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Native American Circle LTD.
Publication Date: 1998
Note: This document provides a general overview. When developing a plan for your community, look to your own tribal codes and state and federal laws concerning confidentiality and explore methods which can be used in the civil or criminal justice arenas which would enhance victim safety.
Native American Circle, Ltd. (NAC) is a non-profit, tax exempt victim advocacy organization. NAC's programs are available to tribes operating batterer intervention and victim services programs to aid survivors of domestic violence, sexual assault and stalking crimes, as well as to non-Indian programs desiring to offer culturally competent victim services. Additionally, we provide technical assistance targeted to meet the needs of recipients of Violence Against Women Act funding, including recipients of STOP Violence Against Indian Women Grants, Rural Domestic Violence and Child Victimization Enforcement Grants, and Grants to Encourage Arrest Policies and Enforcement of Protection Orders. Our training materials are based on the conviction that attempting to evaluate another person's culture, beliefs and traditions according to the standards and values of a distinctly different cultural base results in inaccurate perceptions. NAC's programs are designed to foster admiration of indigenous cultures and pride in cultural-connectedness, while fueling interest in recovering non-violent, traditional lifestyles in today's American Indian/Alaska Native communities.
Among others, Native American Circle's services include:
NAC's 2001 Targeted Technical Assistance Project is a collaborative effort between Native American Circle, Ltd. (NAC), United Federation of Tribal Nations, Inc. (UFTN), and the Stalking Resource Center, an entity of the National Center for Victims of Crime.
This project was supported by Grant No. 2001-WT-BX-K005 awarded by the Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.
Crisis intervention professionals tend to be very giving people, freely sharing information and resources with each other and the general public. If you feel that any portion of this handbook infringes upon an existing copyright, or if any portion of this is someone's original work without acknowledgment of creative authorship noted, we apologize. Please notify us and we will correct the matter immediately. At the same time, please be aware that much of what is included in the following pages is copyright-protected to Native American Circle. If you wish to use a portion of it, please acknowledge Native American Circle's authorship.
In many instances, persons contributing to these pages have requested anonymity for their comments, observations, and personal stories, particularly when the contributor is a survivor of domestic violence or sexual assault. Native American Circle is committed to the ethical and honorable treatment of all victims and survivors. We honor confidences and will not discuss the identity of anonymous contributors to these pages.
Heartfelt thanks to all who have contributed to these pages, and particularly to Sarah Deer, (Mvskoke) Creek Nation, Washington, D.C., for her insight, comments, and assistance on this project, and for her dedication to American Indian victims and their children.
By Jo Hally, Executive Director
Native American Circle, Ltd. (1998)
Indian people have survived oppression in its cruelest forms. Nevertheless, Indian women who are battered often struggle on, approaching life with courage, strength and determination. No matter how bad, how dark or desperate or hopeless life's circumstances become, we do not--cannot--stop caring, nurturing, trying, giving, living, loving. Violence may wound or destroy the body, but hope struggles on, the spirit struggles on, despite the darkest hours imaginable....
Several years ago, I attended a mid-winter powwow in a small community on the outskirts of Fort Worth, Texas. Since it was cold outside, the powwow sponsors had obtained consent to hold the event in a local school's gymnasium. It was a large affair, with perhaps as many as two hundred people present. Being a Texas powwow, Southern Drum style, the songs were sung in the Kiowa and Comanche tongues.
At first there were only three or four singers at the drum, but as the evening progressed, many others joined them until there were perhaps fifteen men and boys with their chairs gathered about the big drum. A little behind the male singers sat several female singers. The women singers often stood during a particularly stirring song, with their bright, fringed shawls gathered around them, and added their voices to the voices of the men, making the songs complete. Dancers--men in all sorts of bright regalia--traditional, fancy dress, grass, and women in buckskin and traditional cloth dresses, jingle dresses and contemporary casual clothing with their shawls across their shoulders--moved around the drum and its singers, forming a circle.
In the midst of this motion, color and activity, suddenly the electrical power to the building failed. The lights winked out and the room went black instantly. The singers stopped singing and drumming. The dancers stopped moving. There was no sound of voices or of deertoe knee-bands and tin cones clacking, no light tinkling of bells on any costume. Every movement was still, every noise silenced.
Then one of the men in the crowd gave a coyote yip, loud and cheerful and joyous, and immediately many voices answered back. "Tsol-hah!," came the voice of one warrior--"Everything is good!"--followed by yips and screeches and the war whoops of the men, mingled with the high, stacatto cry of the women. It was a chorus of powerful, fearless voices, soaring higher and higher, until the singers began to beat the drum and sing once more with pride and fire and strength greater than any they had displayed all night.
Across the gymnasium floor, tiny flames flashed as cigarette lighters and matches were lit and lifted high, and I felt exhilarated, empowered, as the dancers began to dance again, even in the darkness.
I once owned a lot of beautiful jewelry. I wore it all the time. Rings on all fingers, gold necklaces, silver bracelets--always on show. When told how beautiful my jewelry was, I'd quietly say, "My husband buys these for me." But I didn't wear the jewelry because I was proud of it.An envious person once said, "Oh, how I wish my husband would surprise me and buy such beautiful gifts." So I began to strip off pieces of the jewelry I was wearing. I held each item out to her. I offered her a ring, a bracelet--whatever she wanted. She couldn't imagine why I would so freely give away the precious jewelry that my husband had given me. She asked, "Won't your husband be upset that you're giving his gifts away?"
I replied, "No. I have so much, you see, that he'll never miss it."
I didn't tell her the personal price I'd paid for the finery which decorated my hands, arms, and neck. I didn't say that I'd bought every meaningless bauble myself with pain, terror and sadness. But then, how could I explain that I had so much jewelry because each time my husband hit, slapped or beat me, he would apologize--try to appease me and win me back--with jewelry?
--Anonymous
(The following was excerpted from: Greenfield, Lawrence A. and Steven K. Smith, GJS Statisticians. American Indians and Crime. Bureau of Justice Statistics, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, February 1999: NCJ-173386.)
American Indians in the Report cited include Alaska Natives and Aleuts. (Hawaiian Natives and Pacific Islanders were included under the Asians category of the statistics cited in the Report):
Finally, according to the 6/2001 National Crime Victimization Survey (NCVS) on "Injuries from Violent Crime, 1992-1998", victims (all races) who experience violence between midnight and 6:00 a.m. were more likely than persons victimized at other hours to sustain an injury (35%) or to suffer a severe injury (6%). Among those victimized during the day (6:00 a.m. to 6:00 p.m.), 22% were injured, including 2% with severe injuries. Victimizations occurring between midnight and 6:00 a.m. were about 2.5 times as likely as victimizations occurring during the day to result in severe injuries.
Victimizations that occurred at or near the victim's home or at the home of a friend, relative or neighbor, were more likely to result in injury (32% and 34% respectively) than victimizations that occurred elsewhere, including open areas or public transportation (23%). The majority of injured victims in the NCVS either did not receive medical treatment or received treatment somewhere other than a hospital or emergency department. Among victims of incidents that resulted in severe injuries, 37% were not treated in a hospital or emergency department, 25% were not reported to police, and 18% were neither treated nor reported.
In 1988, the National Clearinghouse for Defense of Battered Women estimated that every 15 seconds, a woman is physically assaulted in her own home. Current estimates indicate that today, women are being assaulted and battered more frequently--at the rate of approximately every 8 seconds (National Resource Center to End Violence Against Native Women).
Every day, approximately 4 women are murdered by their husbands, ex-husbands or intimate partners. As many as half of all female murder victims may be slain by an intimate male partner (American Medical Association 1992), and 75% of those murders were committed when the woman attempted to leave the relationship. Three out of every four murders attributed to intimates involve female victims (Greenfield, Lawrence A., et al., Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, Bureau of Justice Statistics Factbook, Washington D.C.: U.S. Dept. of Justice, Bureau of Justice Statistics, March 1998: v, NCJ 167237.) Native American "spouse murders" most often involve the wife as victim (Dawson, John M. and Patrick A. Langan, Ph.D., U. S. Dept. of Justice, Bureau of Justice Statistics Special Report, July 1994).
Only one out of approximately seven domestic violence incidents are actually reported(Crowell, Nancy, and Ann Burgess, eds.(1996), Understanding Violence Against Women, pg. 32, Washington, DC.: National Academy Press). Domestic Violence occurs in all race and socioeconomic groups in our society, but reportingvictims are typically poor, with family incomes under $7,000 annually. Also, women in cross-cultural relationships may be at unusually high risk, perhaps because of cultural differences in expectations about gender roles and acceptable behavior (Healey, Kerry Murphy, and Christine Smith (July 1998), "Batterer Programs: What Criminal Justice Agencies Need to Know", U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Research in Action, Jeremy Travis, Director).
Information about female victims of domestic violence is more readily available than information about male victims, lesbian or gay victims for several reasons. Many governmental agencies, either at the federal or state level, do not keep accurate or detailed records of incidents of domestic violence. Likewise, healthcare providers may not recognize the symptoms or signs of abuse and therefore, may not identify victims of violence in emergency room records or log books. Male victims are most often unwilling to report incidents of abuse committed against them by a female abuser because of feelings of emasculation or shame that a woman, generally pictured in today's society as a "weaker" gender, could physically overpower them. Lesbian or gay victims may not wish to report incidents of abuse because of general prejudice against their lifestyle choices that may result in re-victimization by medical or law enforcement personnel, which is revealed through indifference, disbelief or unsympathetic and uncaring attitudes displayed toward the victim. Conflicting definitions of "intimate partner abuse" and inconsistent research approaches also act as obstacles to the collection of accurate data.
In Indian country, the collection of accurate data on violence against Native persons is often hindered by simple, seemingly easy-to-overcome circumstances like environment or geographical location. For example, domestic violence that occurs in rural locations, where many Native people continue to make their homes, is often an "invisible" crime that goes unreported, unseen and unheard by any witnesses.
A survey conducted in 1998 by the Oklahoma Regional Community Policing Institute in cooperation with the University of Oklahoma concluded that:
"The lack of reporting on domestic violence as a community problem or crime concern, and the pattern of what was reported, supports the need for more education and information. Chiefs of Police in smaller towns, towns under 50,000, report that domestic violence is a community problem and a crime concern. Chiefs in smaller towns, in more rural settings, are in closer contact with their people and disruptions of violence, even domestic violence are more likely noted. It seems that domestic violence is a hidden practice not drawing much attention in the larger cities, those with over 50,000 population. Not one individual from the community leaders [participating in the survey], mostly with cities over 10,000, reported domestic violence as either a community problem or a crime concern. Either the community leaders are unaware of the extent of domestic violence going on around them, or they are not completely aware of what constitutes domestic violence."
Victims of violence commonly describe feelings of isolation or of being "cut off" from relatives, friends and society as a whole. Victims of violence in rural areas are in reality often physically isolated, heightening the sense of emotional isolation. In turn, this heightened sense of emotional isolation may increase the victim's reluctance to report the violent incident, even if the opportunity to report the incident is available.
Indian victims of violence may also feel that judicial, law enforcement or medical personnel will not be sympathetic to them because of misperceptions that problems in Indian country are the jurisdiction of federal agencies or tribes, or because of racial prejudices or stereotypes of Indian people, thus creating greater reluctance on the part of the victim to report violent incidents. Indian Nation citizens often refuse to report due to fear that their needs cannot or will not be met by service providers having access to Indian country. Certain law enforcement professionals, for example, may feel that Indian people are naturally violent or that "Indian men always beat their wives/children/relatives". These mistaken beliefs may be noticeably apparent in the officer's manner, demeanor or behavior, further discouraging the victim from relating the details of a violent incident.
When Indian victims must rely on non-Indian service providers for services, assistance is sometimes denied or slow in coming because of a mistaken, erroneous perception, rooted in prejudice, that Indians receive all the assistance they need from the Bureau of Indian Affairs or Indian Health Service.
Suspicion or unwillingness to trust persons of other races or cultural groups may prevent an Indian victim of violence from reporting episodes of abuse. Reluctance to expose one's people or culture to the criticism or censure of other races is a strong deterrent to reporting violent crimes against Native people. Since most Native people attain a strong bond from their sense of "connectedness" with their relatives, extended families and larger tribal groups, reporting abuse can be regarded as a threat to irreplaceable relationships.
Shame, guilt, victim-blaming, fear of reprisal by the batterer or the batterer's friends and family, and a misplaced fear of "betraying" not only the batterer, but the batterer's (or the victim's) relatives or tribal group may prevent the abused from seeking outside assistance. All of these factors, together with others, contribute to the almost overwhelming obstacles against compiling accurate data and statistics on the actual impact domestic violence has upon Native communities or persons of Native heritage.
According to 1994 Bureau of Justice Statistics Selected Findings: "Violence Between Intimates", approximately 90-95% of the victims of domestic violence are women. Likewise, according to the 1995 Violence Against Women Research Strategic Planning Workshop, sponsored by the National Institute of Justice in cooperation with the U.S. Department of Health and Human Services, 95% of all batterers are male. Domestic violence is, in fact, the most common cause of injury to women, exceeding auto accidents, muggings and rapes combined (Journal of the American Medical Association, 1990). In the United States, a woman is more likely to be assaulted, injured, raped or killed by a male partner than by any other type of assailant (Browne, et al, 1987).
In 1994, the Bureau of Justice Statistics: "Violence Between Intimates" report also estimated that 70% of female homicide victims are murdered by male partners, up from a 1986 Federal Bureau of Investigation estimate of 30% and also up from a 1991 FBI estimate of 42%. According to the National Victims Center, it is more likely for a female to be murdered by an intimate male partner than it is for a police officer to be killed in the line of duty.
While we recognize that domestic violence is not gender-specific, statistics reveal that the majority of domestic violence incidents involve men battering women. For that reason, batterers will be predominantly referred to in male gender in the pages that follow.
According to a study done by The Commonwealth Fund for The Commission on Women's Health (Second Edition, March 1996), women who report abuse are more likely than other women to be in poor health, seek medical care frequently, abuse drugs and alcohol, experience depression and contemplate suicide. Abused women are, in fact, 16 times as likely to become alcoholics and 9 times as likely to abuse drugs as women who are not abused (Tiernan, Tulsa World, 10/5/1997). Abused women often fail to report the violent abuse in their lifestyles to their healthcare providers.
In the Journal of the American Medical Association, it was reported that less than 3% of women visiting emergency rooms disclosed or were asked about domestic violence by a nurse or physician (Abbott et al, 1995). A few years previous, however, it was reported that 8% of the women surveyed had told a physician of the abuse and fewer than half (43%) had told anyone at all. A survey done by Commonwealth Fund, prepared in 1993, reflected a higher figure: 57% had never told anyone.
According to the American Medical Association (1992), between 22% and 35% of women who go to emergency rooms with medical complaints have symptoms that can be attributed to domestic violence. By comparison, a 1997 Bureau of Justice Statistic on Violence Related Injuries in Emergency Rooms reported that 17% of those who visited emergency rooms for treatment are documented as having come as a result of being injured by an intimate partner.
According to another study, it was found that emergency room physicians identified only one in eight of the women who had more than likely sought treatment as a result of domestic violence (Kurz and Stark 1988). In yet another survey of emergency room physicians, the evidence of domestic violence was missed altogether, although more than 40% of the women presenting for treatment had previously sought medical treatment for violence-related injuries more than six times (Stark and Flitcraft 1991).
The actual monetary cost of violence against women has not been definitively determined, but we know that the cost is high. In 1989, the National Crime Victimization Survey project estimated medical costs incurred from family violence to be in the neighborhood of $44 million per year, but this figure is substantially less than other estimates made. The American Medical News (1992), estimated that emergency room costs for domestic violence are about $31 billion a year nationally (Tiernan, Tulsa World, 10/5/1997). Even these figures "demonstrate that more hospitalizations occur in the U.S. each year from family violence than from heart attacks in the general population" (The Commonwealth Fund Commission on Women's Health/Elixhauser, Andrews and Fox 1993).
Contrary to popular belief, mandatory medical reporting of domestic violence is not required in most states in the U.S. In a substantial number of states that do mandate medical professionals to report domestic violence, only wounds from firearms or knives are required to be reported. Research on this subject has not been conclusive as to whether or not mandatory reporting is helpful to victims or if it instead prevents many victims from receiving medical care.
Of the violent incidents perpetrated by an intimate partner, about 30% of the incidents resulting in injury to victims occur in the home while 17% occur in the workplace (Rand, Michael R. Violence-Related Injuries, Treated in Hospital Emergency Departments. Bureau of Justice Statistics Special Report, August 1997.)
The cost of domestic violence to employers is also staggering. Tulsa, Oklahoma's Domestic Violence Intervention Services, Inc. conducted a study on the impact of family violence in the workplace in1992. Of the women surveyed, more than 60% who had been working at the time the violence occurred stated they had been late to work because of their abuser. More than 50% reported they had missed work because of injuries or court dates brought about as a result of the abuse. Approximately 60% were reprimanded by an employer because of problems at work resulting from the abuse, including absenteeism, tardiness, and decreased work productivity. As many as 30% of the women lost a job because of their abuser. While 70% of the women reported they had difficulty performing their jobs because of the abuse, only 20% had been offered any assistance from their employer. (Tiernan, Tulsa World, 10/5/1997)
A survey of Fortune 1000 companies conducted for Liz Claiborne, Inc. found that "4 out of 10 corporate leaders were personally aware of employees in their companies who had been affected by domestic violence. Almost half claimed domestic violence had a harmful effect on their company's productivity, 47% said it reduced attendance, 44% said it had an impact on health care costs, 33% believed domestic violence affected their balance sheet, and 66% agreed that a company's financial performance would benefit from addressing the issue of domestic violence among its employees. Despite this acknowledgment, only 12% thought corporations should play a major role in addressing the issue." (Tiernan, Tulsa World, 10/5/1997)
Obviously, more collaborative efforts are needed between medical professionals, "corporate America" and domestic violence advocates to educate and to establish programs that will appropriately address not only the treatment of the consequences of abuse, but prevention and intervention strategies as well. Similar efforts are needed with substance abuse treatment professionals (the link between substance abuse and domestic violence will be examined more closely in another section of this manual). In addition, considering the statistics relative the impact of domestic violence on children, particular emphasis should be placed on developing and providing intervention and prevention strategies for childcare and children's services programs.
For instance, a study conducted by Women's Work (1993), a public arts program funded by Liz Claiborne, Inc. and primarily functioning in the San Francisco, Miami and Boston areas, concluded that:
Additionally, children from violent homes have higher risks of alcohol and/or drug dependencies, and higher risks for juvenile delinquency.
Each year, an estimated 3.3 million children witness domestic violence. Approximately 90% of children are aware of the violence directed at their mother and in an estimated 1/2 of the homes where police intervene in domestic violence, children are present. (Kraizer, (1991) Domestic Violence Intervention Services, Inc./National Woman Abuse Prevention Project) Approximately 63% of all juveniles in jail for homicide have been charged with the murder of an abusive parent (Department of Justice, Bureau of Justice Statistics). The effect of family violence on children will be discussed in greater detail in Section 3 of this handbook.
Statistics specific to Oklahoma reflect that Oklahoma ranks 10th in the nation in childhood hunger. Preliminary year 2000 census data indicates that there may be as many as 140,000 homeless persons in the State. Nationwide, some studies indicate that domestic violence is directly responsible for approximately 21% of currently homeless families. In a study specific to New York City, it was determined that approximately 40% of the children in New York's foster care system are there as a result of domestic violence (Victim Services 1991).
These figures may be higher than the national average for American Indian people. Statistics reveal that at least half of the 1.8 million American Indians in the U.S. today are under the age of 25, with the highest risk group for violence among American Indian people being persons between the ages of 18 and 24. The same statistics reflect that 1 in 4 Native Americans of that age group will become the victim of violence each year. Indeed, between the years 1992 and 1998, assaults on Indian children were perpetrated at twice the rate for all other children in the national population. An estimated 40-70% of Indian youth are high school drop-outs and the suicide rate for Indian children is two-to-six times the national average (Flynn, Justice Department's Bureau of Justice Statistics as reported in Oklahoma Indian Times, 3/1999 issue).
The same report reflects that American Indians of any age group are more likely than any other race in the United States to become a target for violence in the upcoming year. The five-year study prepared by the Bureau on American Indians and their relationship to violent crimes indicates that Indian people are victimized by interracial violence more than any other minority group in America. At least 70% of the violence perpetrated on American Indian people is committed by non-Indian persons, a substantially higher rate of interracial violence than that experienced by white or African-American victims.
In fact, American Indians are victimized by violent crimes at a rate more than twice that of the general population. Indian women, particularly, are more likely to be victimized than women of any other race, including black males. However, other studies state that African-American women are more likely than women of other races to be victimized, as are women who live in urban areas (Crowell, Nancy, and Ann Burgess, eds.(1996), Understanding Violence Against Women, pg. 27, Washington, DC.: National Academy Press).
Native American women are twice as likely to be raped than women of any other race (Flynn, Justice Department's Bureau of Justice Statistics as reported in Oklahoma Indian Times, 3/1999 issue). American Indians suffered seven rapes or sexual assaults per 1,000 compared to three per 1,000 among African-Americans, two per 1,000 among whites, and one per 1,000 among Asians. In addition, the Department of Justice has concluded that American Indian women are at a significantly higher risk for being stalked (Stalking and Domestic Violence, The Third Annual Report to Congress under the Violence Against Women Act, 1998).
Over the past twenty-five to thirty years, public awareness and involvement has created, from a grass-roots level, a variety of efforts to prevent violence against women (and children), giving the impression that a great deal has been done to address the problem. In actuality, many programs have been started, but sufficient time has not passed to appropriately evaluate the programs to determine which may be the most effective. For example, Duluth's Domestic Abuse Intervention Project appears to have an impact on offenders, but a five-year follow-up reveals that 40% of the convicted batterers participating in the program have repeated their crimes (Randall 1991).
Funding is a continuing problem for all programs and in many instances, funding may be particularly difficult for tribes to obtain for certain programs. Indeed, some states openly refuse to fund tribal organizations or programs, largely because of an erroneous perception that tribes are privileged to receive generous funding for their programs at a federal level. For this reason, it is often particularly difficult for tribes to develop and implement victim services programs and crisis intervention programs.
For example, a Department of Health and Human Services report presented to a Senate committee in 1995 stated in part that: "In 15 of the 24 states with the largest Native American populations, eligible tribes received nothing in 1993 from the more than $3 billion in federal funds (Title XX and Title IV-E child welfare services and protection programs) the states received. In the other nine states, Indians received less than 3%." (George Grob, Deputy Inspector General, HHS, 4/5/1995, Senate Committee on Indian Affairs, Report to the Senate of Senator Paul Simon, U.S. Senate Floor, July 31, 1995/as reported in Christian Ethics Today, 12/1995.)
Specific to the State of Oklahoma, it has recently been determined that Indian Health Services spends the least per capita in the Oklahoma region--about $850 per patient, compared with $1350 per patient nationally. According to Senator James Inhofe (R-Oklahoma), "Oklahoma's Indian Health Service serves the nation's largest population of American Indians, but receives the least amount of health care funding...". ("Indian Health Concerns Addressed in Legislature", as reported in The Comanche County Chronicle, 6/8/2000 issue.)
It is perhaps not coincidental that according to a recent study on life expectancy, it was determined that "The United States, which spends the most on health, stands out as not doing as well as they should be," ranking 24th among 191 countries, according to Chris Murray, Director of WHO, the U.N. agency's global program on evidence for health policy. According to the study, the "bottom 2-1/2% of Americans have health life expectancies characteristic of sub-Saharan Africa in the 1950's", with Native Americans, poor rural black populations and inner city populations reflecting the poorest health status. The study blames high rates of tobacco-related disease, homicide and injury for dragging the U.S. score down, although Murray stated that "rich Americans class as the world's healthiest people". ("Japanese Have Longest Life Expectancies", as reported in The Comanche County Chronicle, 6/8/2000.)
Shelter programs have, in effect, been in existence for a little more than twenty-five years in the United States. As a general rule, though, few shelter programs exist in rural areas, and even fewer in rural areas predominantly populated by Native American people. Indian crime victims of domestic violence, sexual assault and child abuse have had difficulty getting their needs met. The inadequate response to victim's needs includes lengthy law enforcement response to incidents, lengthy investigations, no prosecution or poor prosecution of cases, lack of immediate medical attention and shelter care, as well as insensitivity to the cultural needs of victims and witnesses by federal, state and tribal service providers.
Serious gaps in our knowledge of the overall problem of domestic violence, its relationship to substance abuse and child abuse, still exist. The number of programs available for treatment, prevention and intervention are still small in comparison to the size of the problem. Programs designed to be culturally sensitive to American Indian offenders are also few. Funding is modest and often, almost non-existent. Effective methods for identifying and treating the consequences of abuse are still being evaluated and assessed as well.
It is not true that alcohol or drugs cause a person to perpetrate violent acts. In fact, there is no evidence which supports a cause-and-effect relationship between substance abuse and violence. As one professional in the field put it: "Drinking does not cause beating. If it did, then they [batterers who abuse alcohol] would beat strangers on the street." (Domestic Violence Division, Metro Nashville Police Department, as sited at www.telalink.net/~police/abuse/index.html).
In fact, it is a well-known truth that batterers who abuse their intimate partners and children don't simply "lose control" and commit "an act of passion". Rather these individuals choose or select who they will perpetrate their violence upon, and further, they often decide how much injury or pain they wish to inflict and how much they don't before becoming violent. For instance, one abusive man might slap his wife, but would draw the line at punching her with his fist. Another might punch her, but would never shoot or stab her. This same abuser might become just as angry at his employer, but somehow manage to control his emotions and never become violent or even raise his voice.
However, it is conceded that alcohol or drug abuse often contributes to a batterer's abusive behavior. In the Discovery Health television channel's series, Minds to Crime, biological and neurological reasons for anti-social and/or violent behavior are explored. Scientific studies have revealed that the brains of impulsive, chronically violent offenders typically possess low serotonin levels, a chemical that is critical to the functions of the portion of the brain that controls aggression.
It is interesting to note that low serotonin levels have also been found in the brains of persons whose self-esteem is low. Scientists speculate that the lack of serotonin in the brain may serve to stimulate aggression in some individuals, thereby assisting them in making dramatic changes in their social status and circumstances, which in turn increases self-esteem and likewise, serotonin levels. Not by coincidence, perhaps, has it been established by some studies that the brains of suicidal persons also commonly reveal low serotonin levels.
Scientists have further determined that serotonin levels in the brain can be dramatically affected by alcohol. According to Professor Frank Wood, Neuro-Psychologist at Lake Forest University Medical Center, alcohol initially appears to be a stimulant, when in fact, "...alcohol depresses the nervous system and reduces brain arousal, generally further eroding such an individual's impulse control."
Additionally, it has been credibly established that when a person deliberately changes the "chemical mix" of their metabolism, that person may unintentionally promote his or her own violence, as in the case of usage of certain types of steroids, or in the mixing of alcohol with certain types of other drugs, such as heroine or cocaine. Still, medical health authorities concede that serotonin is not the key to violence, nor is biology the cause or explanation for violence. Other factors, such as environment, social status, circumstances, attitudes and learned behaviors also figure in.
The Office for the Prevention of Domestic Violence, New York, states: "The belief that alcoholism causes domestic violence evolves both from a lack of information about the nature of this abuse and from adherence to the "disinhibition theory". This theory suggests that the physiological effects of alcohol include a state of lowered inhibitions in which an individual can no longer control his behavior.
Research conducted within the alcoholism field, however, suggests that the most significant determinant of behavior after drinking is not the physiological effect of the alcohol itself, but the expectation that individuals place on the drinking experience (Marlatt & Rohsenow, 1980)...Despite the research findings, the belief that alcohol lowers inhibitions persists and along with it, a historical tradition of holding people who commit crimes while under the influence of alcohol or other drugs less accountable than those who commit crimes in a sober state (MacAndrew & Edgerton, 1969)." (The False Connection Between Adult Domestic Violence and Alcohol, Office for the Prevention of Domestic Violence (OPDV), New York State. http://thesafetyzone.org/alcohol/article.html)
There is evidence to support the belief that some batterers will purposely abuse alcohol or other substances so they may feel at liberty, under socially acceptable norms, to behave in an abusive fashion (for example: "I didn't mean to hit her, but I was drunk, so..."). But there is no excuse for abuse, ever. Batterers must be held accountable for battering behavior. The victim of abuse is never responsible for being abused or for the batterer's abusive actions. Rather, the batterer is responsible for his/her actions.
Some characteristic differences between alcoholics and alcoholic batterers are suggested below (adapted from information provided by YWCA Crisis Center, Enid, Oklahoma, 1997):
Alcoholics:
Alcoholic batterers:
It is significant that batterers who abuse while under the influence of alcohol or other drugs may be exceptionally brutal in their assaults--more so than if the violent attack were committed sober or free of chemicals that may be mind or mood altering. Evidence suggests that substance abuse increases the frequency and severity of traumatic violent episodes and injuries resulting from abuse perpetrated while under the influence of alcohol or other drugs may result in more severe injuries than if the violence had been committed sober or drug-free.
Some studies have found that more than 50% of abusive men use or are addicted to some substance (Crites and Coker 1988). However, there is also ample evidence that abusive behavior does not necessarily stop when the batterer overcomes his substance dependency. Men who proved physically abusive while under the influence of alcohol or other substances have also admitted to violent episodes while not using alcohol or drugs (Steinmetz 1977).
According to the Office for Prevention of Domestic Violence: "Even for batterers who do drink, there is little evidence to suggest a clear pattern that relates the drinking to the abusive behavior. The majority (76%) of physically abusive incidents occur in the absence of alcohol use (Kantor & Straus, 1987), and there is no evidence to suggest that alcohol use or dependence is linked to the other forms of coercive behaviors that are part of the pattern of domestic violence." (The False Connection Between Adult Domestic Violence and Alcohol, OPDV.)
Lenore Walker's 1984 study of 400 battered women revealed that 67% of batterers frequently abused alcohol. However, after collecting data on the individual case studies following four separate battering incidents, it was found that only 1/5 of the batterers had abused alcohol during each of the four incidents studied (Walker 1980 and 1984). In another batterers program, 80% of the men had abused alcohol at the time of their latest battering incident. But the overwhelming majority of the men in the group also reported battering their partners when not under the influence or alcohol.
Obviously, batterers will batter, regardless of sobriety or chemical dependency. There are many alcoholics or substance abusers who do not batter or otherwise abuse their partners, just as there are many who do.
Likewise, survivors of domestic violence may turn to mind-altering or mood-altering chemicals to decrease feelings of loneliness, isolation, and helplessness or to numb anxiety and depression. As previously stated, according to The Commonwealth Fund for The Commission on Women's Health (Second Addition, March 1996), women who report domestic violence are more likely than other women to also abuse drugs and alcohol. These women are, in fact, 16 times as likely to become alcoholics and 9 times as likely to abuse drugs as women who are not abused (Tiernan, Tulsa World, 10/5/1997).
Some batterers use their partner's alcohol or drug dependency as an excuse for their battering (i.e., "I've warned her what I would do if I caught her drinking" or "When she's drunk, I have to be physical with her to make her...behave/do something/or not do something".) There is no justification, however, for violent behavior under any circumstances.
Evolving from the myth that alcohol or substance abuse causes domestic violence is the greater myth that treatment for the dependency will stop the violence. The Office for Prevention of Domestic Violence states: "Battered women with drug-dependent partners...consistently report that during recovery, the abuse not only continues, but often escalates, creating greater levels of danger than existed prior to their partners' abstinence." (The False Connection Between Adult Domestic Violence and Alcohol, OPDV).
While substance abuse can and does increase the likelihood of committing violent acts, not coincidentally, substance abuse will increase the vulnerability to abuse as well. Quoted from the 1996 Paper, "Violence Against Women in the United States", prepared by The Commission on Women's Health for The Commonwealth Fund: "Given the strong link between drugs and violence, it is not surprising that studies of women drug abusers document a nearly universal history of violence (Wallace 1991; Paone et al. 1992; Fullilove et al. 1993)."
As the number of violent acts associated with substance abuse increase, so have the number of victims of violence. Among women involved in the crack subculture, for example, experiences of violence are very common. In one study of 105 women in recovery from crack addiction, 87% reported at least one experience of violent trauma (Fullilove et al. 1993.) Some experts in the field of substance abuse treatment feel that there is evidence to support the claim that while alcohol or drugs may not be present in 100% of the incidents of domestic violence reported, nevertheless, virtually 100% of the women who report substance abusing lifestyles also report one or more episodes of violence perpetrated against them. The inescapable conclusion is that domestic violence does not always involve substance abuse, but habitual substance abuse may always be a prelude to experiencing some form of violent assault.
Statistics specific to Oklahoma reflect that 70% of the women incarcerated in the Oklahoma Department of Corrections are in prison because they committed drug-related crimes. To place this figure in more sharply focused perspective, it is noted that Oklahoma ranks first in the nation in its rate of incarceration of women. A local survey conducted by Neighborhood Services Organization (NSO) found that 30%-40% of homeless children in shelters around the State have parents who are chemically dependent (Eagle Ridge Institute 1993).
These figures may be higher than the national average for American Indian groups. Statistics reveal that alcohol dependency among Native American is approximately three times that of the general population. Native Americans are also ten times more likely to die due to alcohol-related illnesses than persons from other races and depression is the most commonly reported psychological disorder. Consequently, suicide is 1.3 times as prevalent among Native Americans as it is in the general population. (Eagle Ridge Institute 1993/Indian Health Services)
Some substance abuse experts feel that inhalant abuse is on the rise among Native American populations in Oklahoma. Inhalants are generally affordable, easily obtained and the "high" that results from the use of the substance is powerful, intense and successfully numbs the user to circumstances or emotions that seem overwhelming. Inhalants are highly addictive and the addiction is particularly difficult to treat. Use of inhalants also results in brain damage.
Three out of four domestic violence cases involving Native Americans are alcohol-related and arrest rates for Indian people under the influence of alcohol are double that of any other race. Rates for incarceration of Indians is nearly four times higher than that of all groups surveyed. Further, Native Americans are most likely to know their assailant, most likely to suffer an alcohol-related offense, and most likely to be assaulted by a member of another race. (Flynn, Justice Department's Bureau of Justice Statistics as reported in Oklahoma Indian Times, 3/1999 issue).
It is indisputable that alcoholism and substance abuse are problems closely intertwined with the problem of domestic violence. When alcoholism and/or drug abuse are predominant, prevailing conditions in a relationship, the incidence of domestic violence (and sexual assault) increase dramatically. Despite these facts, very little has been done in either the addictions treatment field or the crisis intervention field to develop intervention strategies that address concurrently chemical dependency problems in batterers or chemical dependency in victims of battering.
Through the addictions treatment system, these issues tend to be most often approached from an addiction framework perspective, but this perspective too often identifies battering as an addiction or as a symptom of alcohol or substance abuse. The addictions treatment framework also tends to assume that there is a point at which the batterer can no longer control his substance abuse, and it may therefore also be erroneously assumed that there may be a point at which a batterer can no longer control his violence. Obviously, approaching batterer intervention from this perspective will more often than not have harmful consequences for the batterer's victim. As a result, treatment programs that promote sobriety do not usually address batterer intervention techniques.
Again for obvious reasons, victims of substance abusing batterers should never be referred to so-called "co-dependency" self-help groups that encourage group members to define personal boundaries or set limits on their partners' behavior. The same programs that may be helpful to persons whose substance abusing partners are not batterers may, in fact, serve to place the partner of a substance abusing batterer in more precarious and dangerous circumstances. Should the victim, as a result of co-dependency education decide to assert rights or display behavior that the batterer finds unacceptable or threatening to his control over the victim, the consequence will most likely be an escalation of the violence in the relationship. Co-dependency programs may also encourage a victim to increased feelings of self-blaming or guilt for her abuse, or encourage her to accept even greater responsibility for her partner's violent behavior.
For victims of domestic violence who themselves have substance abuse issues, access to safe shelter may be limited or completely unavailable. Lack of training in the treatment of chemical dependencies, misinformation and misconceptions on the part of advocates, along with shelter policies precluding admission of substance abusing victims of domestic violence, often result in the denial of intervention services and options that are available to non-chemically dependent victims.
Since the substance abuse treatment field primarily works from a medical model that recognizes chemical dependency as a disease while the crisis intervention field primarily approaches domestic violence, sexual assault and stalking from a socio-political base, conflicts naturally result. Nevertheless, it is becoming increasingly apparent to professionals working in both fields that programs which adequately and effectively address the problems of domestic violence and chemical dependency con-currently must be developed.
As previously mentioned, conflicting definitions of "intimate partner abuse" and inconsistent research approaches act as obstacles to the collection of accurate data reflecting the exact number of persons affected by domestic violence in the U.S. each year.
Some professionals, for instance, define domestic violence or intimate partner abuse as a pattern of severe violence, perpetrated over a period of time, that results in physical and emotional injury and undermines psychological functioning. Data collected according to the strict application of this theory, reflects that "battered spouses" or intimate partners comprise only a fraction of all those who experience violence in the context of an intimate relationship.
Supporters of this definition defend their position with the supposition that many couples commonly "hit" each other during conflicts or as a method for resolving disputes. It is estimated that as many as one in six of the couples in the U.S. employ hitting or other physical violence during the course of a year (Straus and Gelles 1986). Further, women were concluded to be equally as likely to use violence during conflict as men, which may also serve to illustrate the perceived importance of physical aggression in today's society.
However, opponents to the theory that women are approximately as violent as men in couple or intimate partner relationships protest that the conclusions drawn regarding gender aggression tendencies are erroneous since more often than not, research on this subject was based on the responses of only one member of an intimate partner/couples relationship. It is also pointed out that the injuries resulting from "mutual" assault in a couples relationship are not usually "equal" between two people of the opposite sex, but that instead, the male partner in a heterosexual battering relationship rarely sustains the same degree or seriousness of injury as the female partner.
Some studies indicate that violence occurs in up to 40% of lesbian relationships, but most researchers agree that partner violence in same-sex relationships does not negate theories which link male violence to female partners or male violence with gender and/or traditional societal roles (Bologna, Waterman and Dawson, 1987). Some experts in this little-understood field argue that lesbians are subjected to the same cultural misogyny and homophobia that opposite sex couples are subjected to with much the same results in the manner that same-sex couples relate to one another (Saakvitne and Pearlman, 1993).
Those who feel that "battering" constitutes a pattern of severe physical violence, and excludes emotional, sexual or intermittent physical violence, justify their argument by pointing out that there are differences in the risk of injury to women as compared to men in a "true" battering relationship. The American Medical Association's Council on Scientific Affairs (1994) estimated that women are six times more likely to be injured by their intimate male partner than a male partner is to be injured by his female partner during a violent incident. Therefore, the AMA concluded, "hitting affects men and women, but battering is largely a woman's problem."
In surveys conducted with battered women, it was discovered that in 60% of the cases reviewed, the woman admitted that during a violent episode, she had hit her male partner first. However, almost 80% of the women surveyed also reported that physical assaults perpetrated against them by their male partner were not preceded by a verbal argument.
Although similar proportions of men and women admit to engaging in violence against their partner (Crowell, Nancy, and Ann Burgess, eds.(1996), Understanding Violence Against Women, pg. 32,Washington, DC.: National Academy Press), the majority of batterers arrested are heterosexual men. Prosecutors and probation officers interviewed estimated that between 5 and 15 percent are women, although many are thought to be "self-defending" victims who have been mistakenly arrested as primary or mutual aggressors (Goldkamp, J.S., The Role of Drug and Alcohol Abuse in Domestic Violence and Its Treatment: Dade County's Domestic Violence Court Experiment, Final Report, Philadelphia: Crime and Justice Research Institute, June 1996; Busey, Tina, "Treatment of Women Defendants," The Catalyst (Spring 1993): 3-4; and Busey, Tina, "Women Defendants and Reactive Survival Syndrome," The Catalyst (Winter 1993): 6-7.). A small percentage of those arrested for battering are gay or lesbian (Healey, Kerry Murphy, and Christine Smith (July 1998), "Batterer Programs: What Criminal Justice Agencies Need to Know", U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Research in Action, Jeremy Travis, Director.) However, the low percentage is not indicative of a lack of battering in same-sex relationships, but is probably a reflection of society standards which discourage reporting by victims in same-sex relationships, particularly if the victim (or perpetrator) is firmly closeted in their homosexual lifestyle.
In the majority of cases, women react defensively to physical threats, intimidation or abuse. Many "hit first" or initiate violence because they perceive they are in danger of being violently assaulted. Most women do not have the physical strength to inflict significant damage or injury to their male partners without the aide of a weapon. Because men, generally speaking, hit harder and cause more damage than their female counterparts are capable of inflicting in return, women are more likely than men to use a weapon in a domestic dispute. (FBI Uniform Crime Reports)
There are, in fact, an estimated 148,000 men nationwide each year who are "battered". This cannot be considered a trivial figure, despite the overwhelmingly larger numbers of women (approximately 1,000,000) who are abused in contrast (Greenfield, Lawrence A., et al., Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends, Bureau of Justice Statistics Factbook, Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics, March 1998: v, NCJ 167237/ and Bureau of Justice Statistics Factbook, "Violence by Intimates", March 1998.)
