Embedded Files
Lawful but Awful
The full essay is available here as a PDF.
We need, in short, to justify justice on ontological grounds in order to secure the meta-ethic theoretically and politically.
— Brendan Gleeson, “Justifying Justice,” Area, 28(2), 1996, p. 233
I. Justice Requires a Ground
Gleeson is making a compressed but foundational argument. Justice cannot justify itself. It is not enough to say that something is unjust and expect that observation to generate a political or theoretical response. The claim for justice requires a foundation deeper than the assertion that injustice is bad — it requires an account, at the philosophical level, of why justice matters, what kind of thing it is, and why its demands are binding rather than merely preferable.
The ontological move Gleeson calls for says: justice is not a social preference or a political arrangement. It is a requirement that follows from what human beings fundamentally are — beings with dignity, agency, the capacity for self-determination, and the relational need for recognition by others. If that is what a person is, then certain treatments are not merely unfortunate or inefficient. They are violations of what the person is. They are ontologically wrong. Rights are how a society names that wrongness — and commits to remedy it.
Applied to elder justice, the argument is precise. It is not enough to say that elder abuse is harmful, costly, underreported, or traumatic. The ontological claim is that older adults are persons — fully, unconditionally, without qualification by age or cognitive capacity — and that any legal or institutional arrangement that treats them as otherwise is not merely bad policy. It is a violation of something more fundamental than policy can reach.
This is the grounding Gleeson says must be secured not just theoretically but politically. Without it, the claim that something is unjust is merely an expression of preference — one value among others, subject to negotiation, compromise, and trade-off against efficiency or administrative convenience. With it, the claim that something is unjust carries normative weight that cannot simply be bargained away. It is the difference between saying we prefer that older adults be treated with dignity and saying they must be treated with dignity because of who they are.
The Justifying Justice series is an extended response to Gleeson’s challenge. This essay names the harm the law does not see. The companion essays name what protection actually requires, who counts in the eyes of the law, and what it would take to build a system that honors the ontological claim rather than systematically violating it. The thread running through all of them is the same: that older adults are persons, that the Concerned Person is a person, that their exclusion from the systems meant to protect them is not merely inefficient but wrong in a sense that precedes and exceeds what the law currently recognizes.
Gleeson called for justifying justice on ontological grounds. This series is the attempt.
II. The Harm the Law Does Not Name
There is a category of harm that sits outside the law’s field of vision — not because it is minor, not because it is rare, not because it is ambiguous, but because the law was not built to see it. The people producing it are often acting within their legal authority. The institutions enabling it are often following their own rules correctly. The harm is real, serious, and sometimes total. And the law, looking on, finds nothing wrong.
The companion essay Circles of Support mapped the relational infrastructure that prevents elder abuse before it begins: the family members, friends, and neighbors who occupy the innermost ring of the older adult’s ecology, who witness the baseline, who disrupt harm through their ordinary presence. That essay made the positive case — the geometry of protection, the architecture of what works. This essay turns to the reckoning: what happens when the law not only fails to protect that relational infrastructure but actively dismantles it. What happens when the system that calls itself protective becomes the instrument through which the circles collapse.
Criminologist Nikos Passas gave the central problem a name: lawful but awful. The phrase is deliberately plain. It does not reach for theoretical sophistication. It simply names what is visible to anyone willing to look: that legality and morality are not the same thing, that the boundary of criminal law is not the boundary of harm, and that some of the most consequential suffering produced in a society is produced by conduct that the law not only fails to prohibit but actively authorizes.
Elder abuse, properly understood, is saturated with lawful but awful. It is present in the individual case — the exploitation that goes unprosecuted, the financial manipulation that falls below the evidentiary threshold, the emotional abuse that leaves no physical trace. But it is most consequentially present at the structural level: in the legal arrangements that concentrate power without accountability, in the proceedings that remove rights with procedural correctness and substantive injustice, in the systems that call themselves protective while functioning as instruments of control. These are not aberrations. They are the field’s unfinished reckoning.
