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PROSECUTION OF NEGLECTFUL CAREGIVERS. Amy Sweasy, Sr. Asst. Henn . Co. Atty Randy Thomas, Contributor. Framework for Investigations. Physical Evidence. Witnesses. Confessions. Investigative Goals. WHAT HOW. Burden of Proof.
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PROSECUTION OF NEGLECTFUL CAREGIVERS Amy Sweasy, Sr. Asst. Henn. Co. Atty Randy Thomas, Contributor
Framework for Investigations Physical Evidence Witnesses Confessions
Investigative Goals WHAT HOW
Burden of Proof Beyond a reasonable doubt Probable cause Reasonable suspicion
Case Information • Victim: Female, Age 91 • Suspects: Daughter, Son, Daughter-In-Law • Location: Son’s Home • Cause of Death: Severe malnutrition and sepsis Randy Thomas (C) 2012
Suspect’s Statements Daughter: She didn’t know about the bedsores (Primary caregiver). Son: “I checked her 3 or 4 times a week” Daughter-In-Law: She would look-in when Mildred was absent. Randy Thomas (C) 2012
What are the Key Elements? • 609.233 CRIMINAL NEGLECT. • Subdivision 1.Gross misdemeanor crime. • A caregiver or operator who intentionally neglects a vulnerable adult or knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult is guilty of a gross misdemeanor. For purposes of this section, "abuse" has the meaning given in section 626.5572, subdivision 2, and "neglect" means a failure to provide a vulnerable adult with necessary food, clothing, shelter, health care, or supervision.
Case Building • Match the facts presented with the elements of the crime • Medical evidence is often the key • Compare suspect’s explanation with the known facts • Educate other professionals • Seek experts
MINN. STAT. 609.233, SUBD. 2a • Leaves existing GM neglect crime • Adds felony deprivation crime • Establishes additional penalties • Adds three affirmative defenses
VULNERABLE ADULT ACT 1995 • Civil protections for vulnerable adult issues • Passed criminal abuse misdemeanor and felony offenses • Passed neglect – gross misdemeanor only
GM NECLECT CASES 2000-2012 • 111 complaints filed statewide • 34 involving substantial bodily harm, great bodily harm or death • Fractures • Sores • Unsanitary conditions • Starvation/dehydration
GM NEGLECT CASES 2000-2012 • Penalties • Little to no jail time • Certification to petty misdemeanor • Fines ranging $100-200
ATTEMPTING TO ENACT A FELONY • 1995-2011 • Adding “substantial bodily harm” and “great bodily harm” provisions to existing GM statute • Clean, logical solution
OPPOSTION TO FELONY LEGISLATION • No opposition to GM statute, only felony
GM Neglect – No Change • Subdivision 1. Gross misdemeanor crime. • Caregiver or operator • Intentionally neglects a vulnerable adult/knowingly permits conditions to exist that result in the abuse or neglect of a vulnerable adult • “Abuse” has the meaning given in section 626.5572, subdivision 2 • “Neglect” • failure to provide a vulnerable adult with: • necessary food • clothing • shelter • health care, or • supervision
DEPRIVATION – ANATOMY OF A TITLE • Provider concerns over “neglect”/lack of intent • Legislator concerns about similarity to civil neglect • Desire to categorize felony as significantly more serious than the GM
FELONY DEPRIVATION • Subd. 1a. Felony deprivation: • caregiver or operator • intentionally deprives a vulnerable adult of necessary food, clothing, shelter, health care, or supervision • caregiver or operator is reasonably able to make the necessary provisions • guilty of a felony if: • (1) the caregiver or operator knows or has reason to know the deprivation could likely result in substantial bodily harm or great bodily harm to the vulnerable adult; or • (2) the deprivation occurred over an extended period of time.
FELONY DEPRIVATION • (1) the caregiver or operator knows or has reason to know the deprivation could likely result in substantial bodily harm or great bodily harm to the vulnerable adult; or • “could likely result?” • captures single-incident deprivation • (2) the deprivation occurred over an extended period of time • “extended period of time” = undefined, depends on circumstances • captures substantial/great bodily harm from ongoing deprivation
PENALTIES • Subd. 2a. Penalties. • Great bodily harm = ten years/$10,000, or both; or • Substantial bodily harm = five years/$5,000, or both.
CASES RESULTING IN DEATH • No provision in deprivation law • Homicide statutes • Second-degree unintentional murder in the course of a felony (inherently dangerous to human life)
SENTENCING GUIDELINES • Substantial bodily harm: Level IV • Great bodily harm: Level VIII • Aligns with malicious punishment • Child neglect (no harm): Level I
EXEMPTIONS IN EXISTING LAW • Unchanged • Withdrawal of consent to therapeutic conduct within “boundary of reasonable medical practice.” • Selection of spiritual means/prayer in lieu of medical care • Pre-existing sexual relationship with facility staff • Sexual relationship with PCA, regardless of when it began
AFFIRMATIVE DEFENSES • Burden of Production • Burden of Proof • DISPROVE Affirmative Defense Beyond a Reasonable doubt • Also applies to GM crime
AFFIRMATIVE DEFENSES • Different from exemptions • Can be raised throughout proceedings: • Investigation • Charging • After charging – motion to dismiss • At trial: • Defense burden of production • Jury instruction
AFFIRMATIVE DEFENSE #1 • If proven by a preponderance of evidence, that: • defendant is employed by a facility or operator and • does not have managerial or supervisory authority, and • was unable to reasonably make the necessary provisions because of inadequate staffing levels, inadequate supervision, or institutional policies; • “I wanted to, but I don’t have the resources to adequately do my job and there is proof of that.”
AFFIRMATIVE DEFENSE #2 • If proven by a preponderance of evidence, that: • defendant is a facility, an operator, or an employee of a facility or operator in a position of managerial or supervisory authority and • did not knowingly, intentionally, or recklessly permit criminal acts by its employees or agents that resulted in the harm to the vulnerable adult • “Rogue employee”
AFFIRMATIVE DEFENSE #3 • If proven by a preponderance of evidence, that: • defendant is a caregiver • failed to perform acts necessary to prevent the harm, if any, to the vulnerable adult • because the caregiver was acting reasonably and necessarily to provide care to another identified vulnerable adult. • “Triage”
AFFIRMATIVE DEFENSE • For these affirmative defenses, a defendant bears only the burden of production. A defendant's failure to meet the burden of production does not relieve the state of its burden of persuasion as to all elements of the offense. • Why is this here? • “This page intentionally left blank.”