Williams, Valerie --- "Sexual exploitation of aged care residents: by care workers with cameras" [2017] PrecedentAULA 68; (2017) 143 Precedent 9

• Although elder abuse is internationally accepted as a pervasive public health issue requiring urgent attention, it has yet to be taken seriously as a criminal issue, in the same way that child sexual abuse is now widely recognised.21 In regard to policing elder abuse, a policy and practice vacuum exists.22 There are no mandatory reporting requirements and no elder-specific crimes. Although some Australian sentencing acts – such as s21A(b)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s5AA(1)(f) of the Criminal Law (Sentencing) Act 1988 (SA) – classify ‘an elderly victim’ as an aggravating factor, other jurisdictions do not.

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SEXUAL EXPLOITATION OF AGED CARE RESIDENTS

BY CARE WORKERS WITH CAMERAS

By Dr Valerie Williams

Over the past two decades, elder abuse has become a topic of worldwide discussion although elder sexual abuse – and, in particular, the sexual abuse of vulnerable aged care residents – remains the least studied,^[1] least acknowledged, and least understood aspect of elder mistreatment.^[2] While the Australian healthcare and legal systems have tried to meet their responsibility to protect vulnerable aged care residents from the preconceived acceptance of what constitutes a sexual assault, they have largely ignored their duty to protect vulnerable residents from sexual exploitation by care workers with camera devices.

The global reporting of a significant number of sexually indecent, image-based abuses by care workers in aged care facilities, and the court cases that have resulted, suggest that the Australian aged care and legal systems need to treat these incidents as compulsorily reportable cases of serious sexual crimes. Presently, they are unacceptably classified as misdemeanor privacy breaches. The law must respond to the vulnerability of the elderly with the same protections that are afforded to the young in sexual exploitation material cases. Aged care providers would be wise to initiate policy and practice reforms, because providers who fail to protect residents from employees taking indecent photos of them may soon face successful vicarious liability compensation claims under Australian tort law.

SEXUAL EXPLOITATION

Although lacking a universally agreed definition, it is generally accepted that any definition of sexual elder abuse includes the ‘sexually explicit photographing’ of an older person. This type of sexual exploitation of vulnerable aged care residents by care workers has emerged as a global issue that, to date, has not been treated with the same level of concern by the Australian healthcare and legal systems as has been the case in relation to child sexual abuse.

Social media and electronic communication have become fundamental to meeting the human desire for cyber connectivity. Online sharing of sexual images/material has become normalised. Smartphones, Apps, iCloud and social medial platforms are all at the ready to record, publish and store personal thoughts and actions, and distribute information to large, mostly anonymous audiences of ‘followers’. In this new ‘Clockwork Orange’ dystopian world of aged care, workers use mobile phones to indecently abuse the vulnerable elderly in their care, more commonly than not, merely ‘for a laugh’.^[3]

In 2016, the United States (US) Federal Department of Health and Human Services issued a memorandum redefining the abuse of aged care residents to ‘include photographs and recordings of residents that contain nudity, sexual and intimate relations, bathing, showering, toileting ... and showing the resident in a compromised position’.^[4] The memorandum’s release was in direct response to media reports identifying, in total, 65 cases of aged care staff surreptitiously recording and sharing images of naked, or partially naked, residents on social media networks.^[5]

The problem is not confined to the US. Similar cases are being reported elsewhere, including three care workers who were jailed in 2014 in England for filming and photographing residents with dementia.^[6] In 2011, Australian nurses at a top New South Wales (NSW) aged care facility ran the weekly ‘Genital Friday Club’, where nurses used iPhones to photograph the genitalia of elderly residents and forwarded the images on to colleagues who competed in guessing the owner.^[7] And in 2017, five Canadian care workers shared intimate images of residents on Snapchat.^[8]

