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Senate Study Bill 1082 - IntroducedA Bill ForAn Act 1relating to older individuals and dependent adults and
2creating certain criminal offenses and civil actions, and
3providing penalties.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2CRIMINAL AND CIVIL RELIEF FOR OLDER INDIVIDUALS
3 Section 1. NEW SECTION. 708.2D Older individual assault —
4mandatory minimums, penalties enhanced — extension of no-contact
5order.
61. For the purposes of this section:
7a. “Older individual” means an individual who is sixty years
8of age or older.
9b. “Older individual assault” means an assault, as defined
10in section 708.1, of an older individual.
112. On a first offense of older individual assault, the
12person commits:
13a. A simple misdemeanor, except as otherwise provided.
14b. A serious misdemeanor, if the older individual assault
15causes bodily injury or mental illness.
16c. An aggravated misdemeanor, if the older individual
17assault is committed with the intent to inflict a serious
18injury upon an older individual, or if the person uses or
19displays a dangerous weapon in connection with the assault.
20This paragraph does not apply if section 708.6 or 708.8
21applies.
22d. An aggravated misdemeanor, if the older individual
23assault is committed by knowingly impeding the normal breathing
24or circulation of the blood of an older individual by applying
25pressure to the throat or neck of the older individual or by
26obstructing the nose or mouth of the older individual.
273. Except as otherwise provided in subsection 2, on a second
28older individual assault, a person commits:
29a. A serious misdemeanor if the first offense was classified
30as a simple misdemeanor and the second offense would otherwise
31be classified as a simple misdemeanor.
32b. An aggravated misdemeanor if the first offense was
33classified as a simple or aggravated misdemeanor and the second
34offense would otherwise be classified as a serious misdemeanor,
35or the first offense was classified as a serious or aggravated
-1-1misdemeanor, and the second offense would otherwise be
2classified as a simple or serious misdemeanor.
34. On a third or subsequent offense of older individual
4assault, a person commits a class “D” felony.
55. For an older individual assault committed by knowingly
6impeding the normal breathing or circulation of the blood of an
7older individual by applying pressure to the throat or neck of
8the older individual or by obstructing the nose or mouth of the
9older individual, and causing bodily injury, the person commits
10a class “D” felony.
116. a. A conviction for, deferred judgment for, or plea of
12guilty to, a violation of this section which occurred more than
13twelve years prior to the date of the violation charged shall
14not be considered in determining that the violation charged is
15a second or subsequent offense.
16b. For the purpose of determining if a violation charged
17is a second or subsequent offense, deferred judgments issued
18pursuant to section 907.3 for violations of section 708.2 or
19708.2A, or this section, which were issued on older individual
20assaults, and convictions or the equivalent of deferred
21judgments for violations in any other states under statutes
22substantially corresponding to this section shall be counted
23as previous offenses. The courts shall judicially notice the
24statutes of other states which define offenses substantially
25equivalent to the offenses defined in this section and can
26therefore be considered corresponding statutes. Each previous
27violation on which conviction or deferral of judgment was
28entered prior to the date of the offense charged shall be
29considered and counted as a separate previous offense.
30c. An offense shall be considered a prior offense regardless
31of whether it was committed upon the same victim.
327. a. A person convicted of violating subsection 2 or 3
33shall serve a minimum term of two days of the sentence imposed
34by law, and shall not be eligible for suspension of the minimum
35sentence. The minimum term shall be served on consecutive
-2-1days. The court shall not impose a fine in lieu of the minimum
2sentence, although a fine may be imposed in addition to the
3minimum sentence. This section does not prohibit the court
4from sentencing and the person from serving the maximum term
5of confinement or from paying the maximum fine permitted
6pursuant to chapters 902 and 903, and does not prohibit the
7court from entering a deferred judgment or sentence pursuant
8to section 907.3, if the person has not previously received
9a deferred sentence or judgment for a violation of section
10708.2 or 708.2A, or this section, which was issued on an older
11individual assault.
12b. A person convicted of violating subsection 4 shall
13be sentenced as provided under section 902.9, subsection 1,
14paragraph “e”, and shall be denied parole or work release until
15the person has served a minimum of one year of the person’s
16sentence. Notwithstanding section 901.5, subsections 1, 3, and
175, and section 907.3, the person cannot receive a suspended or
18deferred sentence or a deferred judgment; however, the person
19sentenced shall receive credit for any time the person was
20confined in a jail or detention facility following arrest.
218. If a person is convicted for, receives a deferred
22judgment for, or pleads guilty to a violation of this section,
23the court shall modify the no-contact order issued upon initial
24appearance in the manner provided in section 664A.5, regardless
25of whether the person is placed on probation.
269. The clerk of the district court shall provide notice
27and copies of a judgment entered under this section to the
28applicable law enforcement agencies and the twenty-four-hour
29dispatcher for the law enforcement agencies, in the manner
30provided for protective orders under chapter 235F. The
31clerk shall provide notice and copies of modifications of the
32judgment in the same manner.
33 Sec. 2. NEW SECTION. 714.2A Theft against an older
34individual.
351. If a person commits theft against an individual who was
-3-1an older individual at the time the theft was committed and
2knew or should have known the conduct was directed at an older
3individual, notwithstanding the penalties specified in section
4714.2, all of the following shall apply:
5a. If a person commits theft in the first degree pursuant to
6section 714.2, subsection 1, the person is guilty of a class
7“B” felony.
8b. If a person commits theft in the second degree pursuant
9to section 714.2, subsection 2, the person is guilty of a class
10“C” felony.
11c. If a person commits theft in the third degree pursuant to
12section 714.2, subsection 3, the person is guilty of a class
13“D” felony.
14d. If a person commits theft in the fourth degree pursuant
15to section 714.2, subsection 4, the person is guilty of an
16aggravated misdemeanor.
17e. If a person commits theft in the fifth degree pursuant to
18section 714.2, subsection 5, the person is guilty of a serious
19misdemeanor.
202. For the purposes of this section, “older individual”
21means an individual who is sixty years of age or older.
22 Sec. 3. Section 714.16A, Code 2021, is amended to read as
23follows:
24714.16A Additional civil penalty for consumer frauds
25committed against elderly older individuals — fund established.
261. a. If a person violates section 714.16, and the
27violation is committed against an older person individual,
28in an action brought by the attorney general, in addition to
29any other civil penalty, the court may impose an additional
30civil penalty not to exceed five thousand dollars for each
31such violation. Additionally, the attorney general may
32accept a civil penalty as determined by the attorney general
33in settlement of an investigation of a violation of section
34714.16, regardless of whether an action has been filed pursuant
35to section 714.16.
-4- 1b. A civil penalty imposed by a court or determined and
2accepted by the attorney general pursuant to this section shall
3be paid to the treasurer of state, who shall deposit the money
4in the elderly victim fund, a separate fund created in the
5state treasury and administered by the attorney general for the
6investigation and prosecution of frauds against the elderly.
7Notwithstanding section 8.33, any balance in the fund on June
830 of any fiscal year shall not revert to the general fund
9of the state. An award of reimbursement pursuant to section
10714.16 has priority over a civil penalty imposed by the court
11pursuant to this subsection.
122. In determining whether to impose a civil penalty under
13subsection 1, and the amount of any such penalty, the court
14shall consider the following:
15a. Whether the defendant’s conduct was in willful disregard
16of the rights of the older person individual.
17b. Whether the defendant knew or should have known that the
18defendant’s conduct was directed to an older person individual.
19c. Whether the older person individual was substantially
20more vulnerable to the defendant’s conduct because of age, poor
21health, infirmity, impaired understanding, restricted mobility,
22or disability, than other persons.
23d. Any other factors the court deems appropriate.
243. As used in this section, “older person” “older
25individual” means a person who is sixty-five years of age or an
26individual who is sixty years of age or older.
27 Sec. 4. NEW SECTION. 726.24 Elder abuse — initiation of
28charges — penalty.
291. As used in this section unless the context otherwise
30requires:
31a. “Abuse” means the infliction of physical harm or the
32deprivation of goods or services that are necessary to meet
33essential needs or to avoid physical harm or psychological
34harm.
35b. “Caregiver” means an individual who has the
-5-1responsibility for the care or custody of an older individual,
2whether voluntarily, by contract, by receipt of payment for
3care, or as a result of the operation of law, and includes
4but is not limited to a family member or other individual who
5provides, whether on the individual’s own behalf or on behalf
6of a public or private entity, compensated or uncompensated
7care to an older individual.
8c. “Elder abuse” means the abuse, emotional abuse, neglect,
9isolation, or sexual exploitation of an older individual.
10“Elder abuse” does not include any of the following:
11(1) Circumstances in which the older individual declines
12medical treatment if the older individual holds a belief or is
13an adherent of a religion whose tenets and practices call for
14reliance on spiritual means in place of reliance on medical
15treatment.
16(2) Circumstances in which the older individual’s caregiver
17or fiduciary, acting in accordance with the older individual’s
18stated or implied consent, declines medical treatment if the
19older individual holds a belief or is an adherent of a religion
20whose tenets and practices call for reliance on spiritual means
21in place of reliance on medical treatment.