Men who are battered experience the same emotional stress that battered women do. Like their female counterparts, abused men:
Some studies indicate that battered men, unlike battered women, are rarely killed by their intimate partner when attempting to leave a violent relationship. The same studies have revealed that most men murdered by their intimate partners are killed during or immediately following a battering episode perpetrated by the man against their female partner. (Marshall & Pence, from an article on "Advocacy" (1998)/Sacred Circle: National Resource Center to End Violence Against Native Women)
Richard Gelles, Director of the Family Violence Research Program points out, "Men who beat their wives, who use emotional abuse and blackmail to control their wives, and are then hit or even harmed, cannot be considered battered men. A battered man is one who is physically injured by a wife or partner and has not physically struck or psychologically provoked her" (Gelles 1998).
Oklahoma Statute, Title 22, Section 60.1 defines domestic abuse as "any act of physical harm, or the threat of imminent physical harm which is committed by an adult, emancipated minor, or minor age thirteen or older against another adult, emancipated minor or minor child who are family or household members or who are in a dating relationship". Oklahoma law further defines the terms "family or household members" and "dating relationship".
Most professionals in the field define domestic violence simply as the "physical, sexual and emotional abuse of another person" (Northwest Domestic Crisis Services, Inc.-1996) or as a relationship which "uses physical force to establish control and maintain power over another person" (The Women's Coalition). "Battering" may also be defined as a form of domestic abuse that involves a pattern of learned behaviors used to establish power, dominance and control over another person. It should also be noted that the definition of what abuse is and isn't may vary across cultural and ethnic lines and is most often defined according to the perspective of the "dominant society", meaning the white or Caucasian race.
Domestic violence may involve pushing, grabbing, restraining, punching, slapping, choking, stabbing, kicking, hair-pulling, biting, hitting, tripping, knocking down, pinching, dragging, shaking, throwing objects at the victim or picking up and throwing the victim herself, physical coercion, forced sexual activity and verbal threats. Other tools of oppression commonly found to be present in an abusive relationship include:
Domestic violence is not simply a "squabble" between two equal partners that gets out of hand, but rather is defined by a cycle of abuse in which one person is the victim all the time and the other has power and is in control all the time. The root cause of all battering relationships can be found in the twin issues of power and control.
All those who work with persons who have survived a violent relationship agree that however the terms "domestic violence", "intimate partner abuse", or "battering" may be defined, violence has physical, psychological, economic and social consequences that can be incapacitating or utterly destructive. In addition to the physiological injuries readily visible (broken bones, bruises, etc.) that may result from domestic violence, less visible physical consequences may include chronic pain, insomnia, hearing or vision loss, joint damage and sexually transmitted diseases.
Long-term psychological impairments that are common to victims of abuse include depression, suicidal feelings, self-contempt and an inability to trust or to develop intimate relationships after escaping the battering relationship (Finklehor, 1983). Victims of severe and repeated episodes of traumatic violence often have "anger issues" in the aftermath of the violent relationship. These people have difficulty regulating their emotions. The consequences may be revealed in future relationships--including interpersonal relationships of a romantic or platonic nature and employment
relationships--any or all of which may be short and stormy (Herman 1992; Kluft 1990).
It is also believed that there may be a link between battering and arthritis, hypertension and heart disease (Carrao 1985, as sited at www.telalink.net/~police/abuse/index.html, Domestic Violence Division, Metro Nashville Police Department, information provided by Domestic Abuse Intervention Project). In addition, science is learning that violence may actually produce changes in the physiology of the brain (Commission on Women's Health 1996).
According to Pagelow (1984): "Victims of all types of family violence share a common experience of denigration of self that results in diminished self-esteem. The shame and feeling of worthlessness so often expressed by battered women is shared by maltreated children as well as maltreated elderly parents."
Abused women often have difficulty nurturing or caring for their children as well. "The stress of avoiding, experiencing and then (while in the relationship) recovering from physical abuse and suffering from ongoing psychological trauma affects the ability of a mother to be a good parent" (Crites and Coker 1988). Psychologist Lenore Walker's 1985 study revealed that mothers were approximately eight times more likely to abuse their children when they were being abused themselves. In almost 100% of the cases where the mother abused the children, the abuse ceased once the violent male/female adult relationship ended.
Women stay in abusive situations for many reasons. It is also common for the factors that keep a woman in an abusive relationship to be the same factors that prevent her from reporting the abuse. For example, a recent survey conducted by India's Health Ministry, supervised by the International Center for Research on Women in Washington, queried 90,000 married women in India on their experiences with domestic violence. The study concluded that more than 50% of the women surveyed justified the beatings they received as punishment earned or deserved for neglecting housekeeping and/or child-rearing duties, showing disrespect to in-laws, going out without a husband's permission or arousing his suspicions of infidelity (Dugger, Celia W. (12/26/2000). "Kerosene, Weapon of Choice for Attacks on Wives in India". http://query.nytimes.com/gst/fullpage.html?res=9F02E0DD1338F935A15751C1A9669C8B63&n=Top/News/World/Countries%20and%20Territories/India. This and other surveys conducted around the world determined that from 10%-50% of women have experienced domestic violence, the most common reasons for which were "wifely shortcomings".
Reasons women have cited to explain why they frequently stay in abusive situations include:
Statistically speaking, it is not uncommon for a battered woman to leave her abuser seven or eight times before she makes a final break.
The Controversy Over "Choices"
"Though leaving is not an option that seems available to many battered women, I believe that the first time a woman is hit, she is a victim and the second time, she is a volunteer. Invariably, after a television interview or speech in which I say this, I hear from people who feel I don't understand the dynamic of battery, that I don't understand the "syndrome." In fact, I have a deep and personal understanding of the syndrome, but I never pass up an opportunity to make clear that staying is a CHOICE. Of those who argue that it isn't, I ask: Is it a CHOICE when a woman finally does leave, or is there some syndrome to explain leaving as if it too is involuntary? I believe it is critical for a woman to view staying as a CHOICE, for only then can leaving be viewed as a CHOICE and an option." (de Becker, 1997)
AND
"Just as there are batterers who will victimize partner after partner, so are there serial victims, women who will select more than one violent man...even though these men are frequently kind and gentle in the beginning, there are always warning signs. Victims, however, may not always CHOOSE to detect them...people don't see the signs, maybe because our process of falling in love is in large measure the process of CHOOSING not to see faults, and that requires some denial...My observations about selection are offered to enlighten victims, not to blame them, for I don't believe that violence is a fair penalty for bad CHOICES. But I do believe they are CHOICES." (de Becker, 1997)
"The notion that women don't leave is a myth. Women telland women leave all the time. When it comes to leaving, battered women are enormously ingenious, resourceful and courageous...The truth is that coercion and fear make it difficult, even impossible sometimes, for women to leave or to leave safely. How "free" is a woman to leave when she's been told time and again, "If you leave me, I'll kill you. Or I'll kill the kids. Or you'll never see the kids again." Leaving is by far the most dangerous time for battered women--a time when they are most likely to be assaulted and most likely to be killed. Batterers are the most tenacious of criminals when it comes to the active pursuit of their victims. Every day, four or five men track down and murder women who are trying to get away from them. If fear weren't enough of an obstacle to leaving, what about the enormous financial obstacles many women face in making the CHOICE to leave? If women could solve the violence problem without the system's help, they would have done it a long time ago." (Zubretsky 1994)
A Few More Throughts on the Controversy
In his book, "The Gift of Fear", Mr. de Becker also states:
"How could someone feel that being beaten does not justify leaving? Being struck and forced not to resist is a particularly damaging form of abuse because it trains out of the victim the instinctive reaction to protect the self."
Mr. de Becker goes on to say that:"...dedicated, constructive people want to educate the public as to why so many women stay, I want to focus on how> so many women leave."
Also Mr. de Becker:"Though leaving is the best response to violence, it is in trying to leave that most women get killed...Shelter locations are secret, and the professionals there understand what the legal system often doesn't: that the issue is safety--not justice."
Native American Cirlcle Believes that:
"Why doesn't she just leave?' is not a question, but is rather a judgment thatre-victimizes the victim. The person who asks this question imagines that the abused has more freedom of CHOICE than she actually possesses, and that if she leaves, she'll be safer, happier, stronger, more self-sufficient, in control of her own destiny, free of violence and free of the fear of violence.The abused woman knows better, has a greater grasp of her own realities. She is not (usually) mentally deficient. She is abused! The person who asks this question has indulged in a form of victim-blamingbecause the question suggests that the battered woman should alone be held accountable for her safety and her children's safety.
Remember that: BATTERING IS A CHOICE.Abusive people may choosebattering behaviors or they may choose a non-violent path that leads to understanding, harmony, deeper intimacy, and greater satisfaction with their love relationships.
Foremost among the reasons for staying in a violent relationship is the fact that the violence often alternates with warm affection and long, loving interludes that have the effect of renewing a victim's hopes that her abuser will actually stop his abuse. In the aftermath of a violent event, victims frequently begin to question their own memories of the abuse and minimize the severity of the violence or the intensity of the fear they felt during the violent incident. They also may have suffered so much damage to their self-esteem and self-worth that they may actually feel they are not worthy of a different lifestyle.
Many professionals feel that there are four "stages" of abuse, or in effect, that there is a process a victim of domestic violence may go through along the road to becoming victimized.
The stages are:
It is a myth that battering is limited to working class or poor families. In fact, no socio-economic group, no race, culture or class of people is immune from domestic violence. A woman may be victimized at the hands of her husband whether he is a factory worker or construction worker, or a teacher, lawyer, doctor, minister or some other type of blue or white collar professional. All women are at risk for domestic violence (and some men). However, poor women appear to be at a greater risk of experiencing domestic violence than all other socio-economic classes of women (Waits, Kathleen (June/July 2000). "Insights Into the Judicial Response to Domestic Violence". Domestic Violence Report, Volume 5, No. 5, pg. 67-74.)
Perhaps the study results are due to the fact that poor women report violence and access community services and resources most often, whereas wealthy women often have additional options and alternatives that their greater wealth makes available to them, allowing them to avoid the embarrassment and inconvenience of relying on the "system" to assist them with their circumstances.
It is proven that without intervention, battering behavior will not improve over time, but will instead become progressively more severe. Abuse often does not become violent in the initial stages of a relationship, but rather, begins more gradually. Emotional abuse is usually the first "power and control tactic" employed by a batterer to exert power or establish control over a victim. Once the victim has become "conditioned" to accept and internalize the emotional abuse, she will more readily accept physical intimidation and then physical abuse, forgive the abuse and finally, even come to accept responsibility for her batterer's behavior.
"Pre-battering violence" is often characterized by:
There is more than ample evidence to support the claim that when abusers initiate pre-battering violence, the abuser will soon progress to employing violent battering to achieve complete control over the victim.
The following treatment of "Why She Stays..." was found in the handbook of the YWCA Crisis Center, Enid, Oklahoma:
Women who stay in violent relationships undergo gradual steps of reasoning to reconcile the violence in their minds. The reason she stays may change as the violence in the relationship progresses.
At first,she stays because:
Later,she stays because:
Finally,she stays because:
The next time you are tempted to ask, "Why does she stay?", stop for a moment and consider the humiliation endured by the victim. To what lengths would you go to keep yourself from being labeled a failure?
Approximately 1 out of every 3 women will marry or become involved with a man whose behavior is characterized by battering tendencies.
It is important to remember that none of the women who become involved with batterers do so intentionally. No person consciously chooses to surrender control, power and authority over their own lives. No person consciously chooses to be violently abused, to feel demeaned or terrorized. If one can accept these statements as intrinsic truths, then:
While it is a myth that a battered woman "likes abuse" or chooses to be abused, it is nevertheless true that in most battering relationships, danger signs exist that may warn of battering tendencies months or even years before the onset of actual battering. For instance, if you are the parent of a teenage daughter whose boyfriend insists on making her account for all of her time, displays extreme or irrational jealousy, seems to have low impulse control and angers easily, you are justified in feeling alarmed about the direction the relationship may eventually take. Remember that domestic violence is characteristically "progressive" in nature, although it should not be considered a progressive disease according to the medical definition of "addiction" since battering behavior is learned behavior.
There is strong evidence supporting the conviction that battered women are first "conditioned" (whether intentionally or unintentionally) to accept battering behavior through cultural norms or accepted gender stereotypes existing in society, and/or through the employment of one or more "power and control tactics".
Power and Control Tactics commonly employed by batterers may include any or all of the following behaviors (partially adapted from the Apache Tribe of Oklahoma's STOP The Violence program and from Sacred Circle/National Resource Center to End Violence Against Native Women):
It is indisputable that battering involves learned behavior patterns. Just as victims of abuse are often conditioned over a period of time to accept abusive behavior, so do abusers often develop abusive behaviors over a period of time--and always through many of the same channels of "conditioning" imposed upon the victims of abuse. As with the victim, behavior patterns learned by batterers are often the result of "socialized" behaviors, which may be encouraged through male and female stereotypical roles that appear to be cultural norms in society, or through "family tradition", that is passed down from generation to generation.
It is also an inescapable fact that batterers often indulge in battering behavior because there are undeniable "rewards" to the batterer as a direct result of the abuse. For instance, men who batter sometimes attribute stress relief to "venting" their emotions through violent behavior, but the major positive reinforcement battering men obtain from exercising power and control tactics is evidenced in what they get out of the battering. Achieving dominance and control over their victims, establishing a tyrannical authority over a victim, obtaining servile obedience from a victim are only a few of the rewards of battering behavior. In short, battering behavior portrays the extreme definition of a "power trip".
Those who disagree with this reasoning create myths about battering behavior and then present the myth as fact. For example, a popular myth is that men who batter do so because they have poor impulse control or simply because they cannot control themselves, go temporarily insane or just "lose it". Men who batter are among the first to advance this theory because it helps them to avoid responsibility for their actions. But in fact, men who batter are usually most violent towards their intimate partner and/or their children. They control themselves well enough to choose (there's that word again) a safe target. Batterers often beat their victims on parts of the body where bruises will not show, but will be hidden by clothing. 60% of battered women are beaten while they are pregnant. Often, pregnant victims are punched or kicked in the stomach, while visibly pregnant. Many violent assaults last for hours and many batterers actually plan assaults.
It is interesting to note that Amnesty International's list of coercive tactics used world wide in human torture to break a person's spirit and condition them to submissive behavior include:
The following is a fictionalized account of a battering relationship in its early stages. If you recognize yourself, a friend or loved one in this story, we encourage you to seek assistance immediately, to develop a safety/escape plan, and to explore your available options and resources.
Mike and Lori began seeing each other only two months ago, but already their relationship is serious. Mike telephones Lori at work several times a day and often drops in on her at home when she isn't expecting him. Sometimes when she leaves work, he is waiting for her on the parking lot at her job and follows her home. His attentiveness impresses Lori's friends and they tell her they would give anything to have a boyfriend like Mike. He is soft-spoken, polite and charming in public situations.
Lori hasn't shared everything she knows about Mike with her friends, though. His sudden, unannounced appearances at Lori's home and workplace make Lori feel vaguely uneasy. She also feels a little guilty that she doesn't appreciate his constant presence, but Lori has discovered that if she attempts to set boundaries with Mike, either emotionally or physically, he becomes quiet and withdrawn. He has suggested, in a roundabout way, that if she really cared for him, she would be pleased with his attentions.
Mike's first priority is pleasing Lori and she reasons that she mustn't be too selfish to consider meeting his needs when his entire existence appears to revolve around her own. She's certain that she's found her soulmate in Mike and she doesn't want to jeopardize her future with him. Lori believes in the old axiom that "love will conquer all".
Mike has confided that he doesn't think most women are trustworthy. Lori realizes that he anticipates she will be unfaithful to him, so she tries to be particularly gentle in this regard, sensing that he is fragile and insecure. She hopes that in time, Mike will realize how deeply she cares for him and then, his suspicious probing behavior will become less relentless.
Last night, as Lori and Mike were eating dinner at a local restaurant, Mike accused Lori of staring at another man in the crowded room, "flirting" with him. Gone were Mike's charming, polite manners, his smile and happy conversation, replaced in an instant with a sharp, penetrating anger. The change in him was so astonishing and so fast that afterward, Lori feltshe had been talking to two distinct people, disturbingly different from one another.
At the time of the incident, though, she'd been embarrassed by his hostile behavior and loud accusations. Mortified by the surprised expressions on the faces of the people who turned to glance at them, Lori's instinctive desire was to end the shame of that awful moment. She spoke to Mike in a calm, soothing voice, reassuring him that she had no interest in anyone but him. She felt relieved and gratified when his anger subsided and he returned to his "normal" self. For the remainder of their meal together, Lori cautiously kept her eyes on her plate or on Mike's face. She made a solemn, silent vow that she would never give him a reason to be jealous again.
Later, when Mike took Lori home, he apologized clumsily for his outburst in the restaurant. He told her that she had provoked his temper by looking across the room. He didn't mean to be jealous or possessive, he said, but he didn't think he could be held accountable for his actions, feeling as strongly for her as he does. "If you ever try to end the relationship," he said, "I'm not sure how I'll react."
It was a very romantic moment, just like in the movies or in a romance novel--a passionate confession of heartfelt commitment that Lori had longed for and wondered if she would ever experience. Because she didn't want to spoil the moment, she accepted the blame for Mike's anger. It seemed a small concession for her to make for he had been so easy to appease in the restaurant.
Lori thinks that if she keeps a tight check on her own behavior--if she is careful to control her own actions and reactions, then she can in turn have a measure of control over the terrible anger that she senses is buried deep inside Mike. She believes that if she loves him well enough and strongly enough, Mike's terrible anger will simply disappear. He needs her and she can't end the relationship. If she is patient and caring, she can save him from himself.
Did you notice, as you were reading the story of Mike and Lori, any behaviors that might have warned Lori that a battering relationship was in its developing stages? If so, what were they? How were those behaviors disguised, muted, or "softened"? Did you notice any "mixed signals"? Could it be said that any of these potentially battering behaviors (or Lori's acceptance of those behaviors) stemmed from Mike's and Lori's cultural base or society system? Is Lori "free" to make choices at this stage of the relationship and if so, what sort of choices? What do you think would happen if Lori, at this stage of her relationship with Mike, decided to end the relationship?
Because most battering behaviors are learned responses that naturally spring from a victim's cultural base or society system, it is often difficult for a potential victim to recognize danger signals in the early stages of an abusive relationship. Too often warning signs are vague, ambiguous or seemingly harmless.
For example, in the initial stages of a courtship, a woman may feel flattered by her male partner's expressions of jealousy or possessiveness. She may feel that jealous behavior is evidence of a man's devotion. Her cultural base may also teach her that it is normal or usual behavior for a man to react with jealousy to real or imagined threats to his relationship with that "special" woman and that as a man, he should act decisively to protect his female partner and their relationship.
There are some experts on the subject of domestic violence who promote the concept that assimilation into the "dominant" culture has caused negative and battering behaviors to be adopted by Native American people today. In some aspects, this perspective is indisputable!
For example, in her autobiography, Mankiller, A Chief and Her People, Wilma Mankiller speaks of the prominent role women played in the social, political and cultural life of the Cherokee people. Nancy Ward, Ghigau or Beloved Woman of the Cherokees, the book states "...participated in a May 1817 tribal council meeting at which she presented a statement signed by twelve other women pleading with the Cherokee people not to give up any more land", and that "Early European observers made disparaging remarks such as, 'Among the Cherokees, a woman rules the roost,' and 'The Cherokees have a petticoat government'".
The book goes on to comment that "Europeans brought with them the view that men were the absolute heads of households, and women were to be submissive to them. It was then that the role of women in Cherokee society began to decline. One of the new values Europeans brought to the Cherokees was a lack of balance and harmony between men and women. It was what we today call sexism. This was not a Cherokee concept. Sexism was borrowed from Europeans." (Mankiller, Wilma and Michael Wallis (1993). Mankiller, a Chief and Her People. Excerpted from "Chapter 2: Origins", pg. 19-20, St. Martin's Press, New York.)
At the same time, while sexism reportedly was not practiced among the Cherokees and certain other tribal groups, there are examples in many indigenous cultures, particularly those of the Plains tribes that embraced the concept of a warrior society, that might--at least from a Euro-American viewpoint--suggest an element of sexism. For instance, a proverb among the Sioux was, "Woman shall not walk before man". (Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg. 47, Pantheon Books, New York.) Nevertheless, the Sioux people revered women and the role of women in the life of the tribe, as did the other Plains tribal groups. Indeed, studies of traditional Lakota society do not suggest that women were perceived to be less than or greater than men, but rather, that both genders were perceived as complementary beings, one to the other.
An old Cheyenne proverb illustrates clearly the importance of women in traditional Native life:
A people is not conquered until the
Hearts of the women are on the ground.
No matter how brave its warriors
Or how strong their weapons,
Then it is finished.
It has been estimated that more than 75,000,000 native people lived in the Western Hemisphere at the time of Columbus' alleged "discovery" of what Europeans termed the "New World". Approximately 6,000,000 of those native people resided in North America. Approximately 1/3 of that number reside in North America today. The decimation and destruction of native people by disease, war, and encounters with Euro-American people is clearly documented by historians. One example of the negative impact of Europeans and Euro-Americans on native people is clearly detailed in the following description of oppression of Indian people in California:
"In California, Spanish missionary cultures enforced a debased concept of woman as weak and subservient to men and the instigator of man's fall from grace (Eve). Indian men and women were regarded as the wards, and even the property, of the church. Women also were the property of men. Because violence against women fell under the notion of "sin", punishment of offenders by the Spanish military was arbitrary and uncertain. Enforced servitude and corporal punishment of captured native peoples was heavy by the Spanish military and condoned by the missions. After the secession of Mexico (and California) from Spain, landowners regarded Indians as a dependent, inferior labor pool-- and Native women working on ranches were protected as the property (or part of the estate) of land owners.In 1840-1880, the arrival of settlers, mercenaries and gold miners, further obliterated Indian tribes, families, and traditional tribal social systems. Native Americans had no legal rights or protections. Indian women and men could be captured or bought as indentured servants, prostitutes or wives by non-Indians. Indian children were taken from their parents for adoption or servitude by non-Indians.
In California, surviving bands were relocated from ancestral lands and eventually forced onto military-guarded reservations "for their own protection". Sickness, economic exploitation and poverty, threats of "termination" and cultural assimilation, and racism threatened reservation communities continuously until the 1980's."
(Indian Health Council, Inc. (April 2000). "Improving First Response to Domestic Violence, Sexual Assault and Stalking on Indian Reservations", developed with funding from the Office of Criminal Justice Planning to the Indian Health Council, Inc. for "Peace Between Partners Program", Pauma Valley, California, under grant number AI99021602, and for implementation under Violence Against Women Act "STOP" grant number IN97011602.)
That much of the bloodshed was committed by misguided persons in the name of a Christian God is a criminal tragedy, but it is nevertheless erroneous to blame Euro-Americans or non-Indian Christians for all of the anti-social, violent or negative behaviors displayed by some native people today. Broad-based statements about anti-social or violent behavior being more predominant in one race or cultural group than in another may be difficult to defend in every instance.
For example, jealousy and possessive attitudes are two of the most conspicuous traits of a battering personality. These traits are universally common to battering persons of all genders, races and origins. Furthermore, it would be inaccurate to state that batterers of Native American origin only learned these behaviors when Euro-American values, traditions and behaviors were forced upon them because history provides us with examples that showcase the extreme consequences of violent jealousy in several indigenous cultures.
For example, some tribes accepted the practice of disfiguring a woman's face by slicing off the tip of her nose if her husband suspected her of infidelity. That a tribal community would allow a jealous husband to physically punish his wife in this violent manner also implies that Euro-American cultures were not alone in their view that a husband had certain rights, or at least privileges, of "possession" or ownership over a wife. Among several native tribes, customs allowed a husband to "throw away" or give away his wife if she had displeased him, which again would suggest possession or ownership concepts and attitudes:
"Wife-beating and even mutilation for adultery was tolerated in some tribes where men were given higher status, as hunters or warriors, than women. However, an equal number of Native American tribal societies allowed women to participate or act as leaders in government (for example, through women's councils) and to own and dispose of property without consulting their husbands.
Examples of perceived "oppressive" tribal customs regarding women identified by Niethammer include the Chipewyan and Yurok mores. "Chipewyan women were often treated cruelly by their husbands and fathers...If a woman didn't please her husband in any small way, she could expect a beating, and though it was an odious crime for a Chipewyan male to kill another man, no one thought too much about it when a woman died from a beating delivered by her husband." (Niethammer, 1997). Although the Yurok of northern California were another group "which held women in low regard, considering them dark, inferior, and even contaminating", psychologist Erik Ericson noted that Yurok women exercised considerable influence over the daily affairs of home and children (Niethammer, 1997)."
(Indian Health Council, Inc. (April 2000). "Improving First Response to Domestic Violence, Sexual Assault and Stalking on Indian Reservations", developed with funding from the Office of Criminal Justice Planning to the Indian Health Council, Inc. for "Peace Between Partners Program", Pauma Valley, California, under grant number AI99021602, and for implementation under Violence Against Women Act "STOP" grant number IN97011602. Quotes cited from: Niethammer, Carolyn (1997). "Early Sexual Patterns", Daughters of the Earth: The Lives and Legends of American Indian Women, pg. 131. New York: Touchstone.)
History provides us with other examples of ancient Native American cultures that discouraged jealous anger and endorsed "wife-sharing" as a means of displaying a generous nature. From these examples, it appears to have not been uncommon for some Indian men in some indigenous cultures to offer their wife for sexual purposes to a guest, visitor, or a close friend. Ifhistorical accounts are indeed accurate in this detail, this practice, intended to reflect generosity, nevertheless would seem to speak volumes about how men from these particular tribes saw their wives and how women saw themselves and their feminine role.
The same theoretical logic cannot be applied, for instance, to specific situations in some of these same Native cultures that allowed a man or woman certain forms of sexual permissiveness as the result of a particular religious rite or ceremonial event. It is unfair and in some instances, cruel, to attempt to evaluate another person's culture, religious beliefs or traditions according to the standards and values of a distinctly different cultural base, which is precisely why Native American Circle objects to broad-based statements about general behaviors of any race, ethnic, religious or cultural origin group.
It is difficult and in most instances, unacceptable, to evaluate ancient cultures through the lens of today's perspectives, values and options. One certainty is that while many Indian people today are deeply connected to their traditional cultures, most Indian women would object to being treated as a possession or offered as a sexual object. Whether this objection is the result of assimilation into Euro-American ideals or the result of traditional values embraced without interruption despite persecution, only the individual Native person can say.
Irregardless of historical perspectives or modern-day treatments of this controversial topic, Native American Circle feels that jealousy, like love, hate, fear, etc., is a universal human emotion felt by people of all genders, races and cultures. Jealousy, envy and "covetousness" are emotions that naturally inspire possessive attitudes, and often serve as a springboard for negative behaviors (although these emotions do not excuse violent acts, the violent act being the conscious choiceof reaction to the impetus of emotion).
Social learning theory suggests that aggressive behavior is learned by observing models, particularly parents, friends and authority figures who command attention. If those role models should repeatedly engage in aggressive behavior that appears to be "rewarded", the observer is likely to imitate the behavior. If the imitation of aggressive behavior is positively reinforced by resulting in the same or similar rewards that the role model achieved, then the behavior is likely to be repeated and become a part of the behavioral pattern of the observer (Pagelow 1984). In one study, 70% of the abusive men participating in a treatment program came from homes where one or more of the children were victims of some form of physical or sexual abuse, or where the mother had been abused by the father. These findings support the theory that violence is a socially learned behavior (Steinmetz 1977).
Once learned, violent behaviors can be unlearned--at least, in theory. Across the country, many programs for batterer intervention have been started, but the verdict is still out on just how effective these programs are and which of the programs is the most effective. Many women whose husbands have attended batterer intervention counseling report that the physical abuse has ceased, but that other power and control tactics are still being frequently employed to continue, without interruption, the power base that had traditionally been in place in the relationship prior to intervention.
It is known that batterer programs, to be successful, must:
It has also been suggested that greater policing of batterer programs should be done to ensure, among other things, that:
Only a small percentage of batterers are actually female (approximately 5%). Studies on this phenomenon categorize female batterers loosely by four "typologies": (1) lesbian batterers; (2) battered women who are arrested for violent acts of self-defense, then questionably labeled "female defendants"; (3) angry victims who resort to violence to pre-empt further abuse; and (4) actual women batterers who are the primary aggressors in an abusive relationship.
According to most research on the subject, the genuinely violent woman is usually a former victim of some type of violence (such as child abuse, domestic violence or sexual abuse) and most often engages in violent behavior to deter further victimization. There are no reliable statistics on the number of gay men who batter their intimate partners and are arrested as a result. (Healey, Kerry Ph.D., Christine Smith and Chris O'Sullivan, Ph.D. (2/1998). Batterer Intervention: Program Approaches and Criminal Justice Strategies. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice.)
Other suggestions and possible pilot models for batterer intervention programs with American Indian offenders and chemically dependent batterers will be discussed in the Treatment and Intervention sections of this handbook.
Batterers may be unemployed or highly paid, substance abusers or anti-alcohol, anti-substance abuse activists. The batterer may represent all different personality profiles, family backgrounds, professions, races, religions, or cultural groups. Some researchers contend that the majority of batterers are violent only with their female partners, while other researchers contest this statement. One study found that 90% of batterers do not have criminal records, but that batterers are generally law-abiding outside the home and that further, only approximately 5-10% of abusers commit acts of physical and/or sexual violence against other people as well as their intimate female partner(s). But other studies offer research that may contradict these findings (see the Quincy Court Domestic Abuse Research that follows in this section of the handbook).
Evidence of one or more of these behaviors does not necessarily indicate that a person is a batterer, but if several of the following behaviors are evidenced, a pattern may be surfacing that should be more carefully evaluated. Batterers often:
(The following is excerpted from the Quincy Court Model Domestic Abuse Program Manual, provided by The Honorable Charles E. Black, Presiding Justice, Quincy District Court of Massachusetts, at the 2001 Domestic Violence Conference, "The Changing Role of the Criminal Justice System", supported by Grant No. V00-287-98 awarded by the Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice, sponsored by The Governor, The First Lady, the Attorney General and the Supreme Court of Oklahoma):
The criminal and demographic profile sketched below relies on data obtained from a sample of 644 men under restraining orders in the Quincy Court in 1990 (Not all abusive men share each of the high-risk characteristics listed below, and each case must be evaluated on the defendant's specific background and behavior). Iin general, the batterer who comes before a judge (in the Quincy model, at least) is likely to be:
As a partner in a relationship, I have the right to:
(From the American Bar Association web site http://www.abanet.org/domviol/statistics.html#same-sex (11/1999).)
Myth: Native American cultures were typically patriarchal and both male and female were expected to perform according to certain stereotypical roles. Men were aggressive, forceful "warriors", who expected male supremacy and privilege. Women were submissive and servile.
Fact: Some Native American cultures were patriarchal. Others were matriarchal, and/or matrilineal and/or matrilocal. For instance, among the Cherokees, women owned the homes and garden plots, which were passed from mother to daughter. It was also the Cherokee women, in the Women's Council, who determined which men were worthy of performing sacred duties or holding public office. The affairs of the Haudenosaunee (Iroquois) Nation, perhaps the oldest democracy in the world, were almost entirely governed by the women of the six United Nations of Seneca, Mohawk, Onandaga, Oneida, Cayuga and Tuscarora. Apache custom required a man to leave his own family when he married and become a member of his wife's family. He became known by a term that meant "he who carries burdens for me" and he was expected to provide for his wife and children, as well as his parent-in-laws. In many indigenous cultures, both male and female were allowed to deviate from customary life roles as a matter of personal choice. As a consequence, history contains many accounts of Native women who became military leaders, civil leaders, and "warriors", and likewise, history contains many accounts of Native men who chose to live lifestyles contrary to the "warrior" image forced upon Native men by Hollywood movies and writers of western fiction.
Myth: Women in traditional Native American cultures were owned by their father or husband. In many indigenous cultures, wives were "purchased" with horses.
Fact: Women generally had the last word in their choice of husbands. In some tribes, A man might offer horses or other possessions to a woman's father, but the intent was not to purchase a bride, but rather to offer a bridal gift in recognition of the fact that the father's home was surrendering a beloved daughter, and the daughter's family circle was expanding to include a husband. A man who offered few gifts might be considered a poor provider, lazy, or greedy. If perceived thus, the woman's father would likely refuse the suitor as a means of protecting his daughter from unfortunate circumstances or an unhappy choice. But if the suitor were approved by a father as a prospective husband for his daughter, the woman still retained the final word. The promised marriage gifts were typically placed outside the woman's family home. If the woman accepted the gifts, her action signified her willingness to marry the potential suitor. If she rejected the gifts, she rejected the man. As in all cultures, however, pressures of every conceivable manner could be brought to bear upon a woman to accept a suitor. In this respect, it could be said that indigenous cultures were no different than any other culture, whether European-based or American.
Myth: All Native men beat their wives. It is a practice that has been permitted by Native cultures since time immemorial.
Fact: Among most traditional Native American cultures, wife-beating and/or sexual abuse have never been acceptable norms of behavior. Most Native cultures thrived upon very well-designed concepts of balance and harmony between genders, between friends, relations and families. Generally speaking, men and women who could not control their emotions, passions and urges were more often than not regarded with contempt by their tribal community. A man who developed a reputation for violent, abusive behavior was unlikely to find a family who would accept him as a potential mate for a beloved daughter or sister. Furthermore, an abusive husband risked the very real threat of retaliation by his wife's family or at the very least, forcible divorce. Most indigenous cultures placed great importance upon character attributes of generosity, integrity, honesty and kindness. While some Native men claimed the "right" to beat their wives, this claim is not indicative of typical traditional indigenous customs and practices. Rather, the traditional privilege of "wife-beating" most typically is a practice belonging to non-Indian populations.
Other facts:
In apparent contrast to Euro-American "ideals" of government, it is interesting to note that many Native cultures adopted democratic forms of government that women more often than not played important roles in. In fact, the American model for democratic government was adopted, in large part, from various models of American Indian tribal governments.
For instance, the Iriquois Constitution (or White Roots of Peace, also known as the Great Law of the Iroquois), adopted some time in the late sixteenth or early seventeenth century, states in part:
"The lineal descent of the people of the Five Fires [the Iroquois Nations] shall run in the female line. Women shall be considered the progenitors of the Nation. They shall own the land and the soil. Men and women shall follow the status of their mothers. (Article 44)The women heirs of the chieftainship titles of the League shall be called Oiner or Otinner [Noble} for all time to come. (Article 45)
If a disobedient chief persists in his disobedience after three warnings [by his female relatives, by his male relatives, and by one of his fellow council members, in that order], the matter shall go to the council of War Chiefs. The Chiefs shall then take away the title of the erring chief by order of the women in whom the title is vested. When the chief is deposed, the women shall notify the chiefs of the League...and the chiefs of the League shall sanction the act. The women will then select another of their sons as a candidate and the chiefs shall elect him. [Article 19]"
(Allen, Paula Gunn (1992). The Sacred Hoop: Recovering the Feminine in American Indian Tradition, pg. 212-213. Boston: Beacon Press/also cited in The Third Woman: Minority Women Writers of the United States, ed. Dexter Fisher (1980), pg. 577. Boston: Houghton Mifflin/and also in Literature of the American Indian, ed. Cf. Thomas Wanders and William Peek (1973), pg. 208-239. New York: Glencoe Press.)
In fact, women played such a fundamental role in Iroquois daily life and culture, it has been stated that Iroquois women, in about the year 1600, collectively dictated a complete halt in unregulated warfare by Iroquois men:
"...Lysistratas among the Indian women proclaimed a boycott on lovemaking and childbearing. Until the men conceded to them the power to decide upon war and peace, there would be no more warriors. Since the men believed that the women alone knew the secrets of childbirth, the rebellion was instantly successful.In the Constitution of Deganawidah the founder of the Iroquois Confederation of Nations had said: "He caused the body of our mother, the woman, to be of great worth and honor. He purposed that she shall be endowed and entrusted with the birth and upbringing of men, and that she shall have the care of all that is planted by which life is sustained and supported and the power to breathe is fortified: and moreover, that the warriors shall be her assistants."
(Allen, Paula Gunn (1992). The Sacred Hoop: Recovering the Feminine in American Indian Tradition, pg. 212-213. Boston: Beacon Press/from Steiner, Stan (1968). The New Indians, pp. 219-220. New York: Dell.)
It is interesting to note that both the Navajo and the Greek cultures recount historically traditional stories similar to the Iroquois tradition related above.
According also to Cherokee custom and tradition, women played important roles in all aspects of tribal life:
"In the times before the Cherokees learned the ways of others, they paid extraordinary respect to women. So when a man married, he took up residence with the clan of his wife. The women of each of the seven clans elected their own leaders. These leaders convened as the Women's Council, and sometimes raised their voices in judgment to override the authority of the chiefs when the women believed the welfare of the tribe demanded such an action. It was common custom among the ancient Cherokees that any important questions relating to war and peace were left to a vote of the women. There were brave Cherokee women who followed their husbands and brothers into battle. These female warriors were called War Women or Pretty Women, and they were considered dignitaries of the tribe, many of them being as powerful in council as in battle. The Cherokees also had a custom of assigning to a certain woman the task of declaring whether pardon or punishment should be inflicted on great offenders. This woman also was called the Pretty Woman, but she was sometimes known as Most Honored Women or Beloved Woman. It was the belief of the Cherokees that the Great Spirit sent messages through their Beloved Woman. So great was her power that she could commute the sentence of a person condemned to death by the council."
(Mankiller, Wilma and Michael Wallis (1993). Mankiller, a Chief and Her People. excerpted from "Chapter 12: Homeward Bound", pg. 207-208; St. Martin's Press, New York.)
So much for the myth that among most of the North American tribal cultures, males held supreme authority and women were considered second-class citizens with few rights, fewer privileges and little or no honor and respect. Among the Native American cultures that traced a child's heritage matrilineally, rather than through the father's ancestral line (which tradition was embraced by most of the North American tribal cultures), children were taught to identify themselves by their mother's clan, rather than their father's. As Native performer, Will Hill (Muscogee Creek Nation), explains:
"Who your mother is, you are also.
When your mother tells you something,
You must listen."
Indeed, all Native American cultures, without exception, revered their women, and particularly revered mothers and elders. Disrespect or mistreatment of either was not traditionally tolerated.
"You must want to learn from your mother.
You must listen to old men
Not quite capable of becoming white men."
(Martinez, David W. "New Way, Old Way", Voices from Wah'kon-tah, as quoted by Basso, Keith H. (1990), in Portraits of "the Whiteman": Linguistic Play and Cultural Symbols Among the Western Apache, pg. 67. New York: Cambridge University Press.)
While many authorities on this subject strongly support the view that "patriarchal" societies and cultures are responsible for the rampant family violence in America today, some who have studied this concept have a different perspective. In Family Violence in Cross-Cultural Perspective, the author, David Levinson, writes:
"The central premise of this study is that the concept of patriarchal
society is too broad a notion for cross-cultural testing. Thus the
strategy has been to define and conceptualize female status and
power in very specific ways that are measurable with cross-cultural
ethnographic data. When approached this way, it seems clear that
there is no undimensional relationship between female status and
power and wife-beating."
(Levinson, David (1989). Family Violence in Cross-Cultural Perspective.Newbury Park: Sage. Quoted also in Family Violence and Religion: An Interfaith Resource Guide compiled by the staff of Volcano Press, copyright 1995.)
According to Levinson's theories, the absence of choice is a predictor of domestic violence, regardless of culture. In this mode of thought, there are few persons of ethnic race today who represent the "ideal" formulation of their culture, irregardless of which culture they identify with or represent. As any Native American person today can attest, the "dominant" or "western" [Anglo-American] culture places extreme pressure upon traditional Native cultures, customs and practices. Cultural "adjustment", whether forced or voluntary, naturally results in an imbalance in traditional roles. This imbalance, resulting from contemporary stressors placed on relationships, as well as "acculturation" is noted by persons from many varied ethnic backgrounds, and not just by Native American people alone. For instance, The Reverend Dr. Brian Ogawa, in his study of Asian-American patriarchies, states:
"...It may in fact be the collision of social and cultural values which have more to do with funneling frustrations and anger toward the incidence of domestic violence than deficits of traditional mores. When one emphasizes the Asian values of maintaining harmony and good relations in the home (and in the community), as well as the avoidance of direct confrontation and emotional outbursts, one begins to identify non-violent aspects. Asian cultures, like the dominant American culture, in other words, are not inherently predisposed toward domestic violence, nor can they absolutely safeguard women from all abuse. Sexism pervades many cultures and is not simply or exclusively the bedfellow of so-called patriarchal systems. Indeed, no matter how urgent and compelling it is to bring an end to abusive relationships, it must be done so that no element of any culture can be portrayed as historically justifying insult or injury to any one. All cultures are attempts to bring order, not disorder. All peoples are therefore accountable to this purpose."