This essay develops the theoretical framework for naming that harm. It draws on three bodies of thought — zemiology, structural violence, and the sociology of organizational deviance — to build the argument that elder abuse is a social harm, that society is a victim of it, and that the field’s commitment to justice requires extending its analysis beyond what the law can currently see.
Figure 1. Three levels of lawful but awful: where the field looks, and where it must look further. The three horizontal bands introduce the framework this essay develops across its sections. Level 1 — individual conduct — is where criminal law operates and where the field’s enforcement attention is concentrated. Level 2 — institutional arrangements — is where lawful but awful operates most consequentially: fee depletion authorized by court order, visitor access restricted by policy, guardianship proceedings that remove rights with procedural correctness. Level 3 — structural conditions — is where the field has barely begun to look: ageism, isolation, the legal exclusion of concerned persons, and the normalization of harm through repetition. The right margin arrow marks where enforcement attention is concentrated. The left margin arrow marks where the larger harm lives — pointing in the opposite direction. Lisa Nerenberg’s prevention hierarchy maps directly onto this structure: tertiary intervention at the top, secondary in the middle, primary — the least developed and most underfunded — at the bottom. The gap between the two arrows is not a measurement problem. It is a justice problem. Sources: Nerenberg, Lisa. Elder Justice, Ageism, and Elder Abuse. Springer Publishing, 2019. Canning and Tombs. From Social Harm to Zemiology. Routledge, 2021. Passas, N. Crime, Law and Social Change45 (2005): 315–336.
III. Passas and the Lawful but Awful
Nikos Passas developed the “lawful but awful” formulation in the context of corporate and regulatory crime — the vast domain of harmful conduct by powerful actors that operates just below, or just within, the line of legal prohibition. His concern was with what he called crimes of the powerful: not the street crime that fills prisons and dominates public discourse, but the financial fraud, regulatory evasion, environmental contamination, and institutional misconduct that produces more aggregate harm, affects more people, and receives a fraction of the enforcement resources and social attention.
The lawful but awful framework rests on a simple but profound observation: the law is a human construction, shaped by power. Those with the greatest capacity to produce harm are also those with the greatest capacity to shape the legal environment in which their conduct is evaluated. The result, across many domains, is a legal system that criminalizes the harmful conduct of the powerless while systematically failing to reach the harmful conduct of the powerful. The line between lawful and unlawful is drawn, again and again, just above the most consequential harms.
Applied to elder justice, the observation is precise. The financial exploitation of older adults by strangers — by scammers, by predatory contractors, by digital fraudsters — is clearly unlawful. The financial exploitation of older adults by those closest to them — by family members operating under powers of attorney, by professional guardians managing dozens of wards without meaningful oversight, by caregivers with access to accounts and the trust that comes from daily presence — is often not. The power of attorney is among the clearest illustrations of the “lawful but awful” problem: a legal instrument designed to protect, granting broad authority with minimal oversight, whose legitimacy depends entirely on the trustworthiness of the person holding it. Setterlund and colleagues’ empirical study of family asset management found that the standard tools of legitimate care — powers of attorney, joint accounts, shared PINs, internet banking access — enabled and permitted both benign and abusive practices with equal facility. The variable was not capability. It was accountability.
The lawful but awful framework does not call for the criminalization of all harmful conduct. It calls for the honest acknowledgment that the law’s silence is not the same as the absence of harm — and that a field committed to justice cannot limit its analysis to what the criminal law can currently see.
Figure 2. The lawful but awful spectrum: where the law looks, and where it does not. Three zones. The left cell — clearly unlawful — is where criminal law operates. The right cell — clearly lawful — is the domain of faithful protective instruments and the standard the field must hold and expand. The center cell — lawful but awful — is the essay’s primary subject: authorized, normalized, and consequential conduct that the law finds nothing wrong with. The sub-cells carry the field’s current relationship to each zone. The bottom bar states the foundational claim: the law’s silence is not the same as the absence of harm. Sources: Passas, N. “Fighting Terror with Error.” Crime, Law and Social Change 45 (2005): 315–336. Canning and Tombs. From Social Harm to Zemiology. Routledge, 2021.