22(3) The withholding or withdrawing of health care from
23an older individual who is terminally ill in the opinion of
24a licensed physician, when the withholding or withdrawing of
25health care is done at the request of the older individual or
26at the request of the older individual’s next of kin, attorney
27in fact, or guardian pursuant to the applicable procedures
28under chapter 125, 144A, 144B, 222, 229, or 633.
29d. “Emotional abuse” means the willful or reckless
30infliction of psychological harm, emotional or mental anguish,
31or the use of physical or chemical restraint, medication, or
32isolation as punishment or as a substitute for treatment or
33care.
34e. “Fiduciary” means a guardian, trustee, executor,
35administrator, receiver, conservator, attorney in fact, or
-6-1any person, whether individual or corporate, acting in any
2fiduciary capacity for or on behalf of any older individual.
3f. (1) “Isolate” or “isolation” means preventing an older
4individual from having contact with another person by any of
5the following:
6(a) Intentionally preventing the older individual from
7receiving visitors, mail, or telephone calls, including,
8without limitation, communicating to a person who comes to
9visit the older individual or a person who telephones the older
10individual that the older individual is not present or does
11not want to meet with or talk to the visitor or caller while
12knowing that the statement is false, contrary to the express
13wishes of the older individual, and intended to prevent the
14older individual from having contact with the visitor.
15(b) Physically restraining the older individual to prevent
16the older individual from meeting with a person who comes to
17visit the older individual.
18(c) Permitting any of the acts described in subparagraph
19division (a) or (b) to be committed against an older
20individual.
21(2) “Isolate” or “isolation” does not mean an act intended
22to protect the property or physical or mental welfare of
23the older individual or an act performed pursuant to the
24instructions of a physician of the older individual.
25g. “Neglect” means the failure of a caregiver or fiduciary
26to provide adequate food, shelter, clothing, supervision,
27physical or mental health care, and goods or services necessary
28to maintain the life, health, or safety of an older individual,
29which if not provided would constitute denial of critical care.
30h. “Older individual” means a person sixty years of age or
31older who is unable to protect himself or herself from elder
32abuse as a result of a mental or physical condition or because
33of a personal circumstance which results in an increased risk
34of harm to the person.
35i. “Older individual assault” means the same as defined in
-7-1section 708.2D.
2j. “Physical harm” means bodily injury, bodily pain,
3impairment, or disease.
4k. “Psychological harm” means an injury to the intellectual
5functioning or emotional state of an older individual as
6evidenced by an observable or measurable reduction in the older
7adult’s ability to function within that individual’s customary
8range of performance and that individual’s behavior.
9l. “Serious injury” means the same as defined in section
10702.18.
11m. “Sexual exploitation” means any sexual contact against
12an older individual’s will. This includes acts in which the
13older individual is unable to understand the act or is unable
14to communicate or is under undue influence and includes coerced
15nudity; fondling, touching, or kissing; making the person
16fondle someone else’s genitals; forcing the person to observe
17sexual acts; photographing the person in sexually explicit
18ways whether for purposes of gratification or degradation; and
19sexual assault.
20n. “Undue influence” means when a person uses or knowingly
21assists or causes another person to use that person’s role,
22relationship, or power to exploit the trust, dependency, or
23fear of an older individual, or uses or knowingly assists or
24causes another person to use that person’s role, relationship,
25or power to deceptively gain control over an older individual’s
26decision-making process.
272. It shall be unlawful for any person to abuse, emotionally
28abuse, neglect, isolate, or sexually exploit any older
29individual.
303. A charge of elder abuse may be initiated as a result of
31an investigation by a social services agency, or on the direct
32initiative of the attorney general, a county attorney, or a law
33enforcement agency.
344. A person who commits a first offense of elder abuse is
35guilty of the following, as applicable:
-8- 1a. A person who intentionally commits elder abuse is guilty
2of a class “C” felony if the intentional elder abuse results
3in serious injury.
4b. A person who recklessly commits elder abuse is guilty
5of a class “D” felony if the reckless elder abuse results in
6serious injury.
7c. A person who intentionally commits elder abuse is guilty
8of a class “D” felony if the intentional elder abuse results in
9physical injury or psychological harm.
10d. A person who recklessly commits elder abuse is guilty of
11an aggravated misdemeanor if the reckless elder abuse results
12in physical injury or psychological harm.
13e. A person who otherwise intentionally commits elder abuse
14is guilty of a serious misdemeanor.
155. On a second or subsequent offense of elder abuse under
16subsection 4, paragraph “a”, a person commits a class “B”
17felony.
186. On a second or subsequent offense of elder abuse under
19subsection 4, paragraph “b” or “c”, a person commits a class “C”
20felony.
217. On a second or subsequent offense of elder abuse under
22subsection 4, paragraph “d” or “e”, a person commits a class “D”
23felony.
248. It does not constitute a defense to a prosecution for any
25violation of this section that the alleged perpetrator did not
26know the age of the victim.
279. In a criminal action in which an older individual is
28a victim, the state may move the court to advance the trial
29on the docket. The presiding judge, after consideration of
30the age and health of the victim, may advance the trial on
31the docket. The motion may be filed and served with the
32information or charges at any time.
3310. a. A conviction or deferred judgment for or plea of
34guilty to a violation of this section which occurred more than
35twelve years prior to the date of the violation charged shall
-9-1not be considered in determining that the violation charged is
2a second or subsequent offense.
3b. For the purpose of determining if a violation charged
4is a second or subsequent offense, deferred judgments issued
5pursuant to section 907.3 for violations of this section, or
6judgments or deferred judgments issued pursuant to sections
7708.2D and 714.2A, and convictions or the equivalent of
8deferred judgments for violations in any other state under
9statutes substantially corresponding to this section shall be
10counted as previous offenses. The courts shall judicially
11notice the statutes of other states which define offenses
12substantially equivalent to the offenses defined in this
13section and can therefore be considered corresponding statutes.
14Each previous violation on which conviction or deferral of
15judgment was entered prior to the date of the offense charged
16shall be considered and counted as a separate previous offense.
17c. An offense shall be considered a prior offense regardless
18of whether it was committed upon the same victim.
1911. If a person is convicted or receives a deferred judgment
20for, or pleads guilty to a violation of this section, the
21court shall modify the no-contact order issued upon initial
22appearance in the manner provided in section 664A.5, regardless
23of whether the person is placed on probation.
2412. The clerk of the district court shall provide notice
25and copies of a judgment entered under this section to the
26applicable law enforcement agencies and the twenty-four-hour
27dispatcher for the law enforcement agencies, in the manner
28provided for protective orders under chapter 235F. The
29clerk shall provide notice and copies of modifications of the
30judgment in the same manner.
31 Sec. 5. NEW SECTION. 726.25 Financial exploitation of an
32older individual.
331. For the purposes of this section:
34a. “Caregiver” means an individual who has the
35responsibility for the care or custody of an older individual,
-10-1whether voluntarily, by contract, through employment, or as a
2result of the operation of law, and includes but is not limited
3to a family member or other individual who provides compensated
4or uncompensated care to an older individual.
5b. “Coercion” means communication or conduct which compels
6an older individual to act or refrain from acting against the
7older individual’s will.
8c. “Older individual” means an individual who is sixty years
9of age or older.
10d. “Stands in a position of trust or confidence” means the
11person has any of the following relationships relative to the
12older individual:
13(1) Is a parent, spouse, adult child, or other relative by
14consanguinity or affinity of the older individual.
15(2) Is a joint tenant or tenant in common with the older
16individual.
17(3) Has a legal or fiduciary relationship with the older
18individual. For the purposes of this paragraph, a legal or
19fiduciary relationship with the older individual does not
20include a legal or fiduciary relationship an older individual
21may have with a bank incorporated under the provisions of any
22state or federal law, any savings and loan association or
23savings bank incorporated under the provisions of any state or
24federal law, or any credit union organized under the provisions
25of any state or federal law.
26(4) Is a financial planning or investment professional
27providing or offering to provide financial planning or
28investment advice to the older individual.
29(5) Is a beneficiary of the older individual in a governing
30instrument.
31(6) Is a caregiver for the older individual.
32(7) Is a person who has otherwise formed a relationship
33of trust or reliance with the older individual such that the
34person should reasonably expect that the older individual would
35likely rely upon the person to act in good faith for the older
-11-1individual’s interest.
2e. “Undue influence” means excessive persuasion by a person
3that causes an older individual to act or refrain from acting
4by overcoming an older individual’s free will and results in
5inequity. In determining whether a result was produced by
6undue influence, all of the following shall be considered:
7(1) The vulnerability of the older individual. Evidence of
8vulnerability may include but is not limited to incapacity,
9illness, disability, injury, age, education, impaired cognitive
10function, emotional distress, isolation, or dependency, and
11whether the person knew or should have known of the alleged
12older individual’s vulnerability.
13(2) The person’s apparent authority. Evidence of
14apparent authority may include but is not limited to status
15as a fiduciary, family member, care provider, health care
16professional, legal professional, spiritual advisor, expert,
17or other qualifications.
18(3) The person’s actions or tactics. Evidence of actions
19or tactics used may include but is not limited to all of the
20following:
21(a) Controlling necessaries of life, medication, the older
22individual’s interactions with others, access to information,
23or sleep.
24(b) Use of affection, intimidation, or coercion.