(Ogawa, The Reverend Dr. Brian (1989). "Asian-American Patriarchies". Walking on Eggshells: Practical Counsel for Women in or Leaving a Violent Relationship". Reprinted in Family Violence and Religion: An Interfaith Resource Guide, pgs. 132-134, compiled by the staff of Volcano Press, copyright 1995.)
Native American Circle believes that domestic violence or battering are universal "diseases", infecting segments of almost every society and culture worldwide for centuries. Furthermore, the crime of domestic violence or battering is the same, regardless of race. What differs is the reaction to the crime. Victims and their support groups will always react to the crime from their own unique circumstances (or "realities"), and from their own unique cultural base and belief systems (i.e., spiritual values and what you believe about yourself, your resources, your values and options).
Studies with other races and cultures seem to support this theory. For instance, a study of Hispanic-American abused women reported that:
"...Hispanic-American women had a slightly different perception of what constitutes wife abuse. Some acts perceived as abusive by the Anglo- American women were not considered as abusive by the Hispanic- American women; they included verbal abuse and failure to provide adequate food and shelter......One of the most important cross-cultural differences between the two groups was in the victim's response to physical abuse [emphasis is Native American Circle's, not author's]. This study showed that culture, family and religion were the major factors affecting the manner in which a Hispanic-American woman reacted to being battered."
(Torres, Sara, RN, PhD, Assistant Professor in the Division of Nursing at Florida Atlantic University. "Hispanic-American Battered Women". First printed in Response: To the Victimization of Women and Children, Volume 10, No. 3 (October 1987). Reprinted in Family Violence and Religion: An Interfaith Resource Guide, pg. 169, compiled by the staff of Volcano Press, copyright 1995, with the permission of Response, Inc., 4136 Leland Street, Chevy Chase, MD 20815.)
Other parallels between Native American cultures and the Hispanic-American culture were brought out in the study as well, in contrast to the Anglo-American culture:
"The family was the most important factor that entered into a Hispanic-American woman's decision whether to leave or stay in the battering relationship. Hispanic women reported that they stayed in the relationship because of their children and threats to family members; Anglo-American women stayed because of love of the abuser and not having a place to go. Forty percent of Hispanic women compared with twenty percent of Anglo-American women said they left because of their children. Also, the reason most frequently given by Hispanic-American women for going back to their spouses was "the children." The Hispanic- American woman in the study tended to stay longer than Anglo-American women in a relationship with an abusive spouse before seeking assistance, due to pressure from their families and for the sake of their children. Also, Hispanic-American women were hit more frequently in front of other family members than were Anglo-American women. Hispanic-American women left and came back to their spouses more times than Anglo-American women. Thus, it is important not to assume that because a Hispanic- American battered woman has asked for help, she may leave her home."
When domestic violence occurs in a rural area, special problems are encountered that significantly influence whether a woman will remain in a battering relationship, regardless of her race or ethnic heritage. A study of these issues is important since 1/3 of the total population of the United States lives in rural areas. Approximately 46% of American Indians living in the United States reside on rural reservations or in non-reservation rural areas. Almost 2/3 of the inadequate housing in the U.S. is located in rural areas or on reservations.
Battered women in rural areas are both physically and emotionally isolated. Realistically, they have no opportunity to escape. In rural economies where employment opportunities may be scarce, a batterer does not possess economic leverage over his victim--he possesses absolute, unquestionable power. Lack of transportation or phone service represent obstacles that women in rural areas may not be able to overcome through their own efforts and resources. The problem of accessing services becomes impossible for the woman who probably has no experience with "the system" to begin with.
If a woman must flee her abuser on foot because she has no transportation or doesn't know how to drive, she is not likely to move very fast or far before her batterer finds her. Telephone calls between rural towns are often long distance. Cost becomes a prohibiting factor. Phone bills that reflect long distance phone calls made to crisis centers are difficult to explain to an abusive man. In some rural areas, party lines are still common and an abused woman may hesitate to use a telephone that doesn't allow her total secrecy and confidentiality.
Another problem common to rural areas is that safe shelter is difficult to obtain. Frequently, friends or family members will deny shelter to a victim, not wishing to "become involved" in what is erroneously perceived as a marital spat. The batterer's reputation for violence may be such that few members of the rural community are willing to risk his retaliation by offering the victim shelter. Often, no women's shelters are available or there may be only one hotel. If a woman chooses to stay at either site, the whole town may soon know her location, her batterer included. The confidentiality of rural safe-housing locations is quickly and easily compromised. Anonymity and security become overpowering obstacles along the path of freedom as well.
Other problems associated with providing crisis intervention services in a rural area include:
Many battered women living in rural areas have no previous experience with large cities, with corporate business, with metropolitan transportation systems, with banking or shopping. Many have little education and no marketable job skills.
For Native women in rural areas, these obstacles are often more specific and overwhelming than for women of other races. For example, in a rural community where jobs are few, employment opportunities may be scarce for persons of any race, but if most employers in a rural community are not only white, but also prejudiced, employment opportunities for persons of Indian heritage may be non-existent.
Indeed, racism in rural areas is a significant problem that has a special effect on victims of domestic violence, sexual assault, or childhood sexual abuse. Racial prejudice has the effect of making family and community ties increase in importance, and this factor can have a significant influence on whether or not a victim stays with or returns to her abuser. Few rural communities boast civil rights groups which make it their business to monitor public services extended to specific ethnic groups, so there is typically little or no effort in rural areas to champion the rights of ethnic minorities or to dislodge the privileges of the dominant Anglo-American society in those areas.
Many women of color, including American Indian women, refuse to report family violence because of racism. For instance, American Indian men, like African-American men, have historically been brutalized by police officers and other law enforcement figures of the dominant ethnicity on many occasions. There are few examples of fair treatment of Indian people, in general, by judicial authorities. An Indian woman who has been battered by an intimate partner who is also Native may hesitate to surrender the man she loves to law enforcement officials for fear that he will be violently harmed because of his ethnicity.
By contrast, some recent studies have also determined that women in cross-cultural relationships may be at unusually high risk for domestic violence:
"Men and women from different cultural backgrounds may have very different expectations about sex roles, acceptable behaviors, and the use of violence within a relationship, and men may use these different perceptions to justify battering. Immigrant women are also especially vulnerable to abuse. Language barriers may prevent these women from seeking assistance from police or victim advocates; their culture may discourage them from asserting their legal rights; and, in the case of undocumented female immigrants, maintaining the relationship with their abuser may be the only way they can gain citizenship or avoid deportation."
(Healey, Kerry Ph.D., Christine Smith and Chris O'Sullivan, Ph.D. (2/1998). Batterer Intervention: Program Approaches and Criminal Justice Strategies. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice.)
Since current BJS statistics clearly state that at least 70% of the violent victimizations experienced by American Indians are committed by persons not of the same race--a substantially higher rate of interracial violence than experienced by white or black victims, the studies finding increased risk factors for women involved in cross-cultural relationships are of particular importance. (Greenfield, Lawrence A. and Steven K. Smith, GJS Statisticians. American Indians and Crime. Bureau of Justice Statistics, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, February 1999: NCJ-173386.)
Telephone service is a luxury for many Indian people living in rural areas. Paying rent and purchasing food naturally takes precedence over non-necessities. Also, in traditional cultural bases where concepts of sharing and generosity were and are valued character traits, some Native people may yet hesitate to have a phone installed in their home because of relatives or friends who might manipulate traditional values to selfish advantage.
For Indian people living in poor economic conditions, it is often easier to do without a luxury than to risk denying privileges to a fellow tribal citizen and as a result, become known as one who is greedy or selfish. After all, persons living in rural communities must rely upon each other for survival. Among tribal groups, this is particularly true, and if one loses the goodwill, respect or approval of one's people, there may be no place the outcast may go to find acceptance and the comfort of a society that is culturally familiar.
For a battered woman of Native heritage, the fear of alienation from friends, family and cultural group become particularly compelling arguments to remain with a batterer.
Fear of being asked to leave one's home prevents many victims from requesting assistance or reporting violent crimes. When the victim is the one who is removed from her community or coerced to leave for safety and protection, allowing the perpetrator to remain in his comfort zone, inviolate, then the victim's rights have been compromised and she and her children have, in effect, been re-victimized and re-traumatized.
If the battered woman's tribe does not have shelter facilities or if there is no room in the local safe-house, then the woman may have to seek shelter from a State-operated program, which may remove her from her familial ties, her tribal group and her spiritual support systems. Indian women typically resist this type of separation because their extended families and tribal groups are traditional sources of strength and comfort. Also, because battered women of any race have already experienced isolation, the prospect of being placed in a shelter home with women of other races and ethnic values may be particularly distressing.
Additionally, relocating to an urban area, away from familial ties, not only geographically removes the Native American from the traditional support system of familiar people and surroundings, but also places the individual outside the reach of tribal resources should assistance be needed. Too, if the victim lacks adequate financial resources, the consequence will be that she and her children will be forced to live in an unsafe area and often, in an unsafe building, in a crime-ridden urban community. If this happens, the victim may have only accomplished adding another type of danger to that which she already faces--that is, the risk of violent assault by strangers, as well as the continued risk of being located, stalked and physically assaulted by her battering intimate partner. For most victims confronted with these realities, the choice is clear: stay with the partner whose violence is more or less a "known factor", rather than choose the option of attempted escape to an environment which may, perhaps, be more violent for both the victim and her children.
A lack of infrastructure, including the lack of shelter housing and facilities, tribal protection code or facilities to jail and hold offenders creates a general lack of confidence in the "system", discouraging victims from reporting violent crimes. When there is little or no communication between the victim and the state, federal or tribal assistance providers involved in the case, the victim's confidence is dramatically decreased. Justifiably doubting that their case will be handled properly, in a manner that provides them with safety when confronting the perpetrator, asserting victim's rights or simply "getting free", many victims refrain from reporting, seeking assistance or leaving the offender.
The Indian victim may express feelings of resistance to conventional counseling methods that involve sessions with a non-Indian counselor who tends to talk rapidly and/or loudly. Many Native American people express feelings of intimidation and confusion in such an environment and as a result, the Native American victim may leave shelter prematurely if the counseling or advocacy received is perceived as "victim-blaming", condescending or lacking in empathy.
Often, offenders receive more support for their battering behavior than the victim does. When biases arise because the victim and offender come from other tribal communities or from a non-tribal community, the victim is often compelled to feel that no one can understand what she is going through and that she will be blamed for the abuse she receives. The offender's relatives-- and even her own--may advise her to adjust to her husband's demands, placate him and do nothing to antagonize him, failing to understand that the violence does not hinge on the victim's actions or behavior, or that there is nothing the victim can do to change her batterer or prevent the violence. When this type of power imbalance occurs, the victim is discouraged from leaving since she has been encouraged to feel that the abuse is justified by the victim's "flaws".
Law enforcement officers may be prejudiced or may feel indifference for the victim who is not of his/her own race. In a predominantly white or Anglo community, an Anglo peace officer might not make an arrest of an Indian batterer because of a prejudicially-influenced impression that "all Indian men beat their women", followed with the assumed conclusion that an arrest would have no positive impact on the man's behavior.
In some instances, the law enforcement officer may judgmentally conclude that the victim "deserves" battering for having crossed racial boundaries in an interracial relationship, or the officer may know the batterer and/or victim personally. The officer may hesitate to jeopardize his personal relationships with either party (or their relatives and friends) by arresting the batterer. One police officer in a small, rural community pointed out that, "If you're in a small town and the loan officer beats his wife and your truck loan application is on his desk, you might not arrest him."
Other factors that might influence a domestic violence survivor of Native heritage in a rural community to remain with or return to her batterer, rather than migrate to an urban area, may involve:
Unfamiliar surroundings are intimidating to persons who are accustomed to the luxury of safe, violence-free lifestyles. For an Indian woman escaping a violent atmosphere, a shelter or urban environment that separates her from her tribe, family, cultural and spiritual circles may in fact encourage her to remain in the violent relationship or return to her abuser after only a short- term absence.
If the arguments against leaving the rural home are overwhelmingly compelling (as the list above reveals that they often are), then the Indian woman living in a battering relationship will discover that she has virtually no options available to her at all. She may flee her batterer by taking herself and her children to her parents' home or a relative's home, but there she may find other negative circumstances that she doesn't want to subject her children to, such as:
If Native women suffering abuse in rural areas feel particularly powerless and vulnerable, it is because they know they have virtually no choices or options available to them. Their batterers know and understand these realities as well and use them to their advantage, frequently with tragic consequences.
The Native woman living in either a rural or an urban area will more often than not find that it is more difficult for her than for abused women of other races to stop her abuser from threatening her, stalking her or harassing her. Besides the fact that a life lived in hiding is totally incompatible with maintaining employment and with raising and educating children, it is virtually impossible to live in hiding in a rural community. Confidentiality in small, isolated or insular communities is difficult to maintain since it is virtually impossible to prevent community-wide awareness of victims and their batterers. Informants are everywhere--acquaintances, friends and even relatives may represent an ever-present danger, willing to collude with the batterer's agenda to return the victim to the abuser's control.
The victim who attempts to leave may return to her abuser because she fears retaliation by him, his family or friends. She may leave, only to daily face judgmental stares or scorn from people in her community who either do not understand what she has been through or who side with the batterer and wish to blame her for the abuse. Gossip spreads quickly, especially in small, rural communities!
If it is impossible to live in hiding in a rural community, it is only slightly more possible for the Native victim to live in hiding in an urban area. The victim will naturally retreat to her best support system--that of other Native people in the urban area, some of whom may be relatives or at least family friends. But the batterer will probably know the location of those same relatives and friends. Even if he doesn't, the victim may not be particularly difficult to find since the social life of urban American Indian people often revolves around activities supported by American Indian Centers in urban communities.
Even cities that do not have American Indian Centers will usually have at least a powwow club or some other informal gathering place for Indian people to come together, to find strength and comfort in the company of others who share similar customs, traditions, histories and common issues. As a result, abusers rarely have more difficulty tracking a victim through an urban area than in a rural area.
The victim may feel that staying with or returning to her abuser is preferable to the shame she may be encouraged to feel as the result of her cultural group's judgments about her ability to maintain an intimate relationship. Chances are also extremely high that the victim knows someone who has had an unsatisfactory experience with law enforcement or judiciary, either tribal, state or federal, in a similar situation or she has herself had an unsatisfactory experience, and does not feel she can rely on anyone to provide safety for her children or herself.
Some professionals in the field of domestic violence intervention and prevention feel that Native American women came to be forced into subservient roles and violent lifestyles as a result of European colonization and the resulting assimilation into Euro-American cultures, traditions and teachings. Advocates of this perspective state that Native women were not traditionally battered, but have only come to be domestic violence statistics since the forced acculturation of Indian people into the "dominant" society.
"Rapid, unstable and irrational change was required of the Indian people if they were to survive. Incredible loss of all that had meaning was the norm. Inhuman treatment, murder, death, and punishment were a typical experience for all the tribal groups and some didn't survive.The dominant society devoted its efforts to the attempt to change the Indian into a white-Indian. No inhuman pressure to effect this change was overlooked. These pressures included starvation, incarceration and enforced education. Religious and healing customs were banished.
In spite of the years of oppression, the Indian and the Indian spirit survived. Not however, without adverse effect. One of the major effects was the loss of cultured values and the concomitant loss of personal identity...The Indian was taught to be ashamed of being Indian and to emulate the non-Indian. In short, "white was right." For the Indian male, the only route to be successful, to be good, to be right, and to have an identity was to be as much like the white man as he could."
(Old Dog Cross, Phyllis, "Sexual Abuse, a New Threat to the Native American Woman: An Overview," in Listening Post: A Periodical of the Mental Health Programs of Indian Health Services, vol. 6, no. 2 (April 1982), p. 20; as quoted in Paula Gunn Allen's "Angry Women are Building: Issues and Struggles Facing American Indian Women Today", pg. 192, The Sacred Hoop: Recovering the Feminine in American Indian Traditions. (1992). Boston: Beacon Press.)
Native American stories of tradition, like the one below, support the theory of "violence acquired by acculturation" since the story infers that male and female genders, in most traditional societies, were able to live harmoniously with one another and were seen as complementing each other. This perception is in stark contrast to the atypical Euro-American (typically patriarchal) view that suggests women should be subordinate to men or should be considered inferior to men.
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How Men and Women Got Together:
(Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg. 41-45, Pantheon Books, New York.) Excerpted from a story of Blood-Piegan origin: Old man had made the world and everything in it. He had done everything well, except that he had put the men in one place and the women in another, quite a distance away. So they lived separately for a while. Men and women did everything in exactly the same way. Both had buffalo jumps--steep cliffs over which they chased buffalo herds so that the animals fell to their death at the foot of the cliff. Then both the men and the women butchered the dead animals. This meat was their only food; they had not yet discovered other things that were good to eat. After a while the men learned how to make bows and arrows. The women learned how to tan buffalo hides and make tipis and beautiful robes decorated with porcupine quills. One day Old Man said to himself: "I think I did everything well, but I made one bad mistake, putting women and men in different places. There's no joy or pleasure in that. Men and women are different from each other, and these different things must be made to unite so that there will be more people. I must make men mate with women. I will put some pleasure, some good feeling into it; otherwise the men won't be keen to do what is necessary. I myself must set an example." Old Man went over to where the women were living. He traveled for four days and four nights before he saw the women in their camp. He was hiding behind some trees, watching. He said to himself, "Ho, what a good life they're having! They have these fine tipis made of tanned buffalo hide, while we men have only brush shelters or raw, stinking green hides to cover us. And look what fine clothes they wear, while we have to go around with a few pelts around our loins! Really, I made a mistake putting the women so far away from us. They must live with us and make fine tents and beautiful clothes for us also. I'll go back and ask the other men how they feel about this." So Old Man went back to his camp and told the men what he had seen. When they heard about all the useful and beautiful things the women had, the men said, "Let's go over there and get together with these different human beings." Now while this was going on in the men's camp, the chief of the women's village had discovered the tracks Old Man had made when prowling around. She sent a young woman to follow them and report back. The young woman arrived near the men's camp, hid herself and watched for a short while. Then she hurried back to the women as fast as she could and told everybody, "There's a camp over there with human beings living in it. They seem different from us, taller and stronger. Oh, sisters, these beings live very well, better than us. They have a thing shooting sharp sticks, and with these they kill many kinds of game--food that we don't have. They are never hungry." When they heard this, all the women said, "How we wish that these strange human beings would come here and kill all kinds of food for us!" When the women were finishing their meeting, the men were already over the hill toward them. The women looked at the men and saw how shabbily dressed they were, with just a little bit of rawhide around their loins. They looked at the men's matted hair, smelled the strong smell coming from their unwashed bodies. They looked at their dirty skin. They said to each other, "These beings called men don't know how to live. They have no proper clothes. They're dirty; they smell. We don't want people like these." The woman chief hurled a rock at Old Man, shouting "Go away!" Then all the women threw rocks and shouted, "Go away!" Old Man said, "It was no mistake putting these creatures far away from us. Women are dangerous. I shouldn't have created them." Then Old Man and all the men went back to their own place. After the men left, the woman chief had second thoughts. "These poor men," she said, "they don't know any better, but we could teach them. We could make clothes for them. Instead of shaming them, maybe we could get them to come back if we dress as poorly as they do, just with a piece of hide or fur around our waist." And in the men's camp, Old Man said, "Maybe we should try to meet these women creatures once more. Yes, we should give it another chance. See what I did on the sly?" He opened his traveling bundle in which he kept his jerk meat and other supplies, and out of it took a resplendent white buckskin outfit. "I managed to steal this when those women weren't looking. It's too small for me, but I'll add on a little buffalo hide here and a little bear fur there, and put a shield over here, where it doesn't come together over my belly. And I'll make myself a feather headdress and paint my face. Then maybe this woman chief will look at me with new eyes. Let me go alone to speak with the women creatures first. You stay back a little and hide until I have straightened things out." So Old Man dressed up as best he could. He even purified himself in a sweat bath which he thought up for this purpose. He looked at his reflection in the lake waters and exclaimed, "Oh, how beautiful I am! I never knew I was that good-looking! Now that woman chief will surely like me." Then Old Man led the way back to the women's camp. There was one woman on the lookout, and even though the men were staying back in hiding, she saw them coming. Then she spotted Old Man standing alone on a hilltop overlooking the camp. She hurried to tell the woman chief, who was butchering with most of the other women at the buffalo jump. For this job, they wore their poorest outfits: just pieces of rawhide with a hole for the head, or maybe only a strap of rawhide around the waist. What little they had on was stiff with blood and reeked of freshly slaughtered carcasses. Even their faces and hands were streaked with blood. "We'll meet these men just as we are," said the woman chief. "They will appreciate our being dressed like them." So the woman chief went up to the hill on which Old Man was standing, and the other women followed her. When he saw the woman chief standing there in her butchering clothes, her skinning flint knife still in her hand, her hair matted and unkempt, he exclaimed, "Hah! This woman chief is ugly. She's dressed in rags covered with blood. She stinks. I want nothing to do with a creature like this. And those other women are just like her. No, I made no mistake putting these beings far away from us men!" And having said this, he turned around and went back the way he had come, with all his men following him. "It seems we can't do anything right," said the woman chief. "Whatever it is, those male beings misunderstand it. But I still think we should unite with them. I think they have something we haven't got, and we have something they haven't got, and these things must come together. We'll try one last time to get them to understand us. Let's make ourselves beautiful." The women went into the river and bathed. They washed and combed their hair, braided it, and attached hair strings of bone pipes and shell beads. They put on their finest robes of well-tanned, dazzling white doeskin covered with wonderful designs of porcupine quills more colorful than the rainbow. They placed bone and shell chokers around their necks and shell bracelets around their wrists. On their feet they put fully quilled moccasins. Finally the women painted their cheeks with sacred red face paint. Thus wonderfully decked out, they started on the journey to the men's camp. In the village of the male creatures, Old Man was cross and ill humored. Nothing pleased him. Nothing he ate tasted good. He slept fitfully. He got angry over nothing. And so it was with all the men. "I don't know what's the matter," said Old Man. "I wish women were beautiful instead of ugly, sweet-smelling instead of malodorous, good-tempered instead of coming at us with stones or bloody knives in their hands." "We wish it too," said all the other men. Then a lookout came running, telling Old Man: "The women beings are marching over here to our camp. Probably they're coming to kill us. Quick everybody, get your bows and arrows!" "No, wait!" said Old Man. "Quick! Go to the river. Clean yourselves. Anoint and rub your bodies with fat. Arrange your hair pleasingly. Smoke yourselves up with cedar. Put on your best fur garments. Paint your faces with sacred red color. Put bright feathers on your heads." Old Man himself dressed in the quilled robe stolen from the women's camp which he had made into a war shirt. He wore his great chief's headdress. He put on his necklace of bear claws. Thus arrayed, the men assembled at the entrance of their camp, awaiting the women's coming. The women came. They were singing. Their white quilled robes dazzled the men's eyes. Their bodies were fragrant with the good smell of sweet grass. Their cheeks shone with sacred red face paint. Old Man exclaimed, "Why these women beings are beautiful! They delight my eyes! Their singing is wonderfully pleasing to my ears! Their bodies are sweet-smelling and alluring!" "They make our hearts leap," said the other men. The women chief in the meantime remarked to the other women, "Why, these men beings are really not as uncouth as we thought. Their rawness is a sort of strength. The sight of their arm muscles pleases my eyes. The sound of their deep voices thrills my ears. They are not altogether bad, these men." Then the women moved in with the men. They brought all their things, all their skills to the men's village. Then the women quilled and tanned for the men. Then the men hunted for the women. Then there was love. Then there was happiness. Then there was marriage. Then there were children. |
Violence rates in Indian country are, in fact, extremely difficult to define accurately since many crimes are not reported and few agencies (law enforcement, Indian Health Services, Bureau of Indian Affairs, etc.) keep accurate counts of the number of violent crimes in their jurisdictions or areas that are committed against women. Obtaining funding to finance a study and accurately assess the problem of violence against Indian women, particularly those living in rural areas, represents a further obstacle. As we previously discussed, even the definition of the term "domestic violence" becomes a stumbling block to accurate assessment and intervention strategies.
Since values and options differ between cultures and races, just as values and options differ between the many diverse Indian tribes, it is impossible to describe a set of cultural values that will encompass all tribal groups. Since it is known that families of any race or culture may be rendered dysfunctional because of the generational effects of child abuse and neglect, substance abuse, and poverty, some theories suggest that modern Native Americans frequently suffer a generational form of post-traumatic stress disorder.
According to this theory, as the "dominant society" came into power and Native people were confined by various forms of the reservation system, adults and children of both genders were severely traumatized. The first generation of Native males to suffer post-traumatic stress disorder lost their position in the family and larger tribal circle as providers, protectors, and chroniclers of history. Likewise, the Native woman's role, which had traditionally revolved around the preservation of family and the assurance of future generations, came under attack from both without and within.
Living in circumstances that precipitated fear, despair and feelings of emasculation, Native men often turned to alcohol and other forms of substance abuse as a means of escape. The break-up of traditional culture set the stage for addictions to alcohol and other mind-altering drugs, incest and other forms of sexual assault and violence that had hitherto been carefully guarded against through the honoring of values and customs traditional to American Indian tribal people.
In the second generation of PTSD-impacted Native people, women assumed the burden of expanding their traditional role at the center of a family's life to also include roles previously held to be the responsibility of the male, including the roles of provider and protector. The consequences of these additional stressors resulted in the increase of substance abuse among the Native females, along with a corresponding increase in the abandonment or violent abuse of family members by the woman, including the abuse of her elderly relatives and children.
As the third generation of PTSD-affected American Indian people came of age, substance abuse, physical violence and neglect of the elderly and children had often become imbedded characteristics of typical, tribal family life. While their traditional ways continued to disintegrate, Native people were also painfully aware of the difficulties involved in finding acceptance in the dominant culture. With their lifestyles a constant struggle between traditional practices and full-scale acculturation (and further complicated by issues of racism, tribalism and extreme poverty), depression, repressed anger, alcoholism, substance abuse and varied forms of physical and sexual violence became controlling factors in the realities of Native existence.
As one native survivor of domestic violence put it, "Indian mothers traditionally trained their children to think of others first--of what would be best for the tribal group, whereas European-American mothers tended to train their children to think as individuals, or to think of their own individual needs before they thought of the needs of the group. But now, so many Indian mothers have been "assimilated" into the dominant culture by domestic violence, sexual abuse, poverty, alcohol and substance abuse, that what our sons see their fathers do, they do also." This statement highlights the strong influence of observation coupled with emulation, or more simply stated, the influence of "learned behavior".
The theory of "inter-generational transmission" of post-traumatic stress disorder has been challenged by those who feel that it does not take into account the many children who learned from witnessing violence and other negative behaviors to reject those lifestyles. However, proponents of the theory argue that statistics support inter-generational transmission of violence and indeed, do not discount the number of children who because of negative experiences, choose more positive lifestyles. After all, accounting for "numbers" is what percentages were designed to do. Therefore, when statistics reveal that " An estimated 40-70% of Indian youth are high school drop-outs" (Flynn, Justice Department's Bureau of Justice Statistics as reported in Oklahoma Indian Times, 3/1999 issue), the natural inference is that at least 30%-60% of the total Indian youth population do complete high school.
Many psychiatric diagnoses, including PTSD, however, do not fully explain the psychological responses of a victim to abuse that the offender's behavior generates:
"For women who are still at risk, the "stress" is not "post", the trauma is ongoing and symptoms may be an adaptive response to danger and entrapment, and heightened sensitivity may be a necessity for survival. In addition, the ongoing trauma of social discrimination, lack of basic resources, and re-victimizing experiences within the systems to which a woman turns for help, affect not only her ability to physically "heal" from the abuse but also her ability to mobilize the resources necessary to build a safe independent life. When mental health providers are not trained to address the social factors that entrap victims in abusive relationships, they are then at risk for falsely interpreting survival strategies as psychiatric problems, overlooking the advocacy needs (shelter, legal assistance, safety planning) of domestic violence survivors, and not understanding the dangers a psychiatric diagnosis can pose during custody battles with an abusive spouse. As a result, domestic violence advocates have been reluctant to frame the consequences of abuse in mental health terms and few programs have developed the resources to address the mental health needs of the women they serve."
(Warshaw, Carole, M.D. (6/1999), Cook County Hospital, Chicago, IL. From a speech given at the SAMHSA 2nd National Conference on Women, Los Angeles, California.)
The theory of generational PTSD may be perceived to suggest a "heritage of violence" as a result of assimilation and acculturation. Nevertheless, those persons who have rejected violent behavior despite the impact of historically difficult life situations bear testimony to the fact that violent behavior is indeed a choice, not an ultimate, unavoidable consequence of negative circumstances. Rather than negating the worthiness of the generational PTSD theory, the fact that each individual has the responsibility and opportunity of choosing reactionary behaviors suggests that the theory, in fact, possesses certain merits.
However, care should be taken to interpret the theory in terms of psychiatric applications to specific individuals because of the risks to the victim posed by such a label. It is a terrible irony that although crisis intervention professionals recognize that violent victimization by an intimate partner can have serious psychological consequences, few models have been developed to address these issues in a collaborative or concurrent framework.
Mental health professionals and researchers who have studied the causes and effects of PTSD state that the factors most often associated with its development include:
The two most "extreme stressors" identified by mental health professionals are:
The latter of the two has been established as comprising the most severe category of extreme stressors and is reserved for describing "catastrophic events" in the mental health community (Davidson, J.R. and Foa, E.B. (1993). Posttraumatic Stress Disorder: DSM-IV and Beyond. Washington, DC: American Psychiatric Press.)
Still, PTSD is an issue which mental health practitioners are constantly analyzing and re-evaluating. For instance, the evaluation and assessment tools for identifying PTSD in trauma victims have been criticized by some mental health professionals as being "male-based", and as such, failing to identify predominant patterns of trauma for women exclusively.
Paula Gunn Allen suggests other plausible reasons for the increasing rates of domestic violence and sexual assault in our Indian communities:
"Often it is said that the increase of violence against women is a result of various sociological factors such as oppression, racism, poverty, hopelessness, emasculation of men, and loss of male self-esteem as their own place within traditional society has been systematically destroyed by increasing urbanization, industrialization, and institutionalization, but seldom do we notice that for the past forty to fifty years, American popular media have depicted American Indian men as bloodthirsty savages devoted to treating women cruelly. While traditional Indian men seldom did any such thing--and in fact among most tribes abuse of women was simply unthinkable, as was abuse of children or the aged--the lie about "usual" male Indian behavior seems to have taken root and now bears its brutal and bitter fruit."
(Allen, Paula Gunn (1992). The Sacred Hoop: Recovering the Feminine in American Indian Tradition, pg. 192. Boston: Beacon Press.)
In her book, The Sacred Hoop: Recovering the Feminine in American Indian Tradition, Ms. Allen also makes reference to the ways in which the acculturation process often results in feelings of alienation from one's culture, history and tribal identity, and ultimately, may result in self-rejection:
"Perhaps the most destructive aspect of alienation is that: the loss of power, of control over one's destiny, over one's memories, thoughts, relationships, past and future. For in a world where no normative understandings apply, where one is perceived as futile and unwanted, where one's perceptions are denied by acquaintance and stranger alike, where pain is the single most familiar sensation, the loss of self is experienced continually and, finally, desperately."
(Allen, Paula Gunn (1992). The Sacred Hoop: Recovering the Feminine in American Indian Tradition, pg. 145-146. Boston: Beacon Press.)
In remembering that battered women of all races typically express feelings of isolation, anxiety, hopelessness and powerlessness, it may be noteworthy to recognize that these emotions are representative of the feelings characterized by the word "alienation", whether one is alienated from her own culture or from that of the dominant society's. If Native American persons can identify with the feelings incidental to alienation as described, then how much more must a Native American victim of domestic violence or sexual assault feel the negative impact of the alienation typically described by victims of other races? Might it be reasonable to conclude that these same feelings of alienation and isolation, amplified and heightened by historical conditions or generational PTSD, might serve as further psychological influences to hold a Native American victim in a battering relationship? In comparison, can it be reasonably suggested that the Native American batterer, also feeling the negative effects of "alienation" in all its forms, might choose to project anger outwardly, possibly in the form of abusive, violent behavior?
Native American Circle agrees that European-based colonization and Euro-American cultural and social systems had, to say the least, an extremely negative impact on the cultures, traditions and social structures of Native people. The negative circumstances created as a direct consequence of colonization continue to impact Native communities today.
According to some sources, one of every three Native Americans lives in abject poverty. Many live in rural areas, where resources are limited and employment opportunities impossible to come by. Indigenous cultures that traditionally opposed the neglect of women, children and the elderly--that traditionally promoted sharing with and providing for the poor and unfortunate--are now so utterly deprived of all means of existence that positive traditions cannot be perpetuated, but must instead be abandoned in the interest of survival. Homelessness, alcoholism, substance abuse, neglect of children and the elderly, often become the consequence of these conditions. Likewise, the incidence of domestic violence, sexual assault, and all other forms of violence often increase by proportion.
Certainly, it must be acknowledged that negative circumstances often breed negative behaviors. The National Indian Youth Conference policy statement, drafted in 1961, bears witness to the impact of negative circumstances:
"We are products of the poverty, despair, and discrimination pushed on our people from the outside. We are the products of chaos. Chaos in our tribes. Chaos in our personal lives. We are also products of a rich and ancient culture which supersedes and makes bearable any oppressions we are forced to bear..."
(Mankiller, Wilma and Michael Wallis (1993). Mankiller, a Chief and Her People, excerpted from "Chapter 10: Searching for Balance", pg. 181; St. Martin's Press, New York.
It is important to remember that negative circumstances do not excuse violent behavior or provide "reasons" or explanations for violent behavior. Battering is achoicethat cannot and should not be blamed on outside factors or difficult circumstances. While the National Indian Youth Conference, in creating their policy, acknowledges the external factors that have created feelings of despair and living conditions that are trying, the policy also points out the positive aspects of tradition and culture that sustain Indian people through all types of adversity and enable them to choose positive and creative solutions to negative circumstances.
This handbook would not be complete without a few words on the tragedy of elder abuse and the abuse or maltreatment of adults who are mentally or physically impaired. The United States had 300,000 reported cases of elder abuse in 1996--a figure three times the number reported ten years previously (Instant Evidence,The Journal for Law Enforcement Issues, Winter 1998. "America's Hidden Epidemic: Elder Abuse, pgs. 8-10. Distributed by Polaroid, P. O. Box 438, 400 Boston Post Road, Wayland, Massachusetts 01778-0438, http://www.polaroid.com/solutions/solution_detail.jsp?PRODUCT%3C%3Eprd_id=16377&FOLDER3C%3Efolder_id=10679&ASSORTMENT3C%3East_id=308999&bmUID1035319227187&PRDREGUS&FromListing1 (as of 04-19/04, this page is no longer available) or 1-800-811-5764.
According to the National Center on Elder Abuse (NCEA), abuse of the elderly can take several forms, including physical abuse, sexual abuse, emotional abuse, financial or material exploitation, neglect, abandonment or self-neglect. There are a substantial number of battered women of age who are abused by their husband, but elder abuse is not confined to the arena of intimate partner relationships.
While the umbrella term "elder mistreatment" covers several categories of abuse and neglect, social service workers typically state that self-neglect is the form of mistreatment seen most often by service providers. Elderly who are poor are at the greatest risk for neglect--either self-neglect or neglect by a caregiver. As might be expected, elderly who are upper class or wealthy are at greater risk for financial abuse and exploitation.
The "typical" victim of elder abuse lives either independently or with relatives who serve as caretakers. Most often the victim is a white female 75 years of age or older, dependent on others to meet daily living needs, and with a fixed income of less than $10,000. However, adult maltreatment (the term used to classify the maltreatment of any person 65 years of age and over or maltreatment of an adult aged 18-64 years who has a mental or physical condition which impairs their ability to protect themselves) can happen at any income, education or social level.
Media tends to focus on nursing home abuses, but actually, institutionalized care abuse constitutes only an estimated 6% of the total cases of elder abuse nationally. The American Association of Retired Persons (AARP) estimates that for every elder person in a nursing home, there are two severely dependent elders receiving home care. (American Association of Retired Persons (AARP), 1988. From the AARP publication : Domestic Maltreatment of the Elderly. Washington D.C.) Elderly persons in home care environments are more likely to be abused than any other category of elderly persons, whether through self-inflicted neglect or the mistreatment of a caregiver, spouse or other relative. The same is true for handicapped persons who are unable to protect or care from themselves.
Of course, not all cases of elder abuse or adult maltreatment involve family violence. However, 1994 NCEA data reflects that in the instances where family violence is the controlling factor in elder abuse, adult children are the most frequent abusers. In fact, family violence accounts for more than 65% of reported elder abuse cases.
The National Aging Resource Center on Elder Abuse (NARCEA) estimated in 1992, based on reports from 15 states, that adult children of elder abuse victims comprise approximately 30% of abuse cases. "Other relatives" comprised approximately 17.8% of abusers, while spouses comprised approximately 14.8%, and service providers, approximately 12.8%. (The National Aging Resource Center on Elder Abuse (NARCEA): Elder Abuse Questions and Answers: An Information Guide for Professionals and Concerned Citizens. Ed. 2, Washington, D.C. 1992.)
Elder abuse is directed at those too weak, frail or incapacitated to defend themselves. It parallels child abuse in that it is inflicted upon approximately 5% of the applicable age category, or approximately one out of every 20 persons aged 60 and older. However, unlike child abuse, elder abuse is less likely to be reported. Approximately one out of three child abuse cases is reported in contrast to one of eight elderly abuse cases. Some reports cite the ratio as one in 14 cases of elderly abuse reported. (Payne, Mike (1990). "Elder Abuse: An Unspeakable Shame". Ohio's Heritage magazine, Columbus, Ohio: Ohio Department of Aging.) Although commonly called upon first to provide services or assistance and sanctuary, doctors, lawyers and clergy are among the least likely to report elder abuse since these professions are founded on confidentiality-based traditions.
Elder abuse often goes undetected and unreported, in fact, either because the victim is afraid to speak up, too ashamed to speak up, or because the elderly person is suffering from dementia in some form and is incapable of speaking on his/her own behalf. When the caregiver threatens to harm or institutionalize the elderly person if the abuse is reported, or when the elderly person is confined to the home, receiving in-home care, the opportunity for abuse rises. The victim that is abused by a family member who is also their primary caregiver may feel too embarrassed and ashamed to report the abuse, even if capable of speaking for his or her self.
While physical abuse that is not self-inflicted is the most common form of elderly abuse and mistreatment, affecting elderly persons regardless of socio-economic classes, physical abuse is also the form of mistreatment reported most often between elderly spouses (Pillemer, K., Finkelhor, D.(1988). "The Prevalence of Elder Abuse: A Random Sample Survey". Gerontologist, 28: pgs. 51-57.)
Surprisingly, men were found to be at higher risk of abuse than women in the survey conducted by Pillemer and Finkelhor. Nevertheless, the survey also determined that when husbands abused their wives, the injuries tended to be more severe, explaining why reports of elderly abuse tend to be higher for women than men.
In their article, "Elder Mistreatment: A Call for Help", Georgia J. Anetzberger, Ph.D., Mark S. Lachs, M.D., M.P.H., James G. O'Brien, M.D., Shelley O'Brien, M.S., Karl A. Pillemer, Ph.D., and Susan K. Tomita, M.S.W., discuss possible risk factors as including:
Studies before the mid-1980's, the authors state, typically describe the elder abuse victim as:
"...typically female, old, old, frail, and cognitively and functionally impaired. Studies since then find men as likely to be abused as women, young old as likely to be abused as old, old, and cognitively intact as likely to be abused as cognitively impaired, when the broad range of abusive and neglectful behaviors is considered..."
The authors also note that:
"The notion of caregiver burden as a risk factor is still being explored, although no study has shown that abused elderly are more likely than non-abused elderly to be dependent on the person abusing them. In fact, the majority of abusers who engage in physical or financial abuse (but not necessarily psychological abuse) have been found to be heavily dependent on the person they are abusing for things like money, child care, and housing. Other risk factors associated with the abuser include substance abuse, psychopathology, and a history of abuse or institution- alization...The abuser is also likely to be living with the elder whom he or she is abusing and controlling the victim's access to friends or family, with resultant isolation."
(Anetzberger, Georgia J., Ph.D., Mark S. Lachs, M.D., M.P.H., James G. O'Brien, M.D., Shelley O'Brien, M.S., Karl A. Pillemer, Ph.D., and Susan K. Tomita, M.S.W. (6/15/1993). "Elder Mistreatment: A Call for Help." J.N. Travalino, ed. Patient Care, pgs. 93-130.)
Many authorities on the subject of elder abuse profile the typical abuser as a close relative who may be actively substance abusing, may have marital difficulties or other stressful circumstances predominant in his/her life, and who is probably experiencing financial difficulties. In many instances, the abuser has been abused by the parent in his/her care as a child. Research reflects that for most abusers, the abuse is not a "one-time" occurrence, but is instead perpetrated repeatedly. (Payne, Mike (1990). "Elder Abuse: An Unspeakable Shame". Ohio's Heritage magazine, Columbus, Ohio: Ohio Department of Aging.)