IV. Galtung and Structural Violence
Johan Galtung introduced the concept of structural violence in a 1969 paper in the Journal of Peace Research. He was trying to explain a category of harm that conventional violence research could not account for: the harm produced not by any identifiable actor with violent intent, but by social arrangements, structures, and institutions that prevented people from realizing their full potential.
Violence is present when human beings are being influenced so that their actual somatic and mental realizations are below their potential realizations.
— Johan Galtung, “Violence, Peace, and Peace Research,” Journal of Peace Research, 6(3), 1969, p. 168
Structural violence is, by Galtung’s definition, silent and static. It does not announce itself. There is no event, no moment of impact, no identifiable perpetrator raising a weapon. It operates through the normal functioning of social institutions. Its victims may not experience it as violence. They may experience it as simply how things are.
The application to elder abuse is not metaphorical. Consider what structural violence looks like in practice when an older adult is subject to a guardianship proceeding. A plenary guardian is appointed after a brief and contested capacity assessment. The older adult loses the right to manage their finances, choose where they live, make their own medical decisions, and determine who may visit them. The family members who have been their primary support for decades — the people Circles of Support identifies as the capable guardians at the innermost ring of the protective ecology — are frequently excluded from proceedings, restricted from contact, and denied access to information about the person they love. Where a family member is appointed guardian, the appointment may restore one relationship while foreclosing others — and plenary authority, whether held by a stranger or a family member, remains a structural arrangement that concentrates power in a single relationship and removes the triadic checks that make protection possible.
All of this is accomplished through the normal operation of a legal system that is, procedurally, functioning correctly. No crime has been committed. The law finds nothing wrong.
But the harm is real, and it is double. The older adult has lost, in many cases, everything that constitutes autonomy: the right to make decisions, the right to maintain relationships, the right to remain in a place that is home. The Concerned Person has lost their role, their access, and in many cases their legal standing to challenge any of it. The structural arrangement — the law of guardianship as it currently operates — has produced both losses simultaneously, through a single proceeding, with procedural correctness. That is structural violence. It is lawful. And it is awful.
Routine Activity Theory names the mechanism from a different angle. Marcus Felson’s responsibility hierarchy places personal guardians — family and friends — at the apex of the protective structure, precisely because relational knowledge and daily proximity are what deter harm before it occurs. The legal system does the opposite: it removes those guardians, installs strangers whose authority is juridical rather than relational, and collapses the triadic structure that protects into the dyadic structure that exposes. The result is what this series calls The Inversion — and it is not a procedural anomaly. It is the predictable structural consequence of a legal system that grants authority on the basis of appointment rather than relationship.
Figure 3. The Inversion: Felson’s responsibility hierarchy against current legal practice. The left column maps what Routine Activity Theory prescribes — personal guardians at the apex, triadic structure, prevention before harm. The right column maps what legal proceedings deliver — Concerned Persons excluded, strangers installed, the triad collapsed to what the From Dyad to Triad essay identifies as the most fragile form. The Inversion is not a procedural technicality. It is a structural guarantee of worse outcomes. Sources: Felson, Marcus. “Those Who Discourage Crime.” In Crime and Place: Crime Prevention Studies, Vol. 4. Criminal Justice Press, 1995. Cohen and Felson. “Social Change and Crime Rate Trends.” American Sociological Review 44 (1979): 588–608. Marshall, Philip C. The Inversion.BeyondGuardianship.org, 2026.
Joan Cocks, writing in a 2012 symposium on Galtung’s work, offers a formulation that names the guardianship proceeding with particular precision: contracts, deliberation, and promises of friendship and harmony are sometimes not the counter to violence but the form that violence takes. The guardianship proceeding is a legal contract, a deliberative process, a formal promise of protection. It is, in many cases, exactly what it claims to be. And it is, in others, the form that violence takes — the costume of protection worn as the instrument of harm.
Galtung’s framework also names the mechanism by which structural violence persists: it is normalized. Because it operates through the routine functioning of institutions, it does not trigger the moral alarm that a visible act of violence would trigger. The judge who signs a guardianship order without meaningful inquiry is not, in most cases, aware of doing harm. The professional guardian who manages dozens of wards simultaneously is, in most cases, operating within the parameters the system has set. The law that excludes family members from proceedings did not intend to harm them. Intent is beside the point. Structural violence does not require it.