AGED CARE PROVIDER’S RESPONSIBILITY TO REPORT

In Australia, approved aged care providers have a responsibility to notify the Commonwealth Department of Health of any ‘reportable assault’, and to report the matter to police.^[9] A ‘reportable assault’ is defined as ‘unlawful sexual contact’. This term was specifically chosen to standardise the differing terms and definitions contained within various Commonwealth, state and territory sexual offences legislation. However, ‘unlawful sexual contact’ does not cover situations where there is no physical sexual contact between the perpetrator and the victim.^[10] In the absence of physical sexual contact, a provider does not have a compulsory responsibility to report the incident. This may change if the Australian Law Reform Commission’s (ALRC) recommendation that ‘reportable assault’ be replaced with ‘reportable serious incident’ and its definition including ‘seriously inappropriate, improper, inhumane or cruel treatment’ is implemented.^[11]

Photographing vulnerable residents in lewd and humiliating positions, and uploading such images to the internet, are viewed by providers as breach of privacy or ethical misconduct issues rather than as serious sexual crimes. In fear of negative publicity and the imposition of state sanctions, providers frequently undertake closed investigations, impose confidentiality agreements, and compile not-for-publication reports.^[12] Consequently, there is no statistical information available regarding the numbers of sexual exploitation incidents.

The disciplinary outcomes of the Genital Friday Club scandal were that two nurses were sacked, one nurse was suspended but later reinstated, one nurse resigned, and all staff members were required to sign a confidentiality agreement. There was no criminal investigation and no criminal charges were laid.^[13] Internal disciplinary actions often lack accountability and transparency mechanisms, including the collection and recording of statistical data. Providers can voluntarily report incidents to police but doing so can attract unfavourable media attention, reputational damage and financial cost. On the other hand, there are no negative repercussions for providers who do not report.

AGED CARE PROVIDER’S LIABILITY

The liability of an aged care provider for the sexual exploitation of residents (involving the taking or sharing of indecent images) has not been tested by Australian courts. Traditionally, the second limb of the Salmond test made it unlikely that the provider would be found vicariously or indirectly liable for the acts of their ‘agent’ because the worker would not have been acting within the scope of their employment when committing the illegal act/intentional tort.^[14] However, more recently, Australian law has recognised that institutions can be held liable for the abusive acts of their employees where the nature of the employment facilitated abuse.^[15] The claim of injury would most probably be ‘psychiatric harm’, which would also be extremely difficult to substantiate should the victim have a cognitive impairment. It may be harder to establish a breach of a duty of care if the breach occurred when the risk and prevalence of this type of institutional abuse is not well recognised or understood, as the reasonableness of a response is informed by the knowledge of a potential problem; or if the seriousness of the harm caused is unappreciated such as when the victim has dementia. Now that cases of historic child sexual abuse can and do result in criminal convictions and awards of compensation, the need to accord elder sexual abuse with the same recognition and understanding has become glaringly apparent.

In England, though, a new precedent has been set: ‘relative closeness’ is established when it can be shown that there is a close connection between the cause of the injury (abuse) and the employment.^[16] This is clearly the case when a care worker is employed to care for vulnerable aged care residents and abuses them. Employers of employees who sexually abuse those in their care are no longer precluded from recovery by the victim as was previously the situation under the Salmond negligence test. Now, employers can be vicariously liable for the intentional torts/illegal acts of their employees.^[17]

Vicarious liability is a complex issue that tries to balance the rights of victims to gain proper compensation with those of employers not to be overburdened by their employees’ actions. Nonetheless, the insured employer is commonly in a far better position to financially satisfy a claim than are their employees. Recent reasoning has also focused on the employer’s risk creation. It was the employer who employed the person in the first place and who was responsible for their appropriate training and supervision. In this regard, the doctrine of vicarious liability serves a useful purpose as it contributes to good standards of safety and quality of service, and better assures claimants that they will be compensated if they are injured by an employee.

