How I Spent My Vacation

No, don’t panic. Summer’s not over yet. The vacation I’m referring to is my extended hiatus from posting. My excuse is that I‘ve been hard at work helping to launch the California Elder Justice Workgroup (CEJW), a mammoth and exciting undertaking.

It started with a few of us who are involved in projects funded by the Archstone Foundation as part of its Elder Abuse and Neglect Initiative (EANI). In the hope of stirring up synergy, Archstone brings together EANI project personnel at “convenings,” day-and-a-half sessions three times a year; it was at a convening that we started talking about how many of the day-to-day headaches we faced in our work were tied to big-picture, systemic problems. Those of us working on grants to train mandated reporters in their reporting duties, for example, couldn’t get the agencies charged with investigating to agree on such basics as what’s reportable, who investigates, and which clients are eligible for protective services. Multidisciplinary teams weren’t clear about what information they could share and what they can protect. The obstacles went on and on. So we started a list.

Woody Allen’s oft-quoted line "Eighty percent of success is showing up” clearly applies to advocacy work, and members of our group continued to show up for monthly telephone meetings to add to our list and flesh out the issues. The other thing our group had going for it was members’ deep roots in key stakeholder networks, planning skills, and a penchant for identifying opportunities. Our gripe list started to turn into a plan. We got an enormous boost last October when Archstone awarded us an 18-month grant to host a  summit and enlist the help of others in developing a blueprint. 

The summit took place on April 29-30 in San Francisco, with 92 researchers, advocates, practitioners, court personnel, legal professionals, experts in nursing home reform, and many more. After plenary sessions by Bill Benson, who provided an update on the newly passed Elder Justice Act, and Daniel Marson, who described his work in legal decision-making capacity, an issue at the heart of many of the problems we’d identified, delegates broke into four groups for focused presentations and discussions:

•       A Reporting and Response group began with a presentation on structured assessment, an approach designed to improve consistency in assessing abuse referrals that’s being tested in Riverside County. The group also discussed barriers to reporting abuse in long term care (LTC) facilities, some of which stem from the fact that California is one of a handful of states that charge Ombudsmen with investigating cases reported under mandatory reporting laws on top of their federal mandate to advocate on patients’ behalf. The problem is balancing the roles of patient advocate and objective finder-of-fact. Some of the reporting issues they discussed aren’t unique to California—e.g. the need for guidance in handling cases involving “unbefriended” or “unrepresented” residents (those who lack legal decision-making capacity, responsible parties, or surrogates). 
•             The Justice System group explored the need for greater coordination among the branches of the legal system that have a role in abuse prevention. Retired judge Julie Conger led off by describing Alameda County’s “elder court,” which she started. Afterwards, the group, which included legal professionals involved in criminal, probate, and family law;  representatives from the Archstone-supported elder forensics centers; private and legal aid attorneys, and the Administrative Offices of the courts, identified the need for training to legal professionals, public education on legal issues, forensics expertise, and policy reform.  
•       The “Safeguarding the Long Term Care (LTC) Safety Net” group focused on bridging the chasm between the elder abuse and LTC networks, the latter of which includes family caregiver and dementia care programs, mental health service providers, and advocates for adults with disabilities. The importance of the LTC network in reducing vulnerability to elder abuse has come into sharp relief in light of the draconian cuts to basic services we’ve witnessed in recent months. The group recommended adding elder abuse risk factors to screening tools used by LTC programs and promoting interdisciplinary education by academic institutions. Also discussed were ways to keep dangerous people out of the LTC workforce though better screening, training, and workforce development.
•            And finally, the Financial Abuse and Exploitation discussed the rising tide and devastating impact of such high impact crimes as mass marketing fraud and predatory lending. A primary focus was on the need for more precise instruments to measure financial deficits that heighten vulnerability to exploitation and the critical need for legal and mental health services for victims. Promising preventative approaches discussed included simple policies that senior centers can adopt to block fraudsters and unscrupulous vendors who pose as objective financial advisors from gaining access to participants. Group members also agreed to explore ways to achieve greater parity for seniors by mental health and victim service programs, which have historically prioritized other populations.

Assistant Secretary of Aging Kathy Greenlee joined us on the second day with an update on the Administration on Aging’s plans and took questions and recommendations about the reauthorization of the Older Americans Act. Perhaps the highlight of the event was a “commitment ceremony” where small groups reported on their findings and delegates committed to follow-up action. We’re still in the process of sifting through the commitments, which range from hammering out protocols for reporting, developing reference materials on alternatives to conservatorship (California’s term for adult guardianships), exploring universal assessment tools for aging programs that include elder abuse risk factors, designing forensics centers that focus on abuse in LTC and financial exploitation, to tweeting about abuse.

CEJW is benefiting from the wisdom and support of non-California friends and allies. A partner and inspiration is the Vulnerable Adult Justice Project (VAJP), a coalition in Minnesota directed by Iris Freeman and housed at the William Mitchell Law School, which is about a year ahead of us in getting started. We’re also in the process of assembling a “technical advisory group” of experts in a wide range of fields. 