The professional guardian whose fees are set by court order, charged against the estate at hourly rates for every phone call and every document review, does not intend to deplete the estate. The depletion is a mathematical outcome of an authorized arrangement applied over time. The older adult who entered the guardianship system with assets sufficient to support a decade of care and exits it — or dies — with nothing, did not lose their assets to theft. They lost them to a lawful fee structure operating as designed.
The residential facility that restricts visitor access — ostensibly for the resident’s protection, ostensibly to reduce confusion and agitation — does not intend to produce isolation. The policy was written by administrators who believed it served the residents’ wellbeing. The staff who enforce it are following the rules they were given. The family member who is turned away at the door, the older adult who stops receiving visitors and gradually loses the thread of the relationships that constituted their world — neither of them appears in the institutional record as a harm event. The policy produced an outcome.
None of these actors needs malicious intent for the structural violence to operate. That is precisely what makes it structural.
Yves Winter, in the same 2012 symposium, sharpens this point in a way that directly informs the elder justice field’s approach to advocacy. Galtung assumed that structural violence persists because it is invisible — that if only we could see it, we could stop it. Winter reverses this: structural violence becomes invisible through repetition. It is the normalcy of everyday violence, repeated in the open rather than hidden away, that renders it invisible and enables it to be inherited across generations. The implication is significant: merely making the violence visible does not necessarily generate resistance. The harm is already happening in plain sight. What generates resistance is structural change. This is the Lewin argument from a different angle, and it is the argument for why prevention requires rights, not just awareness.
V. Zemiology: Five Questions Criminal Law Does Not Ask
Zemiology — from the Greek zemia, meaning harm or loss — is the study of social harm as a discipline distinct from but complementary to criminology. Victoria Canning and Steve Tombs, in their 2021 introduction to the field, define harm as occurring “when people are prevented, by social structures or individual actions, from meeting their needs.” The definition is deliberately broader than criminal law’s. It does not require a prohibited act, a convicted perpetrator, or a recognized victim status. It requires only the identification of need and the structural conditions that prevent its fulfillment.
Zemiology asks five questions that criminal law does not, or cannot, ask. Together, they constitute a different way of seeing elder abuse — one that the field needs alongside, not instead of, its legal framework.
Figure 4. Five questions zemiology asks — applied to elder abuse. The five rows map the zemiological framework of Canning and Tombs (2021) onto the elder justice context, graduating from the question criminal law can answer (Q1) through the questions it rarely asks (Q2, Q3) and almost never reaches (Q4, Q5). The graduating color reflects the field’s current attention: lightest at the top, where enforcement concentrates; darkest at the bottom, where the larger harm lives. Q4’s descriptor draws on Yves Winter’s reversal of Galtung: structural violence persists not by concealment but through the normalization of repetition. Sources: Canning and Tombs. From Social Harm to Zemiology. Routledge, 2021. Galtung, J. Journal of Peace Research 6 (1969): 167–191. Dilts, Winter, et al. New Political Science 34 (2012): 191–228.
The first question is: who is harmed? Criminal law is designed to identify a victim — the person against whom the crime was committed. Zemiology asks the question more expansively: who bears the costs of this harm, directly and indirectly? The older adult subject to exploitation is the primary victim. But the Concerned Person who tried to intervene and was excluded bears harm. The community that loses a member to isolation and institutional control bears harm. Society, which has organized a system that produces these outcomes, bears harm. A zemiological analysis of elder abuse produces a much wider circle of affected parties than criminal law recognizes — and a much stronger argument for standing.
The second question is: how are they harmed? Criminal law focuses on the specific act. Zemiology asks about the full range of harm produced, including harms that do not map onto specific acts. The harm of isolation is not a crime, but it is real and it compounds every other harm. The harm of losing autonomy is not a crime, but its effects on health, cognition, and wellbeing are documented. The harm to a family member who watches their loved one disappear into a system from which they are excluded is not a crime, but it is a social harm that deserves recognition and response.
