OTLA Trial Lawyer Winter 2022

37 Trial Lawyer • Winter 2022 See Nursing Home Sexual Abuse 38 As with all sexual assaults, the easy path is to simply blame the perpetrator and move on, sleeping well at night that justice has been done. However, that easy path is also the wrong one. You see, these kinds of assaults —by residents, by staff, by visitors, by strangers — they are entirely predictable. We know they happen, we know the circumstances that make them more likely, and we know what prevention tools are available to stop them. The question is how did this one happen and why wasn’t it stopped? Why did the corporation making money off the dependence of these respected elders’ needs not prevent this from happening? Scope of the problem The National Center on Elder Abuse (NCEA) defines sexual abuse as “nonconsenting sexual contact of any kind” including unwanted touching; sexual assault or battery such as rape, sodomy, and coerced nudity; sexually explicit photography; and sexual contact with any person incapable of giving consent. Elderly people living in licensed care facilities are at a particularly high risk for abuse and neglect. This vulnerability stems from several factors. They usually suffer frommultiple chronic diseases that cause limited physical and cognitive functioning, and they are dependent on others. Many feel unable to report the abuse or fear reporting will lead to retaliation or other negative impacts. From a World Health Organization (WHO) report, “The elderly in skilled nursing facilities are among the most vulnerable members of our society. They are dependent on the facility operator for their food, medicine, medical care, dental care, and a bed; a roof over their heads; for assistance with virtually every daily activity.”2 According to the CDC, as of 2016, there were approximately 1.3 million people living in nursing homes, and another 811,500 in residential care communities in the US. That does not include adult day services centers, or home health, hospice or other care situations. These numbers will only rise. The global population of people over 60 years will likely more than double, from 900 million in 2015 to about 2 billion by 2050.3 There have been peer reviewed research papers going back into the 1980s reporting abuse of the elderly may be nearly as widespread as child abuse.4 Before the COVID-19 pandemic, general elder abuse was estimated to affect one in 10 American older adults annually. Mid-pandemic studies show that rate has risen to one in five in the US.5 According to the WHO report cited above, approximately 1.9% of abuse in a facility setting is sexual in nature, more than double the risk in the general community. A 2004 study found “most victims of sexual abuse were women, between the ages of 70 and 89, residing in a nursing home. The majority of perpetrators were