The Constitutional Rights of the Elderly: Saturday Evening Review

A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five. 

This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law. 

Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect."   She contends that some state actions

limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state. 

Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse."  (at 1094).  She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological."  She continues:

Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.  

Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment.  Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.

(at 1098).

Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws.  She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108).   (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly).  She suggests that a better model is domestic violence. Id.  (Although it might be argued that violence against women policies have not always accorded women full constitutional status).

RR