25(c) Initiation of changes in personal or property rights,
26use of haste or secrecy in effecting those changes, effecting
27changes at inappropriate times and places, and claims of
28expertise in effecting changes.
29(4) The equity of the result. Evidence of the equity of
30the result may include but is not limited to the economic
31consequences to the older individual; any divergence from the
32older individual’s prior intent, course of conduct, or dealing;
33the relationship of the value conveyed to the value of any
34services or consideration received; or the appropriateness
35of the change in light of the length and nature of the
-12-1relationship. Evidence of an inequitable result, without more,
2is not sufficient to prove undue influence.
32. A person commits financial exploitation of an older
4individual when the person stands in a position of trust or
5confidence with the older individual and knowingly and by undue
6influence, deception, coercion, fraud, breach of fiduciary
7duty, or extortion, obtains control over or otherwise uses the
8benefits, property, resources, belongings, or assets of the
9older individual.
103. A person who commits a first offense of financial
11exploitation of an older individual is guilty of the following,
12as applicable:
13a. A serious misdemeanor if the value of the benefits,
14property, resources, belongings, or assets is one hundred
15dollars or less.
16b. An aggravated misdemeanor if the value of the benefits,
17property, resources, belongings, or assets exceeds one hundred
18dollars but does not exceed one thousand dollars.
19c. A class “D” felony if the value of the benefits,
20property, resources, belongings, or assets exceeds one thousand
21dollars but does not exceed ten thousand dollars.
22d. A class “C” felony if the value of the benefits,
23property, resources, belongings, or assets exceeds ten thousand
24dollars but does not exceed fifty thousand dollars.
25e. A class “B” felony if the value of the benefits,
26property, resources, belongings, or assets exceeds fifty
27thousand dollars, or if the older individual is seventy years
28of age to eighty years of age and the value of the benefits,
29property, resources, belongings, or assets is fifteen thousand
30dollars or more, or if the older individual is eighty years
31of age or older and the value of the benefits, property,
32resources, belongings, or assets is five thousand dollars or
33more.
344. On a second or subsequent offense of financial
35exploitation of an older individual, a person commits a class
-13-1“C” felony if the value of the benefits, property, resources,
2belongings, or assets does not exceed fifty thousand dollars
3unless subsection 3, paragraph “e”, applies.
45. Nothing in this section shall be construed to limit other
5remedies available to the older individual including those
6provided under chapters 235F and 236.
76. Nothing in this section shall be construed to impose
8criminal liability on a person who has made a good-faith effort
9to assist an older individual in the management of the older
10individual’s benefits, property, resources, belongings, or
11assets, but through no fault of the person, the person has been
12unable to provide such assistance.
137. Nothing in this section shall be construed to impose
14criminal liability on a person based solely on the sale of a
15product or service.
168. It shall not be a defense to financial exploitation of
17an older individual that the alleged perpetrator did not know
18the age of the older individual or reasonably believed that the
19alleged victim was not an older individual.
209. In a criminal action in which an older individual is a
21victim, the state may make a motion to the court to advance the
22trial on the docket. The presiding judge, after consideration
23of the age and health of the victim, may grant a motion to
24advance the trial on the docket. The motion may be filed and
25served with the information or charges at any time.
2610. a. A conviction or deferred judgment for or plea of
27guilty to a violation of this section which occurred more than
28twelve years prior to the date of the violation charged shall
29not be considered in determining whether the violation charged
30is a second or subsequent offense.
31b. For the purpose of determining if a violation charged
32is a second or subsequent offense, deferred judgments issued
33pursuant to section 907.3 for violations of this section or
34judgments or deferred judgments issued pursuant to sections
35708.2D and 714.2A, and convictions or the equivalent of
-14-1deferred judgments for violations in any other state under
2statutes substantially corresponding to this section shall be
3counted as previous offenses. The courts shall judicially
4notice the statutes of other states which define offenses
5substantially equivalent to the offenses defined in this
6section and can therefore be considered corresponding statutes.
7Each previous violation on which conviction or deferral of
8judgment was entered prior to the date of the offense charged
9shall be considered and counted as a separate previous offense.
10c. An offense shall be considered a prior offense regardless
11of whether it was committed upon the same victim.
1211. If a person is convicted of, receives a deferred
13judgment for, or pleads guilty to a violation of this section,
14the court shall modify the no-contact order issued upon initial
15appearance in the manner provided in section 664A.5, regardless
16of whether the person is placed on probation.
1712. The clerk of the district court shall provide notice
18and copies of a judgment entered under this section to the
19applicable law enforcement agencies and the twenty-four-hour
20dispatcher for the law enforcement agencies, in the manner
21provided for protective orders under chapter 235F. The
22clerk shall provide notice and copies of modifications of the
23judgment in the same manner.
24 Sec. 6. NEW SECTION. 726.26 Dependent adult abuse —
25initiation of charges — penalty.
261. For the purposes of this section, “caretaker”, “dependent
27adult”, and “dependent adult abuse” mean the same as defined in
28section 235B.2.
292. A charge of dependent adult abuse may be initiated
30upon the complaint of a private individual, as a result of an
31investigation by a social service agency, or on the direct
32initiative of the office of the attorney general, a county
33attorney, or a law enforcement agency.
343. A caretaker who intentionally commits dependent adult
35abuse is guilty of a class “C” felony if the intentional
-15-1dependent adult abuse results in serious injury.
24. A caretaker who recklessly commits dependent adult abuse
3is guilty of a class “D” felony if the reckless dependent adult
4abuse results in serious injury.
55. A caretaker who intentionally commits dependent adult
6abuse is guilty of a class “C” felony if the intentional
7dependent adult abuse results in physical injury.
86. A caretaker who commits dependent adult abuse by
9exploitation of a dependent adult is guilty of a class “D”
10felony if the value of the property, assets, or resources
11exceeds one hundred dollars.
127. A caretaker who recklessly commits dependent adult
13abuse is guilty of an aggravated misdemeanor if the reckless
14dependent adult abuse results in physical injury.
158. A caretaker who otherwise intentionally or knowingly
16commits dependent adult abuse is guilty of a serious
17misdemeanor.
189. A caretaker who commits dependent adult abuse by
19exploitation of a dependent adult is guilty of a simple
20misdemeanor if the value of the property, assets, or resources
21is one hundred dollars or less.
2210. A caretaker alleged to have committed dependent adult
23abuse shall be charged with the respective offense cited,
24unless a charge may be brought based upon a more serious
25offense, in which case the charge of the more serious offense
26shall supersede the less serious charge.
27 Sec. 7. REPEAL. Section 235B.20, Code 2021, is repealed.
28 Sec. 8. CODE EDITOR DIRECTIVES. The Code editor shall do
29all of the following:
301. Create a new subchapter in chapter 726, entitled
31“Resident, Dependent Adult, and Older Individual Protection
32Act” that includes sections 726.24, 726.25, and 726.26, as
33enacted in this Act.
342. a. Transfer sections 726.7 and 726.8, Code 2021, to
35the new subchapter and renumber the transferred sections as
-16-1follows:
2(1) Section 726.7 as section 726.27.
3(2) Section 726.8 as section 726.28.
4b. Correct internal references as necessary.
53. Amend the title of the chapter to read “Protections
6for the family, dependent persons, residents of health care
7facilities, and older individuals”.
8DIVISION II
9CONFORMING CHANGES
10 Sec. 9. Section 13.2, subsection 1, Code 2021, is amended by
11adding the following new paragraph:
12 NEW PARAGRAPH. p. Develop written procedures and policies
13to be followed by prosecuting attorneys in the prosecution
14of elder abuse, older individual assault, theft against an
15older individual, consumer frauds committed against an older
16individual, and financial exploitation of an older individual
17under sections 708.2D, 714.2A, 714.16A, 726.24, and 726.25.
18 Sec. 10. Section 235E.4, Code 2021, is amended to read as
19follows:
20235E.4 Chapter 235B and section 726.26 application.
21Sections 235B.4 through 235B.20 235B.19 and section 726.26,
22where not inconsistent with this chapter, shall apply to this
23chapter.
24 Sec. 11. Section 272C.15, subsection 4, paragraph b, Code
252021, is amended to read as follows:
26b. The amount of time that has passed since the commission
27of the crime. There is a rebuttable presumption that an
28applicant is rehabilitated and an appropriate candidate
29for licensure five years after the date of the applicant’s
30release from incarceration, provided that the applicant was
31not convicted of sexual abuse in violation of section 709.4,
32a sexually violent offense as defined in section 229A.2,
33dependent adult abuse in violation of section 235B.20 726.26,
34a forcible felony as defined in section 702.11, or domestic
35abuse assault in violation of section 708.2A, and the applicant
-17-1has not been convicted of another crime after release from
2incarceration.
3 Sec. 12. Section 664A.1, subsection 2, Code 2021, is amended
4to read as follows:
52. “Protective order” means a protective order issued
6pursuant to chapter 232, a court order or court-approved
7consent agreement entered pursuant to this chapter or chapter
8235F, a court order or court-approved consent agreement entered
9pursuant to chapter 236 or 236A, including a valid foreign
10protective order under section 236.19, subsection 3, or section
11236A.19, subsection 3, a temporary or permanent protective
12order or order to vacate the homestead under chapter 598, or an
13order that establishes conditions of release or is a protective
14order or sentencing order in a criminal prosecution arising
15from a domestic abuse assault under section 708.2A or older
16individual assault under section 708.2D, or a civil injunction
17issued pursuant to section 915.22.
