by Dr Renè Darmanin – Junior Associate
The importance of elder abuse legislation is becoming an increasingly urgent concern as the older population continues to increase throughout all continents. Back in 2014, Parliament introduced new provisions to the Criminal Code. As pointed out by various members of the legislature in the parliamentary debates leading to this enactment, prior to 2014 in Malta there was no law dealing specifically with elder abuse. The newly enacted legislation targets all forms of abuse, irrespective of the place where such abuse occurs, and by whom it is perpetrated as long as the victim is an elder or a dependent person.
The Maltese Criminal Code defines an elder as any person who has attained the age of sixty years. On the other hand, a dependant person is defined as any person of age suffering from a degree of physical or mental infirmity which restricts his or her ability to perform normal activities or to protect his rights.
Since demographic projections anticipate a continuing ageing population, with the Maltese National Statistics Office projecting that such population shall increase by 72% by 2060, there is no doubt as to the timeliness and necessity of this legal enactment.
The term ‘elder abuse’ was first documented in 1975 (World Health Organization, 2014). Even though research has shown that abuse of older persons existed prior to such date, back then such crime was considered as being a private family affair, and consequently not reported. However, by time, the situation changed drastically, and various states started to legislate on the issue.
Professionals claim that elder abuse is grossly underreported and if the public is not well informed with regards to the protection afforded by the State through legislation, the rate of elder abuse will continue to rise. The exposure of elder abuse may be prevented either through the act of the perpetrator himself or when the victim himself finds it hard to report such abuse. This difficulty might arise for several reasons such as shame, any form of infirmity, or due to timidity. Research indicates that religious ideologies play a pivotal role when determining whether one should report abuse or otherwise. Other barries leading to underreporting is the behaviour of professionals such as physicians and social workers. According to the WHO, medical practitioners disclose only 2% of all reported cases.
The global focus on elder abuse has sought to harmonise the relationship between human rights and active ageing. Despite the fact that there is no universally accepted definition of elder abuse, an oft-cited definition is that provided for by the World Health Organisation –
“elder abuse is a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person”.
Statistics show that abuse could take place anywhere; ranging from homes for the elderly to the elder’s own residence. Studies reveal that, when speaking of elder abuse, more than 50% of the perpetrators are the elders’ own children and in 25% of the reported cases, the perpetrators are the spouses. Hence data shows that the divorced, widowed, the unmarried or those who have no children are less likely to be abused.
A careful analysis of this above cited definition shows that whether an act is to be classified as abusive or otherwise depends on various factors including but not limited to the intensity or frequency of such abuse. Encapsulated in this definition is the victim’s perception of the act. This subjectivity has added further difficulty in creating a statutory definition of what constitutes elder abuse.
Several experts in the field agree that there are five prominent forms of elder abuse including physical abuse, psychological abuse, sexual abuse, financial victimisation and neglect , these will be analysed in other parts of this article, to be published in the coming weeks.
Act XXXI of 2014 was precisely introduced in order to safeguard the vulnerability of older persons by incorporating new crimes and imposing harsher punishments for existing crimes. The Act further contemplates a shift of the ‘onus probandi’ (burden of proof) and implies that a specific level of diligence is to be adopted.
Apart from implementing harsher punishments, Act XXXI of 2014 adopted other procedural safeguards in order to create a more efficient legal framework capable of offering effective remedies to victims of crime. The Act caters for voluntary and involuntary crimes, direct and indirect actions, as well as for crimes of commission and omission in relation to elder abuse.
The goals of such enactment may be sub-divided into 5 main objectives:
1. to put an end to the exploitive behaviour forced on the victim;
2. to give the victims the necessary legal protection against any other illegal acts;
3. to hold the perpetrator chargeable;
4. to rehabilitate the wrongdoer;
5. to enforce the principle of ‘restitutio ad integrum’ by ordering restitution and payment of expenses suffered by the elder victim.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rene Darmanin on rene@abalegal.eu.