175 Elder abuse is closely related to family violence. Like family violence, elder abuse can be physical, sexual, psychological or financial in nature, and is usually committed by a family member. State and territory criminal law includes offences that respond to some forms of physical, sexual and financial elder abuse. Offences relevant to elder abuse include common assault, assault occasioning actual bodily harm, wounding with intent to cause grievous bodily harm, false imprisonment, choking, suffocation and strangulation, sexual assault, larceny, robbery or stealing from the person, demanding property with intent to steal and fraud.
176 In some jurisdictions, reforms to the criminal law to better respond to family violence have begun to address psychological and emotional abuse.
Offences against older people
177 Some overseas jurisdictions—for example, California, Missouri and Florida— have specific offences for causing or permitting an older person to suffer, be injured, or be placed in a situation in which their health is endangered. Creating specific offences for crimes against older people may change attitudes, increase awareness and encourage prosecutions.
178 On the other hand, it may be more in keeping with the dignity of older people for the criminal justice system to treat them in the same way as other citizens.
Question 42 In what ways should criminal laws be improved to respond to elder abuse? For example, should there be offences specifically concerning elder abuse?
179 Elder abuse includes neglect, that is, the failure to do something for an older person that results in harm and is in the context of a relationship of trust. State and territory statutes in most jurisdictions (but not the Australian Capital Territory and Victoria) provide that a person who has a duty to provide the ‘necessities of life’ to another person, and fails to do so, causing harm to that person, has committed a criminal offence.
180 Concerns have been expressed that state and territory laws regarding neglect are not well suited for addressing elder abuse.
Question 43 Do state and territory criminal laws regarding neglect offer an appropriate response to elder abuse? How might this response be improved?
181 Each state and territory has a protection order regime designed to respond to repeated acts of violence, threats or intimidation committed by family members (defined widely) or other known people. Protection order regimes are civil in nature, but a breach of a protection order is a criminal offence. Older people, like all others, can apply to the court for a protection order if they have fears for their safety. Police officers may also apply for a protection order on behalf of an older person. Protection orders can direct a person not to approach, contact or live with the protected person, or they may direct the person not to assault, threaten or harass the protected person.
Question 44 Are protection orders being used to protect people from elder abuse? What changes should be made to make them a better safeguard against elder abuse?
Reporting crimes to police
182 Some older people are not willing to contact police regarding elder abuse, even where criminal offences have been committed. When crimes are committed by family members or trusted people, the victim may not wish to damage the relationship further by involving police. In some cases, an older person may be unable to make a report, for example, due to advanced dementia.
183 In Australia, there is no general obligation for witnesses or victims of crimes to make a report to the police. However, in all states and territories, people in certain occupations are required to report child abuse. In the Northern Territory, all adults must report a reasonable belief that a person has caused serious physical harm to someone with whom they are in a domestic relationship. In NSW, a person who is aware of a serious indictable offence and does not report it commits an offence (except people in certain health care professions).
184 The Aged Care Act requires approved aged care providers to report unlawful sexual contact or unreasonable use of force on a resident of an aged care home to the police and the relevant department.
185 Overseas jurisdictions—including the US, Canada, Israel and South Africa— have laws requiring certain people to report elder abuse. For example, in California, doctors, clergy, all employees of health care facilities, and any person who assumes responsibility for the care and custody of an elderly person must report known or suspected elder abuse, and failure to do so is a crime. Reports can be made to Adult Protective Services agencies in each county, or to the police.
186 In its 2007 report, Older People and the Law, the House of Representatives Standing Committee on Legal and Constitutional Affairs considered whether there should be an obligation to report suspected financial abuse of older people. It did not support this approach because such laws impinge upon the autonomy of older people. It also noted that there is a lack of evidence that such laws increase reporting or decrease the incidence of abuse. The Committee instead considered that reporting should be encouraged and that information should be available about options for responding to elder abuse. The Committee commended the work of state-based elder abuse prevention units and recommended ongoing funding for the Australian Network for the Prevention of Elder Abuse to assist it in its information sharing role.
187 In its 2010 report, Family Violence—A National Legal Response,the ALRC expressed concerns and reservations about a legal duty to report family violence. In particular, the ALRC was concerned about creating a disincentive for victims to seek assistance, guidance and medical care, because of fears that disclosure to a professional would result in a report to the police. The ALRC was also concerned about the damage to relationships of trust if professionals are required to report abuse. Some of these concerns may be less relevant with regard to abuse of older people where the person is unable to report that crimes have been committed against them.