In a study performed by Georgia J. Anetzberger, Ph.D., more abusers of elderly were:
Nevertheless, Dr. Anetzberger's study did not reveal a history of family violence in the abuser's family. (Anetzberger, Georgia J., Ph.D. (1986). "The Etiology of Elder Abuse by Adult Offspring: an Exploratory Study". Case Western Reserve University. As cited by Mike Payne (1990). "Elder Abuse: An Unspeakable Shame". Ohio's Heritage magazine, Columbus, Ohio: Ohio Department of Aging.)
According to the American Association of Retired Persons (AARP), the average length of home care for the severely dependent elderly over 70 years old is almost six years (American Association of Retired Persons (AARP), 1988. From the AARP publication : Domestic Maltreatment of the Elderly. Washington D.C.). But Medicare will not pay for care giving that the elderly person may need to remain in their own home and Medicaid will typically cover only the costs of institutionalized or hospital and nursing home care. As a result, the care of elderly parents most often falls to the adult child or children.
Among American Indian families, the care of dependent, elderly parents by their children and grandchildren is traditional. Indeed, placing an elder parent in a nursing home, regardless of the elderly parent's physical condition, is unthinkable. A daughter who will not sacrifice whatever is necessary to take care of her elderly mother or father is usually perceived as selfish and heartless, scorned by her relatives and the Indian community at large. Since Native Americans have traditionally maintained strong family units, children and even extended relatives of the elderly person do not have to be asked, cajoled or forced into caring for the elder. Rather, the expectation is more often than not unspoken, and the caregiver meets the expectation upon him/her without voicing any complaint.
Native American cultures universally demand that the elderly be cared for with kindness, that their needs be placed above the needs of the younger persons in their family and community, and most importantly, that dutiful children sacrifice as necessary to protect, nurse, and provide for their elderly parent. As a general rule, if asked whether the caregiver resents the burdens placed on him/her, the Native American who provides physical care for an elder will not only deny feeling resentment, but will vigorously protest as offensive the suggestion that the responsibilities and obligations faced are overwhelming.
Nevertheless, in contemporary society, financial demands, the demands of children, spouse, home, school and a job, place extreme pressure upon the family unit through nothing more than daily living, without the added stress of providing a home and continuous 24-hour care to an elderly, and perhaps ailing, parent. Often, the caregiver has disabilities or physical handicaps of their own that place additional physical and emotional stress on the circumstances. However reprehensible, the reality is that over the past 50 years, abuse of the elderly in American Indian communities has become as common as abuse of women and children. With cultural norms that make asking for assistance an unpleasant option, Native American adult children who care for their ailing or elderly parent or grandparent may be at risk for engaging in harmful behavior to themselves or those they provide care to.
In their article, "Causes of Elder Abuse: Caregiver Stress Versus Problem Relatives", authors K. Pillemer and D. Finkelhor write:
"Clinicians who treat frail and demented elderly patients also find it difficult to dismiss the notion of caregiver burden as a contributory factor in at least some cases of abuse or neglect. Stress and conflict may be most likely to emerge when a single relative has been designated the primary caregiver, when there is little support from other family members, when the caregiver and patient have had a strained relationship to begin with, and when care giving needs are great. The stressed care- giver may well have financial or other needs that keep him or her from exploring alternatives. Or it may simply be that the caregiver is living up to a promise never to let the patient go to a nursing home. To date, the evidence specifically linking caregiver burden to elder abuse or mistreatment is largely anecdotal. But caregivers of chronically ill or demented patients have high rates of depression and low self-esteem. Serious cases of caregiver stress should probably not be overlooked since they can lead to inadequate care of the elder, if not outright neglect."
The authors also suggest that caregivers who are showing signs of stress be asked the following questions as a means of evaluation and early detection/prevention of abuse:
(Pillemer, K. and Finkelhor, D. (1989). "Causes of Elder Abuse: Caregiver Stress Versus Problem Relatives." Am J Orthopsychiatry, issue number 59, pgs. 179-187.)
The elderly population rises annually--in the United States and worldwide--as medical technology makes it possible for people to live longer, healthier lives. In 1990, there were 30 million Americans aged 65 or older. But while the number of elderly are increasing, the number of caregivers available to meet the rising needs of providing care to the elderly is steadily declining, partially because women, who have traditionally assumed the caregiver role, continue to enter the work force at higher rates.
The American Association of Retired Persons (AARP) suggests the following steps to protect yourself from and prevent elder abuse:
(American Association of Retired Persons (AARP), 1988. From the AARP publication : Domestic Maltreatment of the Elderly. Washington D.C.)
(From: Instant Evidence,The Journal for Law Enforcement Issues, Winter 1998. "America's Hidden Epidemic: Elder Abuse, pgs. 8-10. Distributed by Polaroid, P. O. Box 438, 400 Boston Post Road, Wayland, Massachusetts 01778-0438, http://www.polaroid.com/solutions/solution_detail.jsp?PRODUCT%3C%3Eprd_id=16377&FOLDER3C%3Efolder_id=10679&ASSORTMENT3C%3East_id=308999&bmUID1035319227187&PRDREGUS&FromListing1 (as of 04/19/04, this page is no longer available or 1-800-811-5764.
The following is written by Kelly Otte, Director of a Florida domestic violence shelter. It was so good, so eloquent, and expresses such hope, that Native American Circle, Ltd. desires to share her words with all who read these pages:
So here's what I think. I think domestic violence will end because everyone in charge are going to be adult children of survivors. All the police officers, prosecutors, lawyers, judges, teachers, doctors, and nurses are going to have survivor moms in their backgrounds that they are ferociously proud of. They're going to have lived a life violence free because their moms went to our shelters or somewhere else and started their lives over again for them. And then encouraged them to take over the world. And while they're taking over the world they will be determined to make it free from domestic violence.
My mom was a remarkable woman. She lived through her childhood in terror of her father who beat her violently her entire life. When she was 19 she left her parent's house to go to her college classes with five layers of clothes on, but got on a plane instead and never returned. By the time my grandfather found her, she had moved thousands of miles away and married my father.
I think my mother saw my father as her savior--until he started beating her also. She lived with him for 11 years and had four children, one of whom died in utero.
She left him and he found her.
She left him again.
He raped her while they were separated.
She returned to him. He kept beating her. Just like her father he told her she was fat and stupid and that if she ever left he would take all three of us kids. He told her she was a horrible mother and that no judge in the world would give a fat slob like her custody of us. So she stayed and endured.
When my sister was two years old, he left my mother and married his secretary. And kept attacking my mother. I was four years old the night he got married and I remember him putting his fist through my mother's front window on his way to his wedding. I remember blood. Lots of it.
When I was five my father took us for visitation and hid us from my mother for almost a year. Today, they call that an abduction. My mother found out where we were via a court order telling her that he was suing for custody. His promise and her nightmare were coming true.
My mother was convinced that he would win: he spent years letting her know that no one would give her the kids over him. He was an engineer and had advanced degrees. She had never gone back to school. She was making barely enough to keep food on the table for us and he always refused to pay child support.
So she got married. Fast. She talked the man she was dating into marrying her and then went in front of the judge and got her kids back. And then we started moving and all three of us started going by a new last name.
From the time I was six until I was fourteen, we lived in eight places in five different states. Eight places in eight years. It wasn't until I was 28 years old that my mother told me that she moved around so my father wouldn't take us again. She lived all that time in terror that she would wake up one morning and we'd be gone.
My mom told me years later that she married Bob because she knew he would be a great father and that he would help her get us kids back. He was gentle and loving and could only hold anger for short periods of time and hated to spank us kids. He used to hug my mother in the kitchen and when I was little, I can remember giggling wildly from the other room watching him hug her while she was standing at the sink. And what a joker! I spent most of my middle childhood in tears from laughing so hard I thought I'd die and from him I learned that laughter is more important than almost anything else. And that hurting people is wrong. I can remember him telling my brother, "I don't care what those girls did to you. It is never okay to hit a girl." And for 27 more years I watched him love my mother. I watched him keep us all safe. And now I know that I was actually watching my mother for the first time in her entire life experience love.
My mom wasn't famous. She never invented anything. She never went back to school. She never wrote a book or recorded a song or ran for public office. She didn't know how to speak another language or fly a plane or perform surgery. When she died 6 years ago from cancer, she didn't leave behind hundreds of mourners. She wasn't a public figure. And yet the legacy she left behind is rich and so enduring. Because she made a tremendous difference in the world and in the lives of others--hundreds of people have been touched because she was part of this earth, because she was able to find a place in the world for my brother, sister and I that was violence free. Because she lived the first thirty years of her life terrorized and terrified by violent men and never gave up. She never gave up the hope that my life could be different and that I had something good to give to the world. That my brother and sister did. That the cycle ended with her.
My brother, who watched my father rape my mother when he was only six, is a gentle, kind and passionately devoted father to two daughters. The violent legacy of his grandfather and father died before him and because of the tutoring of a gentle man, who was my mother's gift to all of us, he learned a better way. And my mother died knowing that I had found my life's work in ending violence against women.
And she was so proud of me. It was a different kind of pride--not the kind that you see on the face of a mother who helps a child through college or sees her pick up an academic award. It was the pride that can only come from a mother who had to find her own way out of violent homes, who watches her daughter walk with other women finding theirs.
Even though she never told her story publicly and only told me bits and pieces as the years went by, I hope that the pride she had in me reflected back into her soul so that she would recognize that she is the reason I do this work today. That her choices gave my life freedom. And that in her determination and courage, I found conviction to demand justice for others.
So I am an adult child of a battered woman. My mother gave me the opportunity to lead the life that she was never able to have because she was determined that it would be different for her children. In my freedom to be loved and love without violence I have learned how to be ferocious, determined and strong. I have learned from the lap of a survivor what courage really is and what the work is that needs to be done.
I am surrounded by my sisters and brothers everywhere I go--everywhere we all go. Last week, you met a police officer whose mother was a survivor. Two days ago, you spoke with a donor whose mother had taken him to shelter. Today the judge that heard the injunction hearing remembers crouching in terror in the hallway and hearing the sounds of the beatings inflicted on her mother. Tomorrow, your child's teacher will tell you the story of her mother.
So here's the bottom-line of what I think. I think that after twenty-five years of the battered women's movement, we have discovered thousands of women that lived with violence who never spoke up except in the lives of their children and through the decisions they made for them. And their children are now adults and in charge. And they feel just fine speaking up and demanding change from systems and communities that were not available to our mothers. Us kids of battered women are the system. In partnership with survivors, we're taking over the world and we're moving ahead with the legacy given to us by our mothers and reshaping and rethinking everything. And we're ending violence. We're working to end it every single day because it's what our mothers raised us to do. Because in their journey, we have been given lessons for ourselves and lessons for the world. And in the way we do our work, we make them all proud of us. And proud of a world that is finally starting to recognize them without silence. And in doing so, we honor them all.
(Otte, Kelly (2001). "How the Violence Will End".)
Since the passage of the initial VAWA legislation in 1994, the issues of domestic violence, sexual assault and stalking have received the focused attention of many legislators, employers, researchers, the public health community, policymakers, criminal justice professionals and crisis intervention specialists. Behaviors generally associated with stalking have been suggested and discussed by numerous people, each endeavoring to create a working definition for the term "stalking" that can be used and understood in the non-specific communications of crisis intervention specialists, as well as the specific language of those working within the confines of the criminal justice system. This task, seemingly so simple, has posed complex obstacles for those who have approached it.
Typically, those who have tried to define the term suggest obsessive, repeated following and harassment as behavior common to stalkers. Harassing phone calls, threatening behavior that includes leaving written messages or objects and acts of vandalism may be included in the definition.
Most States include "willful, malicious and repeated following and harassing of another person" in the legal definition of statutory law regarding stalking. Some States include one or more of the other behaviors or characteristics listed or the statute may add to the definition activities such as "nonconsensual communication" or "surveillance". Almost without exception, the various States require that the stalking involve more than one isolated event and that the stalker make a "credible threat" of violence against the victim. Requirements relative the level of fear the victim of stalking may feel also vary from State-to-State.
Unfortunately, if stalking behaviors are listed within the ordinance or statute, some courts may rule that the specific behaviors listed are "exclusive" of stalking behavior, although the statute may actually list only a few behaviors that are common to stalking offenders.
The Northern Cheyenne of Lame Deer, Montana, is one of the few tribes that have actually adopted code addressing the crime of stalking. The code reads, in part:
"Whereas: The Northern Cheyenne has determined that a Stalking Ordinance is necessary due to increased incidents involving the domestic abuse violations on the Northern Cheyenne Reservation, and Whereas: The Domestic Abuse Ordinance lacks this clause and the stalking of the victim has occurred various times throughout the years, where the perpetrator has harassed and intimidated the victim by the use of presence and by other means.
So Be It Ordained by the Northern Cheyenne Tribal Council that the following ordinance, the Stalking Ordinance, is hereby adopted by the Tribal Council...Stalking is a Class A offense. The Ordinance is as follows:
In the Northern Cheyenne code, stalking might be defined as repeated harassing, threatening or intimidating behavior through any type of communication, that causes the person substantial emotional distress or reasonable apprehension of bodily injury or death.. Based on paragraph (5) of the Ordinance, acts of stalking might be further defined by whether or not the stalked person has provided actual notice that they do not desire to be contacted.
The Northern Cheyenne Ordinance sets a penalty of thirty (30) days jail time and a fine of not less than $500 for a first offense conviction. A second offense conviction carries the penalty of ninety (90) days in jail and a fine of not less than $1,000, with the third or subsequent convictions carrying a penalty of not less than 180 days jail time and a fine of no less than $2,000.
The Ordinance highlights many activities that are commonly associated with stalking and it is both innovative and forward-thinking, particularly when one considers that few other Indian Nations have addressed this issue. However, the Ordinance's preamble language links stalking to domestic violence. Whether or not the tribal judiciary would perceive this "link" to be a prerequisite for stalking ordinance violations or even as establishing a "legal limit" within which stalking offenses can be considered, only the tribe's case law could demonstrate.
The Ordinance requires that communication take place between the stalker and the victim, but this requirement may exclude from consideration by a tribal court the statement of a victim who claims she is being stalked by someone whom she has never had any type of communication or contact with. By further providing that the stalked person must give "actual notice" to the stalker that she does not wish to be contacted--another standard for definition upon which a court's determinations may be based--a victim may have a difficult time convincing a court that she is a stalking victim. Too, if a victim attempted to meet the requirement of providing "actual notice" to her stalker, she could be taking action that could place her in greater danger of physical assault.
In using the language "substantial emotional distress", the court is placed in a position of having to determine what level of distress might be defined as "substantial", for after all, what may be "substantial" to one person may be totally insignificant to another. Likewise, "reasonable apprehension" may have different meanings for different people. There is a major difference between "reasonable apprehension" and apprehension that a "reasonable person" may feel.
These considerations are not intended to be a critical summary of the Ordinance's flaws for the Ordinance uses terms and definitions that are common to most other stalking ordinances. Indeed, the Apache Tribe of Oklahoma's Protection Code, showcased in this handbook, defines Stalking in much the same terms as being "the willful, malicious and repeated following of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, with the intent of placing the person in reasonable fear of death or great bodily injury...". However, some of the terms used may not be sufficient to provide adequate judicial protection for victims of stalking.
The State of Oklahoma's statute defines stalking in the exact manner as the Apache Tribe's Protection Code. The Oklahoma statute goes on to provide that: "Any person who willfully, maliciously and repeatedly follows or harasses another person in a manner that (1) would cause a reasonable person...to feel frightened, intimidated, threatened, harassed, or molested; and (2) actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested, upon conviction, shall be guilty of the crime of stalking...".
This qualifying description in the statute requires only that a "reasonable person" feel fear, not that a person feel "reasonable fear" (as previously stated in the statute's stalking definition). The qualifying description also provides room for judiciary to establish standards by which a reasonable person's fear can be measured within the meaning of the law. Yet the State statute still contains some weaknesses, notably in its use of the word "repeatedly" without detailing how that word is to be defined by the judiciary. Also, the Oklahoma statute fails to recognize all the varied forms of stalking behavior, including lying-in-wait, surveillance and vandalism.
These flaws are not unique to Oklahoma's statutes either:
"More recently, in the 2000 Report to Congress evaluating the STOP Violence Against Women Formula Grants, the Urban Institute noted that stalking is the least understood of the three crimes addressed by VAWA. Only eight States address stalking in their STOP implementation plans."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
It is reasonable to presume that even fewer American Indian or Alaska Native Tribal Nations address stalking, either through a STOP Violence Against Indian Women Formula Grant or on their own determination, independent of STOP funding. This realization highlights once again the great accomplishment of the Northern Cheyenne in adopting their anti-stalking ordinance.
The definition of stalking used by the National Violence Against Women Study, sponsored jointly by the National Institute of Justice and the Centers for Disease Control and Prevention is:
A course of conduct directed at a specific person that involves repeated visual or physical proximity; non-consensual communication; or verbal, written or implied threats; or a combination thereof, that would cause a reasonable person fear.
This may very well be the best possible definition for use in legal arenas since it is broad enough to encompass all the known behaviors of stalkers, yet strict enough to pose limitations on what might reasonably be construed to be stalking behavior.
The Model Anti-Stalking Code developed by the National Violence Against Women Survey, as provided by the National Stalking Resource Center, was created to establish a legal framework for addressing the crime of stalking. It is recommended for adoption by states and Indian Nations, with modifications as may be necessary in accordance with the Indian Civil Rights Act. The model code development project, in the creation of the code, provides explanations for the choice of terms used in the code and definitions for those words, as follows:
Section 1. For the purposes of this code:
Section 2. Any person who:
Analysis and Commentary on Code Language (Section 1) (provided by the National Violence Against Women Survey):
Prohibited Acts:
Unlike many (state) stalking statutes, the model code does not list specific types of actions that could be construed as "stalking". Examples of specific acts frequently proscribed in existing stalking statutes include following, non-consensual communication, harassing and trespassing.
Some courts have ruled that if a statute includes a specific list, the list is exclusive. The model code, therefore, does not list specifically proscribed acts because ingenuity on the part of an alleged stalker should not permit him to skirt the law. Instead, the model code prohibits defendants from engaging in "a course of conduct" that would cause a reasonable person fear.
Credible Threat:
Unlike many (state) stalking statutes, the model code does not use the language "credible threat". Stalking defendants often will not threaten their victims verbally or in writing, but will instead engage in conduct which, taken in context, would cause a reasonable person fear. The model code is intended to apply to such "threats implied by conduct". Therefore, the "credible threat" language, which might be construed as requiring an actual verbal or written threat, was not used in the model code.
Immediate Family:
A stalking defendant may, in addition to threatening the primary victim, threaten to harm members of the primary victim's family. Under the provisions of the model code, such a threat to harm an immediate family member could be used as evidence of stalking in the prosecution for stalking of the primary victim.
The model code uses a definition of "immediate family" similar to one currently pending in the California legislature. This definition is broader than the traditional nuclear family, encompassing "any other person who regularly resides in the household or who within the prior six (6) months regularly resided in the household". (NAC Note: a broad definition of "immediate family" is recommended in establishing tribal code as well, since the term "traditional nuclear family" often possesses an entirely different meaning for Native Americans than it does for non-Indian families.)
If states (or tribes) want to consider further expanding the definition of "immediate family", they should be aware that broadening it too much may lead to challenges that the statute is overly broad.
Commentary (Section 2)(provided by the National Violence Against Women Survey):
Classification as a Felony:
States should consider creating a stalking felony to address serious, persistent and obsessive behavior that causes a victim to fear bodily injury or death. The felony statute could be used to handle the most egregious cases of stalking-type behavior. Less egregious cases could be handled under existing harassment or intimidation statutes. As an alternative, states may wish to consider adopting both misdemeanor and felony stalking statutes.
Since stalking defendants' behavior often is characterized by a series of increasingly serious acts, states should consider establishing a continuum of charges that could be used by law enforcement officials to intervene at various stages. Initially, defendants may engage in behavior that causes a victim emotional distress but does not cause the victim to fear bodily injury or death. For example, a defendant may make frequent but non-threatening telephone calls. Existing harassment or intimidation statutes could be used to address this type of behavior. States also may want to consider enacting aggravated harassment or intimidation statutes that could be used in situations in which a defendant persistently engages in annoying behavior. The enactment of a felony stalking statute would allow law enforcement officials to intervene in situations that may pose an imminent and serious danger to a potential victim..
Classification as a felony would assist in the development of the public's understanding of stalking as a unique crime, as well as permit the imposition of penalties that would punish appropriately the defendant and provide protection for the victim.
Of utmost importance is a state's decision to require the criminal justice system and related disciplines to take stalking incidents seriously. A state's decision on how to classify stalking and how to establish its continuum of charges is of less importance.
Conduct Directed at a Specific Person:
Under the model code's language, the stalking conduct must be directed at a "specific person". Threatening behavior not aimed at a specific individual would not be punishable under a statute similar to the model code. For example, a teenager who regularly drives at high speed through a neighborhood, scaring the residents, could not be charged under a stalking statute based upon the model code.
Fear of Sexual Assault:
The model code language does not apply if the victim fears sexual assault, but does not fear bodily injury. It is likely that victims who fear that a defendant may sexually assault them also fear that the defendant would physically injure them if they resisted. Furthermore, since the human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), could be contracted through a sexual assault, a victim is more likely to fear bodily injury or death, as well as psychological injury. Nevertheless, due to the nature of stalking offenses, states (and tribes) may want to consider expanding the language of their felony stalking statutes to include explicitly behavior that would cause a reasonable person to fear sexual assault in addition to behavior that would cause a reasonable person to fear bodily injury or death.
Intent Element:
Under the provisions of the model anti-stalking code, a defendant must engage purposefully in activity that would cause a reasonable person fear and have or should have knowledge that the person toward whom the conduct is directed will be placed in reasonable fear. In other words, if a defendant consciously engages in conduct that he knows or should know would cause fear in the person at whom the conduct is directed, the intent element of the code is satisfied.
A suspected stalker often suffers under a delusion that the victim actually is in love with him or that, if properly pursued, the victim will begin to love him. Therefore, a stalking defendant actually may not intend to cause fear; he instead may intend to establish a relationship with his victim. Nevertheless, the suspected stalker's actions cause fear in his victim. As long as a stalking defendant knows or should know that his actions cause fear, the alleged stalker can be prosecuted for stalking. Protection orders can serve as notice to a defendant that his behavior is unwanted and that it is causing the victim to fear.
Fear Element:
Since stalking statutes criminalize what otherwise would be legitimate behavior based upon the fact that the behavior induces fear, the level of fear induced in a stalking victim is a crucial element of the stalking offense. The model code, which treats stalking as a felony, requires a high level of fear--fear of bodily injury or death. Acts that induce annoyance or emotional distress would be punishable under statutes such as harassment or trespassing, that do not rise to the felony level and carry less severe penalties.
In some instances, a defendant may be aware, through a past relationship with the victim, of an unusual phobia of the victim's and use this knowledge to cause fear in the victim. In order for such a defendant to be charged under provisions similar to those in the model code, the victim actually must fear bodily injury or death as a result of the defendant's behavior and a jury must determine that the victim's fear was reasonable under the circumstances.
In recent years, the necessity for adopting careful and concise language in anti-stalking laws has been highlighted as a result of legal challenges made to stalking laws in various states. In January 2002, the U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, published their Legal Series Bulletin #1 entitled Strengthening Anti-Stalking Statutes. The Bulletin notes that:
"Many states have explicit exceptions under their stalking laws for certain behaviors, commonly described simply as "constitutionally protected activity." Many also specifically exempt licensed investigators or other professionals operating within the scope of their duties; however, it may not be necessary to provide such exceptions within the statute itself..."
The Bulletin goes on to say that the Supreme Court of Illinois interpreted the state's stalking laws to prohibit only conduct performed "without lawful authority", even though the laws do not contain that phrase. This ruling clearly acknowledges the "intent" of the statutory anti-stalking laws in the State and seeks to recognize that intent as being obviously implied under the law. Other state courts and legislatures are drawing similar conclusions.
Cases that challenge the constitutionality of stalking laws usually contain protests that the state statute's language and definitions are too broad or "unconstitutionally vague". From the synopses of the challenges cited in the OVC Legal Series Bulletin #1, decisions passed down in these cases have generally defined "unconstitutionally overbroad" as being a statute that "inadvertently criminalizes legitimate behavior". The Bulletin also points out that where the charge of "unconstitutionally vague" is leveled:
"The essential test for vagueness was set out by the U.S. Supreme Court in 1926. A Government restriction is vague if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Whether a given term is unconstitutionally vague is left to the interpretation of each state's courts."
Most state courts that have heard cases based on these challenges have ruled that the terms "repeatedly," "pattern of conduct," "series," "closely related in time," "follows," "lingering outside," "harassing," "intimidating," "maliciously," "emotional distress," "reasonable apprehension," "in connection with," and "contacting another person without the consent of the other person" are not unconstitutionally vague.
However, the Oregon Court of Appeals ruled that the term "legitimate purpose" was unconstitutionally vague, thereby invalidating the state's stalking law. As a consequence, the Oregon legislature revised the statute. The Supreme Court of Kansas also found the state's stalking laws unconstitutionally vague, ruling that the terms "alarms", "annoys," and "harasses", as used in the statute, were not defined by the statute or provided with an "objective standard to measure the prohibited conduct". The Texas Court of Criminal Appeals made a similar ruling on its state statute concerning the words "annoy" and "alarm". Both the Kansas and Texas legislatures have subsequently revised the states' stalking statutes. (OVC Legal Series Bulletin #1, Strengthening Antistalking Statutes, January 2002, U. S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, created by the National Center for Victims of Crime (NCVC) under grant number 1999-VF-GX-K007 awarded by the Office for Victims of Crime.)
Clearly, the choice of words used to establish and define stalking crimes and penalties therefor must be chosen carefully. Tribal Nations developing anti-stalking legal code for use in tribal courts need to be aware of the challenges and legal issues created by the semantics of language manipulation in state courts across the nation, particularly in states where Public Law 83-280 or similar laws are in effect. Restraining orders and protection orders issued by Tribal Nations on behalf of stalking victims should certainly contain all the language typically found in VAWA-compliant protection orders to clearly implement the Full Faith and Credit provision of VAWA (see Section 6, "Judicial Responses", for more detailed information on Full Faith and Credit for Protection Orders.) But equally important is the selection of language in defining terms and standards for measuring stalking crimes. The possibility exists for legal complications and challenges to develop around tribal protection orders that come under the scrutiny of a state court under the VAWA Full Faith and Credit provision. Such tribal protection orders may be deemed invalid by a state court if the language in the tribal protection order does not meet the standards established for stalking crimes by state statute.
The National Violence Against Women (NVAW) Survey, sponsored jointly by the National Institute of Justice and the Centers for Disease Control and Prevention conducted the first nationwide stalking survey as a result of an increased awareness that a knowledge deficit exists about this crime. The survey resulted in the first national data collected with regard to stalking. The stalking survey involved phone calls with 8,000 women and 8,000 men, using a definition of stalking that did not require a "credible threat", but did require that the victim describe feeling high levels of fear. The survey found that:
Ninety percent of the stalking victims identified by the Survey said they were stalked by just one person during their life. 9% of female victims and 8% of male victims were stalked by two different persons. 1% of female victims and 2% of male victims said they had been stalked by three different persons in their lifetime. The Survey also drew the conclusion that in a one-year period, women are 3 times more likely to be stalked than raped, but they are 2 times more likely to be physically assaulted than stalked.
One of the problematic issues with conducting a survey like the one described lies in the definition of stalking used in the survey. When the definition required a victim to feel a high level of fear as a result of the stalking behavior, the persons questioned in the survey reported lower prevalence rates of stalking behavior. However, when the victims were allowed to describe having felt a low level of fear by their stalker's behavior and actions, the stalking prevalence rates reported increased dramatically, from 8% to 12% for women and from 2% to 4% for men.
A clear conclusion drawn from the Survey is that women tend to be stalked most often by intimate partners, defined as being current or former spouses, cohabitants or boyfriends. 38% of the women surveyed were stalked by current or former husbands, 10% by current of former cohabitants (of the same or opposite sex), and 14% by current or former dates or boyfriends.
Until the NVAW Survey, it was thought that women are most likely to be stalked by an intimate partner in the aftermath of a relationship, precipitating what has often been referred to as "separation assault". However, the Survey indicated that women who are stalked by intimate partners are stalked almost as often when the relationship is still intact as when the relationship has ended. 21% of female victims reported that stalking occurred before the relationship ended, 43% after the relationship ended, and 36% said it occurred both before and after the relationship ended.
While men are likely to be stalked by both strangers and acquaintances, women are nevertheless at greater risk than men of being stalked by strangers and acquaintances. 1.8% of all U.S. women, compared to .8% of all U.S. men, have been stalked by strangers. 1.6% of all U.S. women, compared with .8% of all U.S. men, have been stalked by someone they know--at least as an acquaintance, if not an intimate partner.
Of the male victims surveyed, it was discovered that men tend to be stalked by strangers and acquaintances. 90% of the stalkers are also male. Since there was a higher number of stalking prevalence reported by men who had previously lived with a man as a couple, compared with men who had never lived with a man as a couple, it would appear that homosexual men are more likely to be stalked than heterosexual men. However, it cannot be assumed that men who stalk other men are motivated by sexual attraction since in some instances, the stalker may be motivated by homophobia or the stalking may occur as a result of gang rivalries or some other type of criminal activity.
The NVAW Survey also found that it is uncommon for a stalker to make an overt threat of violence against a victim, thus calling into question the wisdom of State anti-stalking statutes that include in their definition the requirement that a stalker make a "credible threat" against a victim. (Less than 1/2 of all victims, both male and female, reported that they had been directly threatened by their stalker.) Women surveyed were more likely than men to describe their stalking victimization as including acts of following, surveillance, and unsolicited telephone calls. However, equal percentages of male and female victims reported receiving unwanted letters or items, the vandalism of property, and the killing (or threat to kill) a pet.
When asked why they thought they had been stalked, most victims said that the stalking behavior had been motivated by their stalkers' desire to control or instill fear in their victim. Because this belief implies a perception that the stalker made clear choices regarding his/her actions, it can be concluded that most stalkers are not psychotic, delusional or otherwise mentally ill or emotionally disturbed.
Twenty-one percent of the victims surveyed said they had been stalked because the stalker wanted to control them. 20% said the stalker had stalked because he/she had wanted to hold the victim in the relationship. 16% of victims said they felt that their stalker had desired to frighten them by his/her actions. 12% of victims said they weren't sure why they had been stalked, while 7% attributed the stalking behavior to mental illness or alcohol and/or drug abuse. 5% of victims suggested that their stalker had engaged in stalking behavior because he/she wanted attention. 1% of victims said they thought the stalker's motivation had been to "catch them" engaging in actions or behavior that the stalker had perhaps forbidden or suspected the victim of indulging in.
The Survey provided even greater evidence that there is a strong link between stalking and controlling or abusive behavior in intimate relationships, concluding that intimate partners who stalk are 4 times more likely than husbands or partners in the general population to physically assault their partners and 6 times more likely to sexually assault their partners. With the same reasoning, it is clear that intimate partners who do not indulge in stalking behavior, either before or after the termination of a relationship, are less likely to engage in abusive or controlling behavior toward their partner.
It is also significant that stalking by an intimate or a former intimate is usually longer in duration than stalking incidents involving non-intimates. Approximately 2/3 of all stalking cases last one year or less. 25% of all stalking cases continue in duration for from 2-to-5 years. An estimated 1/10 continue for more than 5 years. Stalking cases involving intimates or former intimates last 2.2 years, on average, whereas stalking cases involving non-intimates last 1.1 years.
According to the NVAW Survey, 55% of female victims and 48% of male victims reported their stalking victimization to law enforcement. The Survey also found that law enforcement was more likely to arrest or detain stalking suspects in cases involving female victims, and law enforcement was also more likely to refer female victims to services than male victims.
Although reports to law enforcement of stalking crimes have increased between 1990 (the year in which California adopted the first anti-stalking statute) and 1995 (the year by which all 50 States and the District of Columbia had adopted anti-stalking laws), there has been no significant difference between the number of arrests made in stalking cases prior to 1990 and those occurring after 1995. 76% of those victims surveyed whose stalkers were arrested expressed satisfaction with law enforcement's handling of their case.
Of those whose stalker was not arrested despite reporting the stalking incidents, victims predictably expressed that they were not satisfied with law enforcement's actions on their case. 42% of those victims in the latter category said that they felt law enforcement should have jailed their stalker, while 20% said law enforcement should have taken their situation more seriously. 16% said that law enforcement should have done more to protect them from their stalker. 13% of victims felt police could have been more supportive and 12% felt that law enforcement should have investigated the stalking charge more thoroughly:
"One victim told of police officers being called to her home on numerous occasions, listening to her accounts of being stalked and taking written notes. She found out only later that not one report had ever been officially filed.
Another victim said that she went to the police only after her stalker broker her nose in broad daylight. They told her it would be too hard to prosecute her case. She endured numerous attacks by the stalker after her initial interaction with law enforcement, including one that left her hearing disabled.
One victim indicated that she had received assistance from an FBI agent who got involved in her case when the stalker started sending threatening letters to her through the U.S. Postal Service. Prior to this intervention, however, she endured years of increasingly violent stalking acts."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
The low arrest rates of stalkers at least partially explain the low prosecution rates of stalkers. The NVAW Survey found that 13% of female victims and 9% of male victims reported that their stalkers were criminally prosecuted. When only those cases with law enforcement reports are considered, the figures increase to 24% of female victims and 19% of male victims reporting that their stalkers were criminally prosecuted. Approximately 54% of the stalkers prosecuted were actually convicted of a crime, although the criminal conviction may not have been for stalking, but may have been for crimes related to stalking, including harassment, threats, vandalism, trespassing, breaking and entering, robbery, disorderly conduct and assault. Of those stalking offenders convicted, approximately 63% were believed to have been sent to prison.
The Survey also revealed that approximately 28% of female victims obtained protection orders or restraining orders against their stalker, compared to 10% of male victims. Of those who obtained protection orders, 69% of the female victims and 81% of the male victims reported that their stalker violated the order.
Overall, the number of stalking incidents being reported to police appears to be increasing, indicating that victims are beginning to feel, or at least act on the hope, that law enforcement and criminal justice professionals will respond in positive ways to reported stalking behavior. Unfortunately, although law enforcement appears to be responding to the reports of victims, actual arrests and prosecution of offenders remains small. Accusations of stalking may be particularly difficult to prosecute, as they more often than not lack evidence of physical bodily harm or of an easily discernable, apparent threat that is also easy to prove.
For victims of stalking, the reality of pursuing a complaint for stalking through the criminal justice system involves an unconditional commitment investment of time, emotion and financial resources on the part of the victim, who must often endure more stalking offenses while documenting the evidence necessary to prosecute their stalker. Victims typically must keep detailed logs of stalking incidents, gather evidence, fill out paperwork, meet with investigators and prosecutors, petition the court for protection orders, and finally, testify in court against the stalker. To further discourage the victim from seeking criminal justice remedies against the stalker, many victims of stalking describe being approached by their stalker as they travel to and from government buildings, seeking court orders and other protections.
Even when incarcerated, some stalkers continue to terrorize their victims from prisons or mental institutions by sending threatening letters to the victim. Many victims feel that imprisonment or containment of the stalker in a mental institution is only a "temporary reprieve" from stalking offenses and as a result, some victims change their identity and appearance, going to great length and personal expense to hide from their stalker. These victims need assistance similar to that provided through witness protection programs.
Perhaps as a direct result of a perceived low effectiveness of the criminal justice system to adequately protect victims, it was found that stalking victims often express concern about their personal safety and are significantly more likely than non-stalking victims to carry something on their person to defend themselves against an assailant. 56% of female and 51% of male stalking victims report taking some type of self-protective measure against assault.
Victims also tend to report that informal justice system interventions, such as warnings to stalkers from law enforcement officers and private detectives, are often more effective deterrents than formal justice system interventions, such as arrest, conviction or the securing of a protection order. 15% of victims reported that their stalking victimization ceased after the stalker received a warning from police, whereas only 9% of victims said their stalking stopped because the offender was arrested. 1% credited the cessation of stalking behavior to conviction of the stalker and less than 1% of victims said the stalking stopped because they obtained a protection order.
Since stalkers are often prosecuted and convicted for crimes that are not defined as "stalking" (for instance, convictions for domestic violence or assault and battery) or a conviction may only account for one or two aspects of stalking behavior (such as harassment, violation of a protection order, etc.), statistics on stalking are difficult to obtain, the stalking charge often being obscured by convictions or prosecution on other charges. Each of these factors combined has had the net result of stalkers remaining under-arrested and under-convicted or sentenced.
In addition, law enforcement and criminal justice professionals often erroneously presume that victims reporting stalking behavior are exaggerating their perceived danger or simply overreacting. Length of a relationship should not be considered a determining factor in evaluating a stalking threat. However, physical or sexual intimacy, regardless of the length of the relationship, may be an important consideration in evaluating the level of danger or risk posed by a stalker in some cases.
The NVAW Survey supports the opinion of many crisis intervention professionals and victims that the actors in the criminal justice system do not fully understand the danger stalkers represent to victims. Predictably, when professionals working within the system don't understand the danger, the potential seriousness of the crime underestimated. The Third Annual Report to Congress under the Violence Against Women Act concerning Stalking and Domestic Violence states that criminal justice practitioners contacted report that their approach to stalking has become one of pursuing the case aggressively at the outset, so that the stalking acts are not allowed to rise to a level that would trigger the State's anti-stalking laws.
But this approach may still not be adequate to protect American Indian and Alaskan Native victims of stalking. Since the NVAW Survey reveals that Indian women are stalked more than twice as often as white women and almost three times as often as African-American women, special implications for Native American victims of stalking cannot any longer be ignored.
The Third Annual Report to Congress on Stalking and Domestic Violence states that:
"This finding should be viewed with caution, however, given the small number of American Indian/Alaska Native women in the sample...Since information on violence against American Indian and Alaska Native women is limited, it is difficult to explain why they report more stalking victimization. A previous study found that the overall homicide rates for Native Americans were about two times greater than U.S. national rates.* Thus, there is some evidence that Native Americans are at significantly greater risk of violence--fatal and nonfatal--than other Americans. How much of the variance in stalking prevalence may be explained by demographic, social, and environmental factors remains unclear and requires further study. Moreover, there may be significant differences in stalking prevalence among women of diverse American Indian tribes and Alaska Native communities that cannot be determined from the survey, since data on all Native Americans were combined."
(*Wallace, L.J.D., A.D. Calhoun, K.E. Powell, J. O'Neill, and S.P. James (1996). "Homicide and Suicide Among Native Americans, 1979-1992". Violence Surveillance Summary Series, No. 2. Atlanta, GA: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control.)
(Stalking and Domestic Violence: The Third Annual Report to Congress Under the Violence Against Women Act (1998), Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice, NCJ-172204, pg. 8-9.)
Only 88 American Indian/Alaska Native women and 105 American Indian/Alaska Native men were interviewed during the course of the NVAW Survey (4.8% of Indian men reported having been stalked in their lifetime, as compared to 2.1% of white men and 2.4% of African-American men). Regardless of these small numbers in the sample, it should not be difficult to explain why Indian people report more stalking victimization than persons of any other race. Nor should it be anticipated that the explanations will lie in demographic, social and environmental factors to any significant degree or that the results would be remarkably different than those arrived at in the Survey if the data on Native American people were separated by tribe or Indian Nation.
The best possible explanation for the high rates of stalking victimization reported by Indian people can be found by examining the following considerations and their negative impact on the circumstances of Indian people:
(A more complete discussion of the laws affecting American Indian people may be found in the "Judicial Responses" section of this handbook.)
In fact, the historical experience of Native American people has included extreme "conditioning" to influence Indian people to suffer in silence and believe that legal recourse does not exist for them under the American justice system. The historical experience of Indian women in colonial times often included rape or violent assault at the hands of non-Indian men and few of the women victimized dared approach American jurisprudence for either protection against the perpetrator or justice for the wrongs committed.
Those Indian women who did report to non-Indian justice systems violence perpetrated upon them more often than not received only ridicule and further shame. Even today, this tradition of not reporting and not "telling" has continued among Native American people. Too often, the Native American victim of violence perpetrated by a non-Indian person is painfully aware that the American system of justice cannot or will not protect them or take punitive actions on behalf of the victim. Distrust for government and non-Indian persons in general encourages a failure to report. Since so much of the violence perpetrated against Native American persons is committed by a non-Indian person, Native American women particularly feel a distaste and aversion for talking about what happened to them to "another non-Indian" person, or a person who is "like"--at least in appearance--the one who committed the violent act.
The 1998 Report to Congress on Stalking and Domestic Violence also notes that Asian and Pacific Islander women are at a significantly less risk of being stalked than women of other racial and ethnic backgrounds. The Report suggests that traditional Asian values emphasizing close family ties and harmony may discourage Asian women from reporting or disclosing abuse by intimate partners, explaining why women from these racial groups appear to suffer fewer stalking crimes, when in fact, they may suffer at the same rates as other races.
