§ 368 PC – The Crime of “Elder Abuse” in California

Penal Code § 368 PC defines elder abuse as the physical or emotional abuse, neglect, or financial exploitation of a victim 65 years of age or older. This offense can be prosecuted as a misdemeanor or a felony and is punishable by up to 4 years of jail or prison.

Examples of elder abuse crimes

• not feeding an 80-year-old parent who cannot care for himself.
• a caretaker ridiculing an elder patient for being wheelchair-bound.
• a person using fraud to convince a 90-year-old neighbor to make him the sole beneficiary in the elder’s will.

Defenses

• no willful act,
• self-defense, and/or
• falsely accused.

Penalties

A violation of this statute is charged as either:

• a misdemeanor, or
• a felony

depending on the facts of the case.

A misdemeanor conviction is punishable by imprisonment in county jail for up to one year.

A felony conviction is punishable by custody in state prison for up to four years.

In place of jail time, a judge can award either:

• misdemeanor (or summary) probation, or
• felony (or formal) probation.

Our California criminal defense attorneys will answer the following ten key questions in this article:

• 1. How does California law define elder abuse?
  • 1.1. Misdemeanor elder abuse
  • 1.2. Felony elder abuse
  • 1.3. Abuse
  • 1.4. Willfully and criminal negligence
• 2. Who prosecutes senior abuse cases?
• 3. Are there defenses to Penal Code 368?
  • 3.1. No willful act
  • 3.2. No abuse
  • 3.3. Falsely accused
• 4. What are the penalties?
• 5. Are there immigration consequences?
• 6. Can I get a conviction expunged?
• 7. Does a conviction affect gun rights?
• 8. Can victims file civil lawsuits?
• 9. Are there related offenses?
  • 9.1. Battery – PC 242
  • 9.2. Rape – PC 261
  • 9.3. Criminal threats – PC 422
• 10. Additional resources

1. How does California law define elder abuse?

1.1. Misdemeanor elder abuse

A prosecutor has to prove the following to convict you of misdemeanor elder abuse:

1. you willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct could have endangered the life or health of the elderly person, and
3. you knew or should have known that the victim was 65 years old or older.¹

“Unjustifiable physical pain or mental suffering” means pain or suffering that is not necessary or excessive under the circumstances.²

1.2. Felony elder abuse

A prosecutor must prove the following to convict you of felony elder abuse:

1. you willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct was likely to produce great bodily injury or death, and
3. you knew or should have known the victim was 65 years old or older.³

“Unjustifiable physical pain or mental suffering” means pain or suffering that is not necessary or excessive under the circumstances.

1.3. Abuse

“Elder abuse” can mean any of the following:

• physical abuse (which is the infliction of unjustifiable pain or injury on a senior victim),
• emotional abuse (which can take the form of isolation or ridicule),
• neglect and endangerment (which means placing the senior in a situation that endangers his health and safety), an
• financial exploitation (which is also known as senior fraud or elder financial abuse).⁴

Note that a prosecutor must prove the following to convict you of financial abuse:

1. you committed a financial crime (such as theft, fraud, or embezzlement),
2. the property stolen belonged to a person who is 65 or older, and
3. you were a caretaker for this person or knew that the victim was elderly.⁵

Example: Roman works in a nursing home where all the residents are over the age of 65. Roman occasionally takes loose money that he finds in the drawers of the residents.

Here, Roman is guilty of financial elder abuse. He unlawfully took money from seniors when he knew that all the victims were 65 or older. It does not matter that this theft did not involve bank accounts or financial institutions. Simply taking small amounts of cash is financial abuse.

1.4. Willfully and criminal negligence

For purposes of this statute, “willfully” means to do something:

• deliberately, or
• on purpose.⁶

“Criminal negligence” means that a person acts so unreasonably that their actions reflect a disregard for human life.⁷

Example: Janis’s 79-year-old mom lives with her. The mother cannot move or feed herself due to extreme Alzheimer’s disease. For almost two weeks, Janis does not give her mom any food or water. The mother almost dies from dehydration.

Here, the facts show that Janis actions rise to the level of criminal negligence,

Note that a prosecutor cannot prove criminal negligence unless you had a legal duty to act.⁸

Example: Bob is an elderly stroke victim that lives with his son Richard. Bob’s daughter, Susan, used to be his caretaker but she no longer is. Though she still visits with Bob and Richard.

One day Bob died of septic shock that was caused by bedsores, malnutrition, and dehydration. Police arrest Susan and charge her with elder abuse.

Here, Susan is not guilty of a crime. She had no legal duty to take care of her father or control her brother’s behavior.

2. Who prosecutes senior abuse cases?

Many prosecuting agencies (like a county’s District Attorney’s Office) have special units that handle elder abuse cases.

This means that a specially trained deputy prosecutor will prosecute most senior abuse cases.

