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Living with Autism


December 21, 2016

California Law Allows Dangerous Caregivers to Hide Criminal Past

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According to U.S. Department of Justice Statistics, the rate of violent victimization of persons with developmental disabilities (36 per 1,000) was more than twice the rate of persons without disabilities (14 per 1000).


"Abuse of people with disabilities is a hidden epidemic with a huge number of invisible victims...some 57% of victims said they had been victims of abuse on more than 20 occasions, with 46% saying it had happened too many times for them to even count.."

"Perpetrators [of people with disabilities] are often predators who misuse a position of trust or take advantage of a victim with actual or perceived vulnerabilities."

"Some disability types have a higher incidence of abuse than others. For example, 67.1% of those with a speech disability, 66.5% of those with autism, 62.5% of those with an intellectual or developmental disability, and 55.2% of those with a mobility disability reported having experienced such abuse. "

Violence against persons with disabilities is a often unrecognized and under reported problem that has reached epidemic proportions in the United States.”

Source of above statistics: (http://disability-abuse.com/survey/survey-report.pdf)

So here we are in California. Imagine you need a respite caregiver to help with your adult child with special needs.  Or you need home health for your elderly parent with Dementia. Or maybe your autistic teen needs a residential placement. You'd expect someone working with your family member is a trained and trusted caregiver, right?

Not always. While many workers are caring, some can kill, injure and mentally and physically torment vulnerable adults who can't defend themselves. And some have. And when they do harm and are actually convicted, you'd think the state of California wouldn't make it easy for these dangerous caregivers to rejoin the caregiving workforce, right?

Wrong. In California, convicted abusive caregivers and people who abuse the elderly and disabled, can go right back into caregiving jobs. And they do, by getting the crime of Ca Penal Code 368, expunged, under Ca penal Code 1203.4. That means employers can't see their past crimes.  Ca Penal Code 368 (the crime people are convicted of when they beat up elderly and disabled people) is not on list of crimes that can't be expunged under Ca Penal Code 1203.4

This is intolerable, given the vulnerability of disabled and elderly citizens.

Do we want people convicted of harming disabled and elderly people to hide their past crimes? Heck no. Duh. I mean, really? Duh. 

It's not like someone who has a criminal past record involving smoking cannabis, one DUI, one prior drug problem/conviction, or stole a car back in college, and at some point, they turned their lives around and get crimes expunged so they can join the workforce. Good for them. I'm all for redemption.

People who beat up elderly and disabled are lost causes. You speed or drive on suspended license and you get your license revoked, right? Where's the logic in letting someone who was convicted of abusing vulnerable people get their crime expunged?

Someone who beats up disabled and elderly is a predator.

People who abuse elderly and disabled people have a different psychological profile than most other criminals.

They're cowards. Sadistic. Bullies. People convicted under Ca Penal Code 368 prey on people who can't fight back. They prey on people who are medically fragile. Physically disabled. Suffering from Dementia. Parkinson's. Down Syndrome. Autism. These types of criminals are a greater threat to public safety in the same way criminals who prey on children are. We must know their past crimes to protect those who can't speak for themselves. 

So why would California law make it easy for predators like this to keep on preying on vulnerable people......? This has got to be the most absurd legislative oversight I've ever seen.

Yes, thanks to a little known law in California, criminals convicted of punching, eye poking, kicking or otherwise abusing disabled and elderly people, under CA Penal Code 368, can hide these past crimes when they get record "expunged" under Ca Penal Code 1203.4.

That's because Ca Penal Code 1203.4 doesn't include Ca Penal Code 368 as a crime serious enough to be INELIGIBLE to be considered to be expunged. Yes, you read that correctly.

Apparently, in California, the perception remains that it's not that serious of crime to punch, kick, eye poke, body slam, neglect, or otherwise abuse a senior or adult with special needs, to wit, that you can have this specific crime "expunged" under Ca Penal Code 1203.4.

A reasonable person would think a conviction that involves slapping, punching, kicking or jamming your thumb into a disabled and elderly person's eye, would prevent a criminal from getting their criminal record expunged so they couldn't work with the same population they abused, right? Right.

As it stands today, Ca Penal Code 368 stands in disbelief, as it's not among crimes ineligible to be hidden. Shocking, considering California is the leader in providing services to elderly and adults with special needs. California is also the leader in abuse of elderly and disabled. Surely, the current situation involving getting the crime of abusing elderly and disabled expunged, isn't helping.

Under current law, CA. Penal Code 1203.4, a convicted felon can have past crimes committed under CA Penal Code 368 (crimes against elderly and disabled ages 18 and up) "expunged" (hidden from background checks).

An obvious tragic oversight, lawmakers didn't think to add CA. Penal Code 368 among the list of crimes that are ineligible to be expunged under CA Penal Code 1203.4, despite crimes against disabled and elderly committed by dangerous people who often target the weaker and frail among us. 

Once expunged, background checks will hide their past abusive crimes against elderly and disabled.

Most caregivers convicted under CA Penal Code 368 look for jobs in the area they know best: Caregiving industry.