However, it should be noted that Native American people also embrace traditional values relative family allegiances, tribal and clan loyalties, and general harmony among members of the community. Yet embracing the same values that are deemed to place Asian and Pacific Islander women at less risk of stalking clearly did not result in less reporting for Survey purposes by Native American women. This fact suggests that cultural values do not impact the reporting of stalking incidents by either Asian and Pacific Islander women or Native American women.
If it can be reasoned, therefore, that the statistics relative stalking for Asian and Pacific Islander women are correct, regardless of cultural values emphasizing close family ties and harmony, then it should also be reasoned that the same cultural values held by Native Americans do not affect the statistics relative stalking as it impacts Native American women.
Because the potential for violent assault and death associated with stalking cases is great, the criminal justice system accessed by the victim, whether from an American paradigm of justice or a tribal, indigenous paradigm of justice, must recognize the need to protect the victim and must never underestimate the stalker.
Federal anti-stalking legislation was enacted in 1996 with the Interstate Stalking Punishment and Prevention Act. The Act prohibits individuals from traveling across a State line with the intent to injure or harass another person or place another person in reasonable fear of death or bodily injury as a result of, or in the course of, such travel. The legislation enables federal prosecution to take place when the interstate feature of a stalking case creates additional challenges to successful State (or tribal) prosecution of a case. Federal law aside, though, stalking crimes are largely the responsibility of State, tribal or local jurisdictions.
In 23 States, a first offense of stalking may be a felony under certain conditions and circumstances. In 12 States, conviction for a first offense of stalking is an automatic felony. In the remainder of States, a first offense of stalking is a misdemeanor, but a second conviction is a felony. In Oklahoma, an initial stalking offense is classified as a misdemeanor, for example. However, a second misdemeanor stalking offense carries felony penalties. While all 50 States and the District of Columbia have enacted some type of stalking law, provision for civil protection orders has been made in the stalking laws of only 27 States. In those States, stalking protection orders may be issued in addition to a protection order against domestic violence:
As of August 2000, there were nearly 500 stalking and related cases identified that had been prosecuted either at a Federal, State or local level:
Cases involving stalking were most common (157 cases), followed by harassment (142 cases) and threats (122 cases). Only a few State stalking laws have been struck down on the basis of overly vague terms such as "annoy" or lacking an intent requirement...
Harassment laws that are not limited to prohibitions on "fighting words", which are not entitled to the same protection under the First Amendment as are other kinds of speech, were the most vulnerable to constitutional challenge. However, courts held that telephone harassment laws were not required to have such a limitation because of their invasion of privacy component. For much the same reason, telephone harassment and threat laws commonly focus on the intent of the caller to harass or threaten rather than the victim's response to these messages. In fact, a few States do not require actual fear to result from the harassment."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
In States where stalking is a misdemeanor offense, explicit authority to arrest without a warrant is often absent in statutory law. This absence may present significant issues, although no statistics have been compiled on the subject to this date. In most States (49 States), a law enforcement officer may arrest without a warrant any person who has committed misdemeanor domestic violence that includes stalking acts, provided the arresting officer has jurisdictional authority.
In States where stalking is classified as a felony, law enforcement officers may arrest without a warrant any person who they have probable cause to believe committed a felony act of stalking, provided they have jurisdictional authority. In those States where stalking falls into a felony category under certain restricted circumstances (as in Oklahoma), law enforcement officers may arrest without a warrant only when (1) they have established jurisdictional authority, and (2) when they have first determined that the stalking charges meet requirements for felony status.
The results of a "mail only" survey conducted in November 1997 with 204 law enforcement agencies and 222 prosecution offices revealed that:
"...all but seven of the police agencies surveyed assign stalking cases either to their detective unit or to a specialized unit, most commonly the domestic violence unit, or to a combination of detectives and domestic violence investigators. A few agencies assign stalking cases to their sex crimes unit. Only one has a specialized stalking unit.
Most of the prosecution offices surveyed similarly assign stalking cases to their domestic violence unit. A significant minority (15%) split stalking case duties between their domestic violence unit and another unit, usually the general trial unit."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
In addition, among those agencies which participated in the survey it was revealed that:
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
With regard to issues of jurisdictional authority, it is particularly important to recognize that State law enforcement officers in most States (that is, non-P.L. 280 States) do not possess jurisdictional authority to arrest or detain Indian persons for any crime that took place on Indian land. Nor do non-P.L. 280 States possess jurisdiction to prosecute any crime that took place on Indian land involving at least one Indian person, either as the victim or the offender. (See the "Judicial Responses" section of this handbook for more information regarding P. L. 280). By the same token, Indian Nations do not possess criminal jurisdiction to prosecute non-Indians for any violation of tribal law, unless the offender stipulates (U.S. Supreme Court Oliphant vs. Suquamish, 1978).
Therefore, in stalking cases where neither the tribal authority nor the State authority can establish jurisdiction, it is necessary that the federal authorities be appealed to for arrest, investigation and prosecution. Under the original 1996 federal anti-stalking statute, however, few stalking cases would rise to meet the standards for prosecution (interstate stalking), leaving American Indian and Alaska Native victims particularly vulnerable to further offenses. This Congressional "mistake" has been corrected with the VAWA II legislation, made effective November 1, 2000, allowing prosecution for stalking crimes that cross jurisdictions categorized as "Indian country".
(Please refer to the Judicial Responses section of this handbook for discussions about jurisdictional authority in Indian Country and over Indian persons, particularly in the chapter "Implementing the Full Faith and Credit Provision in Indian Country".)
In States where the anti-stalking statute language requires proof of "a course of conduct", prosecutors complain that stalking charges are sometimes difficult to prove since courts often do not allow admittance of testimony regarding previous stalking acts by an offender. Since the burden of proof is upon the prosecutor to establish a pattern of acts that constitute "a course of conduct", stalking cases are dismissed when prior acts are denied admittance in court. Other criminal justice professionals point out that stalking is commonly an element in domestic violence cases, rendering the line between the crimes virtually imperceptible.
Too, many judges do not comprehend the terrorist psychology that is commonly imbedded in stalking behavior, so they cannot adequately appreciate the terror that the victim feels as a result of the behavior and erroneously conclude that certain cases would have been better classified as harassment, with civil, rather than criminal, penalties. Due to these and numerous other problems incidental to prosecution of stalking offenders, most stalkers are sentenced not for stalking offenses, but for domestic violence offences or violations of protection orders.
Others have noted that stalkers might typically be classified as "extremely persistent" in their actions, and logical reasoning would therefore suggest that stalking behaviors are potentially of an extremely serious nature, establishing an imperative need for the criminal justice system to take steps to protect the victim. Progressive sentencing structures have been suggested for inclusion in statutory law or tribal code that will impose increasingly stiffer penalties on repeat offenders.
There is also evidence that intensive supervision of stalkers, both before and after conviction, may have a positive impact on stalking behavior. As a result, sentencing and supervision together have become the focus of judiciary who recognize that forms of both types of sanctions play a significant role in prevention of stalking behavior.
In States where supervision of a convicted stalker is precluded until after sentencing, law enforcement and probation officers have noted that violence which takes place in the interim tends to be severe. Pre-sentencing supervision of stalkers and conditional bail options, where allowed by law, may be significant strategies available for use by prosecutors and judiciary in stalking cases. Since statistics provide evidence that protection orders in stalking cases are frequently violated, increased supervision and monitoring of offenders in the pre-trial and pre-sentencing phases of a stalking case are of particular necessity in the protection of victims.
Counselors who work with stalkers also emphasize the need for close supervision of offenders, as well as the need for a solid working relationship between the counselor and the probation officer assigned to the case. Ideally, when counselors and probation officers work together to supervise and monitor the behavior of the offender, stalking behavior is curtailed. Also, while adhering to confidentiality protocol, counselors can often advise both victims and appropriate authorities of behavior noticed in the offender that may portend increased danger for the victim, thereby affording the victim greater protection.
Visual or electronic monitoring of an offender's whereabouts and actions should be encouraged and in any stalking case, determination should be made as to what degree of threat a stalker poses to his victim. Such an evaluation should include a complete lethality assessment. Group counseling or batterer intervention therapy may also be employed with positive results in many cases.
Some researchers believe that stalkers typically suffer from a mental illness:
"The most significant research finding concerning stalkers is that the majority of the stalkers who have been brought to the attention of the police are suffering from a major mental illness or personality disorder. Some of the most often diagnosed disorders affecting stalkers have included erotomania, anti-social personality disorder, schizophrenia, or a substance abuse disorder. What is interesting to note is that most states' newly enacted anti-stalking legislation does not take into account the probability that stalkers may be suffering from mental illness even though recent research has clearly indicated that most stalkers do suffer from some disorder. Moreover, the majority of anti-stalking laws do not make it mandatory that a stalker even undergo a psychological evaluation after he/she is arrested and convicted."
Osman, Daniel J. (post 1992, but undated). "In the Mind of a Stalker". From a Master's thesis for a degree in Criminal Justice at Boston University, re-printed by the Center for Criminal Justice Studies.
These statistics, however, were probably the result of early research on stalking behavior when little information was available except statistics on celebrity stalking. Without a doubt, many celebrity stalkers suffer from one or more mental or emotional illnesses, but celebrity stalkers are not representative of all stalkers. In fact, celebrity stalkers represent only a very tiny percentage of the total number of identified stalkers. As a result, most crisis intervention professionals do not believe that the typical stalker is mentally ill or emotionally disturbed. Nevertheless, in the instances when a stalker appears to be unable to make clear choices regarding his/her actions, or where there is evidence that the stalker is delusional, referrals to mental health authorities should be made. In some instances, it may be possible to seek involuntary commitment and mental health evaluation for the offender.
(Note: Victims who relocate in order to conceal their whereabouts from a stalker may discover that they are being stalked again as a consequence of filing for a renewal of an existing protection order since re-applying for a protection order may inform the stalker of the victim's location. As a result, some states are beginning to recognize the need to issue "lifetime" protection orders for stalking victims.)
(The following review appeared in the May 2001 Report to Congress, Stalking and Domestic Violence, U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
As previously mentioned, as of August 2000, there were approximately 500 stalking and related cases that were tried either at a Federal, State or local level. Court decisions in these cases "measured constitutional challenges based on overbreadth by whether the law prohibits acts rather than speech and by whether it contains an intent to cause a specified harm. Vagueness claims generally were evaluated based on whether the harmful acts barred by the law are of such specificity that an ordinary person would not fail to understand what is prohibited". According to the May 2001 Report to Congress, a review of the cases suggests that:
As a consequence of the litigation referred to, it has been revealed that too often, State legislatures and courts often do not recognize implied or conditional threats in their construction of anti-stalking statutes. This lack allows stalkers who don't make "explicit" threats to avoid punishment. In addition, many stalking statutes do not explicitly cover cyberstalking and other types of high-tech communication terrorism.
The Violence Against Women Act of 2000 (VAWA 2000) amended the Federal interstate stalking law to include travel across State and national boundaries, as well as travel into or out of Indian country and within the "special maritime and territorial jurisdiction of the United States". The Act also amended the Federal statute to cover certain travel or conduct with "intent" to kill, injure, harass, or intimidate another person (previously covered only the intent to injure or harass), or to place the victim in reasonable fear of the death of, or serious bodily injury to, the victim's current or former intimate partner. The new statute also contains penalties for the use of U.S. mail or any facility of interstate or foreign commerce (including "cyberstalking" acts) to "engage in a course of conduct that places the victim in reasonable fear of the death of, or serious bodily injury to, the victim, a member of the victim's immediate family, or a spouse or intimate partner of the victim".
As of October 2000, the Justice Department had prosecuted 35 of 39 stalking cases under the interstate stalking provision. Of these cases, convictions were obtained against 25 defendants in 23 cases, with 11 cases still pending disposition as of the date of submission of statistical information. In all but one of the 35 cases, the stalker was male. In one case, the male stalker had a female accomplice, and in another case, the stalker's mother and father were his accomplices. In 34 of the 35 cases, the victim was female, and in 27 cases the stalker and victim were current or former intimate partners. Three cases involved workplace stalking. The prosecution and conviction rate described at a Federal level provides ample evidence that the Federal anti-stalking statute is a valuable tool for prosecuting cases where the interstate nature of the stalking offense may complicate effective State investigation and prosecution.
Stalking cases are being prosecuted more frequently today than in the recent past of only a decade ago. Some victims of stalking who are dissatisfied with the law's ability to assist them in stopping the stalker by prosecuting the stalking crime itself have turned to more creative means of punishing the stalker and ending the stalking behavior. In many parts of the U.S., it has been discovered that civil lawsuits against stalkers are an effective means, in some cases, to stop the crime. Civil lawsuits also have the added advantage of establishing "equitable relief" for the victim.
In Illinois in1999, for instance, civil suit on a stalking case was initiated by a stalking victim with whom the accused stalker had once been involved in an extra-marital affair. Motivated by the belief that her stalker's criminal behavior would be best deterred if the stalker, who was a wealthy businessman, was confronted with the prospect of both public exposure for his behavior and financial consequences as well, the victim's suit pled intentional and negligent infliction of emotional distress, sleeplessness, anxiety, depression, nervousness, fear for her personal safety, loss of enjoyment of life, and intrusion upon personal seclusion (a form of invasion of privacy). Because the stalker's homeowner's insurance policy with The Hartford covered liability for invasions of privacy with benefits of $500,000 per incident, the victim made a claim on the stalker's homeowner policy. As a result, The Hartford was named as a party to the litigation.
This particular lawsuit resulted in the stalker voluntarily consenting to a "lifetime" (permanent) restraining order, barring him from further incidents of stalking behavior against his victim, and a lump sum payment of $300,000, of which the stalker paid 2/3 and The Hartford 1/3. The voluntary restraining order provided for payment of liquidated damages to the victim in the amount of $5,000 for any additional violations of the restraining order, in addition to any criminal sentence that might be imposed. Since September 2000, there had been no known violations of the voluntary order. (Wolf, Daniel A., Esq. (Fall 2000). "Suing a Stalker: A Case Study". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 3-6.)
In another stalking case in 1998 involving a family and one of their neighbors, civil litigation was filed against the neighbor, who had hired another man to harass and terrorize the family, and vandalize property. The case, tried over a five-day period in Fairfax County, Virginia, resulted in a verdict in favor of the family of $205,000, $30,000 of which was compensatory damages on the destruction of property charge, and the remaining $175,000 of which was punitive damages determined by the jury in the case. (Leiser, Phillip B., Esq. (Fall 2000). "The Tale from the Tape: Decedent's Statements Help Stalking Victims Secure Civil Justice". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 7-9.)
Every State has enacted some form of criminal stalking law, but only a few States have civil stalking statutes that allow victims to sue stalkers for monetary damages. (California, Oregon, Texas, Michigan, Wyoming, Nebraska and Kentucky have enacted civil stalking statutes that make special provision for civil actions based on stalking. However, special conditions may also apply in some States, such as a mandate that the victim must have first reported the stalker's criminal conduct to the police as a stalking offense prior to commencing the civil action.)
Yet, while most States do not have statutes that specifically allow stalking victims to file civil suit on their stalkers in civil court, all States have statutes that allow other causes of action that might be applied to a stalking case, based on certain evidence and conditions. For instance, a case that cannot be prosecuted under stalking statutes, might instead be prosecuted as "intentional infliction of emotional distress", or sexual harassment, trespass, assault or invasion of privacy.
In cases where intentional infliction of emotional distress is charged, for example, the prosecutor may be able to obtain a conviction on the victim's behalf if it can be shown that the stalker "intended" or determined to cause emotional distress. Since a common element in stalking cases is the need for the stalker to establish power and control over his/her victim, it naturally follows that the stalker's attempts to establish control will result in the victim feeling afraid. When evidence can be provided that the primary objective of a stalker's behavior was to traumatize, terrorize or otherwise instill fear in the victim, intentional infliction of emotional distress may be argued successfully in some States.
With the same logic, a civil remedy of sexual harassment might be successfully argued in another stalking case when there is not sufficient evidence of stalking behavior to prosecute criminal charges successfully, but when there is sufficient evidence of severe and continuous harassing of a sexual nature, undesired by the victim.
In Stinson vs. Slaughter (1993), Joan Stinson filed civil suit on her stalker, Richard Slaughter, after Maine authorities refused to arrest Slaughter on the basis that his stalking crimes perpetrated on Stinson were not an indictable offense under Maine's criminal law. William Knowles, Stinson's attorney, filed civil suit on Slaughter, which resulted in a $150,000 judgment in compensatory damages for emotional distress and the cost to Stinson of protecting herself from Slaughter. Additionally, the jury awarded Stinson $500,000 in punitive damages that Slaughter could not discharge by filing bankruptcy. (Ellis, Jennifer R. (Fall 2000). "Civil Stalking Statutes: Alternative Justice for Stalking Victims". Victim Advocate--the Journal of the National Crime Victim Bar Association, Volume 2, number 2, pgs. 17-19.)
These and other similar cases clearly suggest that civil litigation may be an important tool to sanction and control stalking behavior, particularly when civil suits can be employed together with any criminal penalties that may be applied under the law. Too, civil cases may also be easier to "prove" than criminal cases. For example, prosecutors have the obligation of providing a high burden of proof in criminal cases that may not be easily argued in many stalking cases. It is often difficult, after all, to convince juries and/or judges of the criminal intent and potential danger in a stalker's patterns of behavior, and protection orders or restraining orders may not effectively stop the stalking behavior of many stalkers. When stalking crimes "slip through the cracks" in the criminal justice system, civil stalking statutes can provide victims with viable options and alternatives to criminal charges.
(The following article by Seema Zeya, Esq., Senior Program Director for the Stalking Resource Center, a program of the National Center for Victims of Crime ,originally appeared under the same title in the Fall 2000 issue of "Victim Advocate--The Journal of the National Crime Victim Bar Association", Volume 2, Number 2, pgs. 10-12. The article is re-printed here with Ms. Zeya's permission.)
Deciding whether to file a civil lawsuit against a stalker can be a very difficult and complex decision for a stalking victim. On the one hand, suing their stalker can help victims regain a sense of control over their lives and hold stalkers accountable for their behavior. In some cases, bringing a civil tort claim also may be the only way to obtain legal redress because criminal prosecution may not have been possible or successful. On the other hand, pursuing civil tort remedies may result in victims losing their privacy. It may also cost them money for litigation expenses and lost time from work, and force them to relive very painful memories related to their victimization.
Many victims do not realize that during the discovery phase of civil litigation, both the plaintiff and the defendant are entitled to compel each other to produce documents and evidence, answer questions, and testify at pretrial proceedings. Having to face a stalker in a pretrial meeting or in court can be a very frightening prospect for a victim. Another unsettling prospect is that the stalker may counterclaim against the victim as a form of intimidation or retribution. Even worse, some stalkers may attempt to physically retaliate against their victims for suing them in civil court. In such instances, victims may decide not to take legal action at all because of the risks attached, and instead may face no other choice but to go into hiding.
Risk Assessment and Safety Planning
Pursuing a civil tort claim against a stalker is not only about achieving justice by winning a monetary judgment on behalf of the victim, but more importantly, it is about securing the victim's safety. Therefore, attorneys must make victim safety a top priority and help their clients assess risks and realities that may place them in further danger.
Safety planning involves evaluating what is happening around a victim and examining options that will negatively and positively impact the victim's safety. More specifically, it is a tool designed to give a victim a specific plan to use if the stalking or threats of violence begin to escalate. Safety planning can help a victim devise a plan to leave an abusive partner and remain inaccessible to the stalker. Since safety plans can be quite complex, it is helpful to enlist the assistance of a trained advocate who can help victims determine which options will enhance their safety the most. The majority of input on the specific plan needs to come from the victims themselves since they are the most knowledgeable about the situation and the stalker's conduct. Plans must be tailored to meet the individual circumstances of each victim.
In short, safety planning is critical for stalking victims since the likelihood of violence escalates when a stalking victim leaves the stalker (if they are former intimate partners) or seeks legal interventions. Victims need to know in advance where to go and what to do in emergency situations. Done properly, safety planning not only can help keep stalking victims safe, it can enhance their self-esteem and provide resources to assist victims in regaining control over their lives.
Practical Tips for Safety Planning
Practitioners should be prepared to assist stalking victims in assessing danger and developing comprehensive safety plans that encompass a broad range of survival strategies. Beginning with the first client meeting, the attorney needs to show patience, compassion and sensitivity toward clients who may find it difficult to talk openly about traumatic events relating to their stalking victimization. The attorney should also stress that the client's safety is the top priority.
Stalking victims must understand that they should never underestimate their stalkers or the potential for danger. For example, any implied or direct threat, whether made in person, by phone, regular mail, or e-mail, needs to be taken seriously. Clients should be advised to call the police to report each incident of stalking; to keep a behavior log documenting any sightings or contact including the date, time, location, circumstances, and names of any witnesses; and to preserve all evidence.
Assessing Danger
While it is difficult to predict precisely how a stalker will react to a lawsuit or behave in the future, the following are warning signs that may indicate the stalker is very dangerous:
Before a lawsuit is filed, the client should be asked about these factors as well as any escalation of the stalking or other patterns of abusive activity. At this stage, an attorney should enlist the assistance of a trained advocate who can help the client evaluate the situation. Assuming the client decides to proceed with a suit, the attorney and advocate should begin the safety planning process immediately and assist the client in developing a plan that is appropriate to the client's needs.
Protection Orders
Attorneys should make certain that stalking victim clients have obtained a civil protection order before a civil lawsuit is initiated so that if the stalker attempts to contact, harass, or threaten the victim, the police can intervene. Clients should keep the order with them at all times and deliver copies to others in the community such as local police departments, employers and schools. If victims travel across state lines, they should carry a copy of the order because the order can be enforced nationwide pursuant to the federal full faith and credit law.
Refusal to Disclose Identifying Information
Throughout the course of the litigation, the attorney should try to make sure that the stalking victim's contact and identifying information is not revealed, since disclosure to opposing counsel and the stalker may seriously impact the victim's safety. The plaintiff's attorney should object under Federal Rule of Civil Procedure 26 (or its local equivalent), and if necessary, move for a discovery protective order so that the victim does not have to reveal home address, work address, home telephone number, work telephone number, e-mail address, and social security number.
Safety Precautions
Since the primary objective should be to keep the client safe at all times, the stalking victim should be advised to take some of the following safety precautions at home, work, court and in public. (Note: This is not an exhaustive list, but rather a sampling of some commonly recommended strategies.)
At HOME:
At WORK:
In COURT:
In PUBLIC:
Counseling
Stalking can be psychologically devastating for victims as they become more concerned about their personal safety. In fact, thirty percent of female stalking victims and twenty percent of male victims reported that they needed to seek psychological counseling as a result of their victimization. Practitioners should encourage their clients to work with a trained victim advocate, counselor, or therapist during the pendency of the civil case since the victim may feel emotionally overwhelmed. In particular, if victims have to face stalkers in open court and testify about their victimization, it is critical that they be psychologically prepared for such an experience. It is imperative that practitioners understand the mental health needs of stalking victims and assist their clients in accessing appropriate services.
Conclusion
Civil lawsuits can hold stalkers accountable and can help victims achieve justice and regain a sense of control over their lives. However, safety planning must be an integral part of the process in order for the action to be truly beneficial to the victim. Practitioners should recognize the importance of assessing risks and dangers, and should be willing to assist their clients in developing comprehensive plans that will keep them safe throughout the course of the case.
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Works cited in original article:
With contemporary society's easy access to high-tech methods of communication, crimes involving Internet usage have increased rapidly. Many stalkers find the Internet an easy, anonymous and convenient method by which to harass, stalk, intimidate and terrorize their victims:
"The veil of anonymity allows the perpetrator to exercise power and control over the victim by threatening the victim directly or posting messages that lead third parties to engage in harassment and threatening behavior toward the victim."
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
Recently, the U.S. Department of Justice's Office for Victims of Crime (OVC) convened a meeting of a national focus group to gather information about the needs of stalking victims. One of the victims in attendance at the meeting described how her stalker widely disseminated false information on the Internet about her, claiming that the victim was available for sex, and listing her address and phone number. Stories like this one are common in cyberstalking cases.
To date, Federal prosecution of cyberstalking has been more successful than State prosecution, partially because many States do not have adequate anti-stalking statute in place that applies specifically and explicitly to high-tech terrorism. Too, many law enforcement agencies lack the expertise and resources to respond to cyberstalking cases in an aggressive fashion. Some internet service providers (ISPs) have no protocol in place to deal with cyberstalking.
Little has been firmly established about this high-tech crime. Most of the available evidence concerning cyberstalking is anecdotal in nature and does not exist in hard form, compiled with systematic scientific research techniques. The facts and information which follow in this chapter about cyberstalking is extracted from Stalking and Domestic Violence, May 2001 Report to Congress, U.S. Department of Justice, Office of Justice Programs NCJ186157:
The internet provides opportunities for access to personal, private and confidential information about potential victims for the cyberstalker. Many web sites provide access to unlisted telephone numbers and maps with detailed directions to a victim's home or office, and some web sites offer social security numbers, financial information and other personal information about potential victims.
While some stalkers might hesitate to contact their victims through conventional methods, such as telephoning, driving by the home or appearing at the workplace of the victim, the same stalkers might feel completely comfortable and safe from detection and arrest while sending harassing or threatening electronic communications anonymously. For other stalkers, cyberstalking may be only a precursor to more serious behavior, including physical violence:
"More sophisticated cyberstalkers use programs to send messages at regular or random intervals without being physically present at the computer terminal. California law enforcement authorities say they have encountered situations in which victims repeatedly received the message "187" on their pagers--the section of the California Penal Code for murder."
A common tactic of cyberstalkers is to post the victim's name, telephone number, mailing address, and e-mail address on a web site's bulletin board or in a chat room with an invitation to contact the victim, or with a controversial message, causing the victim to receive multiple e-mails from strangers and unknown sources. A controversial message posted in a chat room, for instance, may be about the victim, causing other persons to contact the victim without the victim's consent or desire. On the other hand, the anonymous nature of the internet may allow the cyberstalker to post an inflammatory message while posing as the victim, causing the victim to receive threatening messages from other persons who view the cyberstalker's message. The cyberstalker's true identity may be concealed with little effort on the cyberstalker's part simply by using different ISPs or by adopting a different on-line name. Sophisticated cyberstalkers may make their unwanted contacts through the use of an anonymous "remailer", rendering the source of an e-mail virtually impossible to isolate.
Actual cyberstalking incidents noted in the May 2001 Report to Congress on Stalking and Domestic Violence:
The cyberstalker may be a former friend or lover of the victim's, a total stranger, possibly someone met in a chat room, or it may simply be someone who enjoys playing practical jokes. The knowledge that the stalker could be anyone, anywhere (from across the city, or across the nation, from another country, or a co-worker, classmate or neighbor) adds to the heightened feeling of fear and vulnerability that the victim feels.
Despite the evidence on cyberstalking crimes available, law enforcement agencies across the U.S. have typically been slow in developing responses to this crime, either because of a lack of knowledge and information, or because of a lack of basic resources and training:
"A woman filed a complaint with her local police agency after receiving numerous telephone calls in response to a notice posted on the Web by a man claiming her 9-year-old daughter was available for sex, and providing her home phone number with instructions to call 24 hours a day. The agency's response was that she should change her telephone number. Instead, she contacted the FBI, which opened an investigation. It was discovered that the local police agency did not have a computer expert and the investigative officer had never used the internet. The local agency's lack of familiarity and resources may have resulted in a failure to understand the seriousness of the problem and the response options available to law enforcement."
Another reason for poor law enforcement response to cyberstalking, cited by the May 2001 Report to Congress on Stalking and Domestic Violence, is that it appears that few cyberstalking victims actually report cyberstalking crimes to law enforcement, either because the victim feels that the cyberstalking behavior has not reached a level that could be defined as a crime, or because they doubt law enforcement will take their complaints seriously.
In addition, there exists real barriers to the investigation by law enforcement of cyberstalking complaints. For instance, the cyberstalker may be a resident of one State, while the victim is the resident of another State, and jurisdictional issues develop as a result, necessitating investigation and intervention on a federal level, by either the FBI or the U.S. Attorney's Office.
The Cable Communications Policy Act of 1984 (CCPA) poses yet another obstacle to investigation and prosecution in cyberstalking cases since the CCPA prohibits disclosure of cable subscriber records to law enforcement agencies without a court order and advance notice to the subscriber. With the latest trend of cable companies providing internet service, the CCPA now impedes investigation in cyberstalking cases where the stalker's ISP is a cable company since under CCPA, the investigating law enforcement agency must notify the cyberstalker that the agency has requested the cyberstalker's subscriber records.
As internet use becomes more and more a part of daily use by increasing numbers of people around the world, law enforcement agencies and other criminal justice actors will find they necessarily must create new approaches to investigative technique and new responses to cybercrimes. ISPs will also necessarily have to create stiffer on-line agreements, complaint protocol and policies for investigating and following up on complaints from customers about cybercrimes. Establishing and maintaining these types of heightened security for customers will naturally place a greater demand on the ISPs financial resources, forcing many small or entrepreneurial ISPs out of business and causing others to raise the cost of providing internet service.
Much remains to be done to protect internet users from cybercrimes. Many States do not have cyberstalking-related statutes. Even fewer Tribal Nations have code in place that protects internet users from cyberstalking. All States and Tribal Nations should review their laws to ensure they prohibit and provide appropriate punishment for these types of crimes.
Also, while federal law exists to combat cybercrimes, the law has limited application. 18 U.S.C.S. 875(c) makes it a crime to transmit any communication in interstate or foreign commerce containing a threat to injure another person, punishable by up to 5 years in prison and a fine of up to $250,000. This statute applies to any communication transmitted in interstate or foreign commerce--including threats transmitted in interstate or foreign commerce through telephone, e-mail, beepers and the internet. However, this law applies only to communications of "actual threats" and cannot be used in cases where a stalker engages in a pattern of conduct intended to harass or annoy another, absent of actual threat. Too, it may not apply in situations where a person harasses or terrorizes another by posting messages on a bulletin board or in a chat room, encouraging others to harass or annoy the victim.
Federal law, 47 U.S.C.S. 223, makes it a federal crime, punishable by up to 2 years in prison, to use a telephone or telecommunications device to annoy, abuse or threaten any person at the number called. The statute also requires that the offender has not revealed his or her name. However, Section 223 is only a misdemeanor offense, and applies only to direct communications between the perpetrator and victim, not to situations where a cyberstalker harasses another person through posting messages on a bulletin board or in a chat room, encouraging others to harass or terrorize the victim.
The 1996 Interstate Stalking Act (18 U.S.C.S. 2261A) makes it a crime for any person to travel across State lines with the intent to injure or harass another person and, in the course thereof, to place that person or a member of that person's family in a reasonable fear of death or serious bodily injury. 18 U.S.C.S. 2425, signed into law in October 1998, also protects children against on-line stalking, making it a crime to use any means of interstate or foreign commerce (such as the internet) to communicate with any person with the intent to solicit or entice a child into unlawful sexual activity.
Most cyberstalking cases will fall within the jurisdiction of State and local authorities, but when State (or Tribal) law is inadequate or insufficient to provide protection for the victim, the U.S. Attorney's Office and/or the FBI should be notified of the facts of the crime, so that federal law may be applied if possible. Internet users should also urge their ISP to engage in actively educating law enforcement and other criminal justice personnel in the uses of the internet and methods for investigating cybercrimes, and to also develop and distribute educational materials to customers on how to protect themselves while online. ISPs should also consider ways to involve other ISPs in the industry to adopt "best practices" policies and procedures which could promote better internet security. In addition, ISPs might create and enforce policies prohibiting cyberstalking and other cybercrimes, terminating the accounts of persons who violate such policies and establishing an industry-wide code of conduct and tracking information registry on offenders.
(From Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157, pg. 16.)
(See the Contact Information section of this handbook for a list of Cyberstalking Resources Online.)
According to the 1998 Third Annual Report to Congress on Stalking and Domestic Violence, the most likely victims of stalking are intimate partners or former intimate partners of the stalker--a fact that does not come as any surprise to advocates, law enforcement or criminal justice professionals. The report also states that this category of victims of stalking also represents the group that is stalked for the longest period of time and they are also the most likely to suffer physical violence and sexual assault by their stalker.
Stalking behavior and threats may often serve as predictors of physical and/or sexual assault or murder. An estimated 1/2 of all stalkers approach their victims at the victim's workplace and offenders who stalk in the context of "separation violence" are the most likely to kill their victim.
The 1998 Report to Congress states that "it is estimated that stalkers are violent toward their victims between 25% and 35% of the time, and the group most likely to be violent is composed of those who have had an intimate relationship with the victim. Nearly 1/3 of all women killed in this country die at the hands of a current or former intimate. Although no national figures are available, it is estimated that between 29% and 54% of female murder victims are battered women. A significant number of these murders and attempted murders of women are believed to be preceded by stalking." (Stalking and Domestic Violence: The Third Annual Report to Congress Under the Violence Against Women Act (1998), Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice, NCJ-172204, pg. 2.)
While a popular theme for movie and television screenplays is that of the vulnerable female being stalked by a dangerous stranger, this category of stalking victims is in fact, not nearly as common as that of intimate partner stalking. The chances that you will be stalked, harassed, threatened or harmed by someone you do not know are actually rather small. 23% of female victims of stalking are stalked by strangers and approximately 19% by acquaintances, compared to 38% of female victims who are stalked by a spouse or an ex-spouse. Conversely, male stalking victims are stalked more often by strangers (36%) or acquaintances (34%) than by ex-spouses (13%). Other facts about stalking are:
(Spence-Diehl, Emily (1999). "Stalking: A Handbook for Victims" (Learning Publications), as detailed in Domestic Violence Report, (April/May 2000) Volume 5, No. 4, pg. 52 and 64; and Lemon, Nancy (June/July 2000). "Stalking and Domestic Violence: The Third Annual Report to Congress Under the Violence Against Women Act". Domestic Violence Report, Volume 5, No. 5, pg. 72.)
Stalking behavior is often characterized strongly by a perceived need or desire on the part of the stalker to establish or maintain power and control over the victim, linking stalking to domestic violence in clear and dramatic ways. Victims of domestic violence rarely exaggerate the violence in their lives, but instead most often minimize violence perpetrated against them. As a result of these factors, a person who reports stalking in the context of domestic violence or in the aftermath of a separation in the relationship of intimate partners, is very probably not overreacting to an imaginary threat.
As previously noted, a clear conclusion drawn from the National Violence Against Women (NVAW) Survey is that women tend to be stalked most often by intimate partners, defined as being current or former spouses, cohabitants or boyfriends. Prior to the Survey, it was thought that women are most likely to be stalked by an intimate partner in the aftermath of a relationship, but the Survey provides evidence that women who are stalked by intimate partners are stalked almost as often when the relationship is still intact as when the relationship has ended. 21% of female victims reported that stalking occurred before the relationship ended, 43% after the relationship ended, and 36% said it occurred both before and after the relationship ended.
This data provides corroborating evidence to support what battered women already knew: men who batter typically exhibit controlling behavior to an extraordinary degree. The reason most often identified by stalking victims to explain why they felt they had been stalked was that the stalker had wanted to control them. The same controlling behavior exhibited by batterers often characterizes the behavior of a stalker as well. For instance, batterers are commonly known to:
It is important to remember that every day, at least four or five women are tracked down and murdered by a man they are trying to escape. It is an inescapable truth that most victims who leave their abuser and as a result of their defection from the relationship, are later murdered, are first stalked prior to the actual act of murder. There is almost always an element of premeditation or planning in violent acts that end in murder (as well as acts of sexual assault).
Certainly, some victims are murdered by their abuser as they wait outside a courtroom for a hearing or in some other appointed, pre-arranged place where the victim erroneously assumes, with tragic consequences, that her safety is ensured. However, many battered women who become murder statistics are first actively pursued by an abuser, who searches for his victim through phone, school and court records, daycare centers or the victim's place of employment, and then watches and follows his victim with the intention of violently retaliating against the victim for attempting to extricate herself from the relationship.
It is obviously important that criminal justice actors, advocates, employers and healthcare professionals take time to hear a victim's concerns carefully, without dismissing the victim's worries and anxiety out of hand. By simply listening, the danger index for violent, possibly lethal retaliation by an abuser in the aftermath of a relationship--particularly a relationship that had been previously characterized by domestic violence--can be appropriately and accurately evaluated in many instances.
The traits listed are intended to be viewed as "early warning signs" or predictors of stalking behavior. All may not be present in every stalker, or additional signs may be present in some stalkers. You may notice that several of these predictors are also common or typical to batterers. Although most of the same behaviors listed will be readily identifiable in stalking behavior displayed during or in the aftermath of an intimate relationship, those presented are primarily offered as a means to help identify, in the initial "courting" phase of a new relationship, the type of person who will be likely to resist rejection:
A popular expression is that people should not "live their lives in fear", but there is some basis for the theory that a person who relies on her powers of logic alone may unintentionally overlook the subtle signals of determined or irrational obsession that her potential stalker displays. In the poetry collection, No Visible Scars, author Allison Werth details this conflict with well-targeted insight in her poem, "Prayers", when she writes:
"There's fear that will keep you alive,
And fear that will keep you from living,
'Lord, please help me to tell them apart.'"
(Werth, Allison (2000). No Visible Scars. "Prayers from the Dark Hours", pg. 12. Lawrence, KS: Late Bloomer Publishing.)
For example, if one dozen roses were delivered to you at your home or workplace bearing a card from "a secret admirer", would you be alarmed if afterward, a man you did not know telephoned you and confessed that he was your secret admirer? If, when you questioned him about how he had obtained your telephone number and address, he told you that he had seen you at a party or restaurant, followed you to your car where he wrote down your license plate information, and then used that information to obtain your address and phone number, would you feel flattered or would you feel that your privacy had been invaded? Would you feel vulnerable, threatened or fearful? If so, then your "gut feeling" is probably providing you with a warning signal that should not be ignored.
How would you react if you noticed that a man you had dated a few times suddenly began following you to and from your workplace, or drove alongside you, pacing you with his car? What would you feel if he later explained his actions by saying, "We live in a very dangerous world and I just wanted to make sure you were safe"? Would you feel comforted by his chivalry and his gesture of protection, or would you feel that his explanation was a means of justifying inappropriate behavior? Would you feel that your safety had been in jeopardy or your liberty of movement had been compromised?
This is not to suggest that we should develop paranoid attitudes, constantly be "looking over our shoulder" for the hidden attacker lurking around the corner, waiting to harm us, or assume that every friendly man is a potential rapist or serial killer. However, contemporary American society is replete with examples of crime and violence, particularly crimes against women, and women should not allow themselves to be made to feel foolish or impolite for taking appropriate precautions against violence.
When an advocate assists a victim of domestic violence or stalking in creating a safety plan, for instance, the advocate is, in essence, counseling a victim to anticipate danger and to act when the victim recognizes the warning signs that predict danger. If the victim accepts this counsel and adheres to the safety plan her own knowledge of her batterer or stalker's habits and customs has helped her to create, then ultimately that victim has increased her chances of moving from the ranks of "victims" to the company of those we know as "survivors".
Like sexual assault offenders and rapists, stalkers do not stalk as a result of a "sexual need" or motivation. Rather, it is anger or hostility toward the victim that causes a stalker to stalk, and a desire to establish power and control over the victim.
The U.S. Department of Justice's Office for Victims of Crime (OVC) recently convened a national focus group to gather information about stalking crimes. The group was composed of stalking victims, victim advocates, and victim assistance providers, including prosecutors and law enforcement officers. Interestingly, stalking victims who participated in the focus group all "asserted that their stalkers had systematically tried to subjugate them" (Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157):
"Some acts convey subtle messages meant to instill fear, while others brutally remind victims of their stalkers' dominance over them. Discussion participants described a range of stalking tactics that included:
(Stalking and Domestic Violence. May 2001 Report to Congress. U.S. Department of Justice, Office of Justice Programs, NCJ 186157.)
One victim who participated in the focus group described how her stalker had stalked her for three years, during which time he broke into her house, beat her and threatened to kill her if she told anyone. Another victim in the focus group described enduring beatings, vandalism to home and car, in addition to six-to-ten unwanted letters per day from her stalker, the letters being typically eight pages long, written on both sides. Another victim described being fired from her job and forced to declare bankruptcy as a direct consequence of stalking. One victim described spending almost 2 years hiding from her stalker in basements at homes of people she knew, only going home every few days to feed her pets. Her stalker eventually attempted to shoot her.
Perhaps the best predictor of violence in a stalker is that of "emotional entitlement". If, in discussing the victim's concerns, the law enforcement officer or advocate perceives that the victim is describing a stalker in terms of being a person who feels strongly that he is entitled to retain control and power over his victim's actions, thoughts, feelings or behavior, then the potential for lethal violence is high and additional safety precautions should be taken on behalf of the victim and her children. Likewise, equally careful measures should be taken for a stalking victim who reports that she and her stalker have had only a short-term intimate relationship, but that the stalker is exhibiting behavior that:
"Bizarre" behavior may be an indication of mental illness, although it should be remembered that mental illness is not usually what precipitates stalking behavior. Rather, as with battering behavior, power and control issues are most often the motivating factors for stalking behavior.