The third question is: what structural conditions enabled the harm? Criminal law asks what the perpetrator did. Zemiology asks what made it possible. The structural conditions that enable elder financial exploitation include: the ageism that makes older adults seem like diminished versions of full persons; the isolation that removes natural capable guardians; the legal arrangements that concentrate power without accountability; the evidentiary requirements that make prosecution difficult; and the cultural normalization of age-based stereotyping that makes the harm seem, to those who produce it, reasonable or even kind.
The fourth question is: who benefits from the harm remaining unnamed? This is the question that makes zemiology politically uncomfortable — and the one that the elder justice field has been slowest to ask with full honesty.
The answer is not a single actor. It is a structure of interlocking interests, each of which has organized around the concealment of harm it did not necessarily intend to produce but has come to depend on remaining invisible.
The power of attorney is the clearest starting point. The agent operating under a durable power of attorney has broad legal authority, minimal oversight, and, in the absence of a monitoring mechanism, no one to answer to but themselves. They did not create this arrangement. The law did. And the law, having created it, benefits from not examining too closely what it makes possible.
The professional guardian extends this logic institutionally. Fees set by court order, charged against the estate at hourly rates authorized by the appointing judge, accumulated over months and years of proceedings that the guardian has a structural interest in prolonging — this is not fraud. It is authorized. The court that set the fee structure benefits from treating it as administrative rather than substantive. None of these actors needs to conspire. The structure does the work. And differential association — Sutherland’s account of how criminal and deviant behavior is learned through intimate contact with those for whom it is normalized — explains how the structure reproduces itself across generations of practitioners. No conspiracy is required. What is required is a professional formation in which the billing practices, the procedural rhythms, and the structural incentives are transmitted as standard practice from supervising guardian to supervised, from established firm to new practitioner, from court culture to court appointee. The behavior is learned. The learning is the transmission. The transmission is the pipeline.
The force field that sustains lawful but awful arrangements is not maintained by individual malice. It is maintained by structural equilibrium — what Lewin identified as the balance of driving and restraining forces that keeps a system in place until the restraining forces are deliberately removed. That argument is developed in full in the companion essay on UpstandershipSM. That equilibrium has beneficiaries — and Simmel named them.
Georg Simmel named the dynamic in 1908. The tertius gaudens — the third who benefits — is the actor who has inserted themselves into a relationship of care, positioned themselves as the authorized intermediary, and gains from the harm remaining unnamed because naming it would require examining the authority on which their position depends. The power of attorney agent, the professional guardian, the residential facility administrator — each occupies, in their respective context, the tertius gaudens role. They entered as apparent helpers. They benefit, structurally if not consciously, from the continued absence of the accountability mechanisms that would make the harm visible and consequential.
The fifth question is: what would prevention require? Zemiology’s answer is structural: change the conditions that make the harm possible. Meaningful oversight of guardians. Legal standing for Concerned Persons in protective proceedings. Institutional pathways for professionals who observe exploitation to report it effectively. Services for the Concerned Persons who bear harm alongside the primary victim. The removal, in Kurt Lewin’s terms, of the restraining forces that prevent people already motivated to protect from doing so effectively. Prevention requires rights. Not just awareness.
Figure 5. Structural conditions: the architecture of harm. The left column names four structural conditions that enable elder abuse at scale. The right column maps each to its elder justice consequence. Ageism operates as the cultural predicate. Isolation operates as the relational mechanism: the divide et impera sequence documented in Circles of Support severs the microsystem before the formal system arrives. Legal exclusion operationalizes The Inversion. Normalization completes the architecture: Winter’s reversal of Galtung establishes that structural violence persists because repetition renders the visible invisible. Sources: Canning and Tombs. From Social Harm to Zemiology.Routledge, 2021. Dilts, Winter, et al. New Political Science 34 (2012): 191–228.
