Prosecution of Elder Abuse Cases DDAs Annie Shoen & Chuck Mickley Multnomah County District Attorney’s Office

Topics of Discussion Multidisciplinary Teams: Let’s put the “T” in MDT Screening Cases: How wheat gets separated from the chaff Prosecuting Cases: When all they want is 12 in the box Physical Abuse Statutes: You only hurt the ones you love Financial Abuse Statutes: Thou shalt not steal, and other sage advice Elder Hearsay Exception: Giving voice to the voiceless Medical Reports: If you have to do it anyway, why not write legibly? Social Worker Reports: Getting at the “why” Pictures & Physical Evidence: Easier than writing 1000 words.

Is Elder Financial Abuse a Problem in Multnomah County? In Multnomah County we currently have approximately 714,567 residents (July 2008 Census estimate). 72,488 of those residents are 65 yrs and older. 58% of those 65 and older are female. Nationally, 5 million cases of thefts, scams and other financial exploitation occur every year in the United States. In the last 2.5 years, more than $3.5 million in restitution has been ordered in elder abuse cases in Multnomah County alone.

Financial Exploitation Why are the elderly attractive targets? The elderly have control of much of nation’s wealth. The elderly are trustworthy, having grown up in a time when a person’s word mattered and could be trusted. As people age, dependency grows, which becomes a risk factor for being targeted by predatory people. It can take time to identify a problem, and victims often feel ashamed and depressed. It can be hard to figure out where to report suspected abuse.

Types of Defendants Prosecuted Predators—Defendants who specifically target elderly victims (usually strangers). Opportunists—Defendants who take advantage of their position of trust to commit fraud. Accidental Tourists—Defendants who commit crimes not knowing or caring whether the victim is elderly.

Typical Crimes Committed Theft (ORS 164.015, et seq.)—taking the property of another with intent to deprive. Identity Theft (ORS 165.800)—obtaining, possessing, transferring, creating, or converting to the defendant’s use the personal identification of another with the intent to deceive or defraud. Criminal Mistreatment 1 (ORS 163.205)—physical abuse, abandonment, meth production, or financial exploitation of an elderly or dependent person. Assault (ORS 163.160, et seq.)—intentionally, knowingly, or recklessly causing physical injury.

The Path of a Typical Elder Abuse Case Step 1—APS: Complaints or concerns are received by Adult Protective Services for screening. Allegations are investigated (client assessed in own surroundings and the need for intervention and prosecution is considered). Social services follow-up provided as necessary. Cases of possible elder abuse are forwarded to Law Enforcement for investigation.

Step 2—LEA: Cases are forwarded to Law Enforcement. Both Portland Police Bureau and the Multnomah County Sheriff’s Office have officers who specialize in elder abuse cases. Witnesses and victims are interviewed. Records are subpoenaed and gathered for review (bank statements; medical records). Forensic accounting is often done by the police. Cases in which the officer believes a crime has been committed are forwarded to the District Attorney’s Office.

Step 3—DA: Reports and records are reviewed by the deputy district attorney. Cases needing follow-up are sent back to the officer for additional investigation. The remainder (vast majority) of the cases are set for grand jury consideration. If there is sufficient evidence that a jury could find the defendant guilty beyond a reasonable doubt at trial, the defendant is indicted. Trial dates are set and the case either resolves by plea (90%) or trial (8%). About half of the defendants are sentenced to prison—including a substantial number with no prior criminal record.

Types of Abuse Physical Abuse - punching, kicking, biting, over- medicating. Neglect - abandonment, inappropriate care. Emotional or Psychological Abuse - name calling, threats, coercion. Sexual Abuse – non-consensual sexual contact. Self Neglect – lacking capacity to assess risks and needs and ability to plan appropriately. Financial Exploitation – misusing another’s resources.

General Risk Factors of Abuse Advanced age. Demanding behaviors. Dementia. Physical or cognitive impairment causing dependence. Substance abuse by either the victim or the perpetrator. History of family conflict. Isolated living situation. Depression.

Other Protective Services Tools Restraining Orders. Relocations. Guardianships or Conservatorships. Police Involvement. Mental Health Involvement. Multi Disciplinary Team (MDT). Follow up, monitoring. Risk intervention/ short term case management.

