Professor Joseph E Ibrahim
Originally published in AJDC October/November 2019 Vol 8 No 5
By Daisy Smith and Professor Joseph E Ibrahim, Health Law and Ageing Research Unit, Department of Forensic Medicine, Monash University
We know older people are at greater risk of abuse and neglect than the general population because of their physical frailty, cognitive impairment, multiple illnesses, social isolation, and need for assistance with personal or domestic tasks. Despite this awareness, there is little if any information about the number and nature of these incidents in Australia. This lack of information is an enormous hurdle to addressing elder abuse and neglect.
Of all the hidden aspects of abuse and neglect, sexual assault is the least acknowledged, detected, and reported type, especially in people living in residential aged care (RAC). Prevention of sexual assaults in RAC is hampered by: reticence of reporting; absence of suspicion on the part of clinicians; difficulties in obtaining a history from residents with dementia; ambiguous clinical signs; denial by carers; disagreements around assault definitions; an absence of standardised approach among researchers . This is compounded by international and national data gathering organisations excluding institutional and cognitive impaired populations from the ABS household surveys and the International Violence Against Women Survey (IVAWS) .
Questions of capacity and consent are complicated when people with cognitive impairments are involved. These are complex challenges for aged care providers who must protect the safety of individuals, whilst balancing the rights of residents to express their sexuality and engage in meaningful relationships .
Our research found there is confusion in RAC facility staff as to what constitutes sexual assault, when it should be reported and to whom it should be reported. RAC staff are not adequately equipped to appropriately identify and respond to either the victims-survivors or perpetrators of sexual assault. There are mixed reviews in Australia about reporting obligations, with evidence of some support among professionals for mandatory reporting, and concerning gaps in reporting obligations when involving cognitively impaired people .
Unlike resident-staff relationships, sexual activity between residents is not automatically illegal or necessarily problematic, resulting in distortions in the ability to evaluate consent issues, which are readily identified in resident-staff incidents . Research on interventions is limited and complicated by deteriorations in residents’ health and cognitive abilities .
Surprisingly, none of the studies in our systematic review addressed residents’ capacity to consent to medico-legal examination following an alleged sexual assault. One study noted that over 50% of personnel (n=46) found investigating RAC sexual assault more challenging than any other form of assault due to limited forensic evidence and victim-survivor deliberating conditions . A forensic medical examination cannot proceed if the alleged victim is unwilling or unknowing to what they are consenting. Forensic evidence is therefore limited by the inability to conduct a full examination. The victim-survivors’ cognitive status should be taken into account to determine examination benefit and reduce chances of further distress. Future research should focus on how sexual assault and post-sexual assault events, such as forensic medical examinations, affect this population and what treatment programs would be valuable for these victims.
The absence of forensic evidence and a ‘credible’ victim also poses serious threat to successful prosecutions. Little is currently known about the outcomes of RAC sexual assault as longitudinal studies have not been conducted. The collection of forensic evidence, recounting case statements and the prosecution process can be distressing for any victim-survivor of sexual assault. It is important we remain victim-centric in terms of post-assault procedures. Our systematic review  found therapeutic interventions were rarely offered; this is surprising given the post-victim responses encompassed negative psychological, behavioural, and emotional outcomes. At the very least, psychological services and counselling should be provided to all victim-survivors.
In Australia’s aged care sector, sexual misconduct is more often seen as medical and psychosocial rather than a legal or justice matter, especially when perpetrators are cognitively impaired. Concerns persist around the feasibility and purpose of prosecuting residents, and whether this is the best outcome in cases where the offender and the victim-survivor is cognitively impaired. It is unknown if rehabilitation programs for perpetrators are valuable as there is an absence of evidence to support any particular programs .
To reduce the known risk of abuse and neglect of older people requires action at all levels involving policymakers, regulators, police, clinical and care practitioners as well as researchers. Dr Catherine Barrett’s article on p17 of the October/November 2019 issue of the Australian Journal of Dementia Care offers some strategies for service providers. How will you contribute?
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