OLDER ADULTS AND PERSONS WITH DISABILITY THAT ARE

ABUSED, NEGLECTED AND/OR EXPLOITED

PROSECUTION PROTOCOL

Elder and Persons with Disabilities

Abuse and Neglect

The primary goal is to treat these complaints as criminal acts.

Categories of OffensesElder/PwD abuse takes many forms, and in most cases victims are subjected to more than one type of mistreatment.

Physical Abuse Sexual Abuse Emotional AbuseConfinementPassive NeglectWillful DeprivationFinancial Exploitation

OffensesPhysical Abuse

Agg Battery – V 60+ (720 ILCS 5/12-3.04(a)(4))Agg Battery – V profoundly intellectually disabled (720

ILCS 5/12-3.05(b)(1) or (b)(2))Agg Batt – V physically handicapped (720 ILCS 5/12-

3.04(d)(2))Crim. Abuse/Neglect Elder/PwD (720 ILCS 5/12-

4.4a(b))Crim. Abuse/Neglect LTC (720 ILCS 5/12-4.4a(a))Agg Stalking (720 ILCS 5/12-7.4)Hate Crime (720 ILCS 5/12-7.1)

OffensesEmotional Abuse

Agg Assault – V physically handicapped or 60+ (720 ILCS 5/12-2(b)(1))

Crim. Abuse/Neglect Elder/PwD (720 ILCS 5/12-4.4a(b))Crim. Abuse/Neglect LTC (720 ILCS 5/12-4.4a(a))Harassment by Phone (720 ILCS 5/26.5-2)Harassment by e-comm. (720 ILCS 5/26.5-3)Stalking (720 ILCS 5/12-7.3)Intimidation (720 ILCS 5/12-6)Cyberstalking (720 ILCS 5/12-7.5)Hate Crime (720 ILCS 5/12-7.1)

Offenses

ConfinementAgg. Stalking (720 ILCS 5/12-7.4)Crim. Abuse/Neglect Elder/PwD (720 ILCS 5/12-4.4a(b))Crim. Abuse/Neglect LTC (720 ILCS 5/12-4.4a(a))Unlawful Restraint (720 ILCS 5/10-3)

Willful Deprivation and Passive NeglectCrim. Abuse/Neglect Elder/PwD (720 ILCS 5/12-4.4a(b))Crim. Abuse/Neglect LTC (720 ILCS 5/12-4.4a(a))

Offenses

Sexual AbuseSexual 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 ExploitationTheft (720 ILCS 5/16-1)

○ By Deception > $5k, V 60+ = class 2Fin Exploitation of Elder/PwD (720 ILCS 5/17-56)Agg Home Repair Fraud (815 ILCS 515/5)

○ Victim 60+ or PwDAgg 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)oFormerly 5/12-21

Criminal Abuse/NeglectWhat 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

photo

Criminal Abuse/NeglectSentencing

Caregiver abuse/neglectClass 3Class 2 if results in death

○ Extended term sentence if pen 3-14

LTC abuse/criminal neglectAbuse – Class 3Criminal Neglect – Class 4; Class 3 if deathNeglect – 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 5/17-56Formerly 720 ILCS 5/16-1.3

Financial Exploitation

DefinitionsElderly 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 hospitalizedYou 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 PrepSpeak 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 (1st 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

Hearsay exception regarding elder adults(720 ILCS 5/115-10.3(a)

Evidence DepositionsSupreme Court Rule 404

Supreme Court Rule

Motions

Practice Tips for Evidence DepositionsPlay to the jury

Exhibits

Objections

MotionsPre-Trial Motions

Testimony by Closed-Circuit Television (CCTV)Prior Sexual Activity of Victim (“Rape Shield”)No Mental Examination of Victim of Sex CrimeEvidence of Prior Sex OffensesHearsay Exception for “Outcry” Statements by

VictimAccommodations

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

SentencingFactors 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 – CNAsIllinois 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?

Thank You!