Finding the Middle Ground on a Slippery Slope: Balancing Autonomy and Protection in Mandatory Reporting of Elder Abuse
Marquette Benefits and Social Welfare Law Review, Volume 16, Issue 2, Spring
55 Pages Posted: 29 Dec 2016
Date Written: 2015
Millions of older Americans suffer from physical, mental, emotional, or financial abuse. Frequently, their abusers are family members, close friends, or other individuals who occupy positions of trust in their elderly victims’ lives. Unfortunately, due to a variety of factors, elder abuse is a tragically under-reported crime. Experts estimate that for every case of elder abuse revealed to law enforcement authorities, five more cases go unreported, allowing the abuse to continue unchecked.
To combat this secrecy surrounding elder abuse, federal and state lawmakers enacted statutes requiring certain people — or, in some jurisdictions, all people — to report instances of suspected elder abuse to designated authorities. These laws circumvent the need for victims to self-report the crimes perpetrated against them, shining a light on perpetrators of these terribly damaging offenses. However, some commentators argue that laws mandating reporting of perceived elder abuse unnecessarily impinge upon the constitutionally protected liberties of older Americans. Critics claim that these statutes discriminate against elderly individuals, infantilizing older men and women by assuming that they need greater state oversight because of their age.
This article seeks to reconcile the valid points on both sides of this debate. Rather than abandoning the important protections that mandatory elder abuse reporting laws provide, this article calls for these laws to remain on the books. However, it also suggests that these laws include several much-needed provisions safeguarding older Americans’ constitutional liberty interests. By examining mandatory elder abuse reporting laws in several jurisdictions and identifying best practices, this article aims to provide steps toward finding a better balance between autonomy and protection in this area of the law.
Keywords: Elder Abuse, Elder Law, autonomy, protection, mandatory reporting, good faith, discretion
Suggested Citation: Suggested Citation