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Achieving Justice For Abused Seniors: The Search for Solutions

By Charmaine Spencer
Adjunct Professor,
SFU Gerontology Research Centre

W hen I first started working on senior abuse issues over nine years ago, I was perplexed by the fact that even though many of the cases that I saw involved clear violations of criminal law, the justice system was very seldom invoked. The Statistics Canada report, Family Violence in Canada, 2000 A Statistical Report bears that out. In a sample of 164 police forces, the Incident Based Uniform Crime Reporting Survey identified only 802 cases of violence against older adults by family members across all of Canada in 1999. By way of comparison, Canadians reported over 27,000 cases of spousal violence to these same police departments that year.

Abuse of a power of attorney is the most common way that financial abuse is perpetrated, yet Juristat could only find five charges laid in Canada in a three year period. When Nova Scotia conducted a review of the disposition of family violence cases, there were so few abuse cases involving older adults coming to the attention of the court, "elder abuse" was not even mentioned in the report's summary. Similarly, the Family Violence Court in Winnipeg seldom deals with cases where older adults are involved.

It maybe helpful to step back and consider why.

The low numbers of cases in the justice system may reflect many different things. An optimistic perspective might suggest that victimization of older people by family members is simply uncommon. Or it may be that most of the abuse situations do not reach a threshold where the senior or someone else feels police involvement is needed. For example, from an abuser's perspective, financial coercion can usually be accomplished without violence if someone is weaker than you. Violence may only enter into the picture when manipulation, intimidation or threats no longer work.

Many service providers working with older adults stress that personal factors can also influence the response. They often emphasize that seniors avoid having police involvement because of

• stigma or feelings of guilt (the perception that "Even if he is 40, this is still my child. It's my fault that he's turned out this way"),
• concerns that their child will be arrested, have a record and lose their job, or
• fear of retaliation if the senior does report.

Unless people specifically address the abused senior's concerns about these matters, they inadvertently reinforce the perceptions.

A senior's interpretation of the events can also depend on how others in society around her or her respond. It is very common to hear the same comments from service providers:

"Seniors won't go to the police. Seniors won't charge."

Repeated so often, and sounding almost like a mantra, it becomes an expectation. If others assume that older adults experiencing abuse will want to maintain the relationship with the abuser "no matter what", then they may be less likely to explore the justice system as a viable option with the senior. It is also very common for many of those who work in health services or social work and who are in contact with seniors to operate from a family systems model, in which the service provider supports the family through "rough waters", in contrast to supporting and advocating only for the abused individual.

This broader view of "why seniors don't charge" considers the service providers' familiarity with the justice system and whether they have had personal exposure to cases where there has been a "successful resolution" of the situation. The broader view also looks at social workers' and health care providers' perception of and response to the abuser. This may range from viewing the abuser as "under caregiver stress" through to service providers being manipulated by the person doing the abuse ("She's so nice. The situation can't be that bad"), through to service providers fearing the person doing the abuse. Some abusers will use the same kind of bullying that they use to maintain control over the senior when dealing with service providers. Moreover, when service providers themselves have little system support in their work, and when they are unfamiliar about their own legal position or seniors' legal rights, the abuser's threats to sue or other bullying techniques often succeed.

This can be further compounded by the older adult's fear of the unknown. Most seniors have been fortunate enough to make into later life without any contact with lawyers or courts. However, with no previous personal exposure to the system, a senior's perspective can be coloured by media portrayals of the justice system. If it is characterized as a system "where you can't get justice anyhow", a person being victimized can easily feel "Why even try?"

At the same time, there are systemic problems in addressing abuse of seniors through the justice system. For example, police domestic violence charging policies in many Canadian jurisdictions including British Columbia will cover assaults in couples and partners, but commonly do not cover other "close relationships", such as a 53 year old son living with his 82 year old father, or a 37 year old granddaughter demanding money from her 79 year old grandmother. As a result, the responsibility or "burden" of laying a complaint rests with the victimized senior. Police charging response to "spousal abuse grown old" can also be highly dependent on the particular officer who attends that call (you still hear comments from time to time, "After all, how much harm can the old guy do").

