Undue Influence The Criminal Justice Response Copyright © 2006 YWCA Omaha, Nebraska Omaha NE 68131-3577 1 Introductions Name Agency Number of years in the field 2 Undue Influence Power and control Exploit trust, dependency and fear of another Purpose: deceptively gain decision making control 3 Undue Influence More than persuasion or salesmanship Pattern of tactics Brainwashing – cults, hostages, POWs Method to commit a crime 4 Case Example: Martha Bedford Recently widowed Handy man Several trusts worth millions Moves and isolates 5 Martha Bedford APS case? Civil case? Criminal case? All or some of the above? 6 Importance to Criminal Justice Cases that “don’t seem right” Explain victim behaviors Assist in determining if crime committed 7 Importance to Criminal Justice Disprove offenders’ justifications Link expertise in DV, stalking, and grooming in SA Multidisciplinary 8 Purpose of the Training Enhance victim safety by identifying and responding effectively to UI Hold abusers accountable through investigation and prosecution of UI cases 9 Abuse, Neglect and Exploitation 10 Elder Abuse Age Gender Relationship Location All racial, ethnic, religious, and economic groups 11 Elder Abuse Physical violence Sexual abuse Emotional abuse Financial exploitation Neglect Abandonment 12 Financial Exploitation The illegal or improper use of an elder's funds, property, or assets. 13 Forms of Financial Exploitation Cashing checks without permission Forging signature Misusing or stealing $ or possessions Coercing/deceiving into signing documents Improper use of conservatorship, guardianship, or power of attorney 14 Generational and Cultural Considerations Who owns resources? Freely given? Freely shared? Extended family in same household? 15 Family Violence in Later Life Financial exploitation Using privilege Threats Intimidation Guilt & Blame Power and Control Abusing dependencies Neglect Isolation Using family members Ridiculing values spirituality beliefs Emotional abuse Wisconsin Coalition Against Domestic Violence This diagram is based on the Power and Control/Equality wheels developed by the Domestic Abuse Intervention Project, Duluth, MN 16 Stalking Conduct directed at a specific person that causes fear Repeated behaviors Purpose: to control victim or instill fear 17 Grooming Double life of the suspect Target based on vulnerability Often develop relationship 18 Case Example: Norman Video: “I’d Rather Be Home” 19 Exercise: I’d Rather Be Home What forms of abuse or tactics were used? How similar to DV? APS? Civil? Criminal? 20 Exercise: Barriers List barriers victim’s face to living free from abuse in later life Your small group has 2 MINUTES! Group with longest list wins 21 Dynamics of Undue Influence 22 Case Example Movie: “Gaslight” 23 Exercise: “Gaslight” Based on her behavior, what could be going on with Paula? 24 Undue Influence Substitution of one person’s will for the true desires of another Not persuasion and sales techniques Includes fraud, duress, threats, or other deceits 25 Victims Under the right circumstances, anyone could be susceptible to UI 26 Victims: Increased Vulnerability Lonely Naive, uninformed Ill or cognitively impaired Adverse life conditions Fatigued, exhausted, distracted Frightened Dependent 27 Suspects Opportunists Career criminals Fiduciary gained elder’s trust/confidence Caregivers Family members, trusted friends or others 28 Targeting Find a likely target Gain confidence of potential victim Induce dependence through exploitation of weakness Gain dominance of victim’s life circumstances and wealth 29 Undue Influence: Common Tactics Create Fear Prey on Vulnerabilities Isolate From Others and Information Create Dependencies Financial Exploitation Keep Unaware Perform Intermittent Acts of Kindness Create Lack of Faith in Own Abilities Induce Shame and Secrecy Copyright © 2006 YWCA Omaha, Nebraska 30 Exercise: Indicators/Questions List 2 – 4 victim indicators List 2 – 4 suspect indicators List 2 – 4 non-leading questions 31 Case Example Video: “I’d Rather Be Home” 32 Key Points Common victim reactions Often not recognized Ongoing, trusted relationship Grooming behavior Pattern of tactics Indicators warrant further investigation 33 Not All Older People Experience UI Gift giving New relationships/partners New caregivers Changes in wills 34 Consent and Other Suspect Justifications 35 Exercise: Justifications What are common suspect justifications for financial exploitation? 36 Consent Three elements Mental capacity Knowledge of true nature of act Acted freely and voluntarily 37 Legal Competency Not the same as capacity Legal judgment Able to testify or participate in a criminal trial Control of one’s life or property 38 Decision Making Capacity Ability to understand circumstances and consequences of a decision Can fluctuate Reduced capacity increases vulnerability to UI Increases dependence Decreases ability to make good decisions & resist 39 Knowledge of True Nature of Act Suspect’s tactics prevent such knowledge Isolate from others and information Keep unaware Create lack of faith in own abilities Create dependency Create fear 40 Act Freely and Voluntarily UI is the substitution of one person’s will for the true desires of another Victims of UI cannot act freely and voluntarily “Apparent” not actual consent 41 Exercise: Consent/UI Adult daughter contacted you about Mrs. B Mrs. B signed deed and gave home to inhome caregiver (6 months) Caregiver says Mrs. B wants her to have home 42 Exercise: Consent/UI Group 1: Questions to explore elements of consent Group 2: Questions to explore tactics of UI 43 Suspect Justifications How do you handle these justifications? What will you investigate? 44 Key Points Suspects justify actions Apparent versus actual consent Next – legal elements 45 Legal Framework 46 Investigation 47 Investigative Overview More than today’s incident Historical patterns Changes over time Suspect’s involvement 48 Exercise: Sources of Evidence What are potential sources of evidence in an UI case? 49 Exercise: Collecting Evidence Using the undue influence wheel and legal elements, decide: What types of evidence will you collect? Who are the witnesses? How will you obtain the evidence? 50 Investigative Framework Legal Elements Subject to UI Opportunity to exercise UI Disposition or intent to exercise UI Result was the effect of UI 51 Investigative Framework Tactics Create Fear Prey on Vulnerabilities Isolate From Others and Information Create Dependencies Financial Exploitation Keep Unaware Perform Intermittent Acts of Kindness Create Lack of Faith in Own Abilities Induce Shame and Secrecy Copyright © 2006 YWCA Omaha, Nebraska 52 Exercise: Collecting Evidence Using the undue influence wheel and legal elements, decide: What types of evidence will you collect? Who are the witnesses? How will you obtain the evidence? 53 Proving Undue Influence Witnesses regarding victim's Health Personal and financial losses Behavior patterns Throughout day and over time The victim’s home 54 Omaha Case Example 55 Interviewing Considerations Hearing and vision Literacy Dementia Sundowning Rapport Logistics Content flow 56 Victim Interview: Videotaping Consent issues Potential use at trial Crawford v. Washington Victim assessment 57 Victim Assessment Health Responsiveness Substance abuse Education Language Demeanor 58 Undue Influence Expert Marshal and present case facts Beyond common knowledge Assess what happened Credibility of witnesses Educate Myths and misconceptions about consent, persuasion 59 What the Expert Can Discuss Behaviors of victims Undue influence Not good salesmanship Facts consistent with UI 60 What The Expert Cannot Say Usually cannot conclude: UI occurred Suspect used UI Victim subjected to UI 61 What You Need To Know Does the expert use any particular model? Is the expert familiar with other models? If another model were used, would the conclusion be different? 62 What Expert Needs Case file Videotaped interviews Assessments Relationship between victim and suspect Any civil litigation files Health and social history of victim Losses 63 Multidisciplinary Response 64 Undue Influence The Criminal Justice Response Copyright © 2006 YWCA Omaha Omaha NE 68131-3577 65