Examples from the US provide additional grounds that might be available where elder abuse occurs in residential facilities. In January 2016, relatives filed a lawsuit against a US aged care provider whose employee had taken nude photos of a resident and published them on social media. This case marked the first time that an aged care facility had been sued for indecent image-based abuse. It was claimed that a reasonably prudent nursing home could not have failed to provide the care required; that the facility failed to discharge its obligation to the victim and allowed her privacy to be invaded; and that the provider was negligent in its care in having insufficient staff to protect the victim and to properly train and supervise the staff member. The suit also claimed that the provider was negligent in not promptly contacting the victim’s family or the police when it became aware of the abuse.^[18]

Another lawsuit was filed against an American provider in December 2016 where it was claimed that two years previously, care workers had taken a photograph of a semi-nude resident as he used the bathroom, and then posted the image on social media. Importantly, this lawsuit also accused the provider of battery because the worker touched the victim without consent to position him or move his clothing out of the way for the indecent photographs. Besides the battery, the lawsuit alleged six additional counts: breach of rights, negligent hiring and supervision, invasion of privacy, deliberate or reckless infliction of emotional distress, negligent infliction of emotional distress and loss of spousal consortium.^[19]

With the increasing media coverage of incidents of care workers using mobile phones to film vulnerable residents, Australian providers ought to take steps to protect residents from being placed in situations where this type of abuse is foreseeable. A provider’s culpability can be measured by the number and continuation of its systemic failures. If the provider fails to properly address the issue of sexual exploitation abuse, its omissions will leave it open to the risk of direct legal liability for its decision not to do so. This is particularly the case when the provider is shown to have created, or increased, the foreseeable risk through systemic practices such as inadequate screening of potential staff; lack of appropriate training; insufficient or ineffective staff supervision; understaffing and under-resourcing; or the failure to have in place policies and procedures designed to reduce the risk (a prohibition on staff use of mobile phones in the workplace might be one such policy).^[20]

PROSECUTING INDECENT IMAGE-BASED ABUSE

Although elder abuse is internationally accepted as a pervasive public health issue requiring urgent attention, it has yet to be taken seriously as a criminal issue, in the same way that child sexual abuse is now widely recognised.^[21] In regard to policing elder abuse, a policy and practice vacuum exists.^[22] There are no mandatory reporting requirements and no elder-specific crimes. Although some Australian sentencing acts – such as s21A(b)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s5AA(1)(f) of the Criminal Law (Sentencing) Act 1988 (SA) – classify ‘an elderly victim’ as an aggravating factor, other jurisdictions do not.

In contrast to some overseas jurisdictions, Australia has taken a softly, softly approach to image-based sexual abuse. In the 2014 English case mentioned above, a single photograph showed a victim having her night dress lifted and the carer looking up it. This resulted in the worker being found guilty of sexually touching a woman with dementia, and sentenced to three-and-a-half years in prison which was six months more than his co-accused, who was not charged with a sexual abuse offence.^[23]

Australian jurisdictions that do have offences relating to photography being used for indecent purposes classify the photographing of a naked elderly resident posed in a sexually lewd position as a misdemeanour, summary breach of privacy offence,^[24] rather than an aggravated sexual assault, indecent assault, assault or other exploitation offence. Where age can be an aggravating factor, it is only the youth of the victim that is considered. Elderly people or those vulnerable for reasons of dementia or similar, enjoy lesser protections. Facts relating to the offender’s sexual contact with the victim as they remove the vulnerable elderly person’s clothes and lewdly pose their bodies are ignored when prosecuting privacy offences more suited to punishing landlords who install hidden cameras in tenants’ showers: offences devoid of physical contact.

CONTRASTING CHILD AND VULNERABLE ADULT EXPLOITATION OFFENCES

The evidence in child exploitation material rests in its content: the image shows a sexual act involving a child. Consent is not an element of the offence, and the law does not require a direct connection between the offender and the victim. Offenders can be prosecuted for producing historic child exploitation material and for accessing historic child exploitation material. For the purposes of this article, the Criminal Code 1924 (Tas) (the Code) is considered.