Figure 6. Three levels of lawful but awful: individual conduct, institutional arrangements, and structural conditions.The three nested bands map the zemiological argument onto a prevention hierarchy adapted from Nerenberg (2019). Level 1 (outermost) — individual conduct — is the domain where criminal law operates. Level 2 — institutional arrangements — is where lawful but awful operates most consequentially. Level 3 (innermost) — structural conditions — is the domain zemiology insists must be named. Sources: Nerenberg, Lisa. Elder Justice, Ageism, and Elder Abuse.Springer Publishing, 2019. Canning and Tombs. From Social Harm to Zemiology. Routledge, 2021.
Figure 7. Three levels of lawful but awful: visibility and enforcement attention. The graduating color — lightest at the top, darkest at the bottom — renders the inverse relationship between visibility and scale of harm. Level 1 (most visible): individual conduct is detectable, traceable, and occasionally prosecutable because it produces a record. Level 2 (rarely examined): institutional arrangements are visible in principle but normalized in practice. Level 3 (least visible): structural conditions are visible to anyone willing to look, yet almost never named as the source of the harm they produce. Yves Winter’s reversal of Galtung is precise here: structural violence does not persist because it is hidden. It persists because repetition renders the visible invisible. Sources: Canning and Tombs. From Social Harm to Zemiology.Routledge, 2021. Dilts, Winter, et al. New Political Science 34 (2012): 191–228.
VI. The Organizational Dimension: When Institutions Produce Harm
There is a third body of thought, adjacent to zemiology and structural violence, that the elder justice field has not yet fully engaged: the sociology of organizational deviance. Edwin Sutherland’s theory of differential association carries a more unsettling implication when applied to institutions rather than individuals: harmful practices are not only committed by bad actors who have learned them from other bad actors. They are committed by ordinary actors who have learned, through the normal operation of institutional life, what is permissible, what is normalized, and what goes unsanctioned.
The institutional environment teaches. When an organization’s culture treats a harmful practice as routine, when its accountability mechanisms are weak or absent, and when the people within it observe that harmful conduct produces no consequence — professional, legal, or reputational — the next generation of actors within that institution learns what is possible. Not through explicit instruction. Through observation of what happens and what does not.
This is the mechanism by which guardianship abuse persists and propagates. It is not primarily a story of individual bad actors, though individual bad actors exist and matter. It is a story of institutional environments that have failed to build the accountability mechanisms that would make harmful conduct visible and consequential. The court that does not audit guardian accounts teaches that accounts need not be audited. The professional association that does not discipline members whose conduct falls below the standard teaches that the standard is aspirational.
The same institutional learning operates across the full range of elder justice contexts. The financial institution that processes transactions authorized by a power of attorney without inquiry teaches that authorization is sufficient. The residential facility whose visitor restriction policy has never been challenged teaches that isolation is a permissible outcome of protection policy. The APS system that receives a mandatory report and closes the case without meaningful response teaches that the report is the response.
Joan Cocks observed that the form violence takes is sometimes the deliberative process itself — the contract, the promise, the authorized arrangement. The UpstandershipSM framework applied at the institutional level asks: where are the restraining forces that allow this to continue? The Sutherland answer is: in the institutional cultures that have normalized the harm. The Lewin answer is: remove the restraining forces before adding driving ones. The combination of these two insights produces a single reform imperative — build the accountability infrastructure that makes institutional normalization of harm impossible to sustain — and that imperative is the concrete expression of what lawful but awful demands.
VII. The Social Harm of Ageism: The Predicate, Again
Zemiology’s fourth question — who benefits from the harm remaining unnamed? — has one answer that runs beneath all the others: ageism benefits. Not any individual or institution in particular, but the entire cultural apparatus that treats older adults as diminished, as burdens, as people whose autonomy is a problem to be managed rather than a right to be protected.
Robert Butler coined the term in 1969. The World Health Organization identifies ageism as the most socially normalized of all prejudices. And yet its operation in the legal system — in the standards for capacity assessment, in the procedural informality of guardianship proceedings, in the cultural assumptions that make a brief clinical evaluation in a hospital room seem like an adequate basis for removing all of a person’s rights — remains largely unexamined.
