Judge

John Leventhal of the New York Appellate Division and attorney Jennifer White of Futures without Violence describe the misconceptions people have about the

elderly as both victims and perpetrators of crime. This is one of three podcasts produced in collaboration with the

National Council of Juvenile and Family Court Judges.

ROBERT

V. WOLF: Hi, I’m Rob Wolf, director of communications at the Center for Court Innovation and

this is one of several special podcasts that the Center is doing with the support and assistance of the National

Council of Juvenile and Family Court Judges, which is hosting its 74th conference this month in New York City, July

2011.

I’m speaking with Judge John Leventhal, who is currently an associate justice of the

New York State Appellate Division and who, before he was appointed to the Appellate Division by the governor, founded

and served for many years as the presiding judge of the Brooklyn Domestic Violence Court which was, in fact, the

first felony domestic violence court in the country.

And I’m also with Jennifer White, who’s

an attorney with Futures Without Violence, which has recently changed its name from the Family Violence Prevention

Fund. And that organization is based in San Francisco and it’s dedicated to preventing domestic, dating, and sexual

violence.

Thank you both for being with me today.

JUDGE LEVENTHAL:

Thank you for having us.

JENNIFER WHITE: Thank you.

WOLF:

And today we’re gonna focus on elder abuse so I thought—and you’re both presenting on that topic here at

the conference. Elder abuse, I’ve heard a lot about recently. It seems to be in the news more and it’s certainly

a lot more in conversations among judicial practitioners and law enforcement, but I think a lot of people may not

fully understand what the term means and so Ms. White, I thought maybe we could start out by you just defining elder

abuse. What does the term refer to, exactly?

WHITE: Sure. A lot

of times when you hear elder abuse, particularly in the media they’re referring strictly to financial exploitation.

But what we know is that more common is abuse that’s perpetrated usually by somebody with whom the elder has

some expectation of trust, so usually a family member or caregiver. It includes any of several forms of maltreatment,

including physical and sexual violence, emotional and psychological abuse, including also financial exploitation.

WOLF: And do we have a sense of how widespread this is? I mean just

because people are talking about it more, you hear about it more, is that because there’s a greater incidence

of it or a greater awareness of it?

WHITE: Well, for one thing,

because the baby boomer population in 2006 hit 75 million over 60 years old. So I think that there has been a lot

of renewed focused on elder abuse because of that population coming into their senior years. The reality is that

there’s not a lot of really strong, good prevalence data. What we do know, according to the national elder abuse

incident survey is that elder abuse is actually about 85 percent of cases go unreported. We are seeing rising numbers

of cases being reported, but we still have this huge gap of victims who are not reporting.

WOLF:

Judge Leventhal, when a case or an issue involving elder abuse does make it into the court system, does it pose unique

challenges?

LEVENTHAL: Well sure, we have a lot of stereotypes in

society regarding ageism and the elderly, that they’re imagining things, that they don’t know what they’re

talking about. People sometimes confuse lack of good hearing with lack of credibility, and ability to think and be

aware of what’s going on around them. So that’s a challenge not only to the courts, but to prosecutors,

to lawyers who represent them.

It is about power and control. People don’t want to live

alone. People don’t want to be alone. They want to be cared for by family members. So that’s one of the

reasons why it’s less reported. It’s a similar dynamic to domestic violence because there’s another

layer on top of it—people with the fear of living alone or being alone. They want someone to care for them. And the

psychological and emotional trauma of turning in a child who’s taking care of them because it’s their child

and they love them, or grandchild. It’s another dynamic on the overlay of domestic violence.

WOLF:

It sounds like these are complicated cases that sometimes touch on civil, sometimes touch on criminal issues. So

where are you most frequently seeing these types of cases? Which types of judges and in which courts are you seeing

these cases?

LEVENTHAL: There are two components. There’s the

criminal component, there’s the civil component. And the civil component usually would be financial exploitation

or someone needs a guardian to help with their property or their person, to make medical and personal decisions for

them. Then you also have the criminal component where someone is physically or sexually abused.

I

think the new standard could be, if we could combine one judge who was schooled in both of those because just coincidentally,

I did guardianships at the same time as I did domestic violence and I thought that was a great fit. And I think that

really is the future in this, in handling elder abuse.

WHITE: It’s

a really good point because I think that in addition to that, one of the things that we talk about is that these

cases, because they’re not being identified very well yet, they really show up everywhere. So someplace where

they’re showing up a lot is in juvenile delinquency because kids who are living with their grandparent would

be, let’s say in juvenile delinquency court because of various things, but you’ll see that the grandparent

is being abused.

I mean it’s really important, I think, for judges that are presenting with

all different types of cases to learn how to identify elder abuse before them because what we hope really – I mean

and I say hope, but – is that victims are gonna come to a domestic violence type-court like to get an order of protection

or something like that but that’s not really where they’re gonna be popping up. I mean they could pop up

in probate court, you know, as I said juvenile court, criminal court, family court, I mean really anywhere, even

civil or small claims court.

LEVENTHAL: Guardianship.

WHITE:

Guardianship. So it’s really anywhere so it’s important for judges to be able to identify the signs.