Therapists who work with stalkers typically employ techniques to transfer the stalker's obsession with his/her victim to the therapist in an effort to divert the stalker's attention from his target. Therapists report that offenders may actually fantasize about establishing or re-establishing a relationship with their victim. Such a fantasy will, in all likelihood, serve as a precursor to stalking behavior or increased stalking activities.
But fantasies and obsessions are not necessarily indicators of mental illness either and it should be remembered that only in rare cases is it necessary to ask a licensed mental health practitioner to make an assessment of a stalker's mental health. Generally speaking, if a stalker provides evidence that he is making clear choices in his conduct and/or patterns of behavior, he is probably not mentally ill.
Indicators of stalking behavior (or of escalating stalking behavior), as noted by therapists and batterer intervention counselors include evidence that the offender:
(More on this subject will be discussed in the Law Enforcement section of this handbook in the chapters regarding "Assessing Lethality".)
Again, the following tips may only be appropriate for use in stalking situations where the victim and the offender have low "emotional investment" or "entitlement" factors, such as might be found in a new relationship or a short-term dating relationship that was characterized by little or no physical or sexual intimacy.
Some of these same tips may be absolutely inappropriate for a stalking victim who is being stalked by her husband or intimate partner and if employed by a stalking victim in those types of circumstances, may in fact, increase the danger of violence, sexual assault and/or lethality for the victim. The advocate who is assisting a stalking victim in the creation of a safety plan should heavily rely on the victim's own knowledge of her stalker to judge which of these tips may be most valuable and least valuable in light of the victim's unique experiences and circumstances.
In the Reno vs. Condon case, (120 S. Court 666/2000), the Supreme Court held that the Driver's Privacy Protection Act (DPPA), which restricts the States' ability to disclose a driver's personal information without the driver's consent, is a "proper exercise of Congress' authority to regulate commerce under the Commerce Clause". (Domestic Violence Report (June/July 2000). "United States Supreme Court: Driver's Privacy Protection Act Is Constitutional", pg. 80.)
Stating that personal driver's license information is often sold or released to businesses engaged in interstate commerce for the purpose of contacting potential clients or to solicit individuals in the sale of some item or benefit, the Supreme Court ruled that personal driver information is an "article of commerce", and that the sale of that information to businesses is "sufficient to support congressional regulation".
The Department of Motor Vehicles (DMV) in many States sell drivers' information to businesses and individuals, and some States allow personal driver information to be released to anyone who requests such records. Since most DMVs require specific information from an individual when applying for a driver's license, DMV records typically include the individual's name, address, telephone number, vehicle description, social security number, photograph and even medical information. This information is too often used by batterers and stalkers to locate victims, but with the new U.S. Supreme Court ruling, the Driver's Privacy Protection Act prohibits States from releasing this personal information without the driver's knowledge and consent, except to private investigators. The DPPA also makes it unlawful for any person to obtain or disclose a driver's personal information for a use not permitted under the Act's provisions.
Since the Supreme Court allowed for private investigators to continue to access this information, there is still concern for domestic violence and stalking victims whose abusers may hire private detectives to locate victims.
The National Violence Against Women Survey indicated that of those victims interviewed who were no longer being stalked, 19% said they felt the stalking had ceased because they had changed their home address. Lesser percentages of victims stated their stalking had stopped because the stalker had developed a new love interest or had acquired a new spouse or boyfriend/girlfriend. These findings provide further evidence that address confidentiality programs should be looked to as an effective means of combating stalking.
Protection order registries for stalking orders are needed. Domestic violence protection order registries may also include stalking orders, allowing for more adequate means of collection and analysis of data on stalking cases. Any registry implemented should also include address confidentiality protection policy and procedures.
The Address Confidentiality Program, coordinated by Washington's Secretary of State Office, helps stalking, sexual assault, and domestic violence victims maintain address confidentiality by offering them a substitute mailing address. For more information, call (360) 586-4386 or (360) 586-4388 (TTY) (Olympia, WA).
For persons living in the New York City area, the Victim Services Stalking Unit of the Queens, New York, Criminal Court Program received funding from the New York Crime Victims Board to provide services to stalking victims, regardless of whether the victim was physically injured in the course of the stalking crime(s). The unit offers stalking victims crisis intervention and emotional support, assistance with assessing risk and safety planning, defense kits, instruction on keeping logs of evidence for court, and legal advocacy and case management throughout the criminal justice system. It also offers victims fact sheets, brochures and tip cards in both English and Spanish. Telephone number: (718) 286-6084 (Kew Gardens, NY).
The following is excerpted from a story of Inuit origin:
In the old days, when everything began, a brother lived with his sister in a large village which had a dance house. At night it was lit with stone lamps burning seal oil, and once the sister was dancing and singing there when a big wind blew all the lamps out. While everything was black, a man forced himself on her. She struggled against him, but he was too strong, and it was too dark to see who he was.
Thinking he might come again, before she went back there next night, she blackened the palms of her hands with soot. Again a great gust of wind blew out all the lamps. Again that man threw himself upon her and raped her. But this time, she smeared his back with soot. When the lamps were rekindled, she looked for the one with a sooty back and was enraged to see that it was her brother.
She cried, "Such things are not done! Such things are unheard of!"
She grabbed a brightly burning torch and, maddened and wild-eyed, ran out of the dance house into the dark night. Her brother snatched up another torch and ran after her, but stumbled and fell down in the snow. The snow put out the flames of his torch so that only its embers flickered feebly.
Then a big windstorm lifted both the sister and her brother high up into the sky. The girl was turned into the sun, and her brother into the moon. She stays as far away from him as she can. As long as the moon shines, she hides herself, coming out only after he is gone. If the brother had not let his torch fall into the snow, the moon would be as bright as the sun.
(Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg. 161-162, "Moon Rapes His Sister Sun" (excerpted from a story of Inuit origin), Pantheon Books, New York.)
Many common misconceptions regarding rape in our society have resulted in distorted perceptions of this violent crime. Historically speaking, rape was a ritualized way of obtaining a wife in the western European cultures which adopted the English Common Law that forms much of the basis for the American justice system and social structure.
"Bride capture", which was socially acceptable in England as late as the 15th century, was in fact the abduction and rape of a woman, who then became the wife of the rapist. Under the "bride capture" rule, women were viewed as property to be acquired by men. The capturing of women was the first step in the development of the concept of ownership in the institutions of hierarchy and slavery.
The 17th century British Jurist, Lord Michael Hale, stated his opinion in British Common Law that a husband could not be found guilty of raping his wife since "the wife is chattel belonging to her husband" and that "husband and wife are 'one' and obviously a husband cannot rape himself". Lord Hale completed his opinion by stating that "for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the husband which she cannot retract."
In some ancient cultures, particularly those of Middle Eastern countries, women were (and often, still are) viewed as the property of their father or husband. Rape was only considered "rape" when the victim was a virgin. Marriage was considered a property exchange and a bride could be acquired for a negotiated price. In some instances, a rapist needed only to repay the price of the woman to her father as restitution for damaging the man's "property".
In other cultures, both rapist and victim were considered adulterers if the victim were a married woman. In those instances, both attacker and victim were executed. Even today in Afghanistan under the Taliban regime, women are forbidden by law to seek education or to work and neither are they allowed to beg. A widow who must feed herself and her children by begging is subject to execution should she be caught in the act of begging. Women accused of adultery are routinely executed.
In Pakistan today, rape victims are frequently arrested and jailed, even if the victim is a child. "Zina", or sex outside of wedlock--which includes rape as well as adultery--is a crime. For married women, the maximum sentence is death by stoning. For single women, the punishment is up to 100 lashes and up to ten years' imprisonment. Technically, men can also be charged with zina, but with a simple denial, they can go free. Under Islamic law in Pakistan, the judge has the discretion to reject the victim's account and that of any female witness. In such cases, there must be four adult males who are "Muslims in good repute" as witnesses. A woman's complaint of rape is considered a confession of illicit sexual intercourse and if the rape results in pregnancy, the pregnancy also becomes evidence against her. (Goodwin, Jan (undated). Special International Report: The Brutalizing of Women.)
While it may be easy for some of us, as modern-day American men and women, to express shock or dismay over these types of practices, it should be remembered that in the United States prior to the mid-1970's, rape laws required victims to produce three kinds of evidence to obtain a sexual assault conviction: corroborating evidence, proof that the victim had resisted the rapist, and proof of the victim's past "sexual innocence"--that is, proof that the victim didn't have a "sexual" history. Indeed, rape was the only violent crime in American which our laws required a victim to resist.
With the passage of the VAWA (I and II), the need for formal programs to address violence against women was recognized by the U.S. Congress at a federal level. Nevertheless, according to some sources, programs working to end sexual assault currently receive less public funding than do programs to impact the incidence of domestic violence. Other obstacles exist too, particularly obstacles to victims attempting to access rape crisis services:
"Significant barriers to support services exist in many communities. In an atmosphere where the social stigma of rape already makes it difficult for victims to come forward, these obstacles present additional impediments that not only discourage victims from seeking help, but often make accessing services impossible.
Underserved populations include communities of color, faith and ethnicity; immigrants and undocumented residents; Native Americans; and members of the Lesbian, Gay, Bisexual and Transgendered (LGBT) communities. Other groups with special needs that also encounter barriers to prevention, intervention and treatment services include the elderly, people with disabilities, and individuals with mental illness or substance abuse disorders.
Specifically, barriers to obtaining services include: communication and language, lack of culturally appropriate services, geographic isolation from services, inadequate transportation, prejudice, cultural differences, social tolerance of violence in families, fear of the "system", and poverty."
(California Coalition Against Sexual Assault (CALCASA), March 2001. A Vision to End Sexual Assault: The CALCASA Strategic Forum Report.)
It is noteworthy that virtually all American Indian tribal cultures, with only a few exceptions, traditionally forbade acts of rape, sexual assault, sexual battery or incest--at least among the tribal group (treatment of captives in these matters varied from tribe to tribe). Among Plains Indian tribal cultures, according to some historians, "seducing a pretty girl was almost like counting coup. A man might draw figures on his courting robe to indicate his conquests, much as he would draw scenes of his feats in war on his tipi. Note that the Plains people were no more promiscuous than whites---they simply lacked hypocrisy in sexual matters. If a Sioux (Lakota, Dakota or Nakota) girl did not wish to make love (and many did not), she simply tied a hair rope in a certain way between her legs, and no man would dare touch her". (Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg. 273, Pantheon Books, New York.)
Carolyn Niethammer's book, Daughters of the Earth: The Lives and Legends of American Indian Women", comments that:
"Rape was considered a gross sexual violation and was widely condemned among Native Americans."
(Niethammer, Carolyn (1997). "Early Sexual Patterns", Daughters of the Earth: The Lives and Legends of American Indian Women, pg. 224. New York: Touchstone.)
Most authorities on this subject agree:
"An attack against a young, unmarried woman was viewed as an attack against her family and, by extension, the tribal community."
(Indian Health Council, Inc. (April 2000). "Improving First Response to Domestic Violence, Sexual Assault and Stalking on Indian Reservations", developed with funding from the Office of Criminal Justice Planning to the Indian Health Council, Inc. for "Peace Between Partners Program", Pauma Valley, California, under grant number AI99021602, and for implementation under Violence Against Women Act "STOP" grant number IN97011602.)
Among the Mescalero, Lipan, Chiricahua and Western Apache groups, for example, strict taboos governed the act of rape, including the rape of captive women. As one Chiricahua man put it with regard to captives, "A man must not take a woman by force, but if you can "make" her love you, well then it's all right", implying that it was acceptable to use fear and intimidation with captives to convince them of the benefits of sexual submission.
Still, young Apache men were taught from an early age that inappropriate sexual conduct was evil and could bring punishment upon an entire raiding party or village community by the supernatural forces of the cosmos. A man who indulged in inappropriate sexual behavior, rape--or one whose wife simply became pregnant more than once about every 3 or 4 years--would be ridiculed by his peers as being one who resembled non-Indians in his inability or unwillingness to control his sexual appetite or desires.
As with most other American Indian tribes, boys and girls were encouraged to abandon childhood playmates of the opposite gender after about age 9 in a traditional Apache community. The father or brothers of a girl infant were banned from the home when the infant was being bathed or dressed to further discourage incestuous acts. However, Apache people talked openly concerning bodily and sexual functions, often joked or "bragged" about sexual conquests, told coyote stories in mixed company that often contained explicit sexual references, and generally speaking, maintained "healthy" attitudes about sexual behaviors. These latter behaviors were only forbidden when a person was in the presence of another with whom they shared a respect relationship, such as a woman's father or brothers, or a man's mother or sisters.
Like the Apache, Cheyenne and Arapaho youth of opposite sexes were discouraged from public courtship, although sweethearts were often clever in the methods devised to meet each other clandestinely. Among the Crow, "wife stealing" was permitted between the members of the Kit Fox and Lumpwood warrior societies. The practice, known as batsuera-u, only occurred once a year, for a brief time in the spring, when members of the two rival societies were allowed to abduct one another's wives. The Netsilik Inuit also permitted a husband to exchange spouses with a friend, usually for a short, specified period of time, but sometimes for periods that would last on and off for years.
According to some accounts, in certain instances among the Kiowa, a man who wanted to punish his wife for some grave impropriety might offer her sexually to the other men of his warrior society. In these rare occurrences, a woman who would have otherwise been raped could find sanctuary and protection if she could escape by going to any of the keepers of the sacred Taime, or medicine bundles known as the Ten Grandmothers. (Mayhall, Mildred P. (1962). The Kiowas. University of Oklahoma Press, Norman, Oklahoma; Marriott, Alice (1945). The Ten Grandmothers. University of Oklahoma Press, Norman, Oklahoma.)
Among many tribes, the flute was an instrument used primarily for courting rituals. According to the traditions of some people, it was believed that the flute's music would soften the heart of a woman who had rejected a lover's overtures. Among other people, it was believed that the flute had such power that a woman could not defy its music, but would instead instantly surrender herself to the flute's player.
The following is excerpted from a story of Brule Sioux origin:
Long ago, there lived a young, good-looking man whom no woman could resist. He was an elk charmer--a man who had elk medicine, which carries love power. When this man played the siyotanka--the flute--it produced a magic sound. At night a girl hearing it would just get up and go to him, forsaking her father and mother, her own lover or husband. Maybe her mind told her to stay, but her heart was already beating faster and her feet were running.Yet the young man, the elk charmer himself, was a lover with a stone heart. He wanted only to conquer women, the way a warrior conquers an enemy. After they came to him once, he had no more use for them. He was like many other men who make the same promise of marriage only to get under a girl's blanket. So in spite of his wonderful powers, he did not act as a young man should and was not well liked.
One day when the elk charmer went out to hunt buffalo, he did not return to the village. His parents waited for him day after day, but he never came back. At last they went to a special kind of medicine man who has finding stones that give him the power to locate lost things and lost people.
After this holy man had used his finding stones, he told the parents, "I have sad news for you. Your son is dead, and not from sickness or an accident. He was killed. He is lying out there on the prairie."
The medicine man described the spot where they would find the body, it was as he had said. Out on the prairie their son was lying dead, stabbed through the heart. Whether he had been killed by an enemy warrior or a wronged husband from his own tribe, or even a discarded, thrown-away girl, no one ever knew.
His parents dressed him in his finest war shirt, which he had loved more than all his women, and in dead man's moccasins, whose soles are beaded with spirit-land designs. They put his body up on the funeral scaffold, and then the tribe left that part of the country. For it was a very bad thing, this killing which was probably within the tribe. It was, in fact, the very worst thing that could happen, even though everybody was thinking that the young man had brought it on himself.
One evening many days' ride away, when the people had already forgotten this sad happening and were feasting in their tipis, all the dogs in camp started howling. Then the coyotes in the hills took up their mournful cry. Nobody could discover the reason for all this yowling and yipping. But when it finally stopped, the people could hear the hooting of many owls, speaking of death and ghostly things. The laughter in camp stopped. The fires were put out and the entry flaps to the tipis were closed.
People tried to sleep, but instead they found themselves listening. They knew a spirit was coming. Finally they heard the unearthly sounds of a ghost flute and a voice they knew very well--the voice of the dead young man with the elk medicine. They heard this voice singing:
Weeping I roam.
I thought I was the only one
Who had known many loves,
Many girls, many women,
Too many of them.
Now I am having a hard time.
I am roaming, roaming,
And I have to keep on roaming
As long as the world stands.
After that night, the people heard the song many times. A lone girl coming home late from a dance, the young woman up before sunrise to get water from the stream, would hear the ghostly song mixed with the sound of the flute. And they would see the shape of a man wrapped in a gray blanket hovering above the ground, for even as a ghost this young man would not leave the girls alone.
(Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg.
Pantheon Books, New York.)
While this story does not suggest that the young women who were overcome by the Elk Charmer were physically forced or coerced to submit to the Charmer's romantic overtures, it does nevertheless suggest that the women lured by the Elk Charmer had little or no ability to resist him, and no choice but to submit to the flute's power, and thereby the power of its owner. It should also be noted that the Elk Charmer's death was presented in the story as a tragic event that he had "brought [it] on himself", suggesting that death or at the least, banishment, was the appropriate response to a sexual predator's misdeeds according to the cultural traditions and customs of many Indian Nations.
The National Crime Victimization Survey (NCVS) defines "rape" as forced sexual intercourse in which the victim may be either male or female and the offender may be of a different sex or the same sex as the victim, and includes attempts and threats to commit rape. Victims less than 12 years old are excluded from the NCVS estimates. "Sexual assault" includes a wide range of victimizations involving attacks in which unwanted sexual contact occurs between the victim and offender, such as statutory rape, forcible sodomy, lewd acts with children, and other offenses related to fondling, molestation, or indecent practices. The definition may also include threats and attempts to commit sexual assault.
NCVS defines completed rape as an "injury", although 61% of victims in NCVS stats did not report additional injuries. Injured victims of rape/sexual assault--including those with additional unspecified injuries--and victims with injuries from a simple assault (29% and 34%, respectively) were less likely than injured victims of other types of crime to receive medical attention. Compared to victims who sustained other types of injury, victims of rape/sexual assault with unspecified types of injuries were the least likely to receive medical care (15%). (6/2001 National Crime Victimization Survey (NCVS) on "Injuries from Violent Crime, 1992-1998".)
Definitions used by the Uniform Crime Reports and Supplementary Homicide Reports are:
The National Incident-Based Reporting System used the following definitions in conducting its surveys:
The National Pre-trial Reporting Program defines rape as including forcible intercourse, sodomy or penetration with a foreign object, but excludes statutory rape or non-forcible acts with a minor, someone unable to give legal consent, non-violent sexual offenses, or commercialized sex offenses. Similarly, the National Judicial Reporting Program defines rape as forcible intercourse (vaginal, anal or oral) with a female or male. The definition also includes forcible sodomy or penetration with a foreign object, but does not include statutory rape or any other non-forcible sexual acts with a minor or with someone unable to give legal consent.
The definitions used by the Survey of Inmates in State Correctional Facilities and the National Corrections Reporting Program is similar to those already listed, but also defines forcible rape as including attempts and conspiracies to commit rape and statutory rape as the carnal knowledge, or attempt of carnal knowledge, of a child without force. Lewd acts with children include fondling, indecent liberties, immoral practices, molestation and other indecent behaviors or attempted behaviors with children. Sexual assault was defined as including gross sexual imposition, sexual abuse, aggravated sexual abuse and other acts such as fondling, molestation or indecent liberties where the victim is not a child.
A composite of the various definitions was used by the Bureau of Justice Statistics 1997 report on "Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault" (Washington, D.C., Office of Justice Programs, U.S. Department of Justice, February 1997: NCJ-163392).
While rape is a non-gender specific crime which can be committed against either male or female, most rapes are committed against women by men (99 in 100 rapists are male). In a small percentage of cases, males are victims and in a very small fraction of sexual assaults, victim and offender are of the same sex. Approximately 1 woman in 4 will be sexually assaulted in her lifetime (Bishops' Committee on Marriage and Family Life; Bishops' Committee on Women in Society and in the Church, affirmed by the NCCB/USCC General Membership, November 1992, National Conference of Bishops; and reprinted as "When I Call for Help: A Pastoral Response to Domestic Violence Against Women", in Family Violence and Religion, an Interfaith Resource Guide compiled by the staff of Volcano Press, copyright 1995.).
In a high percentage of sexual assault cases, the victims are children, with teenagers reporting the highest incident rates. Approximately 44% of rape victims are under the age of 18 and 2/3 of the convicted offenders serving time in prison institutions state that their victims were under the age of 18. Not coincidentally, 2/3 of victims 18-to-29 years old had a prior relationship with the offender. 1/3 of sexual assault offenders report that they were physically or sexually abused as children.
(Please refer to Section 4 of this handbook on Children's Issues for more information on this subject.)
In nearly 3 out of 4 incidents of rape or sexual assault, the offender is not a stranger, but is a husband, ex-husband, boyfriend, ex-boyfriend, father, stepfather, or other relatives, friends or acquaintances. More than 50% of all rapes are committed in the victim's home or within 1 mile of the victim's home. About 6 in 10 rapists/sex offenders report having ever been married. Approximately 1/3 of the convicted sex offenders serving prison sentences reported they were married at the time of the offense that led to their conviction.
1 of every 16 rape victims reported that a firearm was used or was present in the commission of the offense. However, 84% of victims report that no weapon was used by the rapist. Guns are 5 times more likely to be used in the rape of a stranger than of a family member.
Rapists are about as likely as all other violent offenders to report having used a knife in the commission of crime. Approximately 8% of all rapes by prior intimate partners or ex-spouses involved a gun. 12% of such offenses involved a knife.
Between 1976 and 1994, approximately 4,807 murders (among the murder cases with known circumstances) were classified as involving rape or another sex offense. This figure represents about 1.5% of all murders in the United States.
Other facts reported by the 1997 Bureau of Justice Statistics on murders associated with rape and/or sexual assault are:
109,060 rapes occurred nationally in 1992, according to the records of law enforcement agencies. In 1995, the number of forcible rapes reported to law enforcement had dropped to 97,460, the lowest total since 1989. While this fact is encouraging, it should perhaps be viewed with caution since it may not indicate a lessening occurrence of rape, but instead a lessening occurrence of "reporting". There is evidence that the number of reporting victims aged 12 and older has declined from 1 violent sex offense per 435 residents in 1993 to 1 violent sex offense per 625 residents in 1995. Bureau of Justice 1997 Statistics also report that 1/3 of victims in 1994 and 1995 asserted that the sexual assault victimization had been reported to law enforcement.
In fact, it is estimated that nearly 75% (3 out of 4) sexual assaults go unreported. The actual number of women who are raped each year ranges according to some estimates from an additional four to an additional nine victims for every one woman who reports (Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN).
In 1995, the rates of forcible rape among the general U.S. population ranged from 76 per 100,000 females in metropolitan areas to 49 per 100,000 females in rural counties. While the current statistics indicate a decline in rape in metropolitan areas, it is noteworthy that rape in rural counties is up 40% from previous years. Low-income residents are also at particular risk for violent sexual offenses. These statistics may have special implications for American Indian and Alaska Native populations who traditionally reside in rural areas and typically report low family incomes overall.
The most recent Justice Department's Bureau of Justice Statistics on American Indians reflect that Native American women are twice as likely to be raped than women of any other race (Bureau of Justice Statistics, American Indians and Crime http://www.ojp.usdoj.gov/bjs/pub/pdf/aic.pdf ). This statistic falls in line with others regarding American Indian women reflecting that:
According to the FBI and other sources, Alaska has the highest rate of sexual assault in the country and most of the victims are of Alaska Native origin. In Anchorage, Alaska, 517 rapes were reported in 1999, a rate of 83.5 for every 100,000 residents. The Alaska Native Women Sexual Assault Committee, formed in January 1999, saw an encouraging 30% drop in reported rapes between January 1999 and April 2000, but in Anchorage alone, in the past year, six women were murdered, one African-American and five Native Alaskan (Burns, Frances Ann (11/14/2000). "Fighting Sex Crimes Against Alaska's Natives: Many Aboriginal Women Targets of Rapes, Assaults, Advocates Say". APBnews.com. Article furnished by Vanessa Chirgwin, Project Coordinator, Stalking Resource Center, National Center for Victims of Crime).
The 1997 BJS indicate that sexual assaults involving multiple offenders are most often perpetrated by someone the victim knows or had a prior relationship with, such as a family member, an intimate or an acquaintance. Strangers account for nearly 20% of the rapes involving a single offender. However, an estimated 76% of the sexual assaults involving multiple offenders are committed by strangers. Approximately 7% of all rape/sexual assault victimizations involve multiple offenders who are strangers to the victim.
Although not a recent report, the following quote from The Sacred Hoop: Recovering the Feminine In American Indian Traditions remains disturbingly valid:
"A headline in the Navajo Times in the fall of 1979 reported that rape was the number one crime on the Navajo reservation. In a professional mental health journal of the Indian Health Services, Phyllis Old Dog Cross reported that incest and rape are common among Indian women seeking services and that their incidence is increasing. 'It is believed that at least 80 percent of the Native women seen at the regional psychiatric service center (5 state area) have experienced some sort of sexual assault.' Among the forms of abuse being suffered by Native American women, Old Dog Cross cites a recent phenomenon, something called 'training'. This form of gang rape is 'a punitive act of a group of males who band together and get even or take revenge on a selected woman.'"
(Old Dog Cross, Phyllis, "Sexual Abuse, a New Threat to the Native American Woman: An Overview," in Listening Post: A Periodical of the Mental Health Programs of Indian Health Services, vol. 6, no. 2 (April 1982), pg. 18-20; as quoted in Paula Gunn Allen's "Angry Women are Building: Issues and Struggles Facing American Indian Women Today", pg. 191-192, The Sacred Hoop: Recovering the Feminine in American Indian Traditions. (1992). Boston: Beacon Press.)
According to the Bureau of Justice Statistics in 1997 on Sex Offenses and Offenders, most (9 out of 10) sexual assaults involve a single offender, not plural offenders, so the 1979 report in the Navajo Times, may no longer be valid. It is more likely, however, that this statistic holds true today and specifically applies to Native American women, or at least to Native women from certain tribes or geographical locations.
Since most tribal or reservation communities are comprised of people who know one another or are somehow related to one another, it would be uncommon for a sexual assault perpetrated by multiple Indian offenders upon an Indian woman to involve persons the victim did not know. However, it might not be unreasonable to expect that sexual assault perpetrated by multiple non-Indian offenders upon an Indian woman might involve strangers or persons the victim did not know.
88% of all reported rapes are within the same race, but since media reporting of interracial rape receives greater coverage than same-race sex, the interracial rape myth is consistently perpetuated. However, this statistic does not appear to be particularly applicable to Native American victims. In fact, according to Bureau of Justice 1997 Statistics, 6 of 10 rapists are white, and the average age of sexual offenders is in the early thirties. Rape arrests reflected racial distributions of 56% white, 42% black, and 2% "other" races in 1995, further evidence that the high rates of sexual offenses perpetrated against Native American women generally involve a non-Indian offender.
Sexual assault or rape is a specific act of violence perpetrated against a person, incorporating elements of forced sexual behavior, surprise and invasion of the victim's innermost physical and psychic privacy. Legal components of the definition of the crime, which most often require proof of force, penetration and assailant identity, place tremendous pressure on the victim. Additionally, a victim may not be believed when she reports the crime. Society's ambivalent attitudes toward the role of the victim in the crime of rape may also contribute to the victim's personal feelings of self-blame, fear, shame, personal loss and anguish.
Most women experience rape as a life-threatening event and recall that during the assault, they feared mutilation and/or death. The trauma of rape and/or sexual assault inspires feelings of helplessness and unreasoning terror, particularly when the assault involves elements of surprise, of being "captured" or trapped. Yet only about 30% of all rapes are ever reported to law enforcement. Victims who reported typically stated that their reason for doing so was to prevent further crimes by the offender against them. The most common reason cited by the victim for not reporting the crime to the police was that it was considered a personal matter. (Bureau of Justice Statistics. "Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault". Washington, D.C., Office of Justice Programs, U.S. Department of Justice, February 1997: NCJ-163392.)
According to the Bureau of Justice Statistics, approximately 1 in 11 rape victims report that they suffered some type of economic loss as a consequence of the crime. Nearly 7% of victims reported that they lost time from work. About 40% of rape victims suffer physical injuries, but only about 5% suffer major injuries, such as severe lacerations, fractures, internal injuries or unconsciousness.
Advice given to women regarding rape often involves counsel about whether or not it would benefit a victim to resist her assailant. While some experts advise women to "always resist" a rapist, still others advise that resistance can lead to greater physical injury or risk of injury. The 1997 Bureau of Justice Statistics, however, state that more than 50% of the victims who took self-protective action during the commission of the crime feel that their actions helped the situation. Approximately 7 of 10 rape victims reported that they took self-protective action during the assault, most commonly in the form of struggling or chasing and attempting to hold the rapist.
While most victims of sexual assault are women, in recent years, the number of children and men reporting sexual assault has increased. While feeling the outrage of being physically overpowered, coerced, tricked or forced into submitting one's body to another person, the victim of rape and/or sexual assault also typically reports feelings of anger, helplessness, guilt or self-contempt, worthlessness, and uncleanness in the aftermath of victimization. When a victim expresses feelings of embarrassment or self-blame (such as, "I'm so stupid" or useless or inadequate), then the victim is not expressing guilt so much as shame for guilt involves feeling bad about something we have done, whereas shame is an expression that reveals what the victim feels about who she is personally, within her "core self".
Even the realization that the assault was not his/her fault often does little to soothe the feelings of the victim for long since sexual assault results in severe trauma that few people have the skills to cope with alone.
If the victim is also a survivor of domestic violence, as is often the case, the coping mechanisms she typically uses to deal with similar crisis situations will come into play and her behavior may become automatic. This is particularly true when the rape or sexual assault victim, previously conditioned by domestic violence, adopts the psychological defense of denial and resumes normal activities as though nothing had happened to her.
Many victims report crying spells, nausea, depression, moodiness, nightmares and/or flashbacks or insomnia, "startle responses", a fear of being alone, of men, of crowds or darkness. The victim may feel that she has changed, irrevocably, both physically and emotionally. She commonly will suffer a loss of interest in sexual contact or, on the other hand, will begin instead to indulge in compulsive sex. She may become suicidal, absent-minded or describe a general feeling of "numbness". She may develop an obsessive/compulsive disorder, such as anorexia or overeating, as a result of shame and anguish expressed as self-hatred, guilt and self-contempt for not having been "smart enough or strong enough" to stop the assault. She may turn to alcohol or drugs to ease the mental anguish she feels. In the case of victims who overeat, the victim may feel that if she ceases to be physically attractive, then she will no longer be at risk of attack.
Most survivors of sexual assault or rape experience some or all of these emotions as they go through the recovery process. At times, the emotional extremes overlap, causing the victim to express a fear that she is "going insane" or losing her grasp on reality. Small decisions, like what to wear or eat, may represent overwhelming tasks that the victim is incapable of accomplishing, leading to further frustration and depression. In addition, victims commonly re-experience their memories of the assault whenever some unexpected and even seemingly unrelated incident "triggers" the remembrance. Isolated sights, sounds or smells may bring flashbacks that leave a victim helplessly cringing, tearful and terrorized.
The long-term effect of having been dominated in a manner that is overwhelmingly demeaning may result in exhausting and unsatisfactory efforts to assume control over one's own life so that no further vulnerability to abuse is exposed. "Putting up all the walls, drawing the bridge and making sure the moat around the castle is full of alligators" as self-defense becomes a way of life for many victims, creating with it a dizzying array of psychological battlefields for the victim who feels she must make perfect, unimpeachable decisions regarding her lifestyle and personal safety so that she can never be vulnerable to assault again. An avoidance of forming or nurturing interpersonal relationships that have the potential to wound the victim further may be the consequence of conflicting emotions that encourage a fear of being alone while nevertheless promoting a fear of "getting close enough" to be at risk.
The constant pressure of remembering the feeling of having been powerless, combined with a fear of not being capable of making adequate decisions regarding personal safety, inevitably results in depression, anxiety and a general inability to relax or trust others. The depression and anxiety most often lead to despair or feelings of hopelessness and personal failure. The victim may have difficulty concentrating, express confusion, complain of headaches or of a lack of energy for, or interest in, normal activities.
For victims who are repeatedly, regularly exposed to the abuser, the feeling of powerlessness and of inability to escape, becomes a perpetual mental, emotional and physical torment almost as traumatic as the act of sexual assault itself. For these victims, the feelings of betrayal are acute since the rapist is often a spouse, boyfriend, roommate, parent or some other relative, acquaintance or "friend" that the victim thought she knew well and trusted. Psychological harm becomes intensified when the victim suffers repeated assaults.
Many victims report that during the assault, they "distanced themselves" in their mind from what was happening to their body. This dissociation may occur simply as a result of shock or surprise--of disbelief that the event is happening. In other victims, particularly victims of repeated victimizations, dissociation may be a form of self-defense employed to prevent or stave off mental, emotional and psychological self-destruction. If the victim can dissociate from the trauma, then it becomes easier to deny that the assault happened. Perhaps more importantly, dissociation helps the victim to deny that the assault affected them in any deep, meaningful or lasting manner.
It is possible for a victim of repeated assaults to become so accustomed to being assaulted that she accepts assault as though it were a natural fact of existence. Thus "conditioned" to deny, suppress and internalize all painful feelings about the sexual violence in her life, the victim will gradually become desensitized to sexual victimization with each reoccurrence. Finally, she may appear not to be affected in the least by a trauma that to other victims is experienced as particularly demoralizing and devastating.
The victim who is repeatedly victimized is more likely to develop negative coping mechanisms to deal with the constant torture of mental anguish. She may become listless and unable to function within the context of her "normal" daily routine. She may develop an eating disorder, become addicted to mind-altering chemicals and substances, or otherwise engage in self-destructive behavior. She may become promiscuous, feeling that her only value is that of providing sex. She may indulge in acts of self-mutilation, or she may become suicidal. For the victim who is repeatedly assaulted, there is often no opportunity for a "recovery process" to be implemented and the effects of the abuse she endured may easily become imbedded in her psychological make-up.
It is not uncommon for survivors of sexual assault to find themselves indulging in "revenge fantasies". Often, the envisioned vengeance on the perpetrator will be so graphic that the victim is frightened of her thoughts. She may experience further shame for thinking "such awful things", erroneously concluding that she must be a "bad person" who perhaps deserved the pain and anguish of what she endured at the perpetrator's hands. At the least, she will likely feel guilty for wishing evil and pain on the offender. Since guilt involves disliking an action or behavior, whereas shame involves disliking oneself, the victim may have a difficult time distinguishing between the two conflicting emotions and identifying which is the most damaging to her self-image.
Recovery from sexual violence usually requires many months of focused effort, with many peaks and valleys along the way. The roller coaster of emotions most victims experience can be emotionally overwhelming. With a good support system, however, the victim can eventually heal.
Some research suggests that female students on college campuses are at greater risk for rape and other forms of sexual assault than women in the general population or in a comparable age group (DeKeseredy and Katharine Kelly, "The Incidence and Prevalence of Women Abuse in Canadian University and College Dating Relationships", Canadian Journal of Sociology 18 (1993): 137-59; and Fisher et al., "Crime in the Ivory Tower"; and Koss, Mary P., Christine A. Gidyez, and Nadine Wisniewski, "The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students," Journal of Counseling and Clinical Psychology 55 (1987): 162-70; as cited in Bureau of Justice Statistics (BJS) and National Institute of Justice (NIJ) research report entitled "The Sexual Victimization of College Women", authored by Fisher, Bonnie S., Francis T. Cullen and Michael G. Turner, 12/2000, NCJ 182369.)
The National College Women Sexual Victimization (NCWSV) study, which was the basis for "The Sexual Victimization of College Women" report published in December 2000, was funded by the National Institute of Justice (NIJ). The research results were based on a telephone survey of a randomly selected, national sample of 4,446 women who were attending a 2- or 4-year college or university during fall 1996.
Though characterized by some experts in the field as being a study which contained certain flaws and limitations that might generate inaccurate results, the study sought to measure twelve types of sexual victimization, including measures of both completed and attempted rape, as well as threats of rape. Additionally, the study was designed to measure completed, attempted and threatened sexual coercion (penetration with the use of non-physical forms of coercion) and unwanted sexual contact (sexual contact, but not penetration, with force or threat of force), as well as stalking and visual and verbal forms of sexual victimization. The twelve types of sexual victimization included in the study were defined as:
| Type of Victimization | Definition |
|---|---|
| Completed Rape | Unwanted completed penetration by force or the threat of force. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal,object-vaginal, and object-anal. |
| Attempted rape | Unwanted attempted penetration by force or the threat of force. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal, object-vaginal, and object-anal. |
| Completed sexual coercion | Unwanted completed penetration with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal, object-vaginal and object-anal. |
| Attempted sexual coercion | Unwanted attempted penetration with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal, object-vaginal, and object-anal; |
| Completed sexual contact (with force or threat of force) | Unwanted completed sexual contact (not penetration) with force or the with force or threat of force. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks, or genitals, either under or over your clothes, kissing, licking, or sucking, or some other form of unwanted sexual contact. |
| Completed sexual contact (without force) | Any type of unwanted completed sexual contact (not penetration) with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks, or genitals, either under or over your clothes, kissing, licking or sucking, or some other form of unwanted sexual contact. |
| Attempted sexual contact (force or threat of force) | Unwanted, attempted sexual contact (not penetration) with force or the threat of force. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks or genitals, either under or over your clothes, kissing, licking or sucking, or some other form of unwanted sexual contact. |
| Attempted sexual contact (without force) | Unwanted attempted sexual contact (not penetration) with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks or genitals, either under or over your clothes, kissing, licking or sucking, or some other form of unwanted sexual contact. |
| Threat of rape | Threat of unwanted penetration with force and threat of force. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal, object-vaginal, and object-anal. |
| Threat of contact with (force or threat of force) | Threat of unwanted sexual contact with force and threat of force. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks, or genitals, either under or over your clothes, kissing, licking or sucking, or some other form of unwanted sexual contact. |
| Threat of penetration (without force) | Threat of unwanted penetration with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Penetration includes: penile-vaginal, mouth on your genitals, mouth on someone else's genitals, penile-anal, digital-vaginal, digital-anal, object-vaginal, and object-anal. |
| Threat of contact (without force) | Threat of unwanted sexual contact with the threat of non-physical punishment, promise of reward, or pestering/verbal pressure. Sexual contact includes: touching, grabbing or fondling of breasts, buttocks, or genitals, either under or over your clothes, kissing, licking or sucking, or some other form of unwanted sexual contact. |
The researchers also used certain "screening questions" to qualify participants in the survey process:
Survey Screening Questions:
Women may experience a wide range of unwanted sexual experiences in college. Women do not always report unwanted sexual experiences to the police or discuss them with family and friends. The person making the advances is not always a stranger, but can be a friend, boyfriend, fellow student, professor, teaching assistant, supervisor, co-worker, somebody you meet off campus, or even a family member. The experience could occur anywhere: on or off campus, in your residence, in your place of employment, or in a public place. You could be awake, or you could be asleep, unconscious, drunk, or otherwise incapacitated. Please keep this in mind as you answer the questions:
The findings of the NCWSV study revealed that approximately 1 in 36 college women experience a completed rape or attempted rape over the course of the 6.91 months covered by the study. The researchers concluded that by projecting results beyond the reference period and calculating the risks over a 1-year period instead, the data suggested that nearly 5% of college women are victimized in any given calendar year. Further, the researchers concluded that over the course of a five year college career, the percentage of completed or attempted rape victimization among women in higher educational institutions might be between 1/5 and 1/4.
In fact, for every 1000 women attending college, the researchers concluded that there may be 35 incidents of rape in a given academic year. The report theorizes that: "For a campus with 10,000 women, this would mean the number of rapes could exceed 350." The survey also determined that some of the women participating in the survey were victimized more than once, with the net effect being the rate of incidents was higher than the rate of victims (35.3 per 1,000 students). Of the 123 victims, 22.8% were multiple-rape victims.
Other results of the survey include:
Alcohol or drug abuse can serve as a "trigger" or an excuse for some sexual assaulters or rapists, just as substance abuse serves as an excuse in many instances of domestic violence, but it is not the cause of rape, sexual assault or incidents of sexual abuse. Some rapists may use alcohol as an excuse for violence or sexual aggression. Alcohol can act as a sedative, leaving a potential victim more vulnerable to abuse. Victims who are assaulted while under the influence of alcohol or other drugs may be erroneously judged as being responsible for the abuse perpetrated on them.
However, the use of alcohol or drugs by a victim does not justify the act of rape. The responsibility for sexual assault and rape is on the perpetrator and is not the fault of the victim, regardless of whether the victim did or did not do something, such as drinking, walking alone at night, or dressing seductively. The victim's vulnerability to assault may have been increased by her actions, but she is not responsible for the offender's behavior. The rapist is.
Over the past two decades, various drugs have been developed which are sometimes used by sexual assaulters to sedate a victim or render her more vulnerable to rape. When a victim has been sedated, either with alcohol, other drugs, or with so-called "date rape" drugs, she may wake without complete memory of what has happened to her or who was involved.