188 The absence of a legislated requirement to report does not prevent organisations from requiring their employees to report suspected abuse. Organisations may require employees to report all suspected abuse, or require reporting only of emergency situations. Privacy laws permit the disclosure of health information about a person without the consent of the person in certain limited circumstances. Some organisations provide protection from retaliation for people who report elder abuse.
189 The ALRC is interested in comment about whether there should be further legal requirements to report elder abuse, in addition to those in the aged care system.
Question 45 Who should be required to report suspected elder abuse, in what circumstances, and to whom?
Police and prosecution response
190 There have been significant changes to the police responses to family violence in recent times. For example, the NSW Police Force has a ‘policy of mandated action’—that is, their policy indicates that ‘police will respond to domestic and family violence incidents reported to them’. In addition, some police agencies have established specialist liaison officers for seniors.
191 However, there have been some suggestions that police may be reluctant to investigate crimes such as fraud when the victim has dementia. There are also concerns about the low rate of prosecutions for elder abuse and calls for a review of criminal laws to ensure that elder abuse is susceptible to prosecution.
192 The Victorian Royal Commission into Family Violence recently recommended that the Victoria Police trial a dedicated family violence and elder abuse response team, with capacity to investigate financial abuse.
Question 46 How should the police and prosecution responses to reports of elder abuse be improved? What are best practice police and prosecution responses to elder abuse?
193 The court process can be very stressful for victims of crime, particularly when a person must give evidence against a family member, trusted person or carer. Most states and territories provide support services to victims. In some jurisdictions, changes have been made to court processes in an effort to reduce the difficulty of giving evidence, largely in response to the concerns of victims of sexual assault and child sexual assault.
Question 47 How should victims’ services and court processes be improved to support victims of elder abuse?
194 Sentencing statutes usually specify that the circumstances of the victim and the impact of the crime on the victim are relevant factors. In some jurisdictions the age of the victim is specifically mentioned as an aggravating factor in sentencing. The common law also requires judicial officers to take into account the age and circumstances of the victim and the impact of the crime on the victim. It is an aggravating factor if the crime was committed by a person in a position of trust, or where the offender has a responsibility to care for and protect the victim.
Question 48 How should sentencing laws and practices relating to elder abuse be improved?
195 People experiencing elder abuse may be reluctant to engage with the criminal justice system because they wish to maintain their relationship with the abusive person, or because they do not wish the abusive person to be punished. Restorative justice models may address these concerns because they can maintain and improve relationships, and emphasise offender accountability. Restorative justice models include victim-offender mediation, conferencing, and circle sentencing.
196 In its 2010 report, Family Violence—A National Legal Response, the ALRC expressed the preliminary view that restorative justice responses to family violence are generally inappropriate, and noted a need for further research, trials and evaluations. In 2016, the Victorian Royal Commission into Family Violence found that restorative justice processes have potential as suitable responses to family violence, and recommended a pilot program with strong safeguards.
Question 49 What role might restorative justice processes play in responding to elder abuse?
Civil penalties for abuse
197 The VLRC recommended in 2012 that a person with responsibility to care for a person with impaired decision-making ability should be liable for civil penalties if the carer abuses, neglects or exploits the impaired person. Civil penalties have the purpose of punishing an offender, but use civil court procedures. The VLRC suggested that this public wrong would overlap with existing criminal offences, but would be available when criminal proceedings are unlikely to succeed.
Question 50 What role might civil penalties play in responding to elder abuse?
See, eg, Family Violence Act 2004 (Tas) ss 8–9; Family Violence Protection Act 2008 (Vic) s 5.
California Department of Justice, A Citizen’s Guide to Preventing and Reporting Elder Abuse (2002) 21.
NSW Police Force, Code of Practice for the NSW Police Force Response to Domestic and Family Violence (2013) 21.
Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36 Sydney Law Review 99, 126; Alzheimer’s Australia NSW, Preventing Financial Abuse of People with Dementia (Discussion Paper No 10, 2014) 26.
Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) rec 155.
Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) 1093; Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) rec 122.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) ch 18.