Call Today! Free Immediate Response (818) 781-1570

Blog

Domestic Violence Against a Disabled Person - Penal Code 368(b) PC

Posted by Dmitry Gorin | Jun 25, 2024

Let's review domestic violence against a disabled person in California, defined under Penal Code 368(b) PC. When domestic violence is committed against a disabled spouse or other family members, it falls under the broader category of elder abuse.

Penal Code 368(b) PC is designed to protect vulnerable adults, including senior citizens and those with physical or mental disabilities, from maltreatment. This law recognizes that disabled individuals are particularly susceptible to harm and, therefore, requires more stringent legal protections.

Thus, if you're convicted of domestic violence against someone with a disability, you may be subject to more severe penalties than that for basic domestic battery or a similar crime against an otherwise healthy spouse/partner.

Domestic Violence Against a Disabled Person - Penal Code 368(b) PC
PC 368(b) defines the crime of domestic violence against a disabled person, often elder abuse.

PC 368(b) says, "(1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

(g) As used in this section, "elder" means a person who is 65 years of age or older.

(h) As used in this section, "dependent adult" means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64 who has physical or mental limitations that restrict their ability to carry out everyday activities or to protect their rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes a person between 18 and 64 admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(i) As used in this section, "caretaker" means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult."

What is the Definition of Elder Abuse?

Under California Penal Code 368(b), elder abuse encompasses a range of actions that cause harm to an elder or dependent adult. An "elder" is defined as any person aged 65 or older.

At the same time, a "dependent adult" refers to individuals aged 18 to 64 who have physical or mental limitations restricting their ability to carry out everyday activities or protect their rights. This includes those with developmental disabilities or diminished capacities due to age.

What Must Be Proven for a Conviction?

To secure a conviction for committing domestic violence against a disabled person under Penal Code 368(b) PC, the prosecution must prove several elements of the crime beyond a reasonable doubt, including the following:

  • Knowledge of the Disability: You knew, or reasonably should have known, that the victim was an elderly or dependent adult.
  • Willful Conduct: You willfully cause or permit the elderly or dependent adult to suffer unjustifiable physical pain or mental suffering.
  • Circumstances of Harm: Your actions occurred under circumstances or conditions likely to produce great bodily harm or death.
  • Care or Custody: You had care or custody of the elderly or dependent adult.

What Are Some Examples?

Domestic violence against a disabled person often involves a caregiver, family member, or someone in a position of trust inflicting harm. This could include physical abuse, neglect, emotional abuse, or financial exploitation. Given the victim's vulnerable position, the law treats such offenses with greater severity to ensure their protection.

EXAMPLE 1: Emily, a 68-year-old woman with Parkinson's disease, relies on her husband, Robert, for daily assistance due to her mobility challenges. Frustrated with his caregiving duties, Robert resorts to physical abuse, shoving Emily and causing significant bruising and even a fracture. His actions fall under elder abuse and domestic violence as defined by PC 368(b).

EXAMPLE 2: James, a 72-year-old man with dementia, depends on his daughter, Lisa, for financial management and care. Instead of fulfilling her responsibilities, Lisa exploits James by withdrawing large sums of his money for personal use and subjects him to constant verbal abuse and isolation. Lisa can be charged under PC 368(b).

What are the Penalties?

Violations of PC 368(b) can be charged as misdemeanor or felony offenses based on the severity of the offense and danger or harm inflicted on the victim:

  • Misdemeanor Conviction: If the act of violence could endanger life or health, the offense may be charged as a misdemeanor. Penalties can include up to one year in county jail, a fine of up to $6,000, or both.
  • Felony Conviction: If the abuse inflicted had a high likelihood of causing great bodily injury or death, the offense is typically charged as a felony. The penalty for conviction is two, three, or four years in state prison.

Enhanced Penalties

California law enforces enhanced penalties if elder abuse results in serious bodily injury or death to the victim, such as the following.

  • If a great bodily injury occurs. The court may impose an additional three years in prison if the victim is under 70 and five years if the victim is 70 or older.
  • If death occurs. The court may impose an additional five years if the victim is under 70 and seven years if the victim is 70 or older.

What are the Common Defenses?

Being accused of domestic violence against a disabled family member is a serious matter, but a skilled California criminal defense attorney can employ several defenses to counter the charges:

  • False Accusation: The allegations are false and motivated by ulterior motives, such as familial disputes or attempts to gain control over assets.
  • Accidental Injury: The harm caused to the victim was accidental and not a result of willful or negligent conduct.
  • Lack of Knowledge: You did not know and could not reasonably have known that the victim was a dependent adult or elder. (This defense can be challenging to prove in domestic violence situations where it's clear you knew the alleged victim on an intimate or familial basis.

Contact our criminal defense law firm for more information. Eisner Gorin LLP has offices in Los Angeles, CA>

Related Content:

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

We speak English, Russian, Armenian, and Spanish.

If you have one phone call from jail, call us! If you are facing criminal charges, DON'T talk to the police first. TALK TO US!

CALL TOLL-FREE
(818) 781-1570
Anytime 24/7

Menu