Charges brought under the Code are not subject to time limitation. Breach of privacy offences, by contrast, are summary in nature and a complaint must be filed within six months of the date of the commission of an offence.^[25] If the victim is a vulnerable older person, it is necessary to establish that the material was produced without consent, and was of a kind that a reasonable person would expect to be private. In the case of aged care residents with dementia who lack the capacity to consent, s126 of the Code makes it a crime to have sexual intercourse with a person with mental impairment. This offence, and also the Code’s s185 offence of rape, required that for sexual intercourse to occur, penile insertion was necessary. However, in 2017, the law was changed to expand the term ‘sexual intercourse’ to include ‘the penetration, to the least degree, of a person's vagina, genitalia or anus by an object held or manipulated by, or attached to, another person’.^[26]

Pettit – a Tasmanian case study^[27]

Adam Matthew Pettit, a care worker at an aged care facility in Hobart, used his mobile phone to take a series of lewd photographs of naked and semi-naked female residents. Photographs showed Pettit poking his tongue out, his face alongside a resident’s genitals; his two fingers pulling another resident’s panties away from her naked backside; while another photograph showed an adult incontinence pad partially inserted into the victim’s vagina. He sent a photograph to a colleague which was forwarded a number of times before finally being reported, four months later, to management. Police were informed and Pettit pleaded guilty to breaching ss13B and 13C of the Police Offences Act 1935 (Tas). He was sentenced in February 2017 to two months’ imprisonment, wholly suspended.

Sections 13A, 13B and 13C of the Police Offences Act 1935 (Tas) make it a summary offence to, without consent, observe, record, publish, distribute or possess prohibited visual recordings of a person in a private place or engaging in a private act; or a person’s genital or anal region, when covered only by underwear or bare ‘where a reasonable person would expect to be afforded privacy’.^[28] Similar sexual exploitation offences involving a child victim are indictable offences found in ss130, 130A, 130B, 130C, 130D, 130E, 130F, 130G and 337C of the Code.

In setting out the facts of the case, police prosecution submitted into evidence a photograph of naked female genitals with an adult incontinence pad partially inserted. At the time, a person who unlawfully and indecently assaulted another person by the penetration to the least degree of the vagina, genitalia or anus of that other person by an inanimate object was in breach of s127A of the Code, and was thereby guilty of the crime of aggravated sexual assault.^[29] Despite the photographic evidence, Pettit was not charged with this offence. It is reasonable to ask why.

It is possible that police preferred to charge Pettit with the ‘slam dunk’ breach of privacy offences because of the expectation that he would choose to go to trial if charged with sexual offences. Statistically, only 23 per cent of offenders charged with a sexual assault involving an adult victim plead guilty compared with 71 per cent of all defendants, and 65 per cent of persons charged with assault. Likewise, 67 per cent of sexual offence defendants are acquitted at trial compared with the average acquittal rate of 44 per cent.^[30] Police would also have been mindful of the financial costs and unwanted media attention associated with a trial. The probable police attitude was that the victims were unable to give credible testimony, a view similarly held by police and prosecutors in the UK case, although they relied on the videos and photographs to successfully prove their case. It is also possible that police prosecutors in the Pettit case were influenced in their decision by the paternalistic belief that the victims needed to be saved the trauma of a trial.

As there was no trial, there was no witness evidence. The magistrate assumed that the reason for this absence of evidence was that the victims were not aware of what had happened to them: ‘whilst I have no particular detail about their state of age, or infirmity, or disability, the inference I draw is that they certainly were not consenting to what you did, and the inference I draw is that they most probably were not even aware of what was happening’.^[31] There were no victim impact statements. This was a case in which the vulnerable victims were unknown and unaccounted for; unseen and unheard shadows in a legal process that failed in its duty to deter care workers from committing this type of sexual abuse in the future. This apparent lack of concern for the victims’ experience is highly concerning.