LEVENTHAL:

And there’s also another stereotype that we have omitted and inadvertently. People think that the elderly can’t

be sexually abused, besides physically abused, sexually abused, and it happens. I have cases where children have

sexually abused their parents. We have a scenario in our presentation today where a grandson raped his 98 year old

grandmother. And on the other hand, there are cases where an elder can be an abuser or sexual abuser.

WHITE:

It’s definitely sort of a misconception. Some of the things that we deal with at the National Judicial Institute

when we give trainings on elder abuse, which Judge Leventhal has taught at the training, is to really help courts

see that some of these assumptions that you make about elders, you know, one being that because you’re of a

certain age you lack capacity to make decisions. It’s a huge misconception, and the other huge misconception

that’s so common is the idea that because you’re of a certain age that you suddenly lose the ability to

cause harm.

So you have a lot of elder perpetrators that are in the court that maybe just start

abusing a spouse, for instance, or have been abusing a spouse for 50, 60 years and the courts won’t, potentially,

hold that person accountable in the same way they would if the person was 35 years old because they’re 65 years

old and they think, ‘oh, this person can’t do harm.’

The reality is how much strength or

ability does it take to, for instance, pick up a gun and shoot somebody? Not very much. So it is something that we

sort of work to educate the judiciary about.

WOLF: So, you’ve

presented a lot of different, described kind of the challenges, I thought, very, very well and painted a picture.

Have courts been responding effectively? Have they been picking up speed as there has been more awareness and more

of these cases coming to the courts? Have you been pleased with what you’re seeing?

WHITE:

I think that in terms of elder abuse, the entire system is really behind. Most people that practice in this field

will tell you we’re probably 20 years behind the domestic violence fields, child abuse fields.

But

yes, I think there has been more focus on it. There’s been some judicial trainings, law enforcement trainings,

and prosecutor trainings nationally, which have been sponsored by the Office on Violence Against Women to get more

of this on the radar.

There are a couple of courts in the country that have elder abuse dockets.

So I know in California, for example, there is a judge that started an elder abuse docket there. In Georgia there

is a compliance review docket for elder abuse cases. So there are a couple but in terms of it being really common

or sort of on the radar the way that domestic violence is now, definitely not.

There still needs

a lot more focus, a lot more awareness, and I think the best way to start that process is, particularly for judges

to exercise leadership in their court systems to really get these coordinated community response teams started the

way that we have for domestic violence, because that seems to be the most effective way to enhance services and to

get justice for elders.

WOLF: So let me ask you about that in a

second, but let me just remind everyone that I’m Rob Wolf at the Center for Court Innovation and I’m at the

annual conference of the National Council of Juvenile and Family Court Judges, speaking with Judge John Leventhal

of New York, and attorney Jennifer White of San Francisco about elder abuse.

Ms. White, you mentioned

a coordinated community response, which is a term, I think, familiar in the domestic violence world. What is it and

how would that apply as a response to elder abuse?

WHITE: Sure.

Coordinated Community Response—they can be many, many different—there are many, many different kinds. There’s

some that specialize in, for instance, if you have teams that will meet to deal with particular cases, and then some

coordinated response teams are more system-wide.

So it’s really meant to get professionals

from the various systems that impact the case. So let’s say the prosecutor’s office, law enforcement, sometimes

judges will be involved, advocates. For elder abuse cases we hope to see aging services involved, adult protective

services, hopefully geriatric psychologists, psychiatrists are involved so that they can get together and look at

the system and see how they can coordinate, communicate better, to make service delivery smoother and more effective.

LEVENTHAL: And I think, our motto in New York, you can call it a

partnership, you can call it Coordinated Community Response. We have the usual suspects, the D.A.’s office,

parole, probation. We have elder abuse organizations, we have aging –

WHITE:

Services.

LEVENTHAL: …services—adult protective services. We also

have a defense bar and the reason why that’s important is because if the judge is going to be involved, you

have to involve the defense.

And it’s very important when the judges take a leadership role,

these kinds of things happen – parole and probation will be more involved—you’ll get more support than if you

just do it on your own.

So I thought that was very important and I’m really gratified now

that there’s being more attention being paid – not only because I have a 97-year-old mother, but because when

I started doing this thing, you would take elder abuse cases, as you know the domestic violence issues were raised

by the women’s movement and the focus really then was on intimate partner abuse. And elder abuse is kind of

secondarily or an afterthought.

Now you know, everyone has a parent, everyone’s going to

get old, and it’s important. And I always thought that it was important, I always thought there should be more

emphasis on it. And I was not only gratified that we are doing this, I’m gratified that I have an opportunity

to take part in this.

WOLF: Great, well I want to thank you both

for taking the time to talk with me today.

I’ve been talking about the challenges of dealing

with elder abuse in the courts with Judge John Leventhal and attorney Jennifer White. This podcast was jointly sponsored

by the National Council of Juvenile and Family Court Judges and the Center for Court Innovation.

To

find out more about the National Council you can visit their website at www.ncjfcj.org, and to find out more about the Center for Court Innovation,

you can visit our website at www.courtinnovation.org. I’m Rob Wolf, Director of Communications at the Center

for Court Innovation. Thanks for listening.

July 2011