63 Pages Posted: 8 Aug 2009 Last revised: 11 Aug 2009
Date Written: August 1, 2009
All fifty states have adopted statutes designed to protect older adults from abuse and neglect. While those statutes have been critiqued on functional and moral grounds, their legal implications have largely been ignored. In this Article, I fill that conspicuous gap and, in the process, show how elder protection systems significantly burden the constitutional rights of older adults - including the right to informational privacy, the right to engage in consensual sexual relations, and the right to enjoy equal protection of the law. I demonstrate that a subset of these burdens may be so unreasonable that the statutes are not only unwise, but also unconstitutional. I then explore how recognizing the burdens that current elder protection systems impose on older adults’ civil rights could lead to a fundamental shift in the design of elder protection legislation.
Keywords: civil rights, constitutional law, elder abuse, informational privacy, rights theory, sexual rights, mandatory reporting, discrimination, elder law
Suggested Citation: Suggested Citation
Kohn, Nina A., Outliving Civil Rights (August 1, 2009). Washington University Law Review, Vol. 86, No. 5, 2009. Available at SSRN: https://ssrn.com/abstract=1445022