18 Sec. 13. Section 664A.2, subsection 1, Code 2021, is amended
19to read as follows:
201. This chapter applies to no-contact orders issued for
21violations or alleged violations of sections 708.2A, 708.2D,
22 708.7, 708.11, 709.2, 709.3, and 709.4, and any other public
23offense for which there is a victim.
24 Sec. 14. Section 664A.7, subsection 5, Code 2021, is amended
25to read as follows:
265. Violation of a no-contact order entered for the offense
27or alleged offense of domestic abuse assault in violation
28of section 708.2A, the offense or alleged offense of older
29individual assault in violation of section 708.2D, or a
30violation of a protective order issued pursuant to chapter
31232, 235F,236, 236A, 598, or 915 constitutes a public offense
32and is punishable as a simple misdemeanor. Alternatively,
33the court may hold a person in contempt of court for such a
34violation, as provided in subsection 3.
35 Sec. 15. Section 671A.2, subsection 1, paragraph b, Code
-18-12021, is amended to read as follows:
2b. The employee, agent, or independent contractor was
3convicted of any of the following:
4(1) A public offense that was committed while performing
5duties substantially similar to those reasonably expected to
6be performed in the employment or under the relationship or
7contract, or under conditions substantially similar to those
8reasonably expected to be encountered in the employment or
9under the relationship or contract, taking into consideration
10all of the following factors:
11(a) The nature and seriousness of the public offense.
12(b) The extent and nature of the employee, agent, or
13independent contractor’s past criminal activity.
14(c) The age of the employee, agent, or independent
15contractor when the public offense was committed.
16(d) The amount of time that has elapsed since the employee,
17agent, or independent contractor’s last criminal activity.
18(2) A sexually violent offense as defined in section 229A.2.
19(3) The offense of dependent adult abuse as provided for
20under section 235B.20.
21(4) (3) The offense of murder in the first degree under
22section 707.2.
23(5) (4) The offense of murder in the second degree under
24section 707.3.
25(6) (5) The offense of assault as defined in section 708.1
26that is a felony under section 708.2.
27(7) (6) The offense of domestic abuse assault as defined
28in section 708.2A.
29(8) (7) The offense of kidnapping in the first degree under
30section 710.2.
31(9) (8) The offense of robbery in the first degree under
32section 711.2.
33(10) (9) An offense committed on certain real property for
34which an enhanced penalty was received under section 124.401A
35or 124.401B.
-19- 1(11) (10) A felony offense where the employee, agent, or
2independent contractor used or exhibited a dangerous weapon as
3defined in section 702.7 during the commission of or during
4immediate flight from the scene of the felony offense, or
5where the employee, agent, or independent contractor used or
6exhibited the dangerous weapon or was a party to the felony
7offense and knew that a dangerous weapon would be used or
8exhibited.
9(11) The offense of dependent adult abuse as provided for
10under section 726.26.
11 Sec. 16. Section 901C.3, subsection 2, paragraph c, Code
122021, is amended by striking the paragraph.
13 Sec. 17. Section 915.22, Code 2021, is amended by adding the
14following new subsection:
15 NEW SUBSECTION. 6. The clerk of the district court
16shall provide notice and copies of restraining orders issued
17pursuant to this section in a criminal case involving an
18alleged violation of section 708.2D to the applicable law
19enforcement agencies and the twenty-four-hour dispatch for the
20law enforcement agencies, in the manner provided for protective
21orders under section 235F.6. The clerk shall provide notice
22and copies of modifications or vacations of these orders in the
23same manner.
24EXPLANATION
25The inclusion of this explanation does not constitute agreement with
26the explanation’s substance by the members of the general assembly.
27This bill relates to older individuals and dependent adults
28and certain criminal offenses and civil actions, and provides
29penalties.
30DIVISION I — CRIMINAL AND CIVIL RELIEF FOR OLDER
31INDIVIDUALS. The bill establishes the crime of older
32individual assault which is the assault, as defined in Code
33section 708.1, of an older individual, defined in the bill as
34an individual 60 years of age or older. The bill provides
35criminal penalties for older individual assault ranging from
-20-1a simple misdemeanor to a class “D” felony depending on the
2circumstances of the assault. The bill also provides for the
3determination of whether a violation is a second or subsequent
4offense and provides for minimum sentencing for offenders.
5The bill establishes the crime of theft against an older
6individual which enhances the penalties for the existing crime
7of theft by one degree.
8The bill changes the existing additional civil penalty for
9consumer frauds committed against elders (those 60 years of age
10or older) to apply to older individuals consistent with other
11provisions relating to older individuals under the bill.
12The bill establishes criminal penalties for elder abuse
13ranging from a serious misdemeanor to a class “C” felony
14depending on the circumstances and resulting injuries of
15the abuse. Elder abuse is defined as the abuse, emotional
16abuse, neglect, isolation, or sexual exploitation of an older
17individual.
18The bill establishes the crime of financial exploitation of
19an older individual. A person commits financial exploitation
20of an older individual when the person stands in a position of
21trust or confidence with the older individual and knowingly
22and by undue influence, deception, coercion, fraud, breach of
23fiduciary duty, or extortion, obtains control over or otherwise
24uses the benefits, property, resources, belongings, or assets
25of the older individual. The criminal penalties range from a
26serious misdemeanor to a class “B” felony based on the amount
27of benefits, property, resources, belongings, or assets of the
28older individual involved.
29The bill relocates the criminal penalties for dependent
30adult abuse as they currently exist from Code chapter 235B
31(dependent adult abuse) to Code chapter 726 (relating to the
32protection of the family and dependent persons).
33DIVISION II — CONFORMING CHANGES. The bill makes
34conforming changes throughout the Code.
35Code section 13.2: The bill adds as a duty of the attorney
-21-1general to develop written procedures and policies to be
2followed by prosecuting attorneys in the prosecution of
3elder abuse, older individual assault, theft against an
4older individual, consumer frauds committed against an older
5individual, and financial exploitation of an older individual.
6Code section 234E.4: Due to the repeal of Code section
7235B.20 and the relocation of the criminal penalties for
8dependent adult abuse as they currently exist in that section
9to Code section 726.26, the bill provides that Code section
10726.26, where not inconsistent with Code chapter 235E
11(dependent adult abuse in facilities and programs), shall apply
12to Code chapter 235E.
13Code section 272C.15: Due to the repeal of Code section
14235B.20 and the relocation of the criminal penalties for
15dependent adult abuse as they currently exist in that section
16to Code section 726.26, the bill updates the reference to Code
17section 726.26 relative to the existing rebuttable presumption
18that an applicant for a professional or occupational license
19as defined in Code section 272C.1 is rehabilitated and an
20appropriate candidate for licensure five years after the date
21of the applicant’s release from incarceration, provided that
22the applicant was not convicted of certain crimes including
23dependent adult abuse in violation of Code section 726.26, and
24the applicant has not been convicted of another crime after
25release from incarceration.
26Code section 664A.1: The bill includes in the definition
27of “protective orders” under Code chapter 664A (relating to
28no-contact and enforcement of protective orders), a protective
29order or sentencing order in a criminal prosecution arising
30from older individual assault.
31Code section 664A.2: The bill provides that the Code chapter
32is applicable to no-contact orders issued for violations or
33alleged violations related to older individual assault.
34Code section 664A.7: The bill provides that violation of a
35no-contact order for the offense of older individual assault
-22-1constitutes a public offense and is punishable as a simple
2misdemeanor. Alternatively, the court may hold a person in
3contempt of court for such violation.
4Code section 671A.2: Due to the repeal of Code section
5235B.20 and the relocation of the criminal penalties for
6dependent adult abuse as they currently exist in that section
7to Code section 726.26, the bill updates the reference to Code
8section 726.26 relative to existing liability protections for
9negligent hiring to provide that Code chapter 671A (negligent
10hiring — limitations on liability) does not preclude a cause
11of action for negligent hiring based on evidence that the
12employee, agent, or independent contractor has been convicted
13of a public offense as defined in Code section 701.2, if
14certain criteria are met including that the employee, agent,
15or independent contractor was convicted of the offense of
16dependent adult abuse as provided for under Code section
17726.26.
18Code section 901C.3: Due to the repeal of Code section
19235B.20 and the relocation of the criminal penalties for
20dependent adult abuse as they currently exist in that section
21to Code section 726.26, the bill updates the existing reference
22under Code section 901C.3 (misdemeanor — expungement) that
23provides that a misdemeanor for a conviction of dependent adult
24abuse shall not be expunged, to include the prohibition against
25such expungement under the existing reference in Code section
26901C.3(2)(u) to a conviction under Code chapter 726 which
27includes the more specific new Code section 726.26.
28Code section 915.22: The bill provides that under Code
29chapter 915 (victim rights), the clerk of the district court
30shall provide notice and copies of restraining orders in a
31criminal case involving alleged older individual assault to the
32applicable law enforcement agencies and the 24-hour dispatcher
33for the law enforcement agencies, in the manner provided for
34protective orders under Code section 235F.6. The clerk shall
35provide notice and copies of modifications or vacations of
-23-1these orders in the same manner.
