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Representing Older Survivors of Sexual Assault Through Trauma-Informed Lawyering

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By Benjamin Taylor and Megan Wood, 2020 Equal Justice Works Fellows in the Elder Justice Program. Benjamin is hosted by Legal Aid Society of Louisville and Megan is hosted by Prairie State Legal Services.

WARNING: This blog post contains descriptions of sexual violence some may find disturbing

In recognition of Sexual Assault Awareness Month and National Crime Victims’ Rights Week, we wanted to share our experience serving survivors of sexual assault and intimate partner violence as Fellows in the Elder Justice Program.

Sexual violence is experienced by millions of Americans each year and most crimes are never reported to law enforcement. Victims choose not to report sexual violence to police for many reasons including fear of retaliation, shame, embarrassment, and to protect the perpetrator.

There is no such thing as a “typical” sexual assault. Nor does sexual assault have a “typical” victim. Sexual assault impacts all genders, races, and ages. Older adults make up less than 5% of victims who report sexual assault, but studies estimate that 2 to 8% of older adults have experienced sexual violence within the past year. Most older adult victims of sexual assault experience violence where they live, whether it’s in a care facility or personal home, and perpetrators are often someone the victim knows. It is important to combat ageist attitudes about sex and understand that sexual assault is about power and control so that people later in life can access respectful, victim-centered help when they need it.

As Fellows, we have represented several older victims of sexual assault, providing victim-centered, trauma-informed legal services to help restore their safety and well-being. As illustrated in the examples shared below older sexual assault victims often experience multiple types of abuses and severe trauma, and the challenges of serving those clients intensify when the client experiences diminished capacity.

Gloria* came to Megan after she was raped by her former intimate partner, who later became her caretaker following a stroke. Though they likely had consensual sexual contact in the past, the more recent sexual contact was without Gloria’s consent. Following a report to Adult Protective Services, Gloria’s caseworker helped her detail the sexual and physical abuse in a petition for a civil order of protection and seek an emergency order. Megan represented Gloria in a hearing to obtain a two-year protection order. In the course of representation, Megan learned that Gloria had diminished capacity, and that there were other forms of abuse occurring, namely medical neglect and financial exploitation.

Gloria’s children urged her to report the abuse to police and share videos of sexual abuse taken by the abuser. However, Gloria clearly expressed reservation about sharing these videos with law enforcement. For Gloria, justice meant having a safe home, a civil order requiring her abuser to stay away, access to her doctor, and counseling. She was willing to cooperate with a criminal investigation, but was not willing to share the videos that she did not give her consent. As civil legal aid providers, we can counsel our clients on the vast array of options, from advocacy in a criminal prosecution to housing remedies and employee leave under the Victim’s Economic Security and Safety Act. Despite diminished capacity, we must maintain as normal an attorney-client relationship as possible. We can and must also seek to understand the wishes of our client rather than substituting the wishes of their agent or loved one(s). Above all, a trauma-informed approach to sexual assault cases requires respect for the individual’s privacy and their wishes.

Ben met Joan*, 63, after she filed a petition for a Civil Protective Order against her husband, who was a heavy drinker and had beaten Joan on a weekly basis. In addition to the physical violence committed against her, Joan told Ben that her husband often demanded sex with her and she didn’t feel like she had a choice; she did what she had to do to keep him from becoming angry and violent. Ben represented Joan and obtained a No Contact Order against her husband that ended the physical and sexual assaults.

Joan’s abuse illustrates the complex issue of consent that lies at the heart of all sexual assault cases. While there is no “typical” form of sexual assault, all sexual assault involves sexual conduct committed without the consent of the victim. Consent is not determined only by whether a partner says “Yes” or “No,” however. As Joan’s case demonstrates, there may be a power imbalance between two individuals that prevents a “Yes” from creating a truly consensual interaction. The law recognizes these imbalances in a wide array of relationships including those with minors, people with disabilities, and workplace subordinates. Likewise, where a history of violence places a partner in fear of what may happen if he or she says “No” to sex, the ability to receive real consent is hampered by the looming threat of violence that hangs over a victim’s every decision. In such cases, acquiescence can be an act of survival rather than consent. As practitioners, it’s important for us to realize that our clients may be experiencing serious trauma even when their experiences don’t fit neatly into our preconceived notions of what victimization looks like.

This April, we recognize Sexual Assault Awareness Month and all those victimized by sexual assault. We also recognize that there are many faces to victimization and that all victims have a unique story that deserves to be heard. As Fellows in the Elder Justice Program, we will continue to seek out civil remedies for people like Gloria, Joan, and the many older victims of crime in communities across the country.

*The name of the client has been changed to protect privacy. 

Visit here to learn more about the Elder Justice Program Fellows who are addressing the gap in civil legal services for victims of elder abuse and exploitation.

The Elder Justice Program is supported by an award from the U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime (OVC), Award Number 2019-V3-GX-K033. This federal funding is supplemented by funds from private donors. The opinions, findings, and conclusions or recommendations expressed in this product are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Learn more about becoming an Equal Justice Works Fellow