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 Offenses
Elder/PwD abuse takes many forms, and in
most cases victims are subjected to more
than one type of mistreatment.
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Physical Abuse
Sexual Abuse
Emotional Abuse
Confinement
Passive Neglect
Willful Deprivation
Financial Exploitation
Offenses
Physical Abuse
 Agg Battery – V 60+ (720 ILCS 5/12-3.04(a)(4))
 Agg Battery – V profoundly intellectually disabled (720
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ILCS 5/12-3.05(b)(1) or (b)(2))
Agg Batt – V physically handicapped (720 ILCS 5/123.04(d)(2))
Crim. Abuse/Neglect Elder/PwD (720 ILCS 5/124.4a(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)
Offenses
Emotional Abuse
 Agg Assault – V physically handicapped or 60+
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(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
Confinement
 Agg. 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 Neglect
 Crim. Abuse/Neglect Elder/PwD (720 ILCS 5/12-4.4a(b))
 Crim. Abuse/Neglect LTC (720 ILCS 5/12-4.4a(a))
Offenses
Sexual Abuse
 Sexual 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 Exploitation
 Theft (720 ILCS 5/16-1)
○ By Deception > $5k, V 60+ = class 2
 Fin Exploitation of Elder/PwD (720 ILCS 5/17-56)
 Agg Home Repair Fraud (815 ILCS 515/5)
○ Victim 60+ or PwD
 Agg 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)
o Formerly 5/12-21
Criminal Abuse/Neglect
What 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
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Abuse or criminal neglect of a long term
care facility resident 720 ILCS 5/12-4.4a(a)
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Abuse
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Criminal Neglect
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Neglect
photo
Criminal Abuse/Neglect
Sentencing
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Caregiver abuse/neglect
 Class 3
 Class 2 if results in death
○ Extended term sentence if pen 3-14
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LTC abuse/criminal neglect
 Abuse – Class 3
 Criminal Neglect – Class 4; Class 3 if death
 Neglect – 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 5/17-56
 Formerly 720 ILCS 5/16-1.3
Financial Exploitation
Definitions
 Elderly 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
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Indicators of Financial Exploitation
Charging Considerations
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State of Mind
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Capacity
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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 hospitalized
 You will still need to subpoena medical records to use them
in court.
Before Talking to the Victim
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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
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How has the offense impacted the victim?
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What are the victim’s expectations about
the criminal justice system?
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What does the victim need from you?
Trial Prep
 Speak to them in an area free of distractions.
 Determine if they need any assistive devices
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(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.
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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 Depositions
 Supreme Court Rule 404
 Supreme Court Rule
Motions
Practice Tips for Evidence Depositions
 Play to the jury
 Exhibits
 Objections
Motions
Pre-Trial Motions
 Testimony by Closed-Circuit Television (CCTV)
 Prior Sexual Activity of Victim (“Rape Shield”)
 No Mental Examination of Victim of Sex Crime
 Evidence of Prior Sex Offenses
 Hearsay Exception for “Outcry” Statements by
Victim
 Accommodations
Jury Selection
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There may be stigma associated with having
a disability.
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Do not ask potential jurors if they know
anybody with a disability.
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You start by asking the prospective juror,
“What do you think of when you hear the
words ‘disability’ or ‘disabled’.”
Sentencing
Sentencing
 Factors 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 – CNAs
 Illinois 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!