-24-pf/rh
2creating certain criminal offenses and civil actions, and
3providing penalties.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2CRIMINAL AND CIVIL RELIEF FOR OLDER INDIVIDUALS
3 Section 1. NEW SECTION. 708.2D Older individual assault —
4mandatory minimums, penalties enhanced — extension of no-contact
5order.
61. For the purposes of this section:
7a. “Older individual” means an individual who is sixty years
8of age or older.
9b. “Older individual assault” means an assault, as defined
10in section 708.1, of an older individual.
112. On a first offense of older individual assault, the
12person commits:
13a. A simple misdemeanor, except as otherwise provided.
14b. A serious misdemeanor, if the older individual assault
15causes bodily injury or mental illness.
16c. An aggravated misdemeanor, if the older individual
17assault is committed with the intent to inflict a serious
18injury upon an older individual, or if the person uses or
19displays a dangerous weapon in connection with the assault.
20This paragraph does not apply if section 708.6 or 708.8
21applies.
22d. An aggravated misdemeanor, if the older individual
23assault is committed by knowingly impeding the normal breathing
24or circulation of the blood of an older individual by applying
25pressure to the throat or neck of the older individual or by
26obstructing the nose or mouth of the older individual.
273. Except as otherwise provided in subsection 2, on a second
28older individual assault, a person commits:
29a. A serious misdemeanor if the first offense was classified
30as a simple misdemeanor and the second offense would otherwise
31be classified as a simple misdemeanor.
32b. An aggravated misdemeanor if the first offense was
33classified as a simple or aggravated misdemeanor and the second
34offense would otherwise be classified as a serious misdemeanor,
35or the first offense was classified as a serious or aggravated
-1-1misdemeanor, and the second offense would otherwise be
2classified as a simple or serious misdemeanor.
34. On a third or subsequent offense of older individual
4assault, a person commits a class “D” felony.
55. For an older individual assault committed by knowingly
6impeding the normal breathing or circulation of the blood of an
7older individual by applying pressure to the throat or neck of
8the older individual or by obstructing the nose or mouth of the
9older individual, and causing bodily injury, the person commits
10a class “D” felony.
116. a. A conviction for, deferred judgment for, or plea of
12guilty to, a violation of this section which occurred more than
13twelve years prior to the date of the violation charged shall
14not be considered in determining that the violation charged is
15a second or subsequent offense.
16b. For the purpose of determining if a violation charged
17is a second or subsequent offense, deferred judgments issued
18pursuant to section 907.3 for violations of section 708.2 or
19708.2A, or this section, which were issued on older individual
20assaults, and convictions or the equivalent of deferred
21judgments for violations in any other states under statutes
22substantially corresponding to this section shall be counted
23as previous offenses. The courts shall judicially notice the
24statutes of other states which define offenses substantially
25equivalent to the offenses defined in this section and can
26therefore be considered corresponding statutes. Each previous
27violation on which conviction or deferral of judgment was
28entered prior to the date of the offense charged shall be
29considered and counted as a separate previous offense.
30c. An offense shall be considered a prior offense regardless
31of whether it was committed upon the same victim.
327. a. A person convicted of violating subsection 2 or 3
33shall serve a minimum term of two days of the sentence imposed
34by law, and shall not be eligible for suspension of the minimum
35sentence. The minimum term shall be served on consecutive
-2-1days. The court shall not impose a fine in lieu of the minimum
2sentence, although a fine may be imposed in addition to the
3minimum sentence. This section does not prohibit the court
4from sentencing and the person from serving the maximum term
5of confinement or from paying the maximum fine permitted
6pursuant to chapters 902 and 903, and does not prohibit the
7court from entering a deferred judgment or sentence pursuant
8to section 907.3, if the person has not previously received
9a deferred sentence or judgment for a violation of section
10708.2 or 708.2A, or this section, which was issued on an older
11individual assault.
12b. A person convicted of violating subsection 4 shall
13be sentenced as provided under section 902.9, subsection 1,
14paragraph “e”, and shall be denied parole or work release until
15the person has served a minimum of one year of the person’s
16sentence. Notwithstanding section 901.5, subsections 1, 3, and
175, and section 907.3, the person cannot receive a suspended or
18deferred sentence or a deferred judgment; however, the person
19sentenced shall receive credit for any time the person was
20confined in a jail or detention facility following arrest.
218. If a person is convicted for, receives a deferred
22judgment for, or pleads guilty to a violation of this section,
23the court shall modify the no-contact order issued upon initial
24appearance in the manner provided in section 664A.5, regardless
25of whether the person is placed on probation.
269. The clerk of the district court shall provide notice
27and copies of a judgment entered under this section to the
28applicable law enforcement agencies and the twenty-four-hour
29dispatcher for the law enforcement agencies, in the manner
30provided for protective orders under chapter 235F. The
31clerk shall provide notice and copies of modifications of the
32judgment in the same manner.
33 Sec. 2. NEW SECTION. 714.2A Theft against an older
34individual.
351. If a person commits theft against an individual who was
-3-1an older individual at the time the theft was committed and
2knew or should have known the conduct was directed at an older
3individual, notwithstanding the penalties specified in section
4714.2, all of the following shall apply:
5a. If a person commits theft in the first degree pursuant to
6section 714.2, subsection 1, the person is guilty of a class
7“B” felony.
8b. If a person commits theft in the second degree pursuant
9to section 714.2, subsection 2, the person is guilty of a class
10“C” felony.
11c. If a person commits theft in the third degree pursuant to
12section 714.2, subsection 3, the person is guilty of a class
13“D” felony.
14d. If a person commits theft in the fourth degree pursuant
15to section 714.2, subsection 4, the person is guilty of an
16aggravated misdemeanor.
17e. If a person commits theft in the fifth degree pursuant to
18section 714.2, subsection 5, the person is guilty of a serious
19misdemeanor.
202. For the purposes of this section, “older individual”
21means an individual who is sixty years of age or older.
22 Sec. 3. Section 714.16A, Code 2021, is amended to read as
23follows:
24714.16A Additional civil penalty for consumer frauds
25committed against elderly older individuals — fund established.
261. a. If a person violates section 714.16, and the
27violation is committed against an older person individual,
28in an action brought by the attorney general, in addition to
29any other civil penalty, the court may impose an additional
30civil penalty not to exceed five thousand dollars for each
31such violation. Additionally, the attorney general may
32accept a civil penalty as determined by the attorney general
33in settlement of an investigation of a violation of section
34714.16, regardless of whether an action has been filed pursuant
35to section 714.16.
-4- 1b. A civil penalty imposed by a court or determined and
2accepted by the attorney general pursuant to this section shall
3be paid to the treasurer of state, who shall deposit the money
4in the elderly victim fund, a separate fund created in the
5state treasury and administered by the attorney general for the
6investigation and prosecution of frauds against the elderly.
7Notwithstanding section 8.33, any balance in the fund on June
830 of any fiscal year shall not revert to the general fund
9of the state. An award of reimbursement pursuant to section
10714.16 has priority over a civil penalty imposed by the court
11pursuant to this subsection.
122. In determining whether to impose a civil penalty under
13subsection 1, and the amount of any such penalty, the court
14shall consider the following:
15a. Whether the defendant’s conduct was in willful disregard
16of the rights of the older person individual.
17b. Whether the defendant knew or should have known that the
18defendant’s conduct was directed to an older person individual.
19c. Whether the older person individual was substantially
20more vulnerable to the defendant’s conduct because of age, poor
21health, infirmity, impaired understanding, restricted mobility,
22or disability, than other persons.
23d. Any other factors the court deems appropriate.
243. As used in this section, “older person” “older
25individual” means a person who is sixty-five years of age or an
26individual who is sixty years of age or older.
27 Sec. 4. NEW SECTION. 726.24 Elder abuse — initiation of
28charges — penalty.
291. As used in this section unless the context otherwise
30requires:
31a. “Abuse” means the infliction of physical harm or the
32deprivation of goods or services that are necessary to meet
33essential needs or to avoid physical harm or psychological
34harm.
35b. “Caregiver” means an individual who has the
-5-1responsibility for the care or custody of an older individual,
2whether voluntarily, by contract, by receipt of payment for
3care, or as a result of the operation of law, and includes
4but is not limited to a family member or other individual who
5provides, whether on the individual’s own behalf or on behalf
6of a public or private entity, compensated or uncompensated
7care to an older individual.
8c. “Elder abuse” means the abuse, emotional abuse, neglect,
9isolation, or sexual exploitation of an older individual.
10“Elder abuse” does not include any of the following:
11(1) Circumstances in which the older individual declines
12medical treatment if the older individual holds a belief or is
13an adherent of a religion whose tenets and practices call for
14reliance on spiritual means in place of reliance on medical
15treatment.
16(2) Circumstances in which the older individual’s caregiver
17or fiduciary, acting in accordance with the older individual’s
18stated or implied consent, declines medical treatment if the
19older individual holds a belief or is an adherent of a religion
20whose tenets and practices call for reliance on spiritual means
21in place of reliance on medical treatment.
