By: Gwyneth Smith, J.D. ’27 and Shrinithi Venkatesan, J.D. ’25
Our world is rapidly aging. As a result of the technological innovations and medical developments of the past decades, many of the threats which once kept mortality rates high are now absent or much decreased.[1] But just as we may reap the benefits of living longer, so must we consider the costs; as the number of elderly people in society rises, so too will the number of abuses that they face.[2] The challenges faced by the elderly population pertains to all people in society. While there has been growing global awareness towards the abuses faced by elders today, there are still challenges in facing elder abuse head-on, especially when it is considered a subset of domestic abuse or in some cases, not considered at all. Stronger legal frameworks are needed to address this issue, such as the UN Convention on the Rights of the Older Person, so that those caring for elderly loved ones can be better prepared for potential abuses, a prevalent issue that many elderly people have a high probability of facing in their lifetimes.[3]
According to the World Health Organization, “the global population of people aged 60 years and older will more than double, from 900 million in 2015 to about 2 billion in 2050.”[4] However, this rise in population is accompanied by sobering statistics concerning the treatment of elderly people. For example, in the United States, one in ten older adults face some form of elder abuse.[5] These types of abuse can take many different forms, including physical and psychological aggression, economic abuse, and neglect.[6] As the elderly population continues to rise, so too will their experience of abuse, unless there is a serious shift in the legal structures surrounding them.
Unfortunately, the framework currently surrounding the status of elderly people is not comprehensive. That is not to say that it has not been addressed; in fact, the United Nations enacted several resolutions with the aim of protecting elderly people.[7] For example in 1982, the United Nations endorsed the International Plan of Action on Aging adopted by the World Assembly on Aging.[8] The United Nations Principles for Older Persons further laid out additional support, which acknowledged the rapid aging of our world and the need for governments to incorporate principles around aging into their national programs.[9] These principles included independence, participation (in society and in their own movements, if they choose), care, self-fulfillment, and dignity.[10] However, this resolution was not legally binding and largely declarative.[11] In general, “issues concerning and affecting older people have become invisible and are not addressed through binding international human rights instruments.”[12]
There was some hope regarding elder rights with the establishment of the Madrid Plan, which emerged from the Second World Assembly on Aging in 2002 and received the support of all 159 UN member states.[13] The plan had three priorities: ensuring economic and social protections for elderly people, improving their access to healthcare, and providing suitable housing.[14] However, while the Madrid Plan set forth UN goals for the member countries’ responsibilities and proposals were put in place for its implementation, it was not legally binding nor did it “contain a call for creating a binding universal declaration on the rights of older persons.”[15] In the wake of the Madrid Plan, further attention was drawn to the need for elder rights with the establishment of the “Open‐ended Working Group on Ageing for the purpose of strengthening the human rights of older persons” (OEWGA) in 2010.[16] However, the OEWGA’s mandate was terminated at the conclusion of its fourteenth session in 2024,[17] leaving the possibility of the proposed Convention on the Rights of the Older Person in limbo. However, that does not change the need for such a convention, which would have the benefit of reducing the invisibility of the elderly on the international stage. As it stands currently, research related to elder rights is fragmented and elderly people are often missing from data.[18] The lack of data is so prevalent in part because many elderly people are cared for in familial settings, and so abuses that takes place behind closed doors are never reported.[19] Furthermore, beyond the issue of elder abuse, elders face specific issues that are not fully covered by existing human rights frameworks, such as social isolation, financial abuse, and exploitation.[20] A binding multilateral treaty which recognizes elders as a distinct class will allow for specific protections to be put in place for them.
The success of such a framework can be seen in the implementation of the UN Convention on the Rights of the Child. Since its implementation, there has been a growing acknowledgement that just as the rights of young people must be protected, the same must be said for their older counterparts.[21] However, the funding disparity between the young and the elder makes implementation of such a plan difficult to implement.[22] For example, far more funding goes towards researching child abuse (as well domestic violence in general) than elder abuse.[23] In fact, in some countries, such as Argentina, there is no difference between elder and domestic violence at all, where laws have been enacted to address violence against women and children, but “scarcely refer to violence suffered by an old man or woman by the mere fact of being old.”[24] Elders are just as vulnerable to family violence as other groups, such as women, children, and those with disabilities, but rarely is elder abuse recognized as separate from other forms of domestic violence, with one author noting that there is “no legal definition of elder abuse in Germany.”[25] Societally, abuses of elders have been considered “private” matters meant for the family to tackle, without state intervention. However, with the number of elders only increasing in the coming decades, their protections cannot be limited to the private sphere, and they must be recognized as a distinct, protected class.