Ageism is the structural condition that makes lawful but awful possible in elder justice. It is the predicate: the cultural permission slip that allows harm to be produced, normalized, and sustained without triggering the moral alarm it would trigger if applied to a younger person. A thirty-year-old subjected to a guardianship proceeding on the basis of a urinary tract infection would produce outrage. An eighty-year-old subjected to the same proceeding produces paperwork.
VIII. Naming as an Act of Justice
Gleeson’s call to justify justice on ontological grounds means, among other things, insisting on the reality of harms that powerful actors and institutional interests prefer to leave unnamed. The zemiological project is, in this sense, itself an act of justice: not the application of an existing legal remedy, but the construction of the moral vocabulary that makes new remedies thinkable.
Elder abuse is lawful but awful at every level of the system’s operation. The individual exploitation that goes unprosecuted because the law cannot reach it. The institutional arrangement that produces harm through the routine exercise of legal authority. The cultural normalization that makes the harm invisible to those who produce it. The legal exclusion of the people most capable of preventing it. And the ageism that runs beneath all of these, making them seem reasonable, even inevitable.
Naming all of this is the first step. The second is building the infrastructure that responds to what has been named: the standing, the services, the accountability mechanisms, the cultural shift. That is the work of UpstandershipSM. And it begins with the honest acknowledgment that the harm the law does not name is still harm — and that a field committed to justice has no legitimate reason to look away.
IX. What Lawful but Awful Demands
The zemiological framework produces four concrete demands for the elder justice field.
The first is epistemic: expand the field’s analysis beyond what criminal law can currently see. The 44-to-1 underreporting ratio for elder financial exploitation documented in the New York State prevalence study is not only a criminal justice failure. It is a social harm measurement: for every documented case, 44 occurred that no system ever saw. The invisible harm is the larger harm.
The second is structural: identify and oppose the conditions that make elder abuse possible, not only the conduct that constitutes it. Ageism, isolation, inadequate oversight of guardianship, the exclusion of Concerned Persons from protective systems — these are the structural conditions. Reform that addresses only individual conduct while leaving structural conditions intact will not produce durable change.
The third is relational: recognize the full circle of those harmed. The Concerned Person is not a bystander. They are a secondary victim whose harm is real, whose stake is genuine, and whose standing in protective proceedings is both warranted by the theory and supported by the emerging VOCA framework.
The fourth is institutional: build the accountability mechanisms that make structural harm visible and consequential. Mandatory auditing of guardian accounts. Contested proceedings with genuine standing for Concerned Persons. Oversight bodies with meaningful enforcement capacity. Professional accountability standards with real consequences.
Galtung himself offered a warning that applies directly to the elder justice field’s tendency to stop its analysis at the individual bad actor: “Stop thinking. He’s just simply bad and evil.” The same arrest of thought happens when elder abuse is framed as the act of a predatory guardian, a scamming stranger, an abusive family member — and the analysis stops there. The individual actor is part of the account. They must never be the whole of it.
The structural argument developed in this essay produces a question that the law has not yet been asked to answer with full honesty: if the harm of elder abuse extends beyond its primary victim — to the Concerned Person who was excluded, to the community whose protective ecology was dismantled, to the society that organized and funds a system producing these outcomes — then who counts in the proceedings meant to address it? Who has the right to be heard? Who has standing?
The history of victim standing in Anglo-American law is the history of how the answer to that question has been drawn and redrawn. For most of its history, the answer was narrow: the state had standing, the defendant had standing, and the victim waited outside. The victims’ rights movement of the last half-century has widened that circle — slowly, unevenly, and never fully enough. Elder justice is the movement’s most significant contemporary test case, because the Concerned Person — the family member who filed the report, the neighbor who raised the alarm, the adult child who has been watching and worrying — is precisely the party whose exclusion from formal proceedings is both the most consequential and the most systematically enforced.
Standing — the next essay in this series — develops the legal history and the argument for Concerned Person participation rights. It begins where this essay ends: with the recognition that the harm the law does not name is still harm, that the people the law does not recognize as parties still bear the costs, and that a justice system worthy of the name must eventually answer the question it has so far managed to avoid.