22(3) The withholding or withdrawing of health care from
23an older individual who is terminally ill in the opinion of
24a licensed physician, when the withholding or withdrawing of
25health care is done at the request of the older individual or
26at the request of the older individual’s next of kin, attorney
27in fact, or guardian pursuant to the applicable procedures
28under chapter 125, 144A, 144B, 222, 229, or 633.
29d. “Emotional abuse” means the willful or reckless
30infliction of psychological harm, emotional or mental anguish,
31or the use of physical or chemical restraint, medication, or
32isolation as punishment or as a substitute for treatment or
33care.
34e. “Fiduciary” means a guardian, trustee, executor,
35administrator, receiver, conservator, attorney in fact, or
-6-1any person, whether individual or corporate, acting in any
2fiduciary capacity for or on behalf of any older individual.
3f. (1) “Isolate” or “isolation” means preventing an older
4individual from having contact with another person by any of
5the following:
6(a) Intentionally preventing the older individual from
7receiving visitors, mail, or telephone calls, including,
8without limitation, communicating to a person who comes to
9visit the older individual or a person who telephones the older
10individual that the older individual is not present or does
11not want to meet with or talk to the visitor or caller while
12knowing that the statement is false, contrary to the express
13wishes of the older individual, and intended to prevent the
14older individual from having contact with the visitor.
15(b) Physically restraining the older individual to prevent
16the older individual from meeting with a person who comes to
17visit the older individual.
18(c) Permitting any of the acts described in subparagraph
19division (a) or (b) to be committed against an older
20individual.
21(2) “Isolate” or “isolation” does not mean an act intended
22to protect the property or physical or mental welfare of
23the older individual or an act performed pursuant to the
24instructions of a physician of the older individual.
25g. “Neglect” means the failure of a caregiver or fiduciary
26to provide adequate food, shelter, clothing, supervision,
27physical or mental health care, and goods or services necessary
28to maintain the life, health, or safety of an older individual,
29which if not provided would constitute denial of critical care.
30h. “Older individual” means a person sixty years of age or
31older who is unable to protect himself or herself from elder
32abuse as a result of a mental or physical condition or because
33of a personal circumstance which results in an increased risk
34of harm to the person.
35i. “Older individual assault” means the same as defined in
-7-1section 708.2D.
2j. “Physical harm” means bodily injury, bodily pain,
3impairment, or disease.
4k. “Psychological harm” means an injury to the intellectual
5functioning or emotional state of an older individual as
6evidenced by an observable or measurable reduction in the older
7adult’s ability to function within that individual’s customary
8range of performance and that individual’s behavior.
9l. “Serious injury” means the same as defined in section
10702.18.
11m. “Sexual exploitation” means any sexual contact against
12an older individual’s will. This includes acts in which the
13older individual is unable to understand the act or is unable
14to communicate or is under undue influence and includes coerced
15nudity; fondling, touching, or kissing; making the person
16fondle someone else’s genitals; forcing the person to observe
17sexual acts; photographing the person in sexually explicit
18ways whether for purposes of gratification or degradation; and
19sexual assault.
20n. “Undue influence” means when a person uses or knowingly
21assists or causes another person to use that person’s role,
22relationship, or power to exploit the trust, dependency, or
23fear of an older individual, or uses or knowingly assists or
24causes another person to use that person’s role, relationship,
25or power to deceptively gain control over an older individual’s
26decision-making process.
272. It shall be unlawful for any person to abuse, emotionally
28abuse, neglect, isolate, or sexually exploit any older
29individual.
303. A charge of elder abuse may be initiated as a result of
31an investigation by a social services agency, or on the direct
32initiative of the attorney general, a county attorney, or a law
33enforcement agency.
344. A person who commits a first offense of elder abuse is
35guilty of the following, as applicable:
-8- 1a. A person who intentionally commits elder abuse is guilty
2of a class “C” felony if the intentional elder abuse results
3in serious injury.
4b. A person who recklessly commits elder abuse is guilty
5of a class “D” felony if the reckless elder abuse results in
6serious injury.
7c. A person who intentionally commits elder abuse is guilty
8of a class “D” felony if the intentional elder abuse results in
9physical injury or psychological harm.
10d. A person who recklessly commits elder abuse is guilty of
11an aggravated misdemeanor if the reckless elder abuse results
12in physical injury or psychological harm.
13e. A person who otherwise intentionally commits elder abuse
14is guilty of a serious misdemeanor.
155. On a second or subsequent offense of elder abuse under
16subsection 4, paragraph “a”, a person commits a class “B”
17felony.
186. On a second or subsequent offense of elder abuse under
19subsection 4, paragraph “b” or “c”, a person commits a class “C”
20felony.
217. On a second or subsequent offense of elder abuse under
22subsection 4, paragraph “d” or “e”, a person commits a class “D”
23felony.
248. It does not constitute a defense to a prosecution for any
25violation of this section that the alleged perpetrator did not
26know the age of the victim.
279. In a criminal action in which an older individual is
28a victim, the state may move the court to advance the trial
29on the docket. The presiding judge, after consideration of
30the age and health of the victim, may advance the trial on
31the docket. The motion may be filed and served with the
32information or charges at any time.
3310. a. A conviction or deferred judgment for or plea of
34guilty to a violation of this section which occurred more than
35twelve years prior to the date of the violation charged shall
-9-1not be considered in determining that the violation charged is
2a second or subsequent offense.
3b. For the purpose of determining if a violation charged
4is a second or subsequent offense, deferred judgments issued
5pursuant to section 907.3 for violations of this section, or
6judgments or deferred judgments issued pursuant to sections
7708.2D and 714.2A, and convictions or the equivalent of
8deferred judgments for violations in any other state under
9statutes substantially corresponding to this section shall be
10counted as previous offenses. The courts shall judicially
11notice the statutes of other states which define offenses
12substantially equivalent to the offenses defined in this
13section and can therefore be considered corresponding statutes.
14Each previous violation on which conviction or deferral of
15judgment was entered prior to the date of the offense charged
16shall be considered and counted as a separate previous offense.
17c. An offense shall be considered a prior offense regardless
18of whether it was committed upon the same victim.
1911. If a person is convicted or receives a deferred judgment
20for, or pleads guilty to a violation of this section, the
21court shall modify the no-contact order issued upon initial
22appearance in the manner provided in section 664A.5, regardless
23of whether the person is placed on probation.
2412. The clerk of the district court shall provide notice
25and copies of a judgment entered under this section to the
26applicable law enforcement agencies and the twenty-four-hour
27dispatcher for the law enforcement agencies, in the manner
28provided for protective orders under chapter 235F. The
29clerk shall provide notice and copies of modifications of the
30judgment in the same manner.
31 Sec. 5. NEW SECTION. 726.25 Financial exploitation of an
32older individual.
331. For the purposes of this section:
34a. “Caregiver” means an individual who has the
35responsibility for the care or custody of an older individual,
-10-1whether voluntarily, by contract, through employment, or as a
2result of the operation of law, and includes but is not limited
3to a family member or other individual who provides compensated
4or uncompensated care to an older individual.
5b. “Coercion” means communication or conduct which compels
6an older individual to act or refrain from acting against the
7older individual’s will.
8c. “Older individual” means an individual who is sixty years
9of age or older.
10d. “Stands in a position of trust or confidence” means the
11person has any of the following relationships relative to the
12older individual:
13(1) Is a parent, spouse, adult child, or other relative by
14consanguinity or affinity of the older individual.
15(2) Is a joint tenant or tenant in common with the older
16individual.
17(3) Has a legal or fiduciary relationship with the older
18individual. For the purposes of this paragraph, a legal or
19fiduciary relationship with the older individual does not
20include a legal or fiduciary relationship an older individual
21may have with a bank incorporated under the provisions of any
22state or federal law, any savings and loan association or
23savings bank incorporated under the provisions of any state or
24federal law, or any credit union organized under the provisions
25of any state or federal law.
26(4) Is a financial planning or investment professional
27providing or offering to provide financial planning or
28investment advice to the older individual.
29(5) Is a beneficiary of the older individual in a governing
30instrument.
31(6) Is a caregiver for the older individual.
32(7) Is a person who has otherwise formed a relationship
33of trust or reliance with the older individual such that the
34person should reasonably expect that the older individual would
35likely rely upon the person to act in good faith for the older
-11-1individual’s interest.
2e. “Undue influence” means excessive persuasion by a person
3that causes an older individual to act or refrain from acting
4by overcoming an older individual’s free will and results in
5inequity. In determining whether a result was produced by
6undue influence, all of the following shall be considered:
7(1) The vulnerability of the older individual. Evidence of
8vulnerability may include but is not limited to incapacity,
9illness, disability, injury, age, education, impaired cognitive
10function, emotional distress, isolation, or dependency, and
11whether the person knew or should have known of the alleged
12older individual’s vulnerability.
13(2) The person’s apparent authority. Evidence of
14apparent authority may include but is not limited to status
15as a fiduciary, family member, care provider, health care
16professional, legal professional, spiritual advisor, expert,
17or other qualifications.
18(3) The person’s actions or tactics. Evidence of actions
19or tactics used may include but is not limited to all of the
20following:
21(a) Controlling necessaries of life, medication, the older
22individual’s interactions with others, access to information,
23or sleep.
24(b) Use of affection, intimidation, or coercion.
25(c) Initiation of changes in personal or property rights,
26use of haste or secrecy in effecting those changes, effecting
27changes at inappropriate times and places, and claims of
28expertise in effecting changes.