As long as I'm pushing the seasons here, I'll end with a resolution: To resume posting and provide regular updates on CEJW's work. You can also learn more by visiting our wiki site  at http://cejw.pbworks.com/ 

New Cal Law Allows for Video-Conferencing in Elder Abuse Cases

Among California’s new laws that went into effect on Jan 1 was AB 1158, which allows for the use of two-way video conferencing to examine witnesses who can't come to court. The new law may be a first step in tackling some of the obstacles posed by the 2004 US Supreme Court’s Crawford v. Washington decision, which was a major setback in the prosecution of elder abuse cases (even though the case didn’t involve elder abuse).

Here's the issue. Under the Sixth Amendment to the US Constitution, persons accused of crimes have the right to confront their accusers at trial. It limits the use of “hearsay,” or second-hand accounts made outside of courts, which often take the form of police officers conveying statements made by victims immediately after crimes are committed. These statements are particularly important in domestic violence and elder and child abuse cases because victims often recant their statements, and, under certain circumstances, their immediate responses are considered to be more reliable than those they make later. In elder abuse cases, there's the additional problem of victims not being able to come to court because they're ill, debilitated, or have relocated.

In the 1990s, advocates for victims of domestic violence, child abuse, and elder abuse sponsored laws allowing victims to avoid testifying in court in some situations. These included a 1999 elder abuse law (AB 526), which allowed juries to hear videotaped statements to police from elderly or incapacitated adults who were unable to come to court.

The Crawford case involved Michael Crawford, who was convicted of stabbing a man he believed had tried to rape his wife. The Supreme Court barred the tape-recorded, eyewitness account of the stabbing by Crawford’s wife, ruling that “testimonial statements” made out of court cannot be used at trial unless the person who made the statement is available for cross-examination. Statements are considered “testimonial” if they are knowingly made to law enforcement or government agents associated with law enforcement and provide evidence for later use in court. The court did not define the various types of testimonial statements that are covered, and subsequent cases are putting the definition to the test.

Still, the decision has had tremendous impact. It's restricted the use of evidence that was previously admissible and has been used to overturn convictions under child abuse and domestic violence laws. A state appeals court in San Jose used it to overturn California’s 1999 videotaping law.

Two-way video conferencing allows for victims who can't come to court to testify while protecting the rights of the accused to confront them. However, the use of "virtual confrontation" has been challenged in other settings, and it remains to be seen how it will be used in elder abuse cases. AB 1158 was sponsored by the San Francisco District Attorney and supported by the California District Attorneys Association, the California Senior Legislature, and the California Alliance for Retired Americans.

Undue Influence: There Oughta be a Law (or Two)

When undue influence was “discovered” as a significant factor in elder abuse a decade ago, it immediately struck a chord with advocates and service providers who'd been seeing the phenomenon for years. They may not have had a term for it, but they knew it when they saw it.

But translating undue influence into law, or more specifically, translating it into an infraction of the law, hasn’t been easy. See Undue Influence is Not a Crime (Nov 20, 06), Postscript on Undue Influence is Not a Crime (Dec 4, 06), PPS on Undue Influence: The Civil Side (Dec 14, 06), and Long Distance Undue Influence (June 20, 06). For links to these postings and more on undue influence, visit my Web site at Prevent Elder Abuse.

This year, advocates in California are tackling the problem full force. The California District Attorney's Association has teamed up with California Senator Bob Margett to broaden the definition of financial abuse used in California’s penal code (PC 368) to include “undue influence upon an elder or dependent adult for financial gain.”
 The bill, SB 1259, came largely in response to the criminal case against Ronald Brock that I described in “Elder Abuse is Not A Crime.” In that landmark case, Brock was convicted of theft based on undue influence, but an appeals court overturned the conviction on that grounds that obtaining money by consent is only theft if the defendant uses coercion or misrepresentation and that the judge had erred in allowing a conviction for conduct that was "little more than overpersuasion." See SB 1259.

SB 1140, sponsored by State Senator Darrell Steinberg, would amend sections of the state’s Welfare and Institutions code pertaining to financial abuse to allow elders to recover property (and lawyers’ fees) when property is taken from them through undue influence or when they lack full mental capacity. See SB 1140.

Drawing the lines between persuasion, overpersuasion, and unlawful acts clearly isn’t going to be easy. It requires rethinking old assumptions and reevaluating deeply held values. Our society reveres and rewards the ingenuous and entrepreneurial who succeed in anticipating and responding to both real and fabricated needs and desires. Enticement and seduction are a fact of life. But as we come to understand the vulnerabilities engendered by advanced age, we need to balance our commitment to personal freedom and choice with our obligation to protect and defend. In short, we need to define the point at which society has a responsibility to step in and call foul.

Expanding our Notion of Accountability

A couple weeks ago, I was in the middle of writing a proposal to explore restorative justice approaches to elder abuse when I happened to see the new Pew Center report on incarceration (see Pew Report) that showed that more than one in 100 American adults are behind bars. That’s 1.6 million, the highest rate of any nation in the world. And it gets worse: one in 36 Hispanic and one in 15 adult Black men are incarcerated. Among young Black men, the figure is one in nine. The racial divide extends to women too, with one in 100 Black women aged 35 to 39 incarcerated compared with one in 355 for Whites.

