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Elder Abuse Charging and Sentencing

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Elder Abuse &Sexual Assault
Tristan D. SvareDeputy District Attorney, San Bernardino CountyFamily Violence Unit - Elder Abuse Prosecution(909) 387-6533tsvare@sbcda.org
Elder Abuse IS A Problem…Elder Sexual Assault IS A Problem…
What Can We Do About It?PROSECUTE FULLY
Elder Sexual Assault
How Can We Best Prepare, or Front-Load, A Case to Ensure JUSTICE?Types of CasesProblemsJury SelectionCommon DefensesPractical Approaches
Elder Sexual Assault
Types of CasesProblemsPerceptions of EldersPerceptions by EldersPhysical EvidenceRecollectionInterviewsTestimonyAdvocates
Jury SelectionJury InstructionsCommon DefensesPractical Approaches
First Things First…
Know YourselfKnow Your Investigator(s)Educate YourselfEducate Your InvestigatorsNCEA – UC Irvine Program in Geriatricshttp://www.centeronelderabuse.org
Types of Cases
Burglary and RapeStranger RapeFamily Member Rape or MolestCaretaker RapeAnd, there are different Questions or Defenses on Each Type
Types of Cases – Burglary & Rape
Burglary & RapeOften elderly woman living aloneHome has been cased or scoutedOften with theft or robberySerial rapist?Question - Identification
Types of Cases – Burglary & Rape
Burglary And Rape, and moreBurglaryRapeSexual AssaultPenetrationMolestRobberyAssaultWhat Else?
Types of Cases – Burglary & Rape
Burglary and RapeCrime SceneForensics – BodilyDNA – Spit, semen, secretions, blood, hairOral sex, digital, penile penetrationForensics - LocationFingerprintsFootprintsWitnesses= CORROBORATION
Types of Cases – Stranger Rape
Woman aloneIsolatedConvenient locationSerial Rapist?Question - Identification
Types of Cases – Stranger Rape
Crime SceneForensics – BodilyForensics – LocationMay be lost in multitude of others at sceneWitnesses= CORROBORATION
Types of Cases – Family Member Rape
Adult SonInvalid VictimPrior History of sex offenses?Learned behavior?QuestionDid it Happen? Was it Consensual?= CORROBORATION
Types of Cases – Family Member Rape
Types of ChargesRapeAssaultMolestPenetrationWhat Else?
Types of Cases – Family Member Rape
Crime SceneForensics – BodilyForensics – Location – not too revelatory – Defendant should be thereQuestion – Did it happen? Was it consensual?= CORROBORATION
Types of Cases – Caretaker Rape
At HomeIn FacilityForensics – BodilyForensics – LocationQuestionIdentity? Did It Really Happen?= CORROBORATION
CORROBORATION
What Is It?Where Do You Find It?
Problems – Perceptions OF Elders
OldWrinkledSmellyCrankyForgetfulPushyBathroom Breaks
Bad EyesightBad HearingSlow MovingRacial BiasWhat Else?
Problems – Preconceptions of Dependent Adults
ViolentMessyForgetfulDeafSexual UrgesBathroom breaksChild-Like
IncompetentMake BelieveSuggestibleWhat Else?
Problems – Physical Evidence
FondlingDigital PenetrationForeign ObjectsOral CopulationPenile/Oral – Victim on PerpetratorPenile/Vaginal Intercourse
Problems – Physical Evidence
Oral/Vaginal – Perpetrator on VictimPenile/Anal IntercourseForeign ObjectSodomyDuressOfficial Purpose / Abuse of Power / Medical Excuse
Perception By Elders
Condition of VictimHearingHearing AidsVisionGlassesNight BlindnessCross-Racial IDStroke DamageAlzheimer’s Damage
Physical Evidence
Condition of Crime ScenePublic?Private?Secured?Demonstrative EvidencePhotosFloor plansRe-Create for Victim and Jury
Recollection
Condition of VictimPrior Medical ConditionsDocumentationShort Term Memory?Long Term Memory?Trauma From EventTypical Victim ImpactEmotional Impact on Elders SpecificallyLoss of Independence, Shortening of Life
Interviewing Victims
Who Do You Know?Who Is … Suspect…?How Do You Know Suspect?How Long Have You Known Suspect?ID Suspect?What Happened with Suspect?What Did You Want to Do with Suspect?
Interviewing Victims
Conditional Exams / Depositions / Special hearings / Preliminary Hearing / Preliminary ExaminationCRAWFORD Requirements of ConfrontationIs Live Testimony Worth the Cost to the Victim?VIDEO Recording?
Advocates
Victim Advocates
Use Them as your Liaison and Hand-holderUse Them…Use Them…SubpoenaTransportationMedications, Food, bathroom, special needsSupportLocal and State Rules/Laws on Applicability / Rights of Advocates/Support
Victim Advocates
HIV Warrants & TestingVictim NotificationCPOs – Criminal Protective OrdersVictim ConfidentialityNotification of Defendant/Prisoner Release
Going To Court
Testimony In Court
Victim Advocate / Support PersonField Trips To VictimADA – Americans With Disabilities ActField Trips To Crime ScenePatience Is KEYChoice of LanguageClinical TermsPolite Language
Testimony In Court
Appeal to the JuryAppearance of elderly victimDressed for courtOxygen tankBreaksSpeaking LoudlyPoliteEmotional Display
Jury Selection
Language – Sex ActsBe Polite with JuryBe Crude with the Jury – see their reactionQuestionnairesWrittenOralPointed and Open Questions
Jury Selection
Questions and QuestionnairesDealings with eldersDealings with dependent adultsAccommodate private answersAdvocacy groups, stance on issuesRight to say no to sexReactions in the face of fear, embarrassment, sexuality, sexuality of seniors
Jury Selection
QuestionsTV viewing habits and reading materialsLaw & Order Mystery NovelsCSI NewspaperForensic FilesLiving with elderly family membersAbility to talk about sex with other JurorsBiases and Prejudices
Victim Credibility
Contextualize for the JuryConfirm the experience of the VictimThe Car Stereo Exercise
Jury Instructions
Direct & Circumstantial EvidenceSufficiency of Victim’s TestimonyWeight of TestimonyExpert Opinions & Lay OpinionsPriors ActsConsentElder Abuse
Common Defenses
Someone ElseMistaken IDConsensual SexMistaken or Vindictive VictimNo Sex At AllFabricationPolice Frame UpCo-Defendant Frame Up
Elder Sexual Assault Cases
Know YourselfPreparation is KeyAnticipate the DefensesEducate your InvestigatorsInoculate Your JuryElder Sexual AssaultThe Jury Wants To Convict
Tristan D. SvareDeputy District Attorney
San Bernardino County District Attorney’s OfficeFamily Violence Unit – Elder Abuse Prosecutiontsvare@sbcda.org(909) 387-6533

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Elder Abuse Charging and Sentencing