“Golden Rules” for APS Do no further harm. Advocate for people to be in the least restrictive environment. If there is capacity, people have the right to make poor decisions. Adults are assumed to be able to make decisions for self, unless proven otherwise

EXPLOITATION INDICATORS: VICTIM The victim has nothing to show for all the money going out of their account. They may receive small items and gifts and if they lack capacity they do not see it as issue. They have been victim of undue influence and they truly believe they gave permission to the suspect to buy the items or take their money. They may defend the suspect’s actions. Loneliness, isolation, embarrassment, pride, loyalty and mobility are all barriers to reporting these types of indicators.

EXPLOITATION INDICATORS: SUSPECT (caregivers, children) Suspect has unchecked access to the elders banking and investment accounts. Numerous cash withdraws from ATM’s , bank and grocery store (cash back). New toys and items such as clothing, vehicles, trips and going out to eat. The suspect may not have a job, however they are able to afford all these new things. Large and unusual withdrawals from the victim’s accounts.

Who are the perpetrators? Family with gambling or substance abuse issues. Those who stand to inherit and feel justified in taking is “almost” or “rightfully” theirs. Family who fears older person will get ill and use up total resource, depriving them of an inheritance. Far flung family who come “out of the woodwork” because of a belief there is something to inherit. Non-family, new acquaintances, sweetheart swindlers. Unscrupulous professionals – over charge, use position of trust.

SCAMS & CONS Construction home repair scams. Imposter scams—Bankers, Utility workers, Police, Census. Sweetheart Swindles—Targeted at widowers. Foreign Lotteries / deals—Nigerian, Canadian. Grandchild in Distress—Phone calls from jail. Fortune Tellers / Psychics. Advance Payment—Craigslist, US mail.

Traditional Barriers to Addressing Elder Financial Abuse Reported Victim’s Consent – was it a gift? A loan? What if I change my mind? Capacity Issues. Low rate of prosecutions and slight punishment. Hard to prove intent. The need for Forensic Accounting. Lack of well trained law enforcement to deal with these issues and to document it. Proof of Undue Influence is very difficult.

What is Undue Influence? Substitution of perpetrator’s will for the true desires of victim – similar to brainwashing. Method used by suspect to obtain “consent” from victim in order to commit crime of theft. Victim consents to transactions based on what suspect wants – not what is in victim’s best interest. This is important when an elder is otherwise intact cognitively. What is Undue Influence? Used as a means to obtain consent and to commit a crime. In most states, it is not a specific crime. Undue influence is the substitution of one person’s will for the true desires of another – similar to brainwashing. The exploiter uses gains psychological control over the decision-making of a weaker person. Unlike common persuasion and sales techniques, fraud, duress, threats, or other deceits are often components of undue influence. Victims may or may not have capacity. The goal of undue influence is generally to convince the victim to give consent or sign over money, property or other valuables to the exploiter. Keep in mind that it is also true that older individuals have the right to marry who they want and give assets to anyone they choose. They have the right to make decisions that some may consider poor judgment. This is different than undue influence – where the judgment of another has been substituted for the older person’s wishes. Financial Exploitation 9.19

Undue Influence: Common Tactics Financial Exploitation Copyright © 2006 YWCA Omaha, Nebraska

If You Suspect Undue Influence Don’t take suspects claim of consent at face value. Interview victim alone, away from suspect. Document pattern of conduct and concerns expressed by others. Contact APS. Refer to police agency to discuss further investigation. If You Suspect Undue Influence Don’t take perpetrator’s claim of consent at face value. Interview the victim alone; away from the suspect. Document pattern of conduct and concerns expressed by others. Contact APS. Refer to detective or contact prosecutor to discuss further investigation. ***Instructor’s Note: A wheel depicting undue influence is located in the Participant Materials. Transition: “Anyone can be a victim of undue influence under the right circumstances. Offenders take advantage of the victim’s vulnerability. Another method to commit financial exploitation against some older adults is to use a legal authority, such as a power of attorney or guardianship to the exploiter’s advantage. The next segment will look briefly at this topic.” 9.21

Who to Contact Adult Protective Services Hotline—(503) 988-4450. Portland Police Bureau and Gresham Police Department, Non-emergency—(503) 823-3333. Multnomah County Sheriff’s Office, Detective Pentheny—(503) 251-2447. DDA Chuck Mickley—(503) 988-5835.