The most common drugs employed against victims are Rohypnol, GHB (gamma hydroxybutyrate), Ketamine and Burundanga. Often, these drugs are slipped into the drink of the intended, unsuspecting victim. Once the victim consumes the drug, he or she may fall asleep or lose consciousness. Any of these drugs are potentially lethal. A description of the various drugs in use today follows:
GHB (gamma hydroxybutyrate):
A few drops of this drug in a drink can cause a person to lose consciousness within 15-20 minutes. The drug may be found in liquid or powder form, and in liquid form may be added to a drink with an eyedropper or bottlecap. It is colorless, odorless and tasteless, although some victims claim that it has a slightly salty taste. GHB, when mixed with alcohol, kills. Nausea, vomiting and dizziness, along with the appearance of heavy sedation, impaired judgment and extreme intoxication are common side-effects. Frequently, victims have no memory of what has happened after waking from a GHB-induced sleep. GHB is commonly manufactured in a home lab and as a result, strength and dosage varies between "batches". When improperly prepared, it turns to lye, a paint-stripping ingredient which is highly caustic and has the capacity to cause internal tissue damage to anyone who ingests it. In early 2000, President Clinton signed legislation making the possession or distribution of the drug an offense carrying a potential 20-year sentence. Street names for GHB: Liquid X, Liquid Ecstasy, Grievous Bodily Harm, Saltwater, Scoop, Easy Lay, and Gamma-O.
GBL (gamma butyrolactone):
A relatively new date rape drug, GBL is almost identical to GHB. In fact, once ingested, the human body transforms GBL into GHB. GBL can be found in dietary supplements and industrial cleaners. Street names: Renewtrient, Blue Nitro, Revivarant, and Reinforce.
Rohypnol (Flunitrazepam):
Rohypnol is a member of the benzodiazepines class of drugs. Intended for use as a surgical anesthetic, muscle relaxant or sleeping pill, Rohypnol can sedate a patient within 10-20 minutes of ingestion. It is 7-10 times more powerful than Valium and 4-10 times as potent as Halcion. The drug comes in the form of an odorless, tasteless pill which looks like aspirin and can be added to any drink. The effect of this drug multiples dramatically when mixed with alcohol or drugs, sometimes with deadly consequences. Rohypnol can be detected in the bloodstream for 24 hours, and in urine for up to 48 hours after consumption. Street names for the drug are: Roffies, Rophies, Roofies, R-2's, LaRocha, Mexican Valium, Rope, Rib, Roach, Roofenol, Ruffies, Roches or the "Forget-pill". (Another drug less commonly used is Rohibitril, which tastes bitter and produces a very deep sleep in its victims.)
Ketamine:
Ketamine is a veterinary anesthetic, commonly used to declaw cats. It is a liquid drug and is illegal to possess for personal use in the U.S. The drug can be found in either powder, pill, or liquid form, and can be snorted, swallowed or injected directly into the muscle. Ketamine can cause a "dissociation" of the mind from the body (called a "K-Hole"). The drug works in much the same way as LSD or PCP and produces similar side-effects. Hallucinations, dreamlike memories or trances, a feeling of the mind being "dissociated" from the body, and amnesia are common side-effects, making recollection virtually impossible and causing the victim to be unable to distinguish between fantasy and fact, leaving her wondering if the sexual assault was real or imagined. Small doses block the body's pain response, causing self-injury. Large doses lower the heart-rate, leading to oxygen depletion of the brain and muscles. An overdose can cause the heart to stop beating and may cause temporary paralysis. The effects of Ketamine vary from person-to-person, according to weight, body-size, built-up tolerance to the drug, the presence of other drugs, the method of administration of the drug, and the setting in which the drug is consumed. The amnesic and hallucinatory effects of Ketamine may last an hour or less, but overall effects may last for 18-24 hours, causing impairment of the victim's senses, judgment and coordination. It can be detected in the blood or urine for up to 48 hours after ingestion. Street names: Special K, Vitamin K, K, Cat, Bump, Ketaset, Vetalar.
Burundanga (scopolamine):
Burundanga is a derivative of a South American plant with origins in Columbia. It is tasteless and highly soluble. The drug's legitimate uses are that of alleviating motion sickness or the symptoms of Parkinson's disease, but it has also become popular as a tool to incapacitate victims. Once ingested, burundanga leaves the victim disoriented and talkative, or in a trance-like state. According to some sources, victims have been known to empty their bank accounts at the instruction of their assaulter. The drug can be administered by blowing it in a victim's face, placing it in chewing gum or through an eyedropper. Burundanga causes a walking trance and a retrograde amnesia in those who ingest it. (Excerpted from www.shout.net/~rcs/drugz/index.html (As of 06/21/05, this site is no longer available, but you may get information aboud date rape drugs from your local sexual violence center) , hotline (217) 384-4444.)
(The following tips are provided by http://www.lifetimeadoption.com/daterapedrug3.html )
Most date rape drugs will leave the blood stream within 4 hours, but may remain in the body's system for up to 48 hours. Still others may be detected for up to 96 hours post-ingestion. Persons who wake feeling disoriented or hungover--despite having had little or no consumption of alcohol--or who cannot recall any events of the previous several hours should be tested for the trace of these drugs at a local hospital. In most instances, the testing is free of charge. If you still have the beverage container or glass from which you were drinking, secure it for law enforcement.
It has only been over the last 10-15 years that all states revised laws to recognize marital rape as a crime. Marital rape is now a crime in all 50 States. Even so, 32 States still protect husbands from being charged with rape under certain circumstances, with exemptions for husbands being notably in circumstances when the wife is mentally or physically impaired, unconscious, asleep, and therefore unable to provide legal consent to sex--at times when, in short, the wife might be most vulnerable. (California Coalition Against Sexual Assault (CALCASA), March 2001. A Vision to End Sexual Assault: The CALCASA Strategic Forum Report.)
Marital partners are generally defined as couples who are legally married, separated, divorced or co-habiting. No study of marital rape has included or specifically identified co-habiting gay and/or lesbian couples. It is known that intimate partner rape occurs more than twice as often as stranger assault or rape. Some studies report that one out of every seven married women is raped by her husband or intimate partner, while other studies reflect much higher statistics on marital rape. Some experts estimate that marital rape accounts for approximately 25% of all rapes, with 1/3-to-1/2 of all battered women raped by their intimate partners at least once. Some experts believe this figure is much higher for battered women, estimating that at least 60%, and possibly all,battered women in marital-type relationships have been or can expect to be sexually abused or assaulted by their abuser.
Women who are victims of both physical and sexual aggression in the context of their intimate partner relationship are at higher risk for more severe physical and psychological issues than those victims who are survivors of "only" physical or emotional assault. Researchers have found that those victims who have experienced both intimate partner physical and sexual abuse exhibit the extreme consequences of living in a state of isolation in anticipatory terror, which may include overwhelming feelings of endangerment, intrusive memories and flashbacks, and depression, often displayed through thoughts of suicide. These survivors are at greater risk of substance abuse as well (Browne, 1987; Dutton 1992; Shields and Hanneke, 1983).
Physical consequences for marital rape victims include injuries to the vaginal and anal areas, lacerations, soreness, bruising, torn muscles, fatigue, and vomiting. Gynecological effects vaginal stretching, miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases, including HIV/AIDS (Campbell, J.C. and P. Alford (1989). "The Dark Consequences of Marital Rape". American Journal of Nursing, 89, 946-949.)
Sexual abuse of victims of battering experience the abuse in a wider array of forms. Rape may follow a battering incident, or it may follow when the husband wants to reconcile after a "fight" and then coerces his wife into having sex. Sexual violence for victims of domestic abuse may also include "sadistic" or "obsessive" rape, which often involves pornography and may involve torture or perverse sexual acts. Battered women who have reported marital rape frequently describe acts such as forced prostitution or exhibitionism and any number of deviant sexual activities, including forced sex in front of children, in groups or with animals.
According to Sherryll Kraizer, Ph.D.: "Sexual violence or "marital rape" includes physical attacks on the victim's breasts or genitals, sexual sadism and forced sexual activity. Similar to rape occurring outside the family, marital rape appears to be mainly an act of violence and aggression, in which sex is the weapon used to humiliate, hurt, degrade, and dominate the woman. The violence and brutality in the sexual relationship seem to escalate with time. The sexual violence is frequently accompanied by life-threatening acts or threats." (Kraizer, Sherryll, Ph.D. (1991). Domestic Violence: A Basic Manual for Intervention and Prevention. Oklahoma Department of Human Services, Domestic Violence Intervention Service, Tulsa, Oklahoma. Comments credited to Walker, L. (1980).)
In a special issue of the journal, Violence Against Women, authored by Raquel Kennedy Bergen, important information on recent research relative marital rape is discussed. Patricia Mahoney, who analyzed the 201 marital rape cases in the database of the National Crime Victimization Survey, reported that her research revealed that women raped or sexually assaulted by their current or former husbands are more likely to be assaulted many times than other sexual assault victims.
Marital rape victims are also more likely than other rape victims to be seriously injured or physically assaulted, but they are the least likely rape victims to seek medical care, or to report the rape to law enforcement authorities. According to the Bureau of Justice Statistics 1997 report on Sex Offenses and Offenders, more than half of spousal rapes, rapes by ex-spouses and stranger rapes result in victim injury.
In Ms. Bergen's article, the research of Jacquelyn Campbell and Karen Soeken on 159 battered women is also discussed. In Campbell and Soeken's study, 45.9% of the women participating in the study had been sexually assaulted by their intimate partners. 77% of the 159 women in the study were African-American and 50.4% of them reported being sexually assaulted by their intimate partners, compared to 30.6% of the women who were not African-American. According to the researchers, however, race or ethnicity might not have been a significant factor in the results since the study may have reflected the effects of poverty in sexual assault factors more than that of race.
In the study, the women who had suffered domestic violence alone complained of abdominal pain or cramping less often than did those women who had suffered domestic violence and rape. The women in the latter category were also more likely to have multiple gynecological symptoms and only half as likely to have no symptoms.
Additionally, the researchers found that:
"The greater the number of forced sexual assaults (whether as children or adults), the more likely they were to be depressed and the more severely they were depressed. In addition, men who both physically and sexually abused their partners were considerably more dangerous than men who just physically abused them."
Another researcher who contributed her findings to Ms. Bergen's article was Kathleen Basile, who conducted telephone interviews with 41 women reportedly having experienced unwanted sex in their marital or intimate relationship. Although these incidents were described by the women as being coercive, involving physical force or threats of force and verbal intimidation, they did not meet the conventional definition of rape since they did not involve the two critical elements of "force and consent"--terms that are problematic to other experts.
Altogether, the researchers noted commonly expressed reasons and/or "patterns" suggested by women who reported "giving in" to unwanted sex. The majority of the women stated they had allowed their partner's sexual advances because they wanted to "keep the peace" or because they felt that having sex was a "wifely duty". Other reasons stated were:
The women cited either religious convictions or a motivation of preventing their partner from seeking sex with other women when the reason stated for compliance with sexual demand was that of "wifely duty". When a woman stated that her motive for compliance involved a desire not to argue, the researchers noted that the motivation most often stemmed from an environment in which emotional and verbal abuse were common.
The final reason cited, involving fear of the consequences of resisting, were directly linked to physical assault and abuse, including physical coercion to force sex. Nevertheless, most of the women participating in the study did not consider their experiences rape or sexual assault unless the incidents were particularly severe and frequent, although the sexual act often included threats and/or physical force. (Bergen, Raquel Kennedy (9/1999). Violence Against Women, Volume 5, No. 9. Sage Publications/ and "New Material on Marital Rape". Domestic Violence Report, Volume 5, No. 6. August/September 2000.)
This strict definition of what does or does not qualify as marital rape is problematic, however. Studies reveal that some women are raped by their marital partners, but never battered. Other studies reveal what is described as "force-only rape", defined as a form of rape in which a husband uses only the amount of force necessary to coerce the wife into having sex. Battering or abuse does not necessarily characterize these specific relationships and as a result, marital rape as simply an extension of domestic violence excludes women who have, in fact, been forced to have sex against their will, but who have not been battered or abused in other ways. Many experts argue that marital rape should not fall under the heading of domestic violence at all, or be analyzed within the context of domestic violence, because when sexual violence is considered as only one aspect in the larger picture of battering, the affects of rape may be minimized or overlooked as a distinctive, separate issue from domestic violence.
Most experts in the field categorize marital rape into three types:
(Bergen, Raquel Kennedy, Ph.D. (3/1999). "Marital Rape". http://new.vawnet.org/category/Main_Doc.php?docid=248.)
Marital rape survivors not only experience a higher number of assaults than women raped by acquaintances or strangers, but are also more likely to experience unwanted oral or anal intercourse. Battered women who are married are also at a particularly high risk of experiencing sexual violence when they attempt to leave the abusive relationship. Almost 2/3 of battered women who experience rape are assaulted when they attempt to end the relationship. Yet many victims of marital rape refuse to report the incidents simply because society's perception of "real rape" excludes married women, who are viewed as obligated to their husbands for providing sexual gratification. When women do not define their experiences as rape, they are unlikely to seek outside assistance to stop the violence, setting up an atmosphere that allows the violence to continue unabated.
According to research, it has also been determined that police often refuse to respond to calls from a victim of marital rape. Law enforcement officers may refuse to accompany a marital rape victim to the hospital or allow her to file a criminal complaint or press charges. Frequently, police discourage marital rape victims from collecting medical evidence, despite the fact that marital rape is a crime recognized by all 50 States in America. Likewise, spiritual advisers, pastors and clergy are the most likely of all "helping" professions to fail to support victims of marital rape who turn to them for assistance and advice.
Even in the crisis intervention field, appropriate support systems for victims of marital rape often do not exist. In one study, only 42% of battered women's shelter programs and 79% of rape crisis centers provide training on marital rape to staff members and volunteers. Only 2% of shelters and rape crisis centers provide a support group specifically for marital rape survivors. In fact, only 17% of rape crisis centers routinely ask about rape by a partner. (Bergen, Raquel Kennedy, Ph.D. (3/1999). "Marital Rape". http://new.vawnet.org/Assoc_Files_VAWnet/AR_MaritalRapeRevised.pdf, and Bergen, Raquel Kennedy, Ph.D. (1996). Wife Rape: Understanding the Response of Survivors and Service Providers. Thousand Oaks, CA: Sage.)
As previously noted, in a small percentage of cases, males are victims, or victim and offender are of the same sex. Although there is little research or data available concerning male rape or same gender sexual assaults in comparison to the data available about male on female rape, the studies cited clearly establish that "homosexual assault" is an inaccurate term since many (if not most) perpetrators of same gender sexual assault are not homosexual. Statistics on rape consistently reveal that rapists are predominantly male, regardless of the gender of the victim, and only in a small percentage of cases is the rapist gay or lesbian.
Studies show that males are most often raped by other males--a fact which possesses historical significance, while also starkly underlining the acknowledged truth that sexual assault is motivated by aggression, as a tool to achieve "power and control" over the victim:
"The rape of males was more widely recognized in ancient times. Raping defeated males was considered the special right of the victorious soldier in some societies, and was a signal of the totality of the defeat. There was a widespread belief that a male who was sexually penetrated, even if it was by forced sexual assault, thus "lost his manhood," and could no longer be a warrior or ruler. In the twentieth century, the best known instance of this kind of humiliation occurred when the Englishman, T.E. Lawrence ("Lawrence of Arabia"), was captured by the Turks, who were well known for this custom during World War I. The subsequent disruption of Lawrence's life, while a surprise to his contemporaries, can now be recognized as a typical consequence of male Rape Trauma Syndrome. Gang rape of a male was considered an ultimate form of punishment, and as such was known to the Romans, as punishment for adultery, and to the Persians and Iranians, as punishment for violation of the sanctity of the harem (Donaldson, 1990)."
(Donaldson, Donald (1990) "Rape of Males", in Dynes, Wayne, ed. (1990). Encyclopedia of Homosexuality. New York: Garland Publications. Quotation from "The Rape of Males" (12/2000), http://www.callrape.com/malerape.html (As of 03/08/04, this page is no longer available .
Many law enforcement agencies and police departments do not keep or collect statistics on the incidence of male rape. However, in one study of convicted male sex offenders and their male victims, it was revealed that at the time of their offense, all of the offenders were engaged in consenting sexual encounters or relationships. Only 9% of the offenders reported that their sexual encounters were almost always with men, while 32% reported sexual activity with both men and women. 27% reported that they confined their consenting sexual activity to women. Half of the offenders were married. Yet the study also revealed that the gender or age of the victim was insignificant to half of the offenders participating in the study. To these offenders:
"The choice of a victim seemed to be more a matter of accessibility than of sexual orientation, gender or age."
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN; and Groth, A. Nicholas and Ann Wolbert Burgess (1980). "Male Rape: Offenders and Victims". American Journal of Psychiatry, 137(7):806-810. Quotation from "The Rape of Males" (12/2000), \ http://www.callrape.com/malerape.html (As of 03/08/04, this page is no longer available .)
Some studies conducted at rape crisis centers around the nation indicate that male victims of sexual assault constitute approximately 6%-10% of all rape victims who services are provided to. Like the rape of females, it is believed that male rape statistics vastly underestimate the actual number of males age 12 and over raped each year. Rape crisis counselors also estimate that the rates of underreporting for male rape victims is far higher than the rates of underreporting among female rape victims since:
Male rape victims are more likely to be severely physically injured as a result of the violent victimization than female rape victims. Males in their early-to-mid teens are more likely to be raped than older men, and weapons are more likely to be used by rapists who assault men than women. Men are also more likely to be the victims of multiple assaults by multiple assailants than female sexual assault victims, and men are more likely to be taken hostage or held captive by their assailant(s) than female rape victims. Men were more likely than women to seek treatment for injuries resulting from sexual violence without revealing that the violence endured included sexual assault (or some type of sexual aggression or violence that did not involve actual penetration, such as an attack on the genitals).
While male rape often occurs in prison environments with male populations, all men are potential victims of sexual assault since this form of sexual assault is always motivated by the assaulter's need to dominate and instill fear in the victim. For the advocate who works with male survivors of sexual assault, it is important to recognize that:
(From "The Rape of Males" (12/2000), http://www.callrape.com/malerape.html (As of 03/08/04, this page is no longer available .)
Rape, whether involving a male or female, is an act of violent aggression and is not motivated by sexual desire or sexual deprivation. Men who are raped--and gay or lesbian victims of sexual assault--need the same supportive counseling and concern which heterosexual female victims of sexual assault need. Male victims and gay or lesbian victims of sexual assault experience similar post-traumatic stress reactions to those of heterosexual female victims, which may include:
Female same gender assault is rare, but women who are forced to engage in sexual activity with other women experience the same emotional trauma as women who are forced to have sex with men. Sexual assault perpetrated by a female offender on a female victim may be characterized by the victim as having involved nonconsensual fondling or probing with fingers or an instrument. Most often, this type of abuse takes place within the context of domestic violence in same-gender relationships.
Research reflects that domestic violence occurs in same sex relationships at about the same rate as it occurs in heterosexual relationships, affecting approximately 25%-33% of gay and lesbian relationships. Nearly an equal number of gay men and lesbian women reported living in an abusive same-sex relationship, with approximately 7% of lesbian domestic violence victims also reporting that they had been victims of sexual assault.
Some gay and lesbian victims of domestic violence remain in assaultive relationships because either they or their partner have been diagnosed as HIV/AIDS positive. The victim may fear losing his or her caregiver if he or she is ill, or if the aggressor is the HIV/AIDS patient, the victim may be compelled to feel "guilty" for wanting to "abandon" the aggressor.
Lesbian victims of rape by men present unique concerns. Because lesbians are at low risk for STDs and pregnancy, they may not be well-informed of STD and pregnancy risks from heterosexual exposure. Additionally:
"For women who have not had sex with a man, vaginal penetration may be painful both physically and emotionally. Lesbian women often report sexual dysfunction after a rape which can be confusing as they ponder why the experience of violence with a man has carried over to their nurturing sexual relationship with another woman. Lesbians, like others, often wonder if the rape was their fault, but it may also bring up a deep-seated sexual confusion as the victim questions if she really wanted the assault to happen and whether it occurred because she looks straight. Many lesbians feel intense shame at having been violated by a man and forced to have sex with someone other than her gender or sexual preference--which represents an extra dimension beyond the experience of straight female or gay male rape victims. Common emotional reactions include a sense of isolation, vulnerability, punishment, and paranoia (i.e., "Did he pick me because I look gay?")."
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN.)
Victims who feel that their sexual identity or orientation has been challenged as a result of same gender sexual assault may also be at particular risk for suicide, especially if the victim is an adolescent or teenager:
"Confidentiality is of utmost importance for these youth as premature disclosure of sexual orientation can be extremely dangerous when the adolescent does not have the strength or support in place to deal with homophobic reactions of people in their family and community. Psychological autopsies have shown that roughly one-third (1/3) of all adolescents between the ages of 15-to-19 who have committed suicide were struggling with issues of sexual identity."
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN.)
Elderly persons, and persons with developmental and physical disabilities also represent a "special needs" population at risk for sexual assault. In fact, 68%-83% of persons with developmental disabilities will be sexually assaulted in their lifetime--a figure that represents a 50% higher rate than the rest of the population. (Pease, T. and Frantz, B. (1994). Your Safety...Your Rights & Personal Safety and Abuse Prevention Education Program to Empower Adults with Disabilities and Train Service Providers. Doylestown, PA: Network of Victim Assistance, and cited in Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN.)
Almost 1/3 of developmentally disabled persons sexually assaulted each year are assaulted by a family member, while the same number is assaulted by friends or acquaintances, and a slightly smaller fraction (27%) is assaulted by service providers.
Studies reveal that as the severity of disability increases, the likelihood for abuse by a service provider increases. Only about 1% of the rapes or sexual assaults perpetrated on persons with developmental or physical disabilities can be characterized as "stranger rape". As a consequence, perhaps, developmentally and physically disabled persons are more likely than other categories of victims to be re-assaulted by the same person. Less than half of disabled victims report the assault or seek medical care in the aftermath.
Elderly women, and particularly physically disabled or mentally impaired elderly women, represent a special category of persons at risk for sexual assault. Because of decreased hormonal levels after menopause, resulting in a thinning of the vaginal wall and a reduction in natural lubrication, elderly women are also at increased risk for injury if sexually assaulted. Rape may result in vaginal tears and painful lacerations.
Disabled and elderly persons who are sexually assaulted suffer emotionally in all the same ways that other rape survivors do. However, this special category of victims may need to talk about the role they feel their age and/or disability played in their victimization.
Since most tribes prior to the reservation period did not have written histories, few possessed any written "code of conduct", but in fact, the citizen members of all Indian Nations abided by a strict moral code passed to each generation by oral tradition and practiced custom. One exception to the oral Native tradition exists in the written code of the Mvskoke (Creek) Nation, which in 1824 recorded the following provision for rape:
And be it farther enacted if any person or persons should undertake to force woman and did it by force, it shall be left to woman what punishment she should satisfied with to whip or pay what she say it be law [sic].
(Laws of the Creek Nation, Law 35th, 24 (Antonio J. Waring, Ed. University of Georgia Press 1960) (1824). These laws were written out in longhand by Chief Chilly McIntosh and reflect that he was still learning English. Provided by Sarah Deer, Esquire (Mvskoke Creek Nation) Office of Justice Programs, Department of Justice, Violence Against Women Office, Washington, D.C.)
In contemporary Native society, traditions that once protected women from rape and sexual assault have become eroded due to the negative impact of early American colonization and subsequent oppression and racism. During the early colonization and reservation periods, for instance, Indian women were often raped or sexually assaulted by non-Indian frontiersman and settlers, cavalrymen and other military or reservation personnel. Yet the Indian victim of rape perpetrated by a non-Indian was (and often is today) typically dismissed by non-Indian law enforcement and judiciary as a woman of poor character or she might be unjustly labeled a prostitute. In many cases, Indian women, thus denigrated and devalued, have in some instances come to expect sexual and physical violence and to even consider themselves worthy of little else.
A rape victim in early reservation times might have refrained from reporting the crime perpetrated upon her as a means of protecting her "marriage value", particularly if she had been a virgin at the time of the attack. A rape victim commonly refused to report the crime in order to protect her reputation among her own people, to protect her family from shame, and especially to prevent her male relatives from seeking revenge on her behalf.
Contemporary Cherokee people tell of the young women and girls taken away from the protection and security of the group by soldiers when the Cherokee, enduring the forced march of the Trail of Tears (or more accurately, Nunna daul Tsunyi: the trail where we cried) had halted their journey to rest at night. According to oral tradition passed down for generations, the Cherokee, unable to protect their women and equally unable to bear the sound of the victims' pleas and cries, would often resort to singing traditional songs and religious hymns to encourage the victims and themselves to abide with courage unconscionable and intolerable brutality.
Knowing that anyone attempting to collect retribution would likely fall victim to violent retaliation, the American Indian/Alaska Native victim of rape has rarely reported violence perpetrated upon her by a non-Indian person. This statement may not be adequately supported by statistics since current surveys indicate that American Indian/Alaska Native victims of violence are about as likely as women from other racial groups to report violent crime to police. Experience in the field, however, when taken with knowledge of American Indian/Alaska Native histories and cultures, suggests that the violence reported by Indian women accounts for only a fraction of the violence perpetrated against them. The legacy of suffering continues today:
"and then there is the rape of Jancita Eagle Deer. But rape of an Indian girl by a white man is common in South Dakota, and because nothing is done about it in the courts, the great majority of the cases aren't reported; Indian women don't like to talk to white men about what one of their kind has done to them."
(Matthiessen, Peter (1980, 1983, 1991). In the Spirit of Crazy Horse. "The Real Enemy", pg. 441. The Viking Press: 1983; Viking Penguin, a division of Penguin Books USA Inc.: 1991.)
Most experts in this field today believe that few American Indian or Alaska Native rape and sexual assault victims report these violent crimes to authorities. The reasons cited most often by Indian women for failure to report include:
According to the Bureau of Justice Statistics, more than 70% of sexual assaults go unreported, the most often stated reason being that the victim fears the assailant (76%). In Indian Country particularly, it is very difficult to document the extent of sexual assault and therefore, difficult to ascertain specific statistics, largely because of jurisdictional authority issues. In fact, historical and cultural traditions, when combined with complex public policy (U.S. Supreme Court Decisions and Congressional Acts), may create jurisdictional authority issues that actually discourage American Indian and Alaska Native victims from reporting sexual violence or seeking support, resulting in increased opportunity for violent re-victimization.
For instance, the consequences of confusion over jurisdiction often include poor record keeping that does not encourage coordination between Indian Nation governments and service providers and other agencies within the non-Indian sector. Too, where confusion over jurisdictional authority exists, victims are discouraged from reporting violent crimes, investigation and prosecution is not pursued in a timely, aggressive manner, and offenders quickly discover that offenses will result in little or no punishment.
Understanding the meaning of sexual assault within the context of culture, and providing appropriate, culturally sensitive referral sources is critical to advocacy in American Indian and Alaska Native communities. The way a person reacts to sexual assault, and heals in the aftermath of sexual assault, is defined by the culture within which the survivor lives. Culture will shape the way the victim feels about what has happened to him/her and will determine what form the path to recovery will assume.
Since living cultures are not stagnant, but are constantly changing, the rape crisis advocate must be alert to "cultural updates" which provide clues to how members of an evolving culture may respond to rape. The advocate should also be aware that various "subcultures" commonly exist within larger cultures and victims of sexual assault may be members, as a result, of one or more groups of people within the larger cultural framework. For instance, a victim might be a tribal role member of a particular tribe (the larger cultural group), and might also be lesbian, bisexual, transgendered, homeless or physically/developmentally disabled, placing the victim in a "subculture" of the larger cultural group to which she belongs.
By simply asking the sexual assault victim how she predicts the people closest to her, or most important to her, will react to what has happened to her, an advocate can obtain valuable cultural "clues" to assist the American Indian/Alaska Native victim in her journey toward healing and recovery.
Most women today would define rape as any sexual activity forced upon someone against their will, but until recent years in American judicial law, men traditionally wrote, defined and interpreted laws, with the result being that female rights to engage in consensual intercourse were not defined in relation to marriage. Since the early 1970's, sweeping changes have been made across all 50 states and the District of Columbia relative spousal rape laws, but many critics feel that the changes made have still not been dramatic enough, perhaps because 32 states still protect husbands from being charged with rape under certain circumstances.
In many states, legislative progress has been slow, often because legislators are resistant to the changes needed. For instance, one Maine legislator during the legal process observed, "Any woman who claims she has been raped by her spouse has not been properly bedded." Nevertheless, Maine is one of the States which has removed the marital rape exemption. (Shiels, Marnie Rothschild, Esquire (August/September 2000). "Spousal Rape Laws: 20 Years Later". Domestic Violence Report, Volume 5, No. 6, pg. 85 and 96.)
While the majority of states have simply removed the marital rape exemption without adding any other language, other States have established spousal rape as a separate offense. Still others have inserted language specifying that marriage to the victim is not a defense against rape. Many States, including California and Illinois, although recognizing spousal rape as a crime, still demand a shorter reporting period for spousal rape than for other crimes. The spousal rape statutes of some States require that force or threat of force be used, or similarly that a weapon or "credible decoy" be used, that serious bodily injury result from the assault and/or that the spouses, at the time of the incident, be living separately and/or that one of the spouses has filed for a divorce or separation.
According to Oklahoma law (Title 21, Section 1111), an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator is only considered rape if force or violence is used or threatened and if (1) a petition for divorce is pending; (2) a petition for legal separation is pending or has been granted; (3) a petition for a protective order is pending; or (4) the victim and perpetrator are living separate and apart from each other.
On a positive, progressive note, however, rape and/or sexual assault perpetrated on a gay or lesbian victim can be prosecuted as a hate or bias crime involving power and control over the victim. Also, rape is now being prosecuted as a war crime in some countries (notably Bangladesh and Bosnia)--a major coup in the continuing battle to have sexual assault recognized as a human rights issue by international courts. Much has yet to be done, though, to address the many forms of sexual violence worldwide, including rape as part of cultural rituals, genocidal rape, sexual trafficking, torture and slavery, and prostitution.
According to the Bureau of Justice Statistics 1997 report on Sex Offenses and Offenders, approximately 32% of all rapes are reported to law enforcement. About 87% of rapes reported in 1995 were recorded as completed crimes and the remainder were classified as attempts, with only about 8% of forcible rapes reported being determined to be unfounded and therefore, excluded from the count of crimes. The rate of violent victimization cases classified as "unfounded" by law enforcement is notably higher for rape than for any other crime reported. Some of the reasons police use to classify a case as "unfounded" are:
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN).
Reporting will not guarantee either arrest or conviction. In fact, only about 4% of rapists actually serve jail time as the result of guilty pleas or guilty verdicts, although 51% of reported forcible rapes in metropolitan areas are cleared by arrest and 52% in rural and suburban areas (Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN).
One reason for the low rate of arrested and/or convicted sexual assaulters is simply that emergency department (ED) medical staff are unfamiliar with the procedures necessary to maintain a proper chain-of-evidence from the ED to the criminal justice system. In fact, a lack of knowledge about how to establish and maintain chain-of-evidence or a fear of being called to testify in a court proceeding often causes ED doctors and nurses to try to avoid taking part in the forensic exam of rape victims.
The completed documentation of a forensic rape exam must include the signature of each person who had possession of the evidence from the person who collected the physical evidence to the person bringing the evidence into the courtroom. Examiners must be able to testify in court that the evidence collected from the victim was in the examiner's possession from the time it was collected until the time it was secured in a locking refrigerator or given to law enforcement. If the evidence left the examiner's possession at any time between the time it was collected and the time it was secured or presented to law enforcement, the chain-of-evidence has been broken and the evidence will not be admissible in court.
Between 1980 and 1994, the State prison population increased more than 200%, while the number of imprisoned sex offenders grew more than 300%---second only to drug related offenses. There are currently an approximate 234,000 convicted rape and/or sexual assault offenders under the care, custody or control of corrections agencies--just under 5% of the total correctional population in the U.S. Approximately 6 of 10 sex offenders are convicted of sexual assault, while 4 in 10 are convicted of forcible rape. The largest category of sex offenders is composed of those serving time for molestation, fondling or other related kinds of sexual assault. Nearly 60% of all sex offenders are under conditional supervision within the community.
50% of all rape defendants are released prior to trial. A little more than 80% of all convicted rapists enter a guilty plea to the offense. The 1997 statistics reflect that courts set bail for an estimated 73% of rape defendants. However, the rate of release pending disposition of a rape charge is lower than that for other violent felony crimes. Only defendants charged with murder had a lower rate of release (24%).
A little more than 2/3 of convicted rape defendants receive a prison sentence, the average term of which is just under 14 years. The average jail term for a convicted rapist is 8 months and the average probation term is just under 6 years. Approximately 2% of convicted rapists are sentenced to life imprisonment. Also, the average prison term for rape following a jury conviction is nearly 13 years longer than the average sentence received by those pleading guilty to rape or those convicted in a bench trial.
On the average, sex offenders generally serve approximately 35%-40% of their sentences prior to release. The Bureau of Justice 1997 report reflects that rapists had a lower rate of re-arrest for a new felony and a lower rate of re-arrest for a violent felony than most other categories of probationers serving sentences for convictions of violence. 41% of violent probationers are re-arrested within 3 years of placement on probation for a new felony offense, while an estimated 19.5% of rapists are re-arrested for a new felony within 3 years.
However, rapists on probation are also more likely than other felons to be re-arrested for a new rape. While approximately 1.5% of violent felony probationers were re-arrested for a new rape within 3 years, about 3% of probationers under conditional supervision after conviction for rape were re-arrested for a new rape within 3 years. Over the 3 year period following prison release, an estimated 52% of discharged rapists and 48% of discharged sexual assaulters were re-arrested for a new crime.
A judicial and social climate that has increased mistrust for non-Indian agencies, a likelihood for reprisal, system injustice or inaction, together with complex jurisdictional issues, have the net consequence of providing disincentives for Native American victims to report sexual assault. Jurisdictional confusion not only diminishes the ability of most agencies to create and maintain consistent records, but it also serves to provide "a justification for investigative and prosecuting officials to ignore sexual assaults" (Deer, Sarah (1997). As quoted in "Sexual Assault in Indian Country--Confronting Sexual Violence". National Sexual Violence Resource Center (NSVRC). May also be seen at internet web address http://www.nsvrc.org/_cms/fileUpload/indian.htm ).
Other facts and opinions reported by the National Sexual Violence Resource Center (NSVRC) in their year 2000 report on sexual assault in Indian Country include:
(Excerpted and reprinted from the National Sexual Violence Resource Center's publication entitled, Sexual Assault in Indian Country, Confronting Sexual Violence". www.nsvrc.org )
Federally recognized tribes have the sovereign right to maintain government-to-government relationships. This right has recently been re-affirmed by President Clinton in his Executive Order promoting tribal sovereignty and self-government on November 7, 2000. The right of Indian Nations to self-government includes the right to make and enforce their own laws. Nevertheless, Congress and various U.S. Supreme Court decisions over the past two hundred years have reduced tribal authority in some areas and blurred the lines defining which sovereign entity retains criminal jurisdiction over certain crimes.
For instance, when a rape occurs in Indian Country, tribal police, state or local law enforcement, such as city police or county sheriffs, and BIA or FBI law enforcement are suddenly required to determine which enforcing agency should investigate the crime, and consequently, which judiciary branch has jurisdiction to prosecute the crime:
"In the areas of sexual assault, jurisdictional confusion and overlap make it particularly difficult for everyone involved. Federal, state, local and tribal law enforcement officials must all try to navigate the murky jurisdictional waters. A crime committed in Indian Country can be subject to investigation by local law enforcement, consisting of Tribal and/or BIA police, or state troopers, and/or Federal law enforcement personnel from the BIA or the FBI. In some cases, the difficulty over determination of criminal jurisdiction, particularly when there may be concurrent jurisdictions, promotes apathy among officials that can translate into untimely action, or none at all. Victims and service providers must also consider their rights and opportunities for justice before engaging a path of action.
The jurisdictional maze hampers the delivery of justice and carriesheavy consequences for victims, service providers and for obtaining a realistic picture of sexual assault in Indian Country."
(Excerpted and re-printed from the National Sexual Violence Resource Center's publication entitled, Sexual Assault in Indian Country, Confronting Sexual Violence". www.nsvrc.org )
In addition, since the Indian Civil Rights Act restricts tribal courts in sentencing actions, tribal courts which choose to prosecute the crime of rape are limited in the punishment they can administer. Laws regarding "concurrent jurisdiction" (provided for in the Major Crimes Act and other pertinent Congressional Acts) remain unclear, with the net result being that some federal circuit courts have ruled that tribes possess concurrent jurisdiction over rape and sexual assault crimes while other federal courts have ruled that tribes do not have jurisdiction.
The question of concurrent jurisdiction has not been heard by the U.S. Supreme Court. As a result, Indian Nations must be familiar with the rulings of the federal circuit court which has jurisdiction over their tribe's "Indian Country" land to know whether a particular crime may be tried within the tribal court or relinquished to federal authorities for investigation and prosecution in a federal court. (Deer, Sarah, Esquire. (11/27/2000). Correspondence with Native American Circle, Ltd.)
Rapists are not typically "sexually unsatisfied" persons, but rather persons who have little capacity for warmth, intimacy, trust or friendship, and who discharge frustration, stress and anger through sexual acts of aggression and violence. Rape is itself an act of aggression, control and power. The factors common to all rapes consist of three basic components: anger, power and sexuality.
Anger and power motivate rapists who possess a need to dominate, control and degrade their victim(s). Sex is a way to achieve that goal. The "anger" rape, which is the type most often perpetrated on victims who are strangers to the rapist, occurs when anger and control become a hostile act. The "power" rape revolves around sexuality as an expression of conquest, acquisition and ownership. The third type of rape, "sadistic" rape, occurs when anger and control become eroticized in the rapist's mind (Groth, Nicholas (1979). Men Who Rape. New York: Plenum Press.)
As Dr. Groth explains in his book, Men Who Rape, non-sexual needs and desires always play a role in motivating the rapist to acts of sexual assault. As a result, what appears to be a merely sexual act in the perception of most people with healthy attitudes about physical intimacy, becomes to the rapist an expression of aggression, anger, his power, his control and ultimate dominance over the victim. For the rapist, the act of rape establishes his supremacy and position of status over his victim, and the act often reflects the rapists feelings of contempt, hatred and frustration. Rape is not an act of sexual deviancy, but rather an act that is motivated by other emotions in the rapist, expressed in a particularly negative and destructive fashion.
The "anger rape" often appears to be an impulsive act on the part of the rapist, rather than a pre-meditated act. The rapist will often blame some external influence on promoting the anger, depression or frustration that motivated him to the act of sexual assault, such as frustration with his job. Seemingly precipitated by factors that appear to have no connection to the victim, the anger the rapist feels is then discharged against his victim in an act of often extreme brutality and physical force. This form of sexual assault will often involve violent hitting, slapping and beating of the victim, the use of profane language and far more physical force than would otherwise be required to overpower the victim. Sex, to this man, is a weapon to be used to punish, humiliate and degrade a victim, and to take revenge for the injustices and misfortunes that he perceives to be his lot in life.
Anger rapists commonly report that they did not feel sexually aroused at the time of the rape, but that they instead felt depressed, enraged, angrily aggressive or hostile. It is interesting to note that the "anger rapist" often experiences some form of impotence or sexual dysfunction in his sexual relationships and that as a result of this impotence, he is most likely to force some type of oral sex with his victim. This type of rapist often expresses distaste for true sexual intimacy, finding the act "base" or a source of shame and disgust. He rarely finds satisfaction through sexual intimacy, but instead receives satisfaction, relief or a sense of gratification only when perpetrating violent acts of sexual aggression.
Stranger rape is the type of rape most often reported by victims, although it is the least common form of sexual assault. Approximately 35% of rape incidents reported reflect a crime perpetrated by someone who would be classified as an "anger rapist". This category of rapist may not recognize his victim, even when she has been pointed out to him in court and he is more likely than other offenders to blame his violent behavior on substance abuse. The consequences to a victim of anger rape usually include noticeable, and even severe, physical injuries.
The "power rape" accounts for almost 60% of rapes reported, although the victim may be hesitant to report the incident because she usually knows the rapist and may not have any physical injuries as a result of the assault. This category of rapist is also most likely to use a weapon in the commission of his crime(s) and since he does not recognize his behavior as criminal, he may easily pass polygraph examinations.
The power rapist often pre-meditates his crimes, even fantasizing about how his victim will react to his show of force. Feeling that he is proving his manliness when he forcibly "takes" a woman, particularly when the targeted female resists his sexual advances, he nevertheless will deny having any conscious desire to hurt or degrade his victim--only to dominate her completely. Physical abuse perpetrated on a victim by a power rapist is less often motivated by anger than by a need to intimidate or show the aggressive
force required to overpower the physically weaker victim, although the level of force may vary with offenders.
