Jon Riki Karamatsu Speech on Elder Abuse to Hawaii Caregivers Association
Saturday, April 30, 2011, 6:00 P.M. at Pearl Country Club
Hawaii, like other states in the union, has created civil and criminal laws to protect our older adults from abuse. The abuse of the elderly can be physical abuse, psychological abuse, sexual abuse, financial exploitation, caregiver neglect, or self-neglect. There are challenges regarding elder abuse. Part of the problem is that people do not like to talk about the abuse. The silence around elder abuse is similar to other crimes such as domestic abuse and sexual abuse. Based on a 2007 study by the Hawaii Legislative Reference Bureau, Hawaii has a relatively low level of adult abuse reports compared generally to other states and to other state of comparable size. However, at the Department of the Prosecuting Attorney of the City and County of Honolulu, there are increasing numbers of elder abuse cases. In 2008, the department had 37 cases; in 2009 it had 57; and in 2010 it had 102. There are various factors that could be contributing to the increasing amount of cases of elder abuse such as better education and awareness on this issue, bad economy, drug abuse, and the growing elderly population.
I will go over the various Hawaii laws that intend to protect our elders from such abuse. Hawaii criminal law, under Section 706-660.2, HRS, has enhanced penalties for offenders who in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury on a person who is 60 years of age or older and such is known or reasonably should be known to the offender. Under Section 706-662, there are enhanced penalties if the offender attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and the defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who has the status of being 60 years of age or older and the person’s status is known or reasonably should be known to the offender.
In most Hawaii civil laws, “elderly person” is defined as a person who is 62 years of age or older. Section 412:3-114.5, HRS mandates financial institutions to report suspected financial abuse that is directed towards, targets, or is committed against an elder to the Department of Human Services. The department in turn is required to report this to the police. Persons who report have immunity from liability, civil or criminal. Section 485A-603.5, HRS and Section 485A-604.5 allows the court or the Commissioner of Securities respectively, to impose additional penalties up to $50,000 for each securities violation against persons age 62 years of age or older. Section 454F-12, HRS, imposes a fine up to $10,000 for each violation committed against an adult 62 years of age or older, by a mortgage broker or mortgage solicitor. Section 480-13.5, HRS, imposes penalties up to $10,000 for each consumer fraud violation against a consumer who is 62 years of age or older. If a person commits unfair competition, practices, declared unlawful, towards an elder, the court may award the elder additional sum up to the restitution ordered.
In contractor law, “elderly person” is defined as a person who is 65 years of age or older. Under Section 444-10.7, the court may impose a fine up to $10,000, or imprisonment up to 1 year, or both, if a person acts, or assumes to act, or advertise, as general engineering contractor, general building contractor, or specialty contractor without a contractor license towards a person who is 65 years of age or older.
Currently, Hawaii law makes no distinction between adults and elder adults in qualifying for adult protective service. Part X, Chapter 346, Hawaii Revised Statutes (HRS), applies to any “dependent adult” age 18 and over. The legislature recognized that it is a person’s vulnerability, not necessarily age, which is often encountered in cases of abuse, neglect, and exploitation. While advanced age alone is not sufficient reason to intervene in a person’s life, the legislature found that many elders have become subjects of abuse, neglect, and exploitation, and substantial public interest exists to ensure that this segment of the population receives protection. Thus, the legislature created the adult protective services law for the protection of its citizens who may be vulnerable to abuse, including the elderly.
The State of Hawaii’s adult protective service law was created to increase the protection of vulnerable adults from abuse by mandating health professional to promptly report to the Department of Human Services on any elderly abuse. Any person who knowingly fails to report or who willfully prevents another person from reporting can be guilt of a petty misdemeanor. The Department of Human Services has authority to conduct investigations on any abuse. Any person intentionally or knowingly obstructing or interfering with the department’s access to or communication with the vulnerable adult can be guilty of a misdemeanor.
Upon investigation the department shall take action to prevent abuse and shall have the authority to do any or all of the following: (1) Resolve the matter in an informal fashion as is appropriate under the circumstances; (2) Exercise its right of entry; (3) Seek an order for immediate protection; (4) Seek a temporary restraining order; (5) File a petition with the court under this part; and (6) Seek any protective or remedial actions authorized by law. Any individual who assumes a duty or responsibility pursuant to this law shall have immunity from civil liability for acts or omissions performed within the scope of the individual’s duty or responsibility.
I would like to note that all elderly abuse criminal cases are handled by the Department of the Prosecuting Attorney in the county where the crime was committed, and the Attorney General handles all the elderly abuse civil cases.
Thank you for inviting me to give an overview of the laws on elderly abuse. Together, we can make Hawaii a better and safer place for all, especially our elderly.
JON RIKI KARAMATSU 