§ 13K — Assault and battery upon an elderly or disabled person; definitions; penalties

Section 13K. (a) For the purpose of this section the following words shall, unless the context requires otherwise, have the following meanings:—''Abuse'', physical contact which either harms or creates a substantial likelihood of harm.''Bodily injury'', substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin.''Caretaker'', a person with responsibility for the care of an elder or person with a disability, which responsibility may arise as the result of a family relationship, or by a fiduciary duty imposed by law, or by a voluntary or contractual duty undertaken on behalf of such elder or person with a disability. A person may be found to be a caretaker under this section only if a reasonable person would believe that such person's failure to fulfill such responsibility would adversely affect the physical health of such elder or person with a disability. Minor children and adults adjudicated incompetent by a court of law may not be deemed to be caretakers under this section.(i) ''Responsibility arising from a family relationship'', it may be inferred that a husband, wife, son, daughter, brother, sister, or other relative of an elder or person with a disability is a caretaker if the person has provided primary and substantial assistance for the care of the elder or person with a disability as would lead a reasonable person to believe that failure to provide such care would adversely affect the physical health of the elder or person with a disability.(ii) ''Responsibility arising from a fiduciary duty imposed by law'', it may be inferred that the following persons are caretakers of an elder or person with a disability to the extent that they are legally required to apply the assets of the estate of the elder or person with a disability to provide the necessities essential for the physical health of the elder or person with a disability: (i) a guardian of the person or assets of an elder or person with a disability; (ii) the conservator of an elder or person with a disability, appointed by the probate court pursuant to chapter two hundred and one; and (iii) an attorney-in-fact holding a power of attorney or durable power of attorney pursuant to chapter two hundred and one B.(iii) ''Responsibility arising from a contractual duty'', it may be inferred that a person who receives monetary or personal benefit or gain as a result of a bargained-for agreement to be responsible for providing primary and substantial assistance for the care of an elder or person with a disability is a caretaker.(iv) ''Responsibility arising out of the voluntary assumption of the duties of caretaker'', it may be inferred that a person who has voluntarily assumed responsibility for providing primary and substantial assistance for the care of an elder or person with a disability is a caretaker if the person's conduct would lead a reasonable person to believe that failure to provide such care would adversely affect the physical health of the elder or person with a disability, and at least one of the following criteria is met: (i) the person is living in the household of the elder or person with a disability, or present in the household on a regular basis; or (ii) the person would have reason to believe, as a result of the actions, statements or behavior of the elder or person with a disability, that he is being relied upon for providing primary and substantial assistance for physical care.''Elder'', a person sixty years of age or older.''Mistreatment'', the use of medications or treatments, isolation, or physical or chemical restraints which harms or creates a substantial likelihood of harm.''Neglect'', the failure to provide treatment or services necessary to maintain health and safety and which either harms or creates a substantial likelihood of harm.''Person with disability'', a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection.''Serious bodily injury'', bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.(a1/2) Whoever commits an assault and battery upon an elder or person with a disability shall be punished by imprisonment in the state prison for not more than 3 years or by imprisonment in a house of correction for not more than 21/2 years, or by a fine of not more than $1,000, or both such fine and imprisonment.(b) Whoever commits an assault and battery upon an elder or person with a disability and by such assault and battery causes bodily injury shall be punished by imprisonment in the state prison for not more than five years or in the house of correction for not more than two and one-half years or by a fine of not more than one thousand dollars or by both such fine and imprisonment.(c) Whoever commits an assault and battery upon an elder or person with a disability and by such assault and battery causes serious bodily injury shall be punished by imprisonment in the state prison for not more than ten years or in the house of correction for not more than two and one-half years or by a fine of not more than five thousand dollars or by both such fine and imprisonment.(d) Whoever, being a caretaker of an elder or person with a disability, wantonly or recklessly permits bodily injury to such elder or person with a disability, or wantonly or recklessly permits another to commit an assault and battery upon such elder or person with a disability which assault and battery causes bodily injury, shall be punished by imprisonment in the state prison for not more than five years or in the house of correction for not more than two and one-half years or by a fine of not more than five thousand dollars or by both such fine and imprisonment.(d1/2) Whoever, being a caretaker of an elder or person with a disability, wantonly or recklessly commits or permits another to commit abuse, neglect or mistreatment upon such elder or person with a disability, shall be punished by imprisonment in the state prison for not more than 3 years, or imprisonment in the house of correction for not more than 21/2 years, or by a fine of not more than $5,000, or by both such fine and imprisonment.(e) Whoever, being a caretaker of an elder or person with a disability, wantonly or recklessly permits serious bodily injury to such elder or person with a disability, or wantonly or recklessly permits another to commit an assault and battery upon such elder or person with a disability which assault and battery causes serious bodily injury, shall be punished by imprisonment in the state prison for not more than ten years or by imprisonment in the house of correction for not more than two and one-half years or by a fine of not more than ten thousand dollars or by both such fine and imprisonment.(f) Conduct shall not be construed to be wanton or reckless conduct under this section if directed by a competent elder or person with a disability, or for the sole reason that, in lieu of medical treatment, an elder or person with a disability is being furnished or relies upon treatment by spiritual means through prayer if such treatment is in accordance with the tenets and practices of the established religious tradition of such elder or person with a disability, and is provided at the direction of such elder or person with a disability, who shall be competent, or pursuant to the direction of a person who is properly designated a health care proxy under chapter two hundred and one D.