CONCLUSION

The institutional abuse by care workers using camera devices to photograph vulnerable residents in sexually exploitative situations must not be allowed to continue. To outlaw such activities, there needs to be greater community awareness of the sexual abuses perpetrated on Australia’s elderly. The aged care system must ensure that approved providers are required to report all suspected incidents to police; information must be statistically recorded and made available for academic research; abuse policies and procedures need to be comprehensive, accountable and transparent; disciplinary sanctions should be severe enough to deter future abuse; and risk reduction strategies that include prohibiting staff from carrying camera devices while working should be implemented. It is also important that Australian criminal statutes classify this type of abuse as a serious sexual crime rather than a misdemeanour breach of privacy offence; that incidents of image-based abuse are better prosecuted; and that sanctions are severe enough to deter potential offenders. In this regard, the vulnerable elderly should be accorded the same rights and protections at law as the vulnerable young victims of image-based sexual exploitation.

Dr Valerie Williams BA, LLB, LLM, PhD is a member of the University of Tasmania’s Preventing Elder Abuse Tasmania project team. The project includes a focus on current agency and organisational responses to elder sexual abuse with a view to enabling the establishment of better targeted intervention mechanisms. Team members include academics from the disciplines of Law, Health and Sociology. PHONE [phone] EMAIL [e-mail].

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^[1] Wenche Malmedal, Maria Helen Iversen and Astrid Kilvik, ‘Sexual abuse of older nursing home residents: a literature review’ (2015) Nursing research and practice 2015, 1.

^[2] Robert A Hawks, ‘Grandparent Molesting: Sexual Abuse of Elderly Nursing Home Residents and its Prevention’, (2006) 8 Marquette Elder's Advisor 159.

^[3] Martin Robinson, ‘Degraded “for a laugh”: Care home worker jailed for taking humiliating photographs of dementia-suffering residents naked in a bath and pulling a wheelchair wheelie’, Daily Mail (online), 11 Jan 2014, <http://www.dailymail.co.uk/news/article-2537153/Degraded-laugh-Care-home-worker-jailed-taking-humiliating-photographs-vulnerable-dementia-residents-naked-bath-pulling-wheelchair-wheelie.html> . See also: ‘Dementia patients were bullied for laughs at care home, court hears’, The Guardian (online), 6 Nov 2013, <https://www.theguardian.com/uk-news/2013/nov/05/dementia-patients-bullied-care-home-court-hears>; and, ‘Pair accused of elder abuse “wanted good laugh”’ WCVB5 News (online) 7 May 2014, <http://www.wcvb.com/article/pair-accused-of-elder-abuse-wanted-good-laugh/8037779> .

^[4] Department of Health and Human Services, Baltimore County Government (USA), ‘Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff’ (Centers for Medicare & Medicaid Services, August 5, 2016).

^[5] Charles Ornstein, ‘Nursing home workers have been posting abusive photos of elderly on social media’, ProPublica (online), 21 December, 2015, <https://www.propublica.org/article/nursing-home-workers-share-explicit-photos-of-residents-on-snapchat>.

^[6] Alison Freeman, ‘Text trail revealed “despicable” Cumbria care home abuse’, BBC News (online), 24 October 2014, <http://www.bbc.com/news/uk-england-cumbria-29745476> .

^[7] ‘Nurses sacked after horror games with patients revealed’, The Sunday Telegraph (online), 6 March 2011, <http://www.dailytelegraph.com.au/news/national/nursing-home-horrors-uncovered/news-story/f698f0529dad33f341a4de9766aeef10> .

^[8] Michelle McQuigge, ‘Former long-term care home worker charged after images allegedly distributed’, Hamilton Spectator (online), 12 July 2017, <https://www.thespec.com/news-story/7420156-former-long-term-care-home-worker-charged-after-images-allegedly-distributed/>.

^[9] Aged Care Act 1997 (Cth), s63-1AA.

^[10] Department of Health and Aging, ‘Compulsory Reporting Guidelines for Approved Providers of Residential Aged Care’ (Office of Aged Care Quality and Compliance, June 2008) 3.1.