There is a strong thread of ageism throughout the justice system. Police may divert the cases that come to their attention to other agencies such as Continuing Care, instead of Victim Services, simply because older people are the victims and middle aged people not much older than the officers themselves are the suspected perpetrators. Even if an officer recommends that the Crown lay a charge, some Crown Prosecutors decline to pursue the case because they do not believe it has a reasonable chance of success at court, improperly stereotyping older adults as "not very reliable witnesses". In light of lack of special training on working with older people, Crown often do not know how to elicit the best information from older witnesses and there are very few Victim Services agencies across the country who have had training on issues affecting older adults to properly support older adults through the justice process. Judges, too, can be influenced by the subtle and not so subtle forces of ageism, for example assuming that if an older and younger person are living together, the younger person is giving the older person some form of care.

The Search for Other Solutions

In light of these factors, it is not surprising to see service providers search for solutions to address abuse of older adults better. Edmonton takes an integrated approach of having police, social services, and counsellors working together to support abused older adults through the justice system. Recently there have been pilot

initiatives in Ontario to look to alternative models, such as restorative justice or family mediation. These approaches emphasize the need to hold the abuser accountable and to address the victim's, offender's and community needs.

There are both advantages and disadvantages to the diversionary approaches. On one hand, it may give older adults choices or responses that otherwise would not be there for them. It may help them find a solution to the problem that is more personally acceptable (e.g. where they want the abuse to stop, the person to change, and don't want to lose the relationship). On the other hand, we really haven't asked older adults if it is what they want, or is it just what some people have assumed is needed.

While many people laud restorative justice as a principled approach, it may simply become a way to let health, social services and justice systems "off the hook". Changes needed within the system (such as educating service providers, police, victim services, Crown, and judges about older adults and their needs when abuse is occurring) can seem less imperative when cases can be diverted somewhere else. We may have a curious situation in which critiques of the criminal justice system become the justification to not change the system. These alternative approaches may also give health and social services systems a "feel good" response "that at least something is being done." If the cases are diverted to these other avenus, does that take the pressure off systems to better understand and be more responsive to the needs of older adults?

Others looking at these approaches within the context of family violence express concern that it may continue to treat the abusive situation as a private matter (that is, as a "family problem"), focussing on the relationship and not the harm done. That can be particularly the case for abuse of older adults. We have spent the last decade trying to remove abuse from a closet of secrecy and educating the public that many forms of abuse of seniors are criminal matters. Are we now pushing it back into the closet?

There are other questions being raised as well. In Restorative Justice in Cases of Domestic and Sexual Violence: Healing Justice? the author highlights people's concerns about whether it is ever possible to have a power balance between parties in these new approaches when there is an abusive relationship. If so, how is that achieved? Does participating in restorative justice while still entangled in an abusive relationship foster an inappropriate feeling in the senior of being responsible for "changing" the son or daughter and contributing to the son or daughter's "healing". There are also procedural concerns regarding lack of legal support, particularly when the initiative involves a binding agreement. Currently, we are still in the very early stages at trying to determine what are the right responses to achieve justice for abused or neglected older adults and how that "justice" will look.

References

Family Violence in Canada, 2000 A Statistical Report, Cat. No. 85- 224 XIE pg. 29. Full text available at:

http://www.statcan.ca/english/freepub/85-224-XIE/0000085-224-XIE.pdf

Coward, S. (December, 2000) Restorative Justice in Cases of Domestic and Sexual Violence: Healing Justice? Directed Interdisciplinary Studies, Carleton University. Full text available at:

http://www.hotpeachpages.org/paths/rj_domestic_violence.html#II

Ministry of the Attorney General (January 1998) A Restorative Justice Framework British Columbia Justice Reform. Full Text available at:

http://www.ag.gov.bc.ca/public/98001.htm