Local law enforcement will refer a case to these units and then a prosecutor will decide whether to:

• file charges,
• reject the case, or
• instruct a detective to investigate the allegations further.

Certain factors will determine which agency prosecutes a senior abuse case. Some of these include:

• where the alleged abuse took place,
• whether the offense was a misdemeanor or a felony, and
• the exact type of abuse that is alleged.

3. Are there defenses to Penal Code 368?

Our law firm has represented hundreds of people charged with elder abuse in California. We have succeeded in getting these cases dismissed or reduced to lesser offenses by arguing that:

1. there was no willful act,
2. you acted in self-defense, and/or
3. you were falsely accused.

3.1. No willful act

Innocent accidents are not crimes, even if someone gets seriously hurt as a result. Through a thorough examination of all the available evidence, we can often raise a “reasonable doubt” as to the element of “criminal intent.” For example, perhaps the incident was a tragic accident.

As long as the D.A. cannot prove you had criminal intent, then your elder abuse charges cannot stand.

3.2. Self-defense

You are allowed to use reasonable and proportional physical force against anyone (even the elderly) if they attack you. By relying on such evidence as eyewitness accounts, surveillance video and medical records, we may be able to show that you were lawfully defending yourself (or someone else) and that therefore you committed no crime.

3.3. Falsely accused

It is not uncommon for angry patients or their family members to wrongfully accuse caregivers of abuse. In these cases, we would compile all the available evidence of the accuser’s past inconsistent statements (such as through text messages and voicemails) and conduct aggressive cross-examination should the case go to trial.

If we can impeach the accuser’s credibility and show their motivations to lie about you, you should not be convicted.

4. What are the penalties?

Misdemeanor elder abuse is punishable by:

• custody in county jail for up to one year,
• a maximum fine of $6,000, and/or
• restitution to the victim.⁹

Felony elder abuse is punishable by:

• imprisonment in state prison for up to four years (and an additional seven years if the victim suffers great bodily harm),
• a maximum fine of up to $10,000, and/or
• restitution.^{10 11}

5. Are there immigration consequences?

Depending on the facts of the case, the abuse of a senior may get labeled as a crime involving moral turpitude (CIMT).¹² A CIMT can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

Therefore, a PC 368 conviction could have damaging immigration consequences.

6. Can I get a conviction expunged?

Felony convictions cannot be expunged if you were sentenced to state prison.

However, a misdemeanor conviction can get expunged provided that you:

• successfully complete probation, or
• successfully complete a jail term (whichever is applicable).

7. Does a conviction affect gun rights?

California law says that it is illegal for convicted felons to:

• own a gun, or
• possess a gun.

This means that if you are convicted of felony senior abuse, you will be stripped of your gun rights.

8. Can victims file civil lawsuits?

An elder abuse victim can file a civil lawsuit against an abuser per California Welfare and Institutions Code 15600.

This statute says the following victims can sue:

1. any person 65 years of age or older, or
2. a “dependent” adult between the ages of 18 and 64.

A “dependent adult” is anyone that has physical and mental limitations that restrict their ability to carry out normal activities.

Note that for either of these parties to have a civil claim against you, you must have had care or custody of the elderly or dependent adult.¹³

Most of these suits get filed against healthcare providers. If a suit is successful a plaintiff may recover:

• compensatory damages, and
• punitive damages (in some cases).

9. Are there related offenses?

9.1. Battery – PC 242

Penal Code 242 PC is the California statute that defines the crime of battery.

Simple battery consists of:

• any willful and unlawful use of force or violence,
• on someone else.

The offense can occur even if you did not cause the “victim” pain or injury of any kind.

Battery of a senior would constitute elder abuse.

9.2. Rape – PC 261

Penal Code 261 PC is the California statute that defines the offense of “rape.”

A person commits this crime if they have nonconsensual sexual intercourse with another person by means of threats, force or fraud.

Like elder abuse, people get unjustly blamed for this offense. Therefore, a defense for this crime is that you were falsely accused.

9.3. Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when a person threatens to kill or physically harm someone and:

1. the “victim” is thereby placed in a state of fear,
2. the threat is specific and unequivocal, and
3. the person communicated the threat verbally, in writing, or via an electronically transmitted device.

10. Additional resources

There are many resources available for victims of senior abuse. Some of these are:

• the Center of Excellence on Elder Abuse and Neglect,
• Recognizing and Reporting Elder Abuse article,
• A Guide for Preventing Abuse in Long Term Care Facilities, and
• the website of the California Advocates for Nursing Home Reform.

The following websites are also helpful:

• Victim Connect,
• Eldercare Locator, and
• California’s Victim Compensation Board.

If you or someone you know is in immediate danger, call 911. Otherwise refer to:

• Adult Protective Services (APS)
• APS offices by California county
• Elder Abuse, National Institute on Aging (NIA)
• National Center on Elder Abuse (NCEA)
• Institute on Aging (IOA)

---

Legal References: