Elder and Persons with Disabilities Abuse and Neglect The primary goal is to treat these complaints as criminal acts.
Categories of Offenses Elder/PwD abuse takes many forms, and in most cases victims are subjected to more than one type of mistreatment. Physical Abuse Sexual Abuse Emotional Abuse Confinement Passive Neglect Willful Deprivation Financial Exploitation
Offenses Sexual Abuse Sexual Relations within Families (720 ILCS 5/11-11) Crim. Sexual Assault (720 ILCS 5/12-1.20) Agg. Crim. Sexual Assault (720 ILCS 5/12-1.30) Crim. Sexual Abuse (720 ILCS 5/12-1.50) Agg. Crim. Sexual Abuse (720 ILCS 5/12-1.60) Sexual Misconduct with a Person with a Disability (720 ILCS 5/11-9.5)
Offenses Financial Exploitation Theft (720 ILCS 5/16-1) ○ By Deception > $5k, V 60+ = class 2 Fin Exploitation of Elder/PwD (720 ILCS 5/17-56) Agg Home Repair Fraud (815 ILCS 515/5) ○ Victim 60+ or PwD Agg ID Theft (720 ILCS 5/16-30(b)) ○ Victim 60+ or PwD
Criminal Abuse/Neglect Criminal abuse or neglect of an elderly person or person with a disability - 720 ILCS 5/12-4.4a(b) o Formerly 5/12-21
Criminal Abuse/Neglect What is a caregiver? What do they have a duty to provide? Who is a caregiver? What is good faith? Who is the abuser?
Criminal Abuse/Neglect LTC Abuse or criminal neglect of a long term care facility resident 720 ILCS 5/12-4.4a(a) Abuse Criminal Neglect Neglect
Criminal Abuse/Neglect Sentencing Caregiver abuse/neglect Class 3 Class 2 if results in death ○ Extended term sentence if pen 3-14 LTC abuse/criminal neglect Abuse – Class 3 Criminal Neglect – Class 4; Class 3 if death Neglect – petty offense
Screening Charges Things to have before you charge Interview the victim, video or audio if possible or written Photographs of injuries and crime scene Follow up photos 48-72 hours later to see progression of wound Make sure officers do everything they can to get into the house. Get a search warrant if necessary! 911 or other emergency communications, like Life Alert Document prescription meds – note anything not filled Notes from Community Services case manager
Financial Exploitation Financial Exploitation of an Elderly Person or Person with a Disability – 720 ILCS 5/17-56 Formerly 720 ILCS 5/16-1.3
Financial Exploitation Definitions Elderly Person Person with a disability Intimidation Deception Position of Trust or Confidence Illegally uses assets
Financial Exploitation Sentencing Property less than $300 is a Class 4 felony Property more than $300 but less than $5,000 is a Class 3 felony Property more than $5,000 but less than $50,000 is a Class 2 felony Property more than $50,000 is a Class 1 felony or; ○ If the elder person is 70 or older and property is $15,000 or more it is a Class 1 felony or; ○ If the elder person is 80 or older and property is $5,000 or more it is a Class 1 felony
Financial Exploitation Freeze suspect’s assets - 720 ILCS 5/17-56(h) If the value of the property stolen exceeds $5,000 a prosecuting attorney may file a petition with the circuit court…to freeze the assets of the defendant in an amount equal to but not greater than the alleged value of the stolen property in the pending criminal case. ○ Burden of proof shall be by a preponderance of the evidence.
Financial Exploitation Indicators of Financial Exploitation
Charging Considerations State of Mind Capacity Consent
Screening Cases Checklist before charging financial cases Determine the relationship between the parties. Check for & obtain copies of any Power of Attorney documents. Determine the extent of the elder/disabled person’s estate. ○ Subpoena any financial records necessary. Get records pre-dating offense to be able to compare usage. Check for recent changes in property ownership. Determine if there a guardian in place. Determine the elder/disabled person’s mental capacity. ○ Subpoena medical records, if necessary. Contact local Adult Protective Services (APS) provider to see if they have any prior reports regarding the elder/disabled person. ○ APS also has the ability to obtain medical records without a subpoena if your elder is hospitalized You will still need to subpoena medical records to use them in court.
Before Talking to the Victim Determine if the victim has any kind of disability. (Did the person attend Special Education classes in school? Does the person participate in services with a disability organization?). Find out how the specific disability may effect the interview process; Determine if the victim uses any adaptive equipment, such as a hearing aid, crutches, communication device, or a wheelchair. Determine if the victim has any attention difficulties. Determine how the victim best communicates their wants and needs. Determine what makes it easiest for the victim to understand what others communicate. Assure the setting for the interview is accessible to the victim (e.g., space, lighting, noise level, communication, etc.). Arrange for a victim advocate to be present to support the victim, if possible.
Speaking with the Victim How has the offense impacted the victim? What are the victim’s expectations about the criminal justice system? What does the victim need from you?
Trial Prep Speak to them in an area free of distractions. Determine if they need any assistive devices (e.g. hearing aid, glasses, etc). If another person is present to assist elder/PwD during prep session, don’t treat the elder/PwD as if he/she is not in the room. Be patient and reassuring, acknowledge anxiety and try to discover source. Keep questions simple and short, avoid leading Qs. Even if the elder/PwD seems confused, don’t discount the information they are relaying.
Trial Prep -Show them the courtroom and make sure they can hear you from where you will do questioning. -Make sure to ask the victim if he or she has any questions about what will happen in court. -Address concerns about facing the offender -Try to make the victim as familiar as you can with the courtroom and the procedure. -Allow time for the victim to be comfortable with you and for you to get acquainted with the victim -Ascertain how the victim’s disability might affect their testimony.
Court Disability Coordinators Every circuit courthouse has one. Employees appointed by the Chief Judge in the Circuit. CDCs handle ADA accommodations requests. Ultimately, the judge determines which accommodations are appropriate. CDCs also handle complaints of physical inaccessibility and work with sheriffs and facilities personnel to resolve access issues. Prosecutors may need to contact CDCs on behalf of victims or witnesses. If you don’t know the CDC in a certain courthouse contact the Disability Rights Bureau at (312) 814-5684.
Competency to Testify People v. Spencer, 119 Ill.App.3d 971, 75 Ill.Dec.479, 457 N.E.2d 473 (1 st Dist. 1983) As long as the witness understands the importance of telling the truth, and is able to communicate, the witness should be found competent to testify. This is true even if the witness is not capable of speech, provided he or she can communicate by other means.
Motions Practice Tips for Evidence Depositions Play to the jury Exhibits Objections
Motions Pre-Trial Motions Testimony by Closed-Circuit Television (CCTV) Prior Sexual Activity of Victim (“Rape Shield”) No Mental Examination of Victim of Sex Crime Evidence of Prior Sex Offenses Hearsay Exception for “Outcry” Statements by Victim Accommodations
Jury Selection There may be stigma associated with having a disability. Do not ask potential jurors if they know anybody with a disability. You start by asking the prospective juror, “What do you think of when you hear the words ‘disability’ or ‘disabled’.”
Sentencing Factors in aggravation ○ 730 ILCS 5/5-5-3.2
Report Convictions If you convict medical (or other licensed) personnel, notify the appropriate agency Illinois Department of Financial and Professional Regulations – MD, APN, RN, LPN, etc or; Illinois Department of Public Health – CNAs Illinois Attorney Registration & Disciplinary Commission - Lawyers The licensing agency can notate their record and potentially take their license.
Scenario What does the prosecutor need to do to assure that Ellen has equal access to court proceedings?