Elder Abuse & Sexual Assault Tristan D. Svare Deputy District Attorney, San Bernardino County Family Violence Unit - Elder Abuse Prosecution (909)

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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 Cases –Problems –Jury Selection –Common Defenses –Practical Approaches

Elder Sexual Assault Types of Cases Problems –Perceptions of Elders –Perceptions by Elders –Physical Evidence –Recollection –Interviews –Testimony Advocates Jury Selection Jury Instructions Common Defenses Practical Approaches

First Things First… Know Yourself Know Your Investigator(s) Educate Yourself Educate Your Investigators NCEA – UC Irvine Program in Geriatrics

Types of Cases Burglary and Rape Stranger Rape Family Member Rape or Molest Caretaker Rape And, there are different Questions or Defenses on Each Type

Types of Cases – Burglary & Rape Burglary & Rape Often elderly woman living alone Home has been cased or scouted Often with theft or robbery Serial rapist? Question - Identification

Types of Cases – Burglary & Rape Burglary And Rape, and more –Burglary –Rape –Sexual Assault –Penetration –Molest –Robbery –Assault –What Else?

Types of Cases – Burglary & Rape -Burglary and Rape -Crime Scene -Forensics – Bodily -DNA – Spit, semen, secretions, blood, hair -Oral sex, digital, penile penetration -Forensics - Location -Fingerprints -Footprints -Witnesses -= CORROBORATION

Types of Cases – Stranger Rape Woman alone Isolated Convenient location Serial Rapist? Question - Identification

Types of Cases – Stranger Rape Crime Scene Forensics – Bodily Forensics – Location –May be lost in multitude of others at scene Witnesses = CORROBORATION

Types of Cases – Family Member Rape Adult Son Invalid Victim Prior History of sex offenses? Learned behavior? Question –Did it Happen? Was it Consensual? = CORROBORATION

Types of Cases – Family Member Rape Types of Charges Rape Assault Molest Penetration What Else?

Types of Cases – Family Member Rape Crime Scene Forensics – Bodily Forensics – Location – not too revelatory – Defendant should be there Question – Did it happen? Was it consensual? = CORROBORATION

Types of Cases – Caretaker Rape At Home In Facility Forensics – Bodily Forensics – Location Question –Identity? Did It Really Happen? = CORROBORATION

CORROBORATION What Is It? Where Do You Find It? If A = B, and B = C.. Then…

Problems – Perceptions OF Elders Old Wrinkled Smelly Cranky Forgetful Pushy Bathroom Breaks Bad Eyesight Bad Hearing Slow Moving Racial Bias What Else?

Problems – Preconceptions of Dependent Adults Violent Messy Forgetful Deaf Sexual Urges Bathroom breaks Child-Like Incompetent Make Believe Suggestible What Else?

Problems – Physical Evidence Fondling Digital Penetration Foreign Objects Oral Copulation Penile/Oral – Victim on Perpetrator Penile/Vaginal Intercourse

Problems – Physical Evidence Oral/Vaginal – Perpetrator on Victim Penile/Anal Intercourse Foreign Object Sodomy Duress Official Purpose / Abuse of Power / Medical Excuse

Perception By Elders Condition of Victim –Hearing Hearing Aids –Vision Glasses Night Blindness Cross-Racial ID –Stroke Damage –Alzheimer’s Damage

Physical Evidence Condition of Crime Scene Public? Private? Secured? Demonstrative Evidence –Photos –Floor plans Re-Create for Victim and Jury

Recollection Condition of Victim –Prior Medical Conditions –Documentation –Short Term Memory? –Long Term Memory? Trauma From Event –Typical Victim Impact –Emotional Impact on Elders Specifically Loss 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 Examination CRAWFORD Requirements of Confrontation Is Live Testimony Worth the Cost to the Victim? VIDEO Recording?

Advocates

Victim Advocates Use Them as your Liaison and Hand-holder Use Them… –Subpoena –Transportation –Medications, Food, bathroom, special needs –Support Local and State Rules/Laws on Applicability / Rights of Advocates/Support

Victim Advocates HIV Warrants & Testing Victim Notification CPOs – Criminal Protective Orders Victim Confidentiality Notification of Defendant/Prisoner Release

Going To Court

Testimony In Court Victim Advocate / Support Person Field Trips To Victim –ADA – Americans With Disabilities Act Field Trips To Crime Scene Patience Is KEY Choice of Language –Clinical Terms –Polite Language

Testimony In Court Appeal to the Jury –Appearance of elderly victim –Dressed for court –Oxygen tank –Breaks –Speaking Loudly –Polite –Emotional Display

Jury Selection Language – Sex Acts –Be Polite with Jury –Be Crude with the Jury – see their reaction Questionnaires –Written –Oral Pointed and Open Questions

Jury Selection Questions and Questionnaires –Dealings with elders –Dealings with dependent adults –Accommodate private answers –Advocacy groups, stance on issues –Right to say no to sex –Reactions in the face of fear, embarrassment, sexuality, sexuality of seniors

Jury Selection Questions –TV viewing habits and reading materials Law & Order Mystery Novels CSI Newspaper Forensic Files Living with elderly family members Ability to talk about sex with other Jurors Biases and Prejudices

Victim Credibility Contextualize for the Jury Confirm the experience of the Victim The Car Stereo Exercise

Jury Instructions Direct & Circumstantial Evidence Sufficiency of Victim’s Testimony Weight of Testimony Expert Opinions & Lay Opinions Priors Acts Consent Elder Abuse

Common Defenses Someone Else –Mistaken ID Consensual Sex –Mistaken or Vindictive Victim No Sex At All –Fabrication Police Frame Up Co-Defendant Frame Up

Elder Sexual Assault Cases Know Yourself Preparation is Key Anticipate the Defenses Educate your Investigators Inoculate Your Jury Elder Sexual Assault –The Jury Wants To Convict

Tristan D. Svare Deputy District Attorney San Bernardino County District Attorney’s Office Family Violence Unit – Elder Abuse Prosecution (909)