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Copyright (c) 1995 Board of Trustees of the University of Illinois
The Elder Law Journal

NOTE: Criminalizing Physical and Emotional Elder Abuse

Fall, 1995

3 Elder L.J. 377


Robert A. Polisky


Elderly persons, particularly those who require care givers, are vulnerable to both physical and emotional abuse. In this note, Mr. Polisky discusses the rising problem of elder abuse and offers a solution to reduce its incidence. After a history highlighting the prevalence of elder abuse in care-giving situations, Mr. Polisky analyzes how tort law and criminal law inadequately redress elder abuse victims. Mr. Polisky concludes that state statutes which criminalize both physical and emotional elder abusive acts are the key to protecting the elderly from abuse because they punish the abuse itself rather than relying on proof of the act's impact on the victim. Though some abusers have attacked these statutes on constitutional grounds of overbreadth and vagueness, Mr. Polisky argues that courts have already determined such claims constitutional. In closing, Mr. Polisky proposes model legislation which would best protect the elderly and other vulnerable adults from abuse.

I. Introduction

On Christmas Eve, 1988, when Emily P. Bissell Hospital nursing aide Linda Foley was changing a thirty-nine-year-old quadriplegic man's catheter, an elderly woman afflicted with Alzheimer's disease wandered into the room. 1 Seizing the opportunity to emotionally harm both nursing home residents, Foley reached for the eighty-nine-year-old woman's hand and demanded that she fondle the man. 2 Fortunately, another nurse's aide witnessed this ordeal and successfully pulled the Alzheimer's patient away before she was forced to touch the man. 3

This incident is but one illustration of the scarcely recognized problem plaguing the elderly - elder abuse. ...
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