Sources
Butler, R.N. (1969). “Age-ism: Another Form of Bigotry.” The Gerontologist, 9(4), 243–246. https://doi.org/10.1093/geront/9.4_Part_1.243.
Canning, V. and Tombs, S. (2021). From Social Harm to Zemiology: A Critical Introduction. Routledge. https://doi.org/10.4324/9780429329098.
CEASe (Center for Elder Abuse Solutions). Helpline for Concerned Persons. https://elderabuse.weill.cornell.edu/programs/elder-abuse-helpline-concerned-persons.
Cohen, L.E. and Felson, M. (1979). “Social Change and Crime Rate Trends.” American Sociological Review, 44(4), 588–608. https://doi.org/10.2307/2094589.
Cocks, Joan. (2012). “The Violence of Structures and the Violence of Foundings.” New Political Science, 34(2), 221–227. https://doi.org/10.1080/07393148.2012.714959.
Dilts, A., Winter, Y., Biebricher, T., Johnson, E.V., Vázquez-Arroyo, A., and Cocks, J. (2012). “Revisiting Johan Galtung’s Concept of Structural Violence.” New Political Science, 34(2), 191–228. https://doi.org/10.1080/07393148.2012.676396. Winter's contribution, "The Asymmetry of Structural Violence," appears at pp. 199–206.
Galtung, J. (1969). “Violence, Peace, and Peace Research.” Journal of Peace Research, 6(3), 167–191. https://doi.org/10.1177/002234336900600301.
Gleeson, B. (1996). “Justifying Justice.” Area, 28(2), 229–234. https://www.jstor.org/stable/20003619.
Lewin, K. (1947). “Frontiers in Group Dynamics.” Human Relations, 1(1), 5–41. https://doi.org/10.1177/001872674700100103.
Lifespan of Greater Rochester, Inc., Weill Cornell Medical Center, and New York City Department for the Aging. (2011). Under the Radar: New York State Elder Abuse Prevalence Study. https://ocfs.ny.gov/main/reports/Under%20the%20Radar%2005%2012%2011%20final%20report.pdf.
Marshall, Philip C. The Inversion. BeyondGuardianship.org, 2026. https://beyondguardianship.org.
Marshall, Philip C. Circles of Support. BeyondGuardianship.org, 2026. https://beyondguardianship.org.
Nerenberg, Lisa. (2019). Elder Justice, Ageism, and Elder Abuse. Springer Publishing. ISBN 978-0-8261-4756-1.
Passas, Nikos. “Lawful but Awful: ‘Legal Corporate Crimes’.” The Journal of Socio-Economics 34, no. 6 (December 2005): 771–786. https://doi.org/10.1016/j.socec.2005.07.024.
Setterlund, D., Tilse, C., Wilson, J., McCawley, A-L., and Rosenman, L. (2007). “Understanding Financial Elder Abuse in Families: The Potential of Routine Activities Theory.” Ageing and Society, 27(4), 599–614. https://doi.org/10.1017/S0144686X07006009.
Simmel, Georg. Soziologie: Untersuchungen über die Formen der Vergesellschaftung. Leipzig: Duncker und Humblot, 1908. Translated by Kurt H. Wolff as The Sociology of Georg Simmel. New York: Free Press, 1950. https://search.worldcat.org/title/The-sociology-of-Georg-Simmel/oclc/272770.
Sutherland, E.H. (1939). Principles of Criminology. J.B. Lippincott.https://archive.org/details/in.ernet.dli.2015.34192.
Tombs, S. (2018). “For Pragmatism and Politics: Crime, Social Harm and Zemiology.” In Zemiology: Reconnecting Crime and Social Harm. Springer, pp. 11–31. https://doi.org/10.1007/978-3-319-76036-2_2.
Winter, Yves. "The Asymmetry of Structural Violence." In "Revisiting Johan Galtung's Concept of Structural Violence," New Political Science 34, no. 2 (2012): 199–206. https://doi.org/10.1080/07393148.2012.676396.
World Health Organization. (2022). Elder Abuse. Fact Sheet. https://www.who.int/news-room/fact-sheets/detail/elder-abuse.
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