29(4) The equity of the result. Evidence of the equity of
30the result may include but is not limited to the economic
31consequences to the older individual; any divergence from the
32older individual’s prior intent, course of conduct, or dealing;
33the relationship of the value conveyed to the value of any
34services or consideration received; or the appropriateness
35of the change in light of the length and nature of the
-12-1relationship. Evidence of an inequitable result, without more,
2is not sufficient to prove undue influence.
32. A person commits financial exploitation of an older
4individual when the person stands in a position of trust or
5confidence with the older individual and knowingly and by undue
6influence, deception, coercion, fraud, breach of fiduciary
7duty, or extortion, obtains control over or otherwise uses the
8benefits, property, resources, belongings, or assets of the
9older individual.
103. A person who commits a first offense of financial
11exploitation of an older individual is guilty of the following,
12as applicable:
13a. A serious misdemeanor if the value of the benefits,
14property, resources, belongings, or assets is one hundred
15dollars or less.
16b. An aggravated misdemeanor if the value of the benefits,
17property, resources, belongings, or assets exceeds one hundred
18dollars but does not exceed one thousand dollars.
19c. A class “D” felony if the value of the benefits,
20property, resources, belongings, or assets exceeds one thousand
21dollars but does not exceed ten thousand dollars.
22d. A class “C” felony if the value of the benefits,
23property, resources, belongings, or assets exceeds ten thousand
24dollars but does not exceed fifty thousand dollars.
25e. A class “B” felony if the value of the benefits,
26property, resources, belongings, or assets exceeds fifty
27thousand dollars, or if the older individual is seventy years
28of age to eighty years of age and the value of the benefits,
29property, resources, belongings, or assets is fifteen thousand
30dollars or more, or if the older individual is eighty years
31of age or older and the value of the benefits, property,
32resources, belongings, or assets is five thousand dollars or
33more.
344. On a second or subsequent offense of financial
35exploitation of an older individual, a person commits a class
-13-1“C” felony if the value of the benefits, property, resources,
2belongings, or assets does not exceed fifty thousand dollars
3unless subsection 3, paragraph “e”, applies.
45. Nothing in this section shall be construed to limit other
5remedies available to the older individual including those
6provided under chapters 235F and 236.
76. Nothing in this section shall be construed to impose
8criminal liability on a person who has made a good-faith effort
9to assist an older individual in the management of the older
10individual’s benefits, property, resources, belongings, or
11assets, but through no fault of the person, the person has been
12unable to provide such assistance.
137. Nothing in this section shall be construed to impose
14criminal liability on a person based solely on the sale of a
15product or service.
168. It shall not be a defense to financial exploitation of
17an older individual that the alleged perpetrator did not know
18the age of the older individual or reasonably believed that the
19alleged victim was not an older individual.
209. In a criminal action in which an older individual is a
21victim, the state may make a motion to the court to advance the
22trial on the docket. The presiding judge, after consideration
23of the age and health of the victim, may grant a motion to
24advance the trial on the docket. The motion may be filed and
25served with the information or charges at any time.
2610. a. A conviction or deferred judgment for or plea of
27guilty to a violation of this section which occurred more than
28twelve years prior to the date of the violation charged shall
29not be considered in determining whether the violation charged
30is a second or subsequent offense.
31b. For the purpose of determining if a violation charged
32is a second or subsequent offense, deferred judgments issued
33pursuant to section 907.3 for violations of this section or
34judgments or deferred judgments issued pursuant to sections
35708.2D and 714.2A, and convictions or the equivalent of
-14-1deferred judgments for violations in any other state under
2statutes substantially corresponding to this section shall be
3counted as previous offenses. The courts shall judicially
4notice the statutes of other states which define offenses
5substantially equivalent to the offenses defined in this
6section and can therefore be considered corresponding statutes.
7Each previous violation on which conviction or deferral of
8judgment was entered prior to the date of the offense charged
9shall be considered and counted as a separate previous offense.
10c. An offense shall be considered a prior offense regardless
11of whether it was committed upon the same victim.
1211. If a person is convicted of, receives a deferred
13judgment for, or pleads guilty to a violation of this section,
14the court shall modify the no-contact order issued upon initial
15appearance in the manner provided in section 664A.5, regardless
16of whether the person is placed on probation.
1712. The clerk of the district court shall provide notice
18and copies of a judgment entered under this section to the
19applicable law enforcement agencies and the twenty-four-hour
20dispatcher for the law enforcement agencies, in the manner
21provided for protective orders under chapter 235F. The
22clerk shall provide notice and copies of modifications of the
23judgment in the same manner.
24 Sec. 6. NEW SECTION. 726.26 Dependent adult abuse —
25initiation of charges — penalty.
261. For the purposes of this section, “caretaker”, “dependent
27adult”, and “dependent adult abuse” mean the same as defined in
28section 235B.2.
292. A charge of dependent adult abuse may be initiated
30upon the complaint of a private individual, as a result of an
31investigation by a social service agency, or on the direct
32initiative of the office of the attorney general, a county
33attorney, or a law enforcement agency.
343. A caretaker who intentionally commits dependent adult
35abuse is guilty of a class “C” felony if the intentional
-15-1dependent adult abuse results in serious injury.
24. A caretaker who recklessly commits dependent adult abuse
3is guilty of a class “D” felony if the reckless dependent adult
4abuse results in serious injury.
55. A caretaker who intentionally commits dependent adult
6abuse is guilty of a class “C” felony if the intentional
7dependent adult abuse results in physical injury.
86. A caretaker who commits dependent adult abuse by
9exploitation of a dependent adult is guilty of a class “D”
10felony if the value of the property, assets, or resources
11exceeds one hundred dollars.
127. A caretaker who recklessly commits dependent adult
13abuse is guilty of an aggravated misdemeanor if the reckless
14dependent adult abuse results in physical injury.
158. A caretaker who otherwise intentionally or knowingly
16commits dependent adult abuse is guilty of a serious
17misdemeanor.
189. A caretaker who commits dependent adult abuse by
19exploitation of a dependent adult is guilty of a simple
20misdemeanor if the value of the property, assets, or resources
21is one hundred dollars or less.
2210. A caretaker alleged to have committed dependent adult
23abuse shall be charged with the respective offense cited,
24unless a charge may be brought based upon a more serious
25offense, in which case the charge of the more serious offense
26shall supersede the less serious charge.
27 Sec. 7. REPEAL. Section 235B.20, Code 2021, is repealed.
28 Sec. 8. CODE EDITOR DIRECTIVES. The Code editor shall do
29all of the following:
301. Create a new subchapter in chapter 726, entitled
31“Resident, Dependent Adult, and Older Individual Protection
32Act” that includes sections 726.24, 726.25, and 726.26, as
33enacted in this Act.
342. a. Transfer sections 726.7 and 726.8, Code 2021, to
35the new subchapter and renumber the transferred sections as
-16-1follows:
2(1) Section 726.7 as section 726.27.
3(2) Section 726.8 as section 726.28.
4b. Correct internal references as necessary.
53. Amend the title of the chapter to read “Protections
6for the family, dependent persons, residents of health care
7facilities, and older individuals”.
8DIVISION II
9CONFORMING CHANGES
10 Sec. 9. Section 13.2, subsection 1, Code 2021, is amended by
11adding the following new paragraph:
12 NEW PARAGRAPH. p. Develop written procedures and policies
13to be followed by prosecuting attorneys in the prosecution
14of elder abuse, older individual assault, theft against an
15older individual, consumer frauds committed against an older
16individual, and financial exploitation of an older individual
17under sections 708.2D, 714.2A, 714.16A, 726.24, and 726.25.
18 Sec. 10. Section 235E.4, Code 2021, is amended to read as
19follows:
20235E.4 Chapter 235B and section 726.26 application.
21Sections 235B.4 through 235B.20 235B.19 and section 726.26,
22where not inconsistent with this chapter, shall apply to this
23chapter.
24 Sec. 11. Section 272C.15, subsection 4, paragraph b, Code
252021, is amended to read as follows:
26b. The amount of time that has passed since the commission
27of the crime. There is a rebuttable presumption that an
28applicant is rehabilitated and an appropriate candidate
29for licensure five years after the date of the applicant’s
30release from incarceration, provided that the applicant was
31not convicted of sexual abuse in violation of section 709.4,
32a sexually violent offense as defined in section 229A.2,
33dependent adult abuse in violation of section 235B.20 726.26,
34a forcible felony as defined in section 702.11, or domestic
35abuse assault in violation of section 708.2A, and the applicant
-17-1has not been convicted of another crime after release from
2incarceration.
3 Sec. 12. Section 664A.1, subsection 2, Code 2021, is amended
4to read as follows:
52. “Protective order” means a protective order issued
6pursuant to chapter 232, a court order or court-approved
7consent agreement entered pursuant to this chapter or chapter
8235F, a court order or court-approved consent agreement entered
9pursuant to chapter 236 or 236A, including a valid foreign
10protective order under section 236.19, subsection 3, or section
11236A.19, subsection 3, a temporary or permanent protective
12order or order to vacate the homestead under chapter 598, or an
13order that establishes conditions of release or is a protective
14order or sentencing order in a criminal prosecution arising
15from a domestic abuse assault under section 708.2A or older
16individual assault under section 708.2D, or a civil injunction
17issued pursuant to section 915.22.
