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May 17, 2023

Emotional and Physical Elder Abuse

David Ray Papke

The PDF in which this article appears can be found here.

In 2018, caregivers at an Illinois nursing home taunted a 91-year-old dementia patient with a hospital gown they knew frightened her. Delighted with their cruelty, the caregivers then recorded her abject panic and desperate flailing in a Snapchat video. They titled the video “Margaret hates gowns” and added two laughing emojis as a mean final touch.

Although this video is singularly difficult to watch, the general phenomenon of emotional and physical elder abuse is common. Elder abuse has increased in the United States every year since 2003, and estimates are that 5 to 10 percent of Americans over 60 have suffered abuse. Furthermore, elder abuse usually consists of not a single incident but rather fits within a disturbing pattern of behavior stretching over months and even years.

Victims Often Vulnerable

As the voluminous materials published by the National Center on Elder Abuse make clear, elder abuse occurs in private residences and in nursing homes, assisted-living facilities, and other adult-care institutions. In both domestic and institutional settings, older people can be isolated and heavily dependent on their caregivers. This, in turn, sets the stage for abuse.

Elder abuse victims tend on average to be weaker and less empowered. Abuse is twice as common for women as it is for men, and a disproportionate number of victims are members of minority groups, older than 75, or both. Especially vulnerable are people with Alzheimer’s disease, dementia, and other forms of cognitive impairment.

Often the victims are physically unable to report their abuse to neighbors, relatives, or the authorities. Some don’t fully realize what’s happening to them, and still others fear that if they complain, it will make their predicament worse.

While financial elder abuse might overlap with emotional and physical elder abuse, the latter in itself isn’t driven by the grubby, calculated animus that distinguishes financial elder abuse. Perpetrators of emotional and physical elder abuse act out of frustration, anger, or even cruelty rather than conniving self-interest.

Those who’ve attempted to make sense of elder abuse often point out how difficult caring for older people and especially dementia patients can be. The latter are prone to wild outbursts and uncontrolled rage, supposedly requiring caregivers to use force and restraints. Then, too, caregivers are often undertrained and unable to meet the challenge.

But beware. This kind of reasoning can place the blame for elder abuse onto the victims. Yes, older people and particularly those with cognitive problems can be difficult to attend and control. But elder abuse is sustained, intentionally harmful action rather than random difficulties encountered in caregiving.

What Can Be Done?

Those alarmed by elder abuse have routinely called for programs that could increase awareness of the problem. The NCEA takes bringing attention to elder abuse as one of its major assignments. It has produced an array of impressive reports and publications.

On an international level, the U.N. General Assembly seeks to highlight elder abuse through World Elder Abuse Awareness Day, which is observed annually on June 15.

But these efforts have done little to reduce elder abuse, and it keeps growing in frequency and severity. In addition, the COVID-19 pandemic has led to more abuse as older people have less and less social contact and caregivers become increasingly stressed and angry about their situations.

The law, lawyers, and legal institutions could do more to combat elder abuse. The United States, after all, isn’t only an ageist society, it’s also a legalistic one. Alexis de Tocqueville suggested many years ago that social issues in the United States usually become legal issues before long, and this suggestion still rings true today with regard to such issues as abortion, gun ownership, and transgender rights.

One legal process that could stand improvement is elder abuse reporting. Inspired by the supposed success of child abuse reporting statutes, every state has enacted laws mandating that social service workers, medical professionals, and others report cases of elder abuse that come to their attention.

Yet differences between child abuse and elder abuse suggest that distinctive approaches to reporting could be appropriate. For one thing, older people are often more isolated than children, and therefore fewer people are in a position to observe and report on what’s happening to older people. Then, too, since older people bruise more easily and carry on with lingering aches and pains, their abuse is less likely to be recognized for what it is.

Elder abuse is actually more analogous to domestic abuse than to child abuse. Police and other investigatory personnel in the criminal justice system might be better equipped to ferret out elder abuse’s beastly existence than are teachers and social workers.

As for those who pursue elder abuse claims, private lawyers are more eager to act than are prosecutors. Indeed, growing numbers of lawyers now specialize in suing abusers and their employers. Admittedly profit driven to some extent, these lawyers have negotiated a raft of multi-million-dollar settlements with nursing homes and have also won huge awards from juries in civil suits.

When prosecutors cherry pick among the multitude of cases that come to their attention, by contrast, they seem not to choose elder abuse cases with great enthusiasm. Data suggest that only a tiny number of elder abuse allegations result in prosecution.

In defense of prosecutors, who are notoriously strapped for time, elder abuse charges are difficult to prove. Abusers usually perpetrate their crimes behind closed doors, and the victims are often confused and handicapped by cognitive difficulties and memory loss. In addition, older victims could die in the midst of a prosecution, and these victims might be the only witnesses to the alleged crimes.

These problems aside, might some prosecutors be unduly dismissive of older persons’ concerns and complaints? After all, while older people are treated with great respect and even as fonts of wisdom in some parts of the world, older people in the United States are often ignored, trivialized, and ridiculed. My goodness, might some prosecutors be gerontophobic?

Additions to the law related to elder abuse might energize prosecutors. Traditional assault and battery statutes are difficult to use because they facilitate prosecutions of only the worst acts of elder abuse and tend not to sanction emotional elder abuse.

A welcome addition in some states is a specialized elder mistreatment statute that points to not only physical abuse but also emotional abuse. Much abuse takes the form of mocking and jeering that can hurt every bit as much as slaps and punches.

Another idea starting to catch on, albeit in only a small way, is treating elder abuse as a hate crime. A hate crime is motivated by bias or prejudice against someone based upon that person’s identity or affiliation with a group.

Hate crimes subject a perpetrator to lengthier sentences and harsher penalties for harming a person because of the person’s race, ethnicity, religion, and sexual orientation. How about adding old age to the list? Mean-spirited ageists and pathetic gerontophobes sometimes abuse older people because they hate them.

Revised criminal laws and more effective legal institutions could result in more frequent and sterner penalties for abusers of older people. Criminal law can and does seek retribution. In addition, aggressive, publicized, successful prosecutions might educate the public about elder abuse as a serious and widespread public health and human rights problem.

Basically, we want a humane and humanistic society. The eradication of or significant reduction in emotional and physical elder abuse would be an important step in the creation of a society in which everyone, regardless of age, would be able to flourish and live without fear.

This article first appeared in the ABA Experience Magazine, January-February 2023 issue. Partially reprinted with permissions.

David Ray Papke

Marquette University

David Ray Papke is a professor of law at Marquette University in Milwaukee, Wis., where he teaches property, family law, jurisprudence, and American legal history. His most recent book is Containment and Condemnation: Law and the Oppression of the Urban Poor

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