There are thousands of jobs in California where convicted abusive caregivers who got their record expunged, can apply.

For example:

  • Foster Family Homes (FFH) provide 24-hour care and supervision in a family setting in the licensee's family residence for no more than six children.
  • In Home Support Services (IHSS) Don't be fooled into thinking that just because two bills, AB 1612 and SB 856,  tightening the background check requirements restricting individuals with certain violent felony convictions from working as caregivers in California’s In-Home Support Services (IHSS) program, you're safe either. Under CA PENAL CODE 1203.4, anyone convicted of violent crimes, including assaults against an elderly or disabled adult--- can get this criminal conviction expunged and hidden from background check, thereby defeating the purpose of AB 1612 and SB 856. In short, IHSS will hire criminals who have been convicted of abusing disabled and elderly, to work the disabled and elderly, if they got their record expunged under Ca Penal Code 1203.4 
  • http://www.cdss.ca.gov/agedblinddisabled/res/pdf/Tier-2_Crimes(Final2-6-12).pdf
  • Group Homes (GH) provide 24-hour non-medical care and supervision to children in a structured environment.
  • Small Family Homes (SFH) provide 24-hour care in the licensee's family residence for six or fewer children who are mentally disordered, developmentally disabled or physically handicapped and who require special care and supervision as a result of such disabilities.
  • Adult Residential Facilities (ARF) provide care for adults age 18-59, who are unable to provide for their own daily needs.
  • Adult Day Programs (ADP) provide care to persons 18 years of age or older in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of these individuals on less than a 24-hour basis.
  • Social Rehabilitation Facilities provide care in a group setting to adults recovering from mental illnesses who temporarily need assistance, guidance, or counseling.
  • Residential Care Facilities for the Chronically Ill (RCF-CI) provide care and supervision to adults who have Acquired Immune Deficiency Syndrome (AIDS) or the Human Immunodeficiency Virus (HIV).
  • Residential Care Facilities for the Elderly (RCFE) provide non-medical care to persons 60 years of age and over but also persons under 60 with compatible needs
Previously convicted abusers can also apply to home health agencies providing care to elderly, sick and disabled clients.

These criminal caregivers with an expunged record can also go on Craig's List and find jobs. Look at this example of a job posted in 12/16.

"Direct Care Staff/ Caregiver (Oceanside, CA) 

Looking for Self Motivated, Enthusiastic, and Reliable Individuals to work with the Intellectually Disabled Population with Exceptional Care in ICF DDH homes in Oceanside, CA: Assist with Grooming, Dressing, Nutrition, Therapeutic Objectives, Active Treatment, Housekeeping Duties, Documentation, Community Outings."

Notice employer says they do background checks. Good. Makes you feel safe, right? Nope. You shouldn't.  If the convicted criminal has their record expunged, neither the Dept. of Social Services Registry System, or prospective employers will know if caregiver is a high risk employee who shouldn't be working with patients/clients. Nor will you. 

Look at another current California Craig's List December 2016, job opening: 

"Immediate need for caregivers in East County San Diego.
Must have at least one year experience working with the elderly
Must be able to pass a background check (The criminal abuser sure will thanks to having record expunged under CA Penal Code 1203.4)
Must be registered on the Department of Social Services Home Care Aid Registry or have the ability to register (Again, prior crimes won't show up if criminal conviction under CA Penal Code 368 is hidden as per CA Penal Code 1203.4)

Does it make sense for our California Criminal Code to allow criminals convicted of ABUSING DISABLED under CA Penal Code 368, to hide prior crimes from California agencies trying provide services and supports to developmentally disabled? 

No, it doesn't make sense. This should be a bipartisan agreement. 

Apparently, nobody who wrote or amended CA Penal Code 1203.4 considered the massive system serving disabled and elderly people. And how many caregivers are spread around this system. 

A state sanctioned hidden criminal past of abusing disabled and elderly is a huge liability for California state agencies serving disabled, special education centers, owners of home health agencies, day programs for disabled and elderly, respite care agencies, group homes and additional key state stakeholders. 

This is an intolerable oversight that we must correct. 

California state lawmakers can fix this situation with legislative remedy by adding CA Penal Code 368 (Crimes against Vulnerable Adults ages 18 and up) to crimes ineligible to be "expunged" under CA Penal Code 1203.4. 


http://www.cdss.ca.gov/agedblinddisabled/res/pdf/Tier-2_Crimes(Final2-6-12).pdf  "you MAY be eligible to be enrolled as an IHSS provider if one of the following conditions apply/occur...You have...your conviction... expunged from your record pursuant to Ca Penal Cod Section 1203.4"




U.S. Bureau of Justice statistics show "There was no statistically significant difference in the violent victimization rates of whites (29.7 per 1,000), blacks (28.8 per 1,000), Hispanics (28.6 per 1,000), and persons of other races (28.0 per 1,000) with disabilities."  

That means crime victims with disabilities are their own minority, independent of race. This means they're targeted because they're vulnerable. This should be of great concern to lawmakers. 



Kim Oakley

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