18 Sec. 13. Section 664A.2, subsection 1, Code 2021, is amended
19to read as follows:
201. This chapter applies to no-contact orders issued for
21violations or alleged violations of sections 708.2A, 708.2D,
22 708.7, 708.11, 709.2, 709.3, and 709.4, and any other public
23offense for which there is a victim.
24 Sec. 14. Section 664A.7, subsection 5, Code 2021, is amended
25to read as follows:
265. Violation of a no-contact order entered for the offense
27or alleged offense of domestic abuse assault in violation
28of section 708.2A, the offense or alleged offense of older
29individual assault in violation of section 708.2D, or a
30violation of a protective order issued pursuant to chapter
31232, 235F,236, 236A, 598, or 915 constitutes a public offense
32and is punishable as a simple misdemeanor. Alternatively,
33the court may hold a person in contempt of court for such a
34violation, as provided in subsection 3.
35 Sec. 15. Section 671A.2, subsection 1, paragraph b, Code
-18-12021, is amended to read as follows:
2b. The employee, agent, or independent contractor was
3convicted of any of the following:
4(1) A public offense that was committed while performing
5duties substantially similar to those reasonably expected to
6be performed in the employment or under the relationship or
7contract, or under conditions substantially similar to those
8reasonably expected to be encountered in the employment or
9under the relationship or contract, taking into consideration
10all of the following factors:
11(a) The nature and seriousness of the public offense.
12(b) The extent and nature of the employee, agent, or
13independent contractor’s past criminal activity.
14(c) The age of the employee, agent, or independent
15contractor when the public offense was committed.
16(d) The amount of time that has elapsed since the employee,
17agent, or independent contractor’s last criminal activity.
18(2) A sexually violent offense as defined in section 229A.2.
19(3) The offense of dependent adult abuse as provided for
20under section 235B.20.
21(4) (3) The offense of murder in the first degree under
22section 707.2.
23(5) (4) The offense of murder in the second degree under
24section 707.3.
25(6) (5) The offense of assault as defined in section 708.1
26that is a felony under section 708.2.
27(7) (6) The offense of domestic abuse assault as defined
28in section 708.2A.
29(8) (7) The offense of kidnapping in the first degree under
30section 710.2.
31(9) (8) The offense of robbery in the first degree under
32section 711.2.
33(10) (9) An offense committed on certain real property for
34which an enhanced penalty was received under section 124.401A
35or 124.401B.
-19- 1(11) (10) A felony offense where the employee, agent, or
2independent contractor used or exhibited a dangerous weapon as
3defined in section 702.7 during the commission of or during
4immediate flight from the scene of the felony offense, or
5where the employee, agent, or independent contractor used or
6exhibited the dangerous weapon or was a party to the felony
7offense and knew that a dangerous weapon would be used or
8exhibited.
9(11) The offense of dependent adult abuse as provided for
10under section 726.26.
11 Sec. 16. Section 901C.3, subsection 2, paragraph c, Code
122021, is amended by striking the paragraph.
13 Sec. 17. Section 915.22, Code 2021, is amended by adding the
14following new subsection:
15 NEW SUBSECTION. 6. The clerk of the district court
16shall provide notice and copies of restraining orders issued
17pursuant to this section in a criminal case involving an
18alleged violation of section 708.2D to the applicable law
19enforcement agencies and the twenty-four-hour dispatch for the
20law enforcement agencies, in the manner provided for protective
21orders under section 235F.6. The clerk shall provide notice
22and copies of modifications or vacations of these orders in the
23same manner.
24EXPLANATION
25The inclusion of this explanation does not constitute agreement with
26the explanation’s substance by the members of the general assembly.
27This bill relates to older individuals and dependent adults
28and certain criminal offenses and civil actions, and provides
29penalties.
30DIVISION I — CRIMINAL AND CIVIL RELIEF FOR OLDER
31INDIVIDUALS. The bill establishes the crime of older
32individual assault which is the assault, as defined in Code
33section 708.1, of an older individual, defined in the bill as
34an individual 60 years of age or older. The bill provides
35criminal penalties for older individual assault ranging from
-20-1a simple misdemeanor to a class “D” felony depending on the
2circumstances of the assault. The bill also provides for the
3determination of whether a violation is a second or subsequent
4offense and provides for minimum sentencing for offenders.
5The bill establishes the crime of theft against an older
6individual which enhances the penalties for the existing crime
7of theft by one degree.
8The bill changes the existing additional civil penalty for
9consumer frauds committed against elders (those 60 years of age
10or older) to apply to older individuals consistent with other
11provisions relating to older individuals under the bill.
12The bill establishes criminal penalties for elder abuse
13ranging from a serious misdemeanor to a class “C” felony
14depending on the circumstances and resulting injuries of
15the abuse. Elder abuse is defined as the abuse, emotional
16abuse, neglect, isolation, or sexual exploitation of an older
17individual.
18The bill establishes the crime of financial exploitation of
19an older individual. A person commits financial exploitation
20of an older individual when the person stands in a position of
21trust or confidence with the older individual and knowingly
22and by undue influence, deception, coercion, fraud, breach of
23fiduciary duty, or extortion, obtains control over or otherwise
24uses the benefits, property, resources, belongings, or assets
25of the older individual. The criminal penalties range from a
26serious misdemeanor to a class “B” felony based on the amount
27of benefits, property, resources, belongings, or assets of the
28older individual involved.
29The bill relocates the criminal penalties for dependent
30adult abuse as they currently exist from Code chapter 235B
31(dependent adult abuse) to Code chapter 726 (relating to the
32protection of the family and dependent persons).
33DIVISION II — CONFORMING CHANGES. The bill makes
34conforming changes throughout the Code.
35Code section 13.2: The bill adds as a duty of the attorney
-21-1general to develop written procedures and policies to be
2followed by prosecuting attorneys in the prosecution of
3elder abuse, older individual assault, theft against an
4older individual, consumer frauds committed against an older
5individual, and financial exploitation of an older individual.
6Code section 234E.4: Due to the repeal of Code section
7235B.20 and the relocation of the criminal penalties for
8dependent adult abuse as they currently exist in that section
9to Code section 726.26, the bill provides that Code section
10726.26, where not inconsistent with Code chapter 235E
11(dependent adult abuse in facilities and programs), shall apply
12to Code chapter 235E.
13Code section 272C.15: Due to the repeal of Code section
14235B.20 and the relocation of the criminal penalties for
15dependent adult abuse as they currently exist in that section
16to Code section 726.26, the bill updates the reference to Code
17section 726.26 relative to the existing rebuttable presumption
18that an applicant for a professional or occupational license
19as defined in Code section 272C.1 is rehabilitated and an
20appropriate candidate for licensure five years after the date
21of the applicant’s release from incarceration, provided that
22the applicant was not convicted of certain crimes including
23dependent adult abuse in violation of Code section 726.26, and
24the applicant has not been convicted of another crime after
25release from incarceration.
26Code section 664A.1: The bill includes in the definition
27of “protective orders” under Code chapter 664A (relating to
28no-contact and enforcement of protective orders), a protective
29order or sentencing order in a criminal prosecution arising
30from older individual assault.
31Code section 664A.2: The bill provides that the Code chapter
32is applicable to no-contact orders issued for violations or
33alleged violations related to older individual assault.
34Code section 664A.7: The bill provides that violation of a
35no-contact order for the offense of older individual assault
-22-1constitutes a public offense and is punishable as a simple
2misdemeanor. Alternatively, the court may hold a person in
3contempt of court for such violation.
4Code section 671A.2: Due to the repeal of Code section
5235B.20 and the relocation of the criminal penalties for
6dependent adult abuse as they currently exist in that section
7to Code section 726.26, the bill updates the reference to Code
8section 726.26 relative to existing liability protections for
9negligent hiring to provide that Code chapter 671A (negligent
10hiring — limitations on liability) does not preclude a cause
11of action for negligent hiring based on evidence that the
12employee, agent, or independent contractor has been convicted
13of a public offense as defined in Code section 701.2, if
14certain criteria are met including that the employee, agent,
15or independent contractor was convicted of the offense of
16dependent adult abuse as provided for under Code section
17726.26.
18Code section 901C.3: Due to the repeal of Code section
19235B.20 and the relocation of the criminal penalties for
20dependent adult abuse as they currently exist in that section
21to Code section 726.26, the bill updates the existing reference
22under Code section 901C.3 (misdemeanor — expungement) that
23provides that a misdemeanor for a conviction of dependent adult
24abuse shall not be expunged, to include the prohibition against
25such expungement under the existing reference in Code section
26901C.3(2)(u) to a conviction under Code chapter 726 which
27includes the more specific new Code section 726.26.
28Code section 915.22: The bill provides that under Code
29chapter 915 (victim rights), the clerk of the district court
30shall provide notice and copies of restraining orders in a
31criminal case involving alleged older individual assault to the
32applicable law enforcement agencies and the 24-hour dispatcher
33for the law enforcement agencies, in the manner provided for
34protective orders under Code section 235F.6. The clerk shall
35provide notice and copies of modifications or vacations of
-23-1these orders in the same manner.
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