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Susan B. Carbon
Peter C. MacDonald
Michael Town
Mary T. Wynne
Publication Date: Not Available
In 1994, Congress passed the Violence Against Women Act. The Full Faith and Credit provision of VAWA, 18 U.S.C. 2265, requires all state and tribal courts to enforce valid civil and criminal protection orders issued by foreign jurisdictions as though they had been issued by the non-issuing, enforcing state or tribal court. The purpose and rationale is simple: Women who receive protection from any court, be it tribal or state, ought to be entitled to protection throughout the United States and Indian country without having to repeat the process. Whether she is crossing state or reservation lines for business or pleasure, or fleeing from her batterer, she is entitled to the protections afforded by the original state or tribal protective order. Moreover, if the enforcing state or tribe affords greater substantive protections than the issuing state or tribal court, she will be entitled to those as well.
It is important to understand exactly what constitutes a "valid" protection order. As judges, it is incumbent upon us to ensure that the process of issuing protective orders meets the constitutional requirements of due process under VAWA to ensure that our orders may be enforced throughout the country.
Section 2266 of VAWA defines a valid protection order as any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts (other than child support orders) whether brought as an independent action or in another proceeding, provided that any civil order was issued in response to a specific complaint, petition, or motion sought by the victim.
The issuing court must ensure that it has jurisdiction over both the parties and the subject matter. In the first instance, determination of the tribe's jurisdiction over an individual request for protection will occur in the tribal court. In order to participate in this preliminary determination, attorneys must be eligible to practice in individual tribal courts and all parties must follow rules of tribal court practice. Because each individual tribe maintains rules and laws separate and distinct from federal and state courts, a discussion of tribal court practice is set out separately below. In addition, the Act imposes an obligation on state court judges to become familiar with and aware of those cases where the tribe has exclusive jurisdiction over an action improperly filed in state court. This knowledge of substantive Indian law is required to avoid issuing orders that do not provide the protection a woman is expecting because they are not enforceable. It is also important to note there remain a number of significant jurisdictional issues involving state courts and the provision of full faith and credit protections.
In addition to being properly filed to meet the requirements set out above, other due process safeguards must be met to ensure enforceability. The defendant must have been given reasonable notice and an opportunity to be heard, sufficient to meet due process standards. When applying due process standards to tribal protection orders, note that the United States Constitution and relevant federal case law interpreting it do not bind tribes because the federal Constitution by its own terms does not apply to tribes. Instead, the judge examining the tribal decree looks to due process as defined by the Indian Civil Rights Act and to civil rights as set forth by each individual tribal statute or law and the tribal court case law interpreting and applying civil rights for each individual tribal sovereign. The United States Constitution and relevant federal case law are not binding on tribes. It is important to note that each tribe, as a separate sovereign, retains the power to define due process consistent with the unique cultural and legal standards of the tribal nation. However, fundamental principles must include the opportunity to know what relief is being sought and to be heard on those requests. Remember that protective orders are potent tools; the defendant may lose significant rights and property interests. The victim will ultimately not be served if the order is successfully appealed for having failed to ensure due process requirements were met.
Questions often arise in both state and tribal courts concerning ex parte orders where, by definition, the defendant has not yet been given notice, much less an actual opportunity to be heard. The vast majority of final protective orders are issued as a result of an ex parte order having been issued initially. VAWA provides that ex parte orders are entitled to full faith and credit if the defendant is afforded notice and an opportunity for a hearing within the time frames provided by the issuing state or tribal court's laws and, in any event, within a reasonable time after the order is issued. Assuming the aforementioned conditions of "notice" and "opportunity heard" are met, the ex parte order from the issuing state is enforceable in the asylum state for the entire period for which it was valid in the issuing state.
To facilitate enforcement of protective orders in non-issuing jurisdictions, it is essential that the substantive protective provisions be explicit and unambiguous. Use of preprinted forms is most effective. Where additional language must be added, it is helpful for it to be typewritten; judges are not known for their legible penmanship, and it does little good if a law enforcement officer is presented with an illegible order.
It is critical that orders include certain basic language to put defendants on notice that protective orders are enforceable throughout the country. Such admonishments include:
Because there is not one uniform domestic violence protective order form throughout the country, it may be difficult for a court in a non-issuing jurisdiction to know whether the requirements of VAWA were satisfied prior to issuance of the order and, therefore, whether the order is entitled to full faith and credit.