After I got past my initial shock and depression, I went back to work with new resolve, more convinced than ever of the need for new approaches to elder abuse.

Be assured, I’m a huge fan of the police, prosecutors, forensics researchers and everyone else responsible for the enormous strides our field has made in improving prosecution rates in elder abuse cases. And a lot still remains to be done. That’s particularly true, I believe, in the case of financial abuse, where so many predators operate with impunity; some brazenly brag that the risk of getting caught and the flimsy penalties and sentences they face are simply the cost of doing business. But, as our field embraces criminal justice approaches, we ought be careful. We need to be sure, for example, that the approaches we advocate for are fair and appropriate. We need to guard against becoming so focused on prosecution that it overshadows other promising approaches. We need alternatives that we can divert offenders to when it’s appropriate. And, we need to be watchful and honest about unintended consequences.

It used to be that prosecutions were rare and few police and prosecutors received training. Things started to change quickly in the 90s with the infusion of domestic violence theory, policy, and practice into our field. In addition to offering such promising new interventions as support groups, safety planning, shelters, and orders of protection, it prompted us to focus on the criminal justice system. A significant amount of federal and state dollars now go for training police and prosecutors, for advancing forensics research, and for letting the public know that abuse is a crime.

All well and good. We’ve “criminalized” elder abuse under the banner of accountability, and clearly, it’s one way to achieve accountability. But accountability goes beyond punishing offenders. It requires that perpetrators acknowledge the harm they’ve caused and make amends to their victims and communities. If we’re serious about accountability, it’s time we stopped shrugging our shoulders at the fact that few perpetrators pay restitution, assuming that nothing can be done about it. It’s time to hold ourselves and “the system” accountable for ensuring that the needs of victims aren’t overlooked. It seems to me that the resources now directed toward the criminal justice system far exceed those devoted to restitution recovery, victim compensation, advocacy, preventative services, legal assistance, or social services aimed at healing, protecting, and empowering. Or seeing to it that offenders with mental health problems get the services they need, which is what so many victims want.

It’s my belief in the need to expand our view of accountability that’s led me to explore restorative justice (RJ). RJ isn’t a single intervention, but rather multiple techniques like victim-offender mediation in which victims confront their abusers in safe settings to tell them how they were affected, seek answers, and negotiate remuneration. Although I’m not aware of traditional victim-offender mediation being used in elder abuse, innovative programs and courts across the country are using mediation to resolve conflicts among family caregivers, as an alternative to guardianship, and to reach settlements in abuse cases, with promising results. Another RJ approach, family group conferencing (or talking circles), is currently being explored by several Indian tribes in the US and a mainstream program in Canada. The groups draw upon the potent power of family relationships and support networks to support the vulnerable, motivate or pressure members to get help for mental health problems, negotiate settlements, and support caregivers sanction offenders. For more on RJ, see the page on my Web site Restorative Justice Approaches to Elder Abuse Prevention.

RJ advocates contend that approaches like these may, in some respects, ensure greater accountability than the traditional criminal justice system. For example, in the traditional system, offenders plead innocent, leaving it up to prosecutors to prove their guilt. In contrast, RJ creates incentives for offenders to step up, admit what they’ve done, and make amends. In the traditional system, perpetrators often don’t hear the full extent of the pain, loss, and suffering they’ve caused, and victims don’t have the satisfaction of been heard. Police dramas would have us believe that the only outcome that satisfies victims is when their offenders receive harsh punishments. But victim advocates tell us that having a voice in the process, being compensated, hearing perpetrators’ explanations and expressions of remorse, and negotiating solutions can be both healing and empowering.

There are other reasons to be cautious about criminal justice approaches to elder abuse. In previous postings I’ve discussed the unintended consequences of some criminal justice approaches on certain victims. For example, mandatory arrest laws, which many states have adopted to combat domestic violence, have resulted in dramatic increases in the arrest of women as “mutual combatants” despite the fact that most women are acting in self-defense. That’s because the laws don’t typically distinguish between one-time and chronic violence, or between minor and severe violence, This is particularly true for poor women, women of color, and undocumented immigrant women. Makes me wonder if that’s reflected in the PEW findings.

It was while working on a project for the National Indian Council on Aging (NICOA) that I first got interested in RJ, as several tribes had programs. As former NICOA director Dave Baldridge put it, “Restorative justice was once an unspoken, widely-accepted aspect of American Indian tribal cultures. As Native communities were family-based and relationship oriented rather than relying on rules of law, many Native people—elders most of all--still adhere to restorative justice concepts.”

Again, I’m not knocking criminal justice approaches. I simply think we need to expand our way of thinking about accountability and focus attention and resources on approaches that empower, compensate, and restore as well as punish. RJ holds promise for doing that. I’ll keep you posted on my proposal.