Therefore, it is in our self-interest, both individually and as a whole, to protect the elderly, not just as a subset of domestic abuse cases, but as a class in and of themselves. As they are particularly vulnerable to abuses based on age, they need equivalent protections, whether in the form of the UN Convention on the Rights of the Older Person, or in corresponding state-level laws. Ideally, there would be both, and a comprehensive international framework would be established to protect the elderly, as well as laws within their own countries. A universal declaration is necessary in order to confront the global reality that much of the population will be elderly in the future, and subject to the abuses experienced by the elderly of today. By implementing these changes, the world will be set on a more positive trajectory as it enters a new stage of demographic transition.
About the Authors
Gwyneth Smith is a 2L at William & Mary Law School from Atlanta, Georgia. She also attended Wiliam & Mary as an undergraduate where she majored in International Relations with a minor in History. She worked as a research assistant at William & Mary’s Global Research Institute for three years, where she studied Chinese development aid and finance as part of the AidData research lab. Gwyneth has studied Chinese, Japanese, and French and spent a winter studying abroad in Kyoto, Japan. She is interested in studying international law, particularly international humanitarian law. Outside of school, she enjoys fencing. For her 1L summer, Gwyneth interned with Machik, a non-profit in Washington, D.C., dedicated to charting new pathways for the global Tibetan community.
Shrinithi Venkatesan is a 3L at William & Mary Law School from Chicago, Illinois. Shri graduated from Indiana University with majors in Finance, Law Ethics and Decision Making, and a minor in Criminal Justice. In addition to being the editor-in-chief of The Comparative Jurist, she is also treasurer of the Human Security Law Center. Shri is interested in pursuing a career in international, political, or governmental law.
[1] María Isolina Dabove, Elder Law: A Need That Emerges in the Course of Life, 40 Ageing Int’l 145 (2013).
[2] Abuse of Older People, World Health Organization (June 15, 2024), https://www.who.int/news-room/fact-sheets/detail/abuse-of-older-people.
[3] Wendy Lacey, Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia, 36 Sydney L. Rev. 99 (2014).
[4] Marcus Patterson & Kathleen Malley-Morrison, A Cognitive-Ecological Approach to Elder Abuse in Five Cultures: Human Rights & Education, 32 Educ. Gerontology 73 (2006).
[5] Xinqi Dong, Advancing the Field of Elder Abuse: Future Directions and Policy Implications, J. Am. Geriatrics Soc’y 2151 (2012).
[6] Patterson, supra note 4, at 76.
[7] Benny Spanier et al., In Course of Change: Soft Law, Elder Rights, and the European Court of Human Rights, 34 Law & Ineq. 55, 63 (2016).
[8] G.A. Res. 37/51 (Dec. 3, 1982).
[9] G.A. Res. 46/91 (Dec. 16, 1991).
[10] Id.
[11] Spanier, supra note 7,at 63.
[12] M.C. Hokenstad & Amy Restorick Roberts, The United Nations Plans for a Future Free of Ageism and Elder Invisibility, 37 Generations (S.F., CALIF.) 76 (2013).
[13] Spanier, supra note 7, at 65.
[14] Id.at 66.
[15] Id.
[16] G.A. Res. 65/182 (Dec. 21., 2010).
[17] G.A. Res. 78/324 (Aug. 13., 2024).
[18] Lacey, supra note 3,at 110.
[19] Id. at 113.
[20] Id.
[21] Lacey, supra note 3, at 107.
[22] Dong, supra note 5, at 2155.
[23] Id.
[24] Dabove, supra note 5, at 142.
[25] Patterson, supra note 6,at 76.