It has been proposed that each state and tribe adopt a uniform certificate to affix as a "face sheet" to all protective orders. Use of a uniform certificate would have many advantages. First, it would serve as a reminder to issuing jurisdictions of the importance of satisfying all due process safeguards so that the proposed order may indeed be enforced anywhere in the country. Second, it would enumerate the specific requirements of VAWA. Third, by having the clerk sign and seal the certificate, having attested to satisfying these requirements, the enforcing state will immediately be able to recognize the foreign order and extend necessary protection. Thus, when a victim presents a foreign order, to which a sealed certification is attached, to a law enforcement officer in another jurisdiction, that officer will have essential information necessary to enforce the order. Immediate recognition of a foreign order by use of a model certificate surely will save time and reduce anxiety for law enforcement officers wondering what they are being asked to enforce and whether they have authority to enforce it. The same holds true if a victim requests registration of a foreign order at court. All that remains to be asked is whether the order remains current. With the presentation of a sealed certificate attached to the order, there is a safe presumption of validity and entitlement to enforceability. A model certificate has been prepared by the Pennsylvania Coalition Against Domestic Violence. It is included for strong consideration by each jurisdiction.
While the benefits of a uniform certificate are abundant, the task of seeking universal acceptance may be time-consuming. In the interim, it is suggested that a certification be prominently placed on the protective order, either following the judge's signature or at the very top of the order. Such a certificate might look like this:
This ex parte/temporary/final protective order meets all Full Faith and Credit requirements of the Violence Against Women Act, 18 U.S.C. 2265 (1994). This court has jurisdiction of the parties and the subject-matter; the defendant has been afforded notice and a timely opportunity to be heard as provided by the laws of this jurisdiction. This order is valid and entitled to enforcement in this and all other jurisdictions.
The Federal Gun Control Act of 1968, as amended, 18 U.S.C. 921-930, includes many important restrictions on access to firearms for perpetrators of domestic violence. Under section 922(g)(8) of this law, it is a federal crime for persons subject to a valid protective order to possess a firearm or ammunition during the pendency of the order. It is also unlawful for such persons to ship, transport, or receive any firearm or ammunition that has been shipped or transported in interstate commerce.
For this section to apply, the protective order must include either a finding that the defendant presents a credible threat to the physical safety of the plaintiff or her child, or an explicit prohibition against the use, attempted use, or threatened use of physical force against the plaintiff or her child that would reasonably be expected to cause bodily injury (sec. 922[g][8][C][i]-[ii]). Furthermore, the order must prohibit harassment, stalking, making threats, or engaging in conduct that would place a plaintiff or her child in reasonable fear of bodily injury.
It is important for judges to know that this Act also makes it a crime to return seized firearms for so long as a protective order is in effect. This is equally important for law enforcement officers, attorneys, and others to know so that weapons will not be returned in contravention of the federal law.
There are certain limitations of which judges should be aware. First, these provisions apply only to persons who have received actual notice and have had an opportunity to be heard. Thus, federal gun protections are not available at the time of issuance of ex parte orders. Second, there is disagreement about whether persons who have dated but have never resided together are among the class of protected plaintiffs. Finally, law enforcement officers are NOT subject to this law, but may be subject to separate state or tribal restrictions.
The Gun Control Act has additional provisions for persons convicted of state or tribal misdemeanor crimes of domestic violence. It is a federal crime under 18 U.S.C. 922 (g)(9) for any person convicted of a domestic violence misdemeanor to possess a firearm or ammunition. It is also unlawful to ship, transport, or receive any firearm or ammunition that has been shipped or transported in interstate commerce. Note that law enforcement officers ARE subject to this law.
A domestic violence misdemeanor is either a state or federal crime that has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon, and is committed by:
A number of states and most tribes currently have mechanisms for the registration of foreign domestic violence orders. It should be noted that a requirement of registration with a state or tribal court before an out-of-state order can be enforced would be in conflict with the Violence Against Women Act. The Act does not require prior registration or pre-certification of an order of protection in an enforcing state in order to receive full faith and credit and, in fact, many victims may be fleeing the issuing state so that the perpetrator cannot locate her/him. However, if the victim does wish to have the order registered, it is imperative that the issuing judge impart some information so that this process can be eased for the victims of domestic violence. It is also essential to develop local protocols regarding weapon seizure pursuant to the issuance of the protective order.
The issuing judge, at the time of the issuance of the order of protection, should inform the parties that a certified copy (use of this term means the highest form of validation of the issuing state or tribe) should be obtained from the issuing clerk's office if the order is not certified at the time of its issuance. The issuing judge has an important role in informing the victim that if she/he chooses to relocate, for whatever reason--safety, economics, proximity to family, et cetera--or she/he crosses state or tribal boundaries even temporarily for any reason, she/he should take a certified copy of the order to the new state, Indian reservation, or Indian country.
