit elder abuse.