^[11] ALRC, ‘Elder Abuse—A National Legal Response’ (ALRC Report 131, June, 2017) Recommendation 4-3.

^[12] Ann W Burgess, Nancy P Hanrahan and Timothy Baker, ‘Forensic Markers in Elder Female Sexual Abuse Cases’ (2005) 21 Clinics in Geriatric Medicine 399.

^[13] ‘William Cape's spokesman Tim Allerton, from a public relations firm, said it was unclear how many residents had their genitals photographed in the game. He said relatives of a female and male resident were given a full explanation and apology, which they accepted.’ Caroline Marcus, ‘Nursing home horrors’, The Daily Telegraph (online), 6 March 2011, <http://www.dailytelegraph.com.au/nursing-home-horrors/news-story/35156b6958dadda25f40e9986e187c5c> .

^[14] Robert F V Heuston and Richard A Buckley, Salmond and Heuston on the Law of Tort, Sweet & Maxwell, 1996. However, see Prince Alfred College v ADC [2016] HCA 37 and discussion in the Australian Lawyer’s Alliance’s submission to the NSW Department of Justice, ‘NSW Government consultation in relation to the civil litigation recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (4 September 2017) <https://www.lawyersalliance.com.au/documents/item/966>.

^[15] See State of NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511 and Prince Alfred College Incorporated v ADC [2016] HCA 37.

^[16] Lister v Hesley Hall Ltd [2001] UKHL 22 which was followed in Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441 where the Catholic Church was held liable for the acts of sexual abuse of its senior priest.

^[17] Justin Levinson, ‘Vicarious liability for intentional torts’, Journal of Personal Injury Law, December 2005 (online) <http://www.1cor.com/1158/?form_1155.replyids=282> .

^[18] Steven Lee, ‘Lawsuit: Pierre Nursing home employee posted nude photos of resident’, Capital Journal (online), 25 February 2016 <http://www.capjournal.com/news/lawsuit-pierre-nursing-home-employee-posted-nude-photos-of-resident/article_1303de80-dc44-11e5-81c3-2b4b72dada1b.html> .

^[19] Frank Fernandez, ‘Lawsuit: Ormond nursing home workers took indecent pictures, posted them on Internet’, The Daytona Beach New Journal (online), 19 December 2016 <http://www.news-journalonline.com/news/20161219/lawsuit-ormond-nursing-home-workers-took-indecent-pictures-posted-them-on-internet> .

^[20] In the US, this is now a common policy practice: <https://www.propublica.org/article/inappropriate-social-media-posts-by-nursing-home-workers-detailed>.

^[21] Every state has its elder abuse public policy. In Tasmania’s 2009 policy, it was stated that criminal laws needed to be changed; however, this recommendation was deleted from the 2013 policy.

^[22] Nicole L Asquith, Submission No. 13 to NSW Legislative Council, Inquiry into Elder Abuse in New South Wales, 10 November 2015.

^[23] See above note 6.

^[24] Crimes Act 1900 (NSW), s91L(2); Criminal Code Act 1899 (Qld), s227(1); Summary Offences Act 1953 (SA), s26D; Police Offences Act 1935 (Tas), s13A; Summary Offences (Upskirting) Act 2007 (Vic), s41A.

^[25] Justices Act 1959 (Tas), s26.

^[26] Criminal Code 1924 (Tas), Schedule 1, 2B(1)(c).

^[27] Adam Matthew Pettit, Sentencing Report, Hobart Magistrate’s Court, 25 November 2015 and 1 February 2017.

^[28] Section 13A(1).

^[29] This section was repealed.

^[30] Jacqueline Fitzgerald, ‘The attrition of sexual offences from the New South Wales criminal justice system’ (2006) The NSW Government Bureau of Crime Statistics and Research Crime and Justice Bulletins, 92, 2006, 12.

^[31] See above note 24.