The victim should also be told that it would be beneficial to contact the state, tribe, or territory to find out if there are any particular requirements for the registration of the foreign order. Currently, the availability of registration extends from full statewide or reservation-wide to local registries on a county-by-county, tribal court-by-tribal court, or city-by-city registry.
After a court issues a civil protection order, the order is typically placed in a local, county, or state law enforcement database or registry. When an order expires it is removed from the registry. Registries historically were established to facilitate enforcement of local orders; they permit law enforcement to verify the validity of any paper order furnished by a victim or enable confirmation of an order when the victim does not have a paper copy.
The judge should inform the victim that information can be obtained by calling the clerk of the court, the police, or the local domestic violence program in the area to which the victim may be moving. More information regarding local resources in asylum states can be obtained by calling the National Domestic Violence Hotline (1-800-799-SAFE [7233]). It is vital to impart this information until the National Crime Information Center (NCIC) establishes its nationwide Protection Order File, which will allow immediate access to all orders of protection so that law enforcement officers, judges, and prosecutors will have immediate access to the terms of orders of protection no matter where they were issued. Currently less than ten states are participating in the NCIC Protective Order File. Until all states fully participate it will be necessary for victims to know whether the issuing state participates, whether the issuing state or local jurisdiction provides a 24 hour registry and how law enforcement in other jurisdictions can access the state or local registry for verification of an order. Contact information related to state and local police registry access should be furnished to all victims who may think that they might seek to have the order of the issuing state enforced in another state or tribe.
With the advent of statewide police registries, some jurisdictions have eliminated local registries. The purposes of the NCIC Protection Order File are: (a) to provide timely and accurate information to civil and criminal courts for use in stalking and domestic violence cases; (b) to notify law enforcement agencies nationwide of the existence and terms of protection orders; and (c) to support the identification of persons who are subject to a protection order and are prohibited from receiving or possessing a firearm pursuant to other federal laws. Any order of protection that meets the requirements of VAWA will be eligible for entry in the NCIC File. The Department of Justice and the Federal Bureau of Investigation are currently establishing such a file, but until it is viable nationwide it is vital that other means of verification remain available.
Once the NCIC Protection Order File comes into existence, the problems that enforcing states and tribes encounter will diminish dramatically. No longer will courts have to struggle with determining if an order of protection is still valid. No longer will law enforcement officers struggle with the issues confronting them in the middle of the night about whether the paper they are looking at is indeed a valid order of protection issued by a court outside of the state or reservation. No longer will victims of abuse have to fear that the order that was issued by one state or tribe will not be enforced in another state or tribe.
Note, most tribal law enforcement departments do not maintain a 24 hour accessible registry and orders of tribal courts may not be entered into NCIC. Thus, until there is a national police registry for orders issued by tribal courts, the Bureau of Indian Affairs (BIA) and tribal police will have difficulty verifying the validity of orders issued by other tribes. Meanwhile, tribal police are not granted electronic access to state and local registries in many jurisdictions. Therefore, it behooves state and tribal police and courts to establish mechanisms for verification of their respective orders so that that protection can be afforded vulnerable victims outside the business hours of the court (around the clock).
Regrettably, criminal protection orders (often called stay-away/no-contact/condition of release/victim-witness/anti-intimidation orders) are not placed in state registries and there are very few local criminal protection order registries and a limited number of judicial districts in which law enforcement, prosecution or the courts can electronically access a database containing that order. Where local or state police registries do not contain criminal protection orders it is highly unlikely that these will be forwarded to NCIC. Virtually no jurisdictions permit registration of foreign criminal protection orders notwithstanding submission of a certified copy of the foreign criminal protection order to the enforcing court by the victim.
Thus, according full faith and credit for foreign criminal protection orders will be an arduous and potentially time consuming process. It is incumbent upon courts, attorneys and advocates to advise battered women to consider acquiring local protection orders in the home jurisdiction when they may require enforcement in other counties, states or tribes.
A number of states have very effective police registries of both their own orders and the orders from other jurisdictions. Kentucky is one example. Kentucky has had a statewide registry since 1992. It is called the LINK System (Law Information Network of Kentucky), and was created with the acknowledgment of the huge potential breakdown in the paper system that previously existed and with a commitment to interagency cooperation, and the resourcefulness of the Kentucky State Police, which led to the development of an on-line protective order file. This file allows any law enforcement officer in the State of Kentucky to learn of the existence and conditions of orders entered in any county in Kentucky at any time. The NCIC Protective File should be similar in its capabilities. Kentucky has uniform domestic violence forms that are utilized statewide and ease the entry of the orders into the system. Foreign orders can also be entered into the LINK system, although there is no requirement for their entry before they can be enforced by law enforcement and the courts.
The role that the judge plays in the issuance of domestic violence orders cannot be underestimated. It is the judge who can help ensure the likelihood of success of protection by his or her attitude and demeanor during the hearing. It is also essential that judges have a working knowledge of the Violence Against Women Act so that they can impart information to both the victim and the perpetrator. This information can be given in an opening statement to all the parties or individually, but it should be given.
In states and tribes that do not have uniform domestic violence forms, it is particularly helpful to law enforcement officers and courts in other judicial districts if issuing judges craft orders that are explicit, unambiguous, comprehensive, and legible. At the time an order is issued, the judge should inform both parties orally and in writing that the protection order is valid in all 50 states, the District of Columbia, tribal lands, and all U.S. territories. The judge should advise the victim to secure a certified copy of the order if it is not certified at the time of its issuance and to carry a copy at all times.
The judge should inform the victim that there is a National Domestic Violence Hotline (1-800-799-SAFE[7233]) that can help provide information about the jurisdiction to which the victim may be moving. This number could also provide information about the nearest shelter and the telephone number of the nearest domestic violence advocate. The judge should advise that a violation of the order in a state or tribe that has given full faith and credit to the order may result in federal penalties, including fines and long-term imprisonment, in addition to any state or tribal remedies available. The judge should also inform the perpetrator that it is a federal violation to purchase, receive, or possess a firearm or ammunition once subject to the order of protection. The trial judges who conduct domestic violence hearings should assert strong leadership qualities to ensure not only that their orders will be obeyed in their own jurisdictions, but also to provide information to victims and perpetrators about the provisions and consequences of the Violence Against Women Act.
In Kentucky, orders from other jurisdictions are entered into the LINK system once they have been verified. If a victim brings a certified copy of an order to Kentucky, the clerk of the court takes that order to a judge, who reviews the order and enters an order allowing the original (foreign) order to be entered into the LINK system. If the order is current but not certified, the clerk will present it to a judge, who will enter a temporary order to be entered into the LINK system until the order can be verified. The temporary order is entitled to full faith and credit and no service is required upon the perpetrator. The clerk then contacts the issuing court to determine its validity and to obtain a certified copy of the order, which can be by facsimile or by receipt of the certified copy. Once the order is certified, it is entered into the LINK registry and is immediately available to all law enforcement officers statewide.
VAWA requires state and tribal courts to grant full faith and credit to civil and criminal protection orders issued by foreign state and tribal courts. The purpose is to safeguard victims of domestic violence from recurring violence. The question for each judge who hears these cases is what they can do to provide guidance to the bench, bar, and community so the federal law is followed and victims are protected.
In a very mobile and transient America, this statutory recognition of the constitutional requirement of full faith and credit is long overdue. The courts of this country have an obligation to provide leadership so the clear mandate of full faith and credit is realized. The price of inaction is confusion among bench and bar and often fatal abuse of victims who should have been better protected. Such judicial leadership may be shown by rule, by memorandum setting forth procedures, and/or by convening the affected agencies and entities around the issue to determine what is fair, effective, and timely.
Honolulu, Hawaii has a unified family court that was established in 1965. The family court hears a wide variety of cases that involve the legal rights of children and families including divorce, juvenile delinquency and child abuse cases, civil restraining orders, adoption, paternity, selected felonies and misdemeanors among families and household members, mental commitments, and guardianships, among others. Domestic violence comes up on virtually every calendar as an issue to be addressed by way of jurisdiction as in a civil restraining order or by way of relief as in a service plan for a distressed juvenile or abused child and parent. There was a need to provide clear guidance for the 11 full-time judges and their staff, and the agencies that would be affected such as police, the attorneys, and community advocates.
The result was the attached memorandum issued August 12, 1996 titled Implementation of the Full Faith and Credit Provision of the Violence Against Women Act of 1994: Registration of Out of State Protection Orders. The court took the position that, until there was legislation or further action, registration would be allowed using the forms attached. The court made it clear that while no registration was required, registration would be an optional safeguard. This acknowledges the understandable reluctance of police to enforce out-of-state orders that are prepared on a variety of forms, sometimes handwritten, and appear questionable.
Thus far the memorandum has been widely accepted. Many attorneys advise clients to obtain their own restraining order by filing for divorce or for a civil restraining order on a separate docket. A separate filing for a new order would appear to be more expensive and involve a longer wait than simply registering the foreign order. On the other hand, it may provide more safety and security for the victim. The local legal and judicial "culture" is learning a new way of safeguarding victims of domestic violence.
In a busy metropolitan court with over 32,000 new case filings per year and 11 full-time judges, every effort must be made by all judges to guide practice in a collaborative and proactive way by convening the affected players and engaging in mutual education and problem solving. This is especially important for the administrative or presiding judge. Where possible, judges should try to follow other effective models such as the Uniform Child Custody Jurisdiction Act (UCCJA), which is well accepted in Hawaii and nationally. In other words, judges should attempt to follow paths already accepted rather than blaze a new and innovative trail through the legal/judicial thicket unless absolutely necessary.
The goal of VAWA, which is safeguarding victims of domestic violence in a fair and effective fashion, should remain paramount. Because VAWA is so new, only time will tell which model works. Measurement of the outcomes is a next step. Unfortunately, that will probably have to be done in part by measuring the domestic abuse deaths across the country. Another method would be to survey the women who seek enforcement of their protection orders in non-issuing jurisdictions to see what their perceptions and realities are.
The one lesson many judges have learned from experience is that domestic violence is not only criminally, civilly, and morally wrong, but potentially fatal and must be addressed comprehensively from the community to the state to the federal levels. How many times must judges assert from the bench in a divorce, paternity, child abuse, civil restraining order, or criminal case that "people are not for hitting," and to the victims that "nothing you could have done justifies violence," and that "people do not deserve to be hit." Judges should look forward to the day that court calendars will be relatively free from that kind of case, and when the community and government, including the courts, respond in a prompt, fair, and safe manner when such a case arises.
There is very little information or experience on how to conduct a VAWA violation hearing. Courts should apply the same rules and procedures used court for the violation of restraining orders issued by the enforcing jurisdiction, with the proviso that the content of the foreign restraining order must be recognized even if the enforcing tribe or state would not recognize it. One example is if the foreign restraining order were for a longer period of time or indefinite or if it provided wider relief than the law of the enforcing state, the court should recognize the greater relief.
States and tribes vary greatly on when a violation is criminal or civil in nature. This is really a question of rules, statutes, and appellate review. Many states and tribes have law review articles and trial or appellate opinions providing guidance on how such cases must be addressed. The enforcing jurisdiction must proceed with violation proceedings in either a criminal or civil venue, pursuant to the law that jurisdiction even if the enforcement vehicle would not have been available to a court in the issuing state.
Over 200 tribal governments are located within the 48 contiguous states, ranging from rancherias and pueblos to state-recognized tribes and federally recognized treaty tribes. 1 Another more than 200 Alaskan villages can be found within the State of Alaska. Each tribe administers a separate and distinct government, with a substantial number of tribes operating well-established tribal court systems. Tribes retain powers of sovereign nations: that means a victim who crosses a boundary into Indian country can expect to be dealing with a tribal police officer, tribal judge, tribal clerks, and tribal laws. The registry of judgments will be separate and distinct from state and federal courts, as well as the rules of law and of practice in the tribal court where the victim may seek protection. While within the jurisdiction of the tribe, a victim will be required to follow tribal law and practice in order to obtain protection.
State court judges must become familiar with tribal governments and tribal court orders so that the full faith and credit requirements of VAWA and the full extent of protection to victims can be achieved when victims protected by tribal court orders leave Indian country and cross into states or other territories. One method of achieving the goal of full protection across tribal and state boundaries is to work toward cooperative agreements that cross such boundaries. Another is simply to become familiar with the existing governmental structures and implement procedures for recognition of all protection orders, both tribal and state, entered consistent with the provisions of VAWA.
Either solution presents individual sets of challenges. Many tribes and states continue their historically adversarial relationships. Only by remaining committed to the goals of VAWA will the level of cooperation needed to achieve protection of women and children, no matter what their race, color, or political affiliation, across the lines of tribal and state sovereigns be achieved. Toward this end all judges, tribal, state, and federal, must take a lead in taking action necessary to provide universal protection.
This document was not developed by Violence Against Women Online Resources. The document's author or sponsoring organization granted VAWOR permission for placement on this site. Points of view in this document are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice.
This web site is a cooperative project of Office on Violence Against Women and Minnesota Center Against Violence & Abuse at the University of Minnesota and is supported by grant number 2004-WT-AX-K075 awarded by the Office on Violence Against Women, Office of Justice Programs, U.S. Department of Justice.
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