This type of offender's sexuality revolves around the rapist's need to prove his masculinity--the only source of his self-esteem and self-image as a man. The act of sex for the power rapist is a test of his sexual proficiency and masculine ability. The use of force to subdue the victim and cause her to submit to the rapist's will is often part of the rapist's fantasy image of himself as a masterful lover whose victim must ultimately succumb to his physical and charismatic power, "even if she doesn't want to at first".
Interestingly, though, this category of rapist is often sexually dysfunctional and the completed sexual act is rarely experienced by him as pleasurable. More often than not, the power rapist will be disappointed with his own performance, the victim's reaction to the act (which he usually regards as her reaction to his performance), and with the sexual act itself. Regardless of the rapist's perception, the completed rape never quite lives up to the standards of excitement and enjoyment anticipated by the rapist.
It is not uncommon for the power rapist to tie or handcuff his victim prior to the rape. With some offenders, the level of physical force and aggression used to overpower a victim and render her helpless may increase over time as the rapist continues to pursue his obsessive fantasy image of masculine power and mastery that eludes him with each forced sexual act. The ultimate power rape may be the "gang rape" for with this act, the leading offender is able to exercise power over the victim as well as his peer group.
The sadistic rape typically involves bondage and ritualized torture. The torture targets sexual areas of the victim's body, usually the breasts, genitals and buttocks, and may involve rape with an instrument or foreign object. The sadistic rapist derives his pleasure and satisfaction from his victim's suffering and he experiences his calculated and deliberate acts with intense and increasing excitement.
Less than 5% of all rapes fall into the category of "sadistic rape". This type of rape is almost always pre-meditated, with the rapist fantasizing about not only the sexual act, but the abuse to be perpetrated on the victim. The sadistic rapist first stalks, then captures, abuses and rapes his victim. In extreme cases, and in instances when the rapist's fantasies of torture and abuse have escalated with each repetition of the actual act of rape, the risks increase for the rapist's sexual activities to result in murder. The sadistic rapist may intersperse his repetitive acts of sexual assault with consensual sexual relations, giving him the appearance of possessing a psychological profile characteristic of a man with "normal" behavior.
If a victim is above the age of 18, he or she is not mandated to make a formal report of sexual violence to law enforcement (mandatory reporting laws apply to instances when a child or a minor under the age of 18 is sexually abused or assaulted). There are advantages to making a formal report and disadvantages as well:
Advantages to Making a Formal Report:
Disadvantages to Making a Formal Report:
(Adapted from Surviving Rape and Sexual Assault in Douglas County, a publication provided by Douglas County Rape Victim-Survivor Service, Inc., Lawrence, KS, http://www.grapevine.net/~rvss , (785) 843-8985.)
Provided that the victim is above the age of 18 (the age limit varies from State-to-State with some States allowing persons as young as 12 to withhold consent to the rape exam) or is not classified as a "vulnerable adult" (an adult who is mentally impaired or otherwise unable or incapable of giving consent to the exam), it should always be his or her choice whether or not a formal report to law enforcement authorities is made in the aftermath of sexual violence. Advocates (and/or Sexual Assault Nurse Examiners (SANEs)) can and should assist victims by honestly and openly detailing the advantages and disadvantages to reporting, and then allowing the victim to choose the course of action desired. Advocates can be present during interviews with prosecutors and law enforcement if the victim wishes.
An advocate who wishes to encourage a victim to report might point out that the best time to make a report, from a legal perspective, is immediately after the assault, when evidence is still fresh and least likely to be compromised or contaminated. It may still be possible to file a formal report several days or even weeks following the assault if the victim wishes, although late reporting may be viewed by law enforcement and prosecution as foundation for the belief that the accusations of sexual violence are unfounded, and of course, evidence may be more difficult to obtain if the victim postpones reporting.
In some instances, a victim can file an anonymous report if allowed as acceptable by the reporting law enforcement agency. Anonymous reports allow victims to provide information to police without being identified. Such a report will not initiate investigation of the incident and the victim cannot access crime victim compensation funds for expenses incurred as a result of the sexual violence. However, the information about the assault is preserved in an official form and may be used by law enforcement to track statistics and other patterns of sexual assault.
(From Surviving Rape and Sexual Assault in Douglas County, a publication provided by Douglas County Rape Victim-Survivor Service, Inc., Lawrence, KS, http://www.grapevine.net/~rvss , (785) 843-8985.)
There are several important reasons for a victim of rape or sexual assault to seek medical attention in the aftermath of the victimization, including the need to:
(Surviving Rape and Sexual Assault in Douglas County, a publication provided by Douglas County Rape Victim-Survivor Service, Inc., Lawrence, KS, http://www.grapevine.net/~rvss , (785) 843-8985.)
Unfortunately, because traditional methods for medical exams of rape victims often only serve to further traumatize, humiliate or shame victims, many rape victims are reluctant to seek medical care or to report the crime. Specific problems encountered by victims seeking care in emergency departments have been noted as:
(Little, Kristin (April 2001). "Sexual Assault Nurse Examiner (SANE) Programs: Improving the Community Response to Sexual Assault Victims", OVC Bulletin. U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime.)
In response to these and other issues, the first Sexual Assault Nurse Examiner (SANE) programs were established in the late 1970's in Minneapolis, Minnesota, Memphis, Tennessee, and Amarillo, Texas. There are more than 300 SANE programs nationally today:
"The primary mission of a SANE program is to meet the needs of the sexual assault victim by providing immediate, compassionate, culturally sensitive, and comprehensive forensic evaluation and treatment by trained, professional nurse experts within the parameters of the individual's State Nurse Practice Act, the SANE standards of the IAFN, and the individual agency policies."
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN.)
National certification of SANE programs, or standardization of SANE training, has not currently been implemented and while SANEs are classified as "forensic nurses", not all forensic nurses qualify as SANEs. However, SANEs are registered nurses who have completed the training to qualify as a SANE. The training is conducted by an experienced SANE, possessing at least 2 years of SANE experience. (Some programs which also conduct evidentiary exams on domestic abuse and accident victims currently use the term Sexual Assault/Forensic Examiner (SAFE) or Forensic Nurse Examiner (FNE), rather than SANE, since their proficiencies move beyond the limit of exams for sexual assault victims.)
While it is felt that certification of SANEs is unnecessary to insure quality of service, certification may be desirable if licensing frees SANEs from having their credibility to testify in court challenged. It is interesting to note that as more and more SANE-examination cases are successfully prosecuted through to conviction, state and federal appellate courts have begun reviewing constitutional and evidentiary challenges by defendants. To date, however, these courts have rejected all defense challenges to convictions based on the testimony of SANEs.
The typical SANE program operates with a pool of nurses in order to provide 24/7 on-call service. Ideally, whenever a sexual assault victim presents his/herself to law enforcement authorities or hospital staff, the on-call SANE is automatically paged. At the same time, an advocate may also be paged if the community's SANE program operates in that manner. The SANE will respond to the call within one hour.
Meanwhile, in the time between the page to the SANE and the SANE's response to the call, emergency department staff determine whether or not the victim requires emergency medical care. Since serious injury occurs in less than 4% of rape victims, the victim will not normally require emergency care and the hospital staff should make the victim comfortable in a private room. Again, ideally, if the sexual assault did not involve oral sex, the victim is offered something to eat or drink while she waits for the SANE's arrival. The victim can make an initial report on the assault to law enforcement during this time if she chooses to report, or she may expect to receive compassionate care if she wishes from the hospital chaplain or social worker if one is available on-site.
The rape/sexual assault victim has the right to privacy and should always be afforded an opportunity to provide initial information about the assault to advocates, law enforcement and medical care professionals in privacy, away from the ears of strangers and even friends and family members who might be present in the hospital waiting room or police station. The victim also has the right and authority to request complete privacy in the medical examining room, with the effect that the victim may request all but the necessary medical personnel to leave the room. The victim may, however, choose to have a friend, family member or advocate with her both before and during the exam, at her discretion. (Surviving Rape and Sexual Assault in Douglas County, a publication provided by Douglas County Rape Victim-Survivor Service, Inc., Lawrence, KS, http://www.grapevine.net/~rvss , (785) 843-8985.)
Besides performing the forensic exam, the SANE has the further responsibility of advising the victim about the advantages and disadvantages of reporting the sexual violence to law enforcement. If the victim does not want to report immediately, but feels uncertain as to whether or not she might want to file a formal report at a later date, the SANE will explain the limitations of making a report at a later date and she will offer to complete an evidentiary exam kit that can be held for a specified time in a locked refrigerator should the victim later change her mind and decide to report.
Progressive and forward-thinking communities are also organizing Sexual Assault Response/Resource Team(s) (SART) to respond to sexual violence crimes. The SART most often is composed of members of law enforcement, the SANE, and a rape advocate, but may also include other community members in some models, including for instance, a school counselor (for the occasions when a child is victimized), a domestic violence advocate, or members of clergy and other counselors. Where SART coordinated efforts are available, there is an added advantage to victims who choose to report in that all members of the SART are present when the victim makes her initial statement. As a result, the victim will usually only have to give her account of the crime once, rather than several times.
While SANEs provide compassionate care to rape survivors, the SANE is not a sexual assault advocate, making the SART the ideal form of community response. Sexual assault advocates not only provide victim support, but advocates also have typically undergone specialized training, and possess specialized experience in accessing program resources on behalf of victims. The sexual assault advocate ensures continuity of care from the emergency room process through the process of healing and recovery.
Some of the benefits of having a SANE program are:
(Ledray, Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN; and Little, Kristin (April 2001). "Sexual Assault Nurse Examiner (SANE) Programs: Improving the Community Response to Sexual Assault Victims", OVC Bulletin. U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime.)
In the Sexual Assault Nurse Examiner (SANE) Development and Operation Guide, Dr. Ledray also noted that:
"In a study comparing 24 sexual assault evidence kits collected by SANEs to 73 collected by non-SANEs, the SANE kits were overall better documented and more complete, and the SANEs always maintained proper chain-of-evidence, whereas the others did not. Thirteen (13%) of the kits completed by non-SANEs either had no indication of who had collected the evidence or the records were illegible, thus making the available evidence useless. Overall 48% of the non-SANE kits had some break in the chain-of-evidence compared to none of the rape kits collected by SANEs.
In one community where thousands of rape cases have been completed by SANEs, not one case in which the testimony was given by the SANE alone ever required the prosecutor to subpoena the ED physician to testify about the evidence collected (Ledray & Simmelink: 97). When the physician is called to testify, it has always been about injuries that were treated."
(Ledray Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN; and Ledray, Linda E. and Simmelink, K. (2/1997). "Sexual Assault: Clinical Issues: Efficacy of SANE Evidence Collection". A Minnesota study. Journal of Emergency Nursing, 23:1.)
(The following information was excerpted and adapted from: Ledray Linda E., Ph.D., RN, FAAN. Sexual Assault Nurse Examiner (SANE) Development and Operation Guide. Sexual Assault Resource Service, Minneapolis, MN.)
SANE training programs involve numerous issues and do not focus solely on the evidentiary exam, but include topics that will provide effective, competent care to the "whole" person as a victim of sexual assault.
Typically, SANE training programs involve the following topics:
Specific components of the training programs for SANEs include:
Programmatic--
Medical--
Legal--
Forensic practices and procedures--
Psychological--
Obviously, an adequately trained SANE will aid a sexual violence victim by performing many inter-related tasks targeted at helping the victim to recover from the assault mentally, physically and emotionally, while also helping the criminal justice system with the evidence necessary to arrest and if possible, convict the assaulter.
There are four primary uses of the evidence collected by the SANE during an evidentiary exam:
Prior to the exam, the SANE will request the victim provide written consent to perform the exam. The SANE must receive written consent from the victim to perform any of the following:
Once the written consent for these activities has been obtained, the SANE will ask a number of routine questions about the victim's medical history, such as questions about allergies, the last date of the victim's menstrual cycle and the victim's current pregnancy status. The SANE will also ask the victim to recount the assault for the purpose of identifying what type of sexual violence occurred, which orifices of the body were affected, and whether or not penetration occurred and if so, with what.
After the victim has completed the routine, verbal portion of the exam, then the SANE will begin to collect physical evidence of the assault. Evidence collected will probably include:
Some SANE programs also include crisis intervention, mental health assessment and referral for follow-up counseling as an integral component of the overall program. Of course, upon the arrival of a rape victim at the clinic or hospital, medical staff will triage to evaluate the victim for injuries and any injuries requiring immediate treatment will be treated prior to the SANE exam. However, should the SANE determine that a rape victim has a condition such as pregnancy or extensive genital trauma, the SANE will refer the victim to a physician and ask the physician to further evaluate the victim prior to discharge.
Most community social service programs have historically treated the abuse of a woman and the abuse of a child in the same family as separate issues, having little or nothing to do with each other, although all research on the subject provides ample evidence that in families where the mother is abused, the children are probably abused as well. Each year an estimated 3.3 million children witness domestic violence perpetrated against their mother or female caretaker. Approximately 90% of children are aware of the violence directed at their mother and in an estimated 1/2 of the homes where police intervene in domestic violence, children are present (Kraizer, (1991) Domestic Violence Intervention Services, Inc./National Woman Abuse Prevention Project).
Domestic violence and child abuse and neglect co-occur in an estimated 30-60% of abuse cases. In fact, children in homes where domestic violence occurs are physically abused or seriously neglected at a rate of 1500% higher than the national average in the general population.
Many experts today opine that violent behavior in adolescents and youth is fundamentally linked to abuse and neglect in the first two years of life. Though only 8% of the population, juveniles aged 14-to-24 are responsible for 14% of all violent crimes, 50% of all murders, and 25% of all property crimes, as well as a majority of all arson arrests. Children are the fastest growing segment of the criminal population (Karr-Morse, Robin and Meredith Wiley (1998). Ghosts from the Nursery: Tracing the Roots of Violence. Atlantic Monthly Press.) Approximately 63% of all juveniles in jail for homicide have been charged with the murder of an abusive parent (Department of Justice, Bureau of Justice Statistics).
Some studies have revealed that as many as 69% of adolescents who were neglected or abused as children reported involvement in violence as compared to 56% of those youth who did not report maltreatment as children. The conclusion drawn was that a history of maltreatment increases the chances of youth violence by 24%. Another independent study revealed that 70% of youth who grew up in families where domestic violence was present self-reported violent delinquency, compared to 49% of youth who grew up in families without this type of conflict.
It was also determined that while 38% of the youngsters from non-violent families reported involvement in violent delinquency, this rate increased to 60% for youngsters whose family engaged in one of the three forms of violence identified (i.e., generalized conflict or hostility in the family, maltreatment of children in the family unit, and domestic violence between the parents or adult intimate partners in the family unit), to 73% for those exposed to two forms of family violence, and further increased to 78% for adolescents exposed to all three forms of family violence. (Woody, Dale Lee, M.H.R. W.I.S.H. Safe Homes for Sound Futures. Presented at the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment). Statistics from Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, OJP, Fact Sheet 21, authored by Terrence P. Thornberry, 12/1994.)
Dating violence, too, is reported at an increasing rate in contemporary society, with adolescents as young as 12 reporting dating violence. It is estimated that about 2% of all students in grades 8 through 12 experience date-related violence, and those who do are more likely to have other health risk factors. Overall, 1.6% of girls and .5% of boys reported that their last "fight" was with a date. Of those who reported dating violence, 76% were female and 24% were male. ("Date Violence Reported as Early as Eighth Grade". Comanche County - The Chronicle newspaper, 12/9/1999, pg. 7.)
Some studies reflect that violence occurs in 20% of dating relationships (American Psychological Association, "Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family (1996), pg. 10.) Other studies estimate that, on average, 28% of high school and college students experience dating violence at some point in the relationship, with 26% of pregnant teens reporting being physically abused by their boyfriend (Brustin, S., "Legal Response to Teen Dating Violence", Family Law Quarterly, volume 29, no. 2, 331, 333-334 (Summer 1995) (citing Levy, "In Love and In Danger: A Teen's Guide to Breaking Free of an Abusive Relationship (1993), and Worcester, "A More Hidden Crime: Adolescent Battered Women", The Network News, July/August, national Women's Health Network (1993).).
Of the batterers, 25-33% of adolescent abusers reported that their violence served to "intimidate", "frighten" or "force the other person to give me something" (Brustin, S., "Legal Response to Teen Dating Violence", Family Law Quarterly, vol. 29, no. 2, 335 (Summer 1995).).
Other data on children:
(Children's Defense Fund, State of America's Children Yearbook, 1996 and 1997.)
Scientific researchers are finding evidence that trauma, neglect, or physical and/or sexual abuse has severe effects on a child's developing brain. Physiological reactions to threats and physical trauma often result in an imbalance of cortisol in the brain, which in turn leads to damage in the region of the brain known as the "hippocampus". Brain damage to the hippocampus results in memory lapses, anxiety and an inability to control emotional outbursts. (Woody, Dale Lee, M.H.R. "The Biology of Soul Murder", presented at the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment). Workshop derived from an article authored by Shannon Brownlee entitled "The Brain and Learning", a publication of the Association for Supervision and Curriculum Development, 1998.)
Also, many brain abnormalities seen in abused and neglected children are localized in the brain's left hemisphere, where language and logical thought are processed. In abused children, the left hemisphere of the brain has fewer nerve-cell connections between different areas and the electrical traces revealed that tiny seizures, similar to those of epileptics, crackle through various sectors of abused childrens' brains. Children with the most abnormal recordings were the most likely to be self-destructive or aggressive. (Woody, Dale Lee, M.H.R. "The Biology of Soul Murder", presented at the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment). From research of Dr. Martin Telcher at McLean Hospital, Belmont, MA.)
Children from abusive homes are also at higher risk for cognitive or language problems, developmental delay, stress-related physical illnesses (i.e., headaches, ulcers, rashes, bedwetting, insomnia, phobias), and hearing or speech problems. Abused children often have elevated resting heart rates, temperature and blood pressure. As many as half of children from some violent neighborhoods show symptoms of Attention Deficit Hyperactivity Disorder (ADHD), compared with about 6% of the general population (Brownlee/Telcher). The abused child's brain has become so tuned to emotional and physical cues from other people that he may be failing to develop problem solving and language skills.
In one study group, psychiatrist Bruce Perry found that the cortex, or "thinking" part of the brain, was on average 20% smaller in neglected children than in the control group of children who had not been abused. (Woody, Dale Lee, M.H.R. "The Biology of Soul Murder", presented at the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment). From research of Dr. Bruce Perry, Texas Children's Hospital and Baylor College of Medicine, Houston, TX.) Additionally, neglected and abused children run a higher risk of developing mental illnesses.
Clearly fear, evoked from whatever source, causes significant, permanent chemical and structural changes in a child's brain. Researchers do not know how much (or if) mentoring, loving relationships reverse the damage done to the brain of children of abuse. According to Dr. Martin Telcher, children of abuse are less likely to live up to their economic potential, and are more likely to end up in prison, on drugs or in psychiatric units. As Dr. Telcher commented, "The cost to society of having a child who has gone through abuse is enormous."
Other experts in the field argue that research in this area has not been conclusive:
"[These] documented harmful effects to child development have led many to conclude that if a child resides in a home where domestic violence is occurring, the child is in immediate danger and requires child protection services. Research in this area is still in its infancy, however, and a large percentage of child witnesses in these studies did not show elevated levels of developmental problems. The impact of witnessing violence on children is moderated by a number of factors, with some children showing great resilience in the face of adversity. Each child's response to domestic violence, therefore, should be assessed carefully, and harm established clearly, before agencies and courts determine which interventions are required."
(Schechter, Susan, and Jeffrey L. Edleson, et al. (1998). Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice. Recommendations from The National Council of Juvenile and Family Court Judges, Family Violence Department.)
Yet many psychologists and other experts on children argue that the psychiatric consequences of witnessing violence at home can be the same as experiencing direct abuse (Victim Services 1991). Some of the emotional effects of domestic violence on children include:
In infants and toddlers, the psychological effects of witnessing or experiencing abuse manifest themselves through emotional withdrawal, low frustration tolerance, failure to thrive and developmental delays. Pre-schoolers exhibit the same effects, but in addition also exhibit emotional withdrawal, inappropriate displays of emotions, and an inability to play constructively with other children.
By school age, children from abusive homes frequently exhibit signs of scholastic delay and underachievement. Behavioral problems include aggressive "acting out" as the violent behavior in the home is emulated, particularly with male children. The child is commonly withdrawn, depressed, despondent, or has chronic physical complaints (headaches, stomach aches) and suffers from low self-esteem. Often, school age children from abusive homes suffer nightmares or night "terrors", although these experiences may be kept secret to protect the family's greater secret of violence in the home.
There is evidence that indicates children from abusive homes, after the age of 5 or 6, begin to "identify" with the abuser and lose respect for the victim. For example, the child may begin to express feelings, such as: "If she would/wouldn't do this or that, he wouldn't lose his temper and hit her" or, "why does she have to be so weak? Why doesn't she stand up to him?"
Adolescent children of abuse between the ages of twelve and seventeen exhibit the culmination of their years in a violent household. Common effects include:
Children who witness domestic violence often have no "safe space" and no place to turn to for emotional shelter because the parent who they rely on for comfort and protection is herself threatened, or is herself threatening. Some studies on the subject conclude that abused women often have difficulty nurturing or caring for their children. "The stress of avoiding, experiencing and then (while in the relationship) recovering from physical abuse and suffering from ongoing psychological trauma affects the ability of a mother to be a good parent" (Crites and Coker 1988).
Psychologist Lenore Walker's 1985 study revealed that mothers were approximately eight times more likely to abuse their children when they were being abused themselves. (In almost 100% of the cases where the mother abused the children, the abuse ceased once the violent male/female adult relationship ended.)
Additionally, the abused parent, being a victim of violence in the home, may have also developed substance abuse habits as the result of the violence, or she may be suffering from depression and other psychological complaints that lead to suicide attempts. Studies reveal a high prevalence of trauma histories among individuals currently receiving mental health treatment. Nevertheless, few public mental health hospitals and agencies employ effective assessment tools or treatment services for the victim of traumatic sexual, emotional or physical abuse.
For instance, children who have been exposed to a parents' attempted suicide or who have witnessed the rape or sexual assault of their mother, sister or other close relative as a result of the violence in the home, experience post-traumatic stress disorder (PTSD) comparable to that experienced by children who have themselves been directly assaulted. But women who have experienced childhood sexual, emotional and/or physical abuse rarely fit into existing treatment plans for trauma recovery and are often overlooked by healthcare practitioners and assessment tools that are too general in phraseology, or that do not specifically address the types of trauma the victims may have been affected by. As a result, these victims are unable to access appropriate resources for healing and thus remain at risk for more abuse.
According to Pagelow (1984): "Victims of all types of family violence share a common experience of denigration of self that results in diminished self-esteem. The shame and feeling of worthlessness so often expressed by battered women is shared by maltreated children as well as maltreated elderly parents."
Long-term psychological impairments that are common to victims of abuse include depression, suicidal feelings, self-contempt and an inability to trust or to develop intimate relationships after escaping the battering relationship (Finklehor, 1983). Victims of severe and repeated episodes of traumatic violence often have "anger issues" in the aftermath of the violent relationship. These people have difficulty regulating their emotions. The consequences may be revealed in future relationships--including interpersonal relationships of a romantic or platonic nature and employment relationships--any or all of which may be short and stormy (Herman 1992; Kluft 1990).
On a positive note: While children who witness violence (particularly male children) are approximately 1,000 times as likely to use violence in their own intimate relationships as adults or juveniles, at the same time, 25% of men who grow up in an abusive home choose non-violent lifestyles. (Bishops' Committee on Marriage and Family Life; Bishops' Committee on Women in Society and in the Church, affirmed by the NCCB/USCC General Membership, November 1992, National Conference of Bishops; and reprinted as "When I Call for Help: A Pastoral Response to Domestic Violence Against Women", in Family Violence and Religion, an Interfaith Resource Guide compiled by the staff of Volcano Press, copyright 1995.)
Statistics reveal that children raised in violent homes are 74% more likely to engage in some type of violent behavior. Children from violent homes have higher risks of alcohol and/or drug dependencies, and higher risks for juvenile delinquency.
Some of these facts can be better understood if one examines all the factors contributing to these dynamics. For instance, women are the fastest growing segment of the prison population. Yet, they are also the least violent. Most incarcerations of female prisoners involve some type of drug-related offense and a large percentage of these offenses are "non-violent". On average, however, women are more likely to serve longer sentences than their male counterparts. Approximately 7,000,000 children today have an incarcerated parent in the prison population of the U.S. (Shapiro, Carol (6/1999), La Bodega de la Familia, New York, New York. From a speech presented at SAMHSA's 2nd National Conference on Women, Los Angeles, California.)
An estimated half a million children are in out-of-home care in the U.S and that figure is rising annually. It is estimated that 300,000 to 400,000 of the estimated 1/2 million children are in out-of-home care as a result of alcohol and other drug-related problems in the family. However, only about 1% of the Temporary Assistance to Needy Families (TANF) caseload is referred to treatment for addiction problems.
For children in foster care, TANF criterion specifies that permanent plans for children must be established by the 12th month of out-of-home care. Parental rights will be terminated if the child has been in out-of-home care for 15 of 22 months. A parent in substance abuse treatment may find these timetables difficult to work within, but few substance abuse treatment programs allow children to enter the program with the parent receiving treatment.
In a study specific to New York City, it was determined that approximately 40% of the children in New York's foster care system are there as a result of domestic violence (Victim Services 1991). Of U.S. children who are not in foster care, approximately 8.3 million live with at least one parent who abuses alcohol or drugs, and in circumstances where family violence may or may not play a role in the substance abuse taking place in the home. These children have poorer physical, intellectual, social and emotional development than other children and are at risk for becoming substance abusers themselves.
The Better Homes Fund and Harvard Medical School's longitudinal study of homeless families in Massachusetts, concluded that homeless families comprise almost 40% of the overall homeless population in the U.S., with an estimated 1,000,000 children sleeping homeless at night. By age eight, it is estimated that approximately 1/3 of homeless children have developed mental disorders, but less than 1/3 of that number receive any kind of treatment.
Approximately 20% of these children do not attend school. They rarely have enough to eat, and often develop acute or chronic illnesses, such as asthma. Of the women in the study, 92% had experienced violent victimization at some point in their lives. The states with the highest risk factors in the study were identified as Louisiana, Michigan, West Virginia, Georgia and Oklahoma. (Bassuk, Ellen, M.D. (6/1999), The Better Homes Fund, Newton, Massachusetts. From a speech presented at SAMHSA's 2nd National Conference on Women, Los Angeles, California.)
A major study of more than 900 children at battered women's shelters found that nearly 70% of the children were themselves victims of physical abuse or neglect. Nearly half of the children had been physically or sexually abused. 5% had been hospitalized due to the abuse. However, only 20% had been identified and served by Child Protective Services prior to coming to the shelter. (National Woman Abuse Prevention Project: Fact Sheets Family Violence an Overview--U.S. Department of Health and Human Services)
Statistics specific to Oklahoma reflect that Oklahoma ranks 10th in the nation in childhood hunger. Preliminary year 2000 census data indicated there were as many as 140,000 homeless persons in the State. Nationwide, some studies indicate that domestic violence is directly responsible for approximately 21% of currently homeless families.
The following was excerpted from a story of Cochiti origin:
Crow had been sitting on the eggs in her nest for many days, and she got tired of it and flew away. Hawk came by and found nobody on the nest. Hawk said to herself, "The person who owns this nest must no longer care for it. What a shame for those poor little eggs! I will sit on them, and they will be my children." She sat for many days on the eggs and finally they began to hatch. Still no Crow came. The little ones all hatched out and the mother Hawk flew about getting food for them. They grew bigger and bigger and their wings got strong, and at last it was time for the mother Hawk to take them off the nest
After all this while, Crow finally remembered her nest. When she came back to it she found the eggs hatched and Hawk taking care of her little ones.
"Hawk!"
"What is it?"
"You must return these little ones you are leading around."
"Why?"
"Because they are mine."
Hawk said, "Yes, you laid the eggs, but you had no pity on the poor things. You went off and left them. I came and sat on the nest and hatched them. When they were hatched, I fed them, and now I lead them about. They are mine and I won't return them."
Crow said, "I shall take them back."
"No, you won't! I worked for them, and for many days I fasted, sitting there on the eggs. In all that time you didn't come near them. Why is it now, when I've taken care of them and brought them up, that you want them back?"
Crow said to the little ones, "My children, come with me. I am your mother."
But the little ones said they did not know her. "Hawk is our mother." At last when she couldn't make them come with her, she said, "Very well, I'll take Hawk to court, and we shall see who has the right to these children."
So Mother Crow took Mother Hawk before the king of the birds. Eagle said to Crow, "Why did you leave your nest?" Crow hung her head and had no answer to that. But she said, "When I came back to my nest, I found my eggs already hatched and Hawk taking charge of the little ones. I have come to ask that Hawk return the children to me."
Eagle said to Mother Hawk, "How did you find this nest of eggs?"
"Many times I went to it and found it empty. No one came for a long time, and at last I had pity upon the poor little eggs. I said to myself, 'The mother who made this nest can no longer care for these eggs. I would be glad to hatch the little ones.' I sat on them and they hatched. Then I went about getting food for them. I worked hard and brought them up and they have grown."
Mother Crow interrupted Mother Hawk and said, "But they're my children. I laid the eggs!"
"It's not your turn. We are both asking for justice, and it will be given to us. Wait till I have spoken."
Eagle said to Mother Hawk, "Is that all?"
"Yes, I have worked hard to raise my two little ones. Just when they were grown, Mother Crow came and asked to have them back again, but I won't give them back. It is I who fasted and worked, and they are now mine."
The king of the birds said to Mother Crow, "If you really had pity on your little ones, why did you leave the nest for so many days? And why are you demanding to have them now? Mother Hawk is the mother of the little ones, for she has fasted and hatched them, and flown about searching for their food. Now they are her children."
Mother Crow said to the king of the birds, "King, you should ask the little ones which mother they choose to follow. They know enough to know which one to take."
So the king said to the little ones, "Which mother will you choose?"
Both answered together, "Mother Hawk is our mother. She's all the mother we know."
Crow cried, "No, I'm your only mother!"
The little Crow children said, "In the nest you had no pity on us; you left us. Mother Hawk hatched us, and she is our mother."
So it was finally settled as the little ones had said: they were the children of Mother Hawk, who had had pity on them in the nest and brought them up.
Mother Crow began to weep. The king said to her, "Don't cry. It's your own fault. This is the final decision of the king of the birds." So Mother Crow lost her children.
(Erdoes, Richard and Alfonso Ortiz (1984), American Indian Myths and Legends, pg. 417-418, Pantheon Books, New York.)
Statistics reveal that a large percentage of the 2,475,956 American Indians/Alaska Natives in the U.S. today (April 2000 census figures) are under the age of 25, with the highest risk group for violence among American Indian people being persons between the ages of 18 and 24. The same statistics reflect that 1 in 4 Native Americans of that age group will become the victim of violence each year. Indeed, between the years 1992 and 1998, assaults on Indian children were perpetrated at twice the rate for all other children in the national population. An estimated 40-70% of Indian youth are high school drop-outs and the suicide rate for Indian children is two-to-six times the national average (Flynn, Justice Department's Bureau of Justice Statistics as reported in Oklahoma Indian Times, 3/1999 issue).
Among Indian families, influence from non-Indian cultures and lifestyles, so visible through television, motion pictures and the surrounding behavior and activities of classmates and friends in the dominant society, have eroded the authority of parents to discipline their children through traditional Native methods, to provide guidance and instill the cultural values. Increased mobility of tribal members has also led to a breakdown of the extended traditional Native American family. With the introduction of gangs as a replacement for the extended family of young people, traditional values are increasingly threatened and diminished. Values that promote the pursuit of individual happiness and success, instead of communal harmony over personal happiness have likewise weakened the extended family and increased the incidence of intra-familial violence and gang violence.
Studies have shown that teenagers 15-years-old and up tend to reflect the values, attitudes and prejudices influenced by their parents or the mentoring "adult" models in the group they most closely identify with as "family". The environment created by "family" is a training ground for young people who look to older family members and parents to model what feelings may be acceptably expressed and how, and what concepts and values are acceptable. More often than not, a young person will mirror his or her parents' attitudes and convictions concerning spirituality, gender role definition, politics, employment, education, conflict resolution, material gain, racial or ethnic superiority, etc. (or the mentoring adult's attitudes and convictions if the role model is an older sibling or gang member).
Robert Black Wolf, Director of the Crime and Drug Elimination Program of the Kiowa Housing Authority, Anadarko, Oklahoma, describes five key institutions common to all cultures and people as being:
Each of these key institutions determines how an individual's personality will develop. In the life of most Native American families, for example, spirituality plays an important role. Indian people often describe themselves in terms of not merely physical existence, but as individuals whose physical and spiritual selves are so tightly interwoven as to be inextricably connected.
According to Mr. Black Wolf:
"In fact, the primary reason for a person's behavior may be traced to one of these institutional systems. To change his behavior it may be necessary to change the institution. In this instance, the outer forces may take precedence over the inner forces."
(Black Wolf, Robert M. (2/22/1999). "Native American Healing Methodologies: An Alternative in Substance Abuse". Private paper to Southern Nazarene University, Dr. Ken Pearce, excerpted here with permission by the author.)
Even in nurturing families with the best adult/child mentoring relationships, children can be influenced by circumstances and outside factors to make poor choices or react in ways that will negatively impact their future. For instance, in contemporary homes where both parents work--or more typically, where only one parent is present, children "grow up" fast. But while unsupervised or inappropriately supervised children may be expected to make mature judgments regarding life choices, in reality, young people are too often ill-equipped and unprepared to determine which choices are right for them. The six-year-old with her own house key has not actually "grown up fast", but is facing circumstances that are beyond her experience and ability to manage in a mature fashion, thus placing her at high risk of physical and/or sexual abuse, as well as substance abuse and addiction, teenage pregnancy and gang-related offenses.
When our children grow up without a stable environment, or with television providing the key direction for personality and moral development, a young person is unlikely to reach adolescence with the values the overworked and stressed parent desired to impart. Consequently, the young person's definition of sex may come from a peer who is as confused or more confused than they are. The young person may join a gang to find inclusion in a group that represents some concept, however misplaced and distorted, of family. In an effort to prove she is an adult, or to create the family she never had or misses, she may become a statistic of teenage pregnancy, thus perpetuating the pattern of dysfunction in the life of both herself and her offspring. (Four of every 10 American females will become pregnant before the age of 20. Approximately 80% of teen mothers will require welfare assistance. From "U.S. Teen Pregnancy Rate Leads Developed World". Comanche County - The Chronicle newspaper, 2/17/200, pg. 5.)
Most substance abuse counselors agree that people are becoming alcoholics or drug addicted at younger ages than substance abusers of the mid-to-late 1900's. Most also agree that there is a significant relationship between substance abuse and ethnic background. Likewise, physical development, environmental and circumstantial factors are likely to contribute to substance abuse addiction. For example, children who grow up in conditions of poverty commonly experience feelings of insecurity and anxiety, which may influence personality development in a negative way, making the individual more susceptible to accepting the use of a substance that will allow for escape from reality, acceptance by a peer group, or for emotional and/or physical pain to be dulled.
Since mind-altering chemicals temporarily provide relief from depression and anxiety, many teens turn to substance abuse to overcome low self-esteem or to "fit in" with other youth. According to some statistics, at least 50% of teens have, by their senior year in high school, experimented with marijuana or other drugs. 1/3 of all teenagers between the ages of 14 and 18 consume alcohol once a week. Alcohol kills six times more young people than all illegal drugs combined and the earlier the onset of alcohol use, the greater the risk of abuse of other drugs.
Also, a recent study prepared by the National Center on Addiction and Substance Abuse at Columbia University indicates that adolescents who reside in small towns or in rural areas are more likely than their peers in urban centers to have used drugs. The study revealed that 8th graders in rural America are 104% likelier than those in big cities to use amphetamines, including methamphetamines, and 50% likelier to use cocaine. 8th graders in rural areas are 83% more likely to use crack cocaine, according to the Columbia University study, and 34% more likely to smoke marijuana than their urban counterparts. ("Survey Shows Rural Teens Use Drugs More Often". Comanche County - The Chronicle newspaper, 2/3/2000, pg. 12.)
While recent studies have demonstrated that peer influence is often the main reason that youth use drugs, the same studies also reveal that positive family influence is the primary reason youth don't turn to drugs. These studies support the theory that family communication of positive values and expectations will help steer children away from substance abuse, gang participation, and will even promote in our children the desire not to perpetuate the cycle of family violence.
Among traditional American Indian people of the 1800's and early 1900's, it could be argued that the cradleboard was a most effective "anger management" training tool. By pre-school age, children who grew from infancy to toddler age on the cradleboard had learned patience and self-control while being nurtured and lovingly cared for. With these first lessons in life so carefully ingrained in the child, the child was prepared to receive and accept further lessons about inter-personal relationships between the child and his siblings, the child and other children, and the child and adults. These lessons fostered the development of value systems in a child which made him or her a functioning and valued member of tribal society.
For instance, an Indian mother might teach her child about friendship while tanning a hide by saying, "This hide is green and stiff right now, kind of like your friendship with that boy. If I work this hide too hard while it's green and stiff--if I rough it up or don't have patience with it--then this hide will break and I won't be able to repair it. But if I have patience and take my time with this green hide--if I don't get in a hurry, but go slow with it and handle it gently, then in time, this hide will become soft and good to be near. Then, if I accidentally treat it rough, it won't break beyond repair. It may get a tear in it, but a tear in a soft hide can be mended. The same is true of your friendships. Don't tease another child too harshly or treat him roughly. Have patience with your friendships and in time, you'll know each other well. The friendship will become soft, like this hide will become soft, and if something happens to tear the friendship a little, it won't be destroyed. You'll be able to mend it."
By adulthood, an Indian youth was prepared to enter into the life of the Tribe in a harmonious, tolerant way. Tribal societies were (and still are) rather public--tipi walls were not so thick that sounds did not carry to the outside, and public shouting and arguments would have been embarrassing to those involved in the argument, and equally disapproved by the community-at-large. Among many tribes, a person who could not control his/her anger, or who was prone to emotional outbursts, was looked down upon as impolite, foolish and unworthy of respect. The cradleboard experience prepared a child in infancy to give and receive--and to earn--respect.
Some statistics state that one out of every three girls and one out of every seven boys is sexually abused by a family member or family friend. (Eilts, Mitzi. "Breaking the Silence: A Biblical Reflection". From Common Lot (Autumn 1990), p. 10. UCC Coordinating Center for Women, United Church of Christ, 700 Prospect Avenue, Cleveland, OH 44115. Reprinted in Family Violence and Religion, an Interfaith Resource Guide compiled by the Staff of Volcano Press, copyright 1995.)
According to the 1997 Bureau of Justice Statistics, teenagers report the highest per capita rates of exposure to rape and sexual assault. From data obtained from police records in three States, 44% of rape victims are under the age of 18. Victims younger than 12 accounted for 15% of those raped, and another 29% of rape victims were between 12 and 17.
In nearly 90% of the rapes of children younger than 12, the child knew the offender. In 43% of the cases involving the youngest victims--those beneath the age of 12--the victimization was perpetrated by a family member. Additionally, 25% of parent-child rapes result in major injury. Approximately 2/3 of the victims between 18 and 29 years old had a prior relationship with their rapist, but they were 7 times as likely to have been acquaintances (57%) as family members (8%).
Self-reports of convicted rape and sexual assault offenders serving prison terms indicate that 2/3 of such offenders had victims under the age of 18, and 58% of those said their victims were aged 12 or younger. 80% said their victim had been less than 18 years old. The median age of the victims of imprisoned sexual assaulters was less than 13 years old, whereas the median age of rape victims was about 22 years old. Research also reflects that sexual assaulters were about 3 times as likely as all violent offenders and twice as likely as rapists to report that the victim had been a member of their own family. For 25% imprisoned sexual assaulters, the victim had been their own child or stepchild.
About 16% of arrested forcible rape offenders are juvenile. While sexual assault offenders are more likely than any other category of offenders to report having experienced physical or sexual abuse as a child, 2/3 of sexual assault offenders report they were never abused as a child. (Bureau of Justice Statistics. "Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault". Washington, D.C., Office of Justice Programs, U.S. Department of Justice, February 1997: NCJ-163392.)
According to some authorities, sexual harassment and "bullying" in public schools between children and pre-adolescent youth is increasing at an alarming rate. Sexual harassment is not generally something that a young girl has the emotional skills or maturity to cope with on her own, nor will she be able to stop the harassment on her own, so reports of this crime should be treated seriously and never taken lightly or shrugged off. School buses are prime locations for sexual bullying and harassment to take place.
Common types of harassment committed by boys against adolescent girls include:
Like any other type of sexual harassment, the overall effect of this type of sexual bullying on an adolescent or pre-teen girl is that the girl will usually feel threatened, frightened, and ashamed, as though she had "done something" to cause or precipitate the bullying, or as though she were to blame for the harassment.
The consequences of sexual assault or rape results in such severe trauma that few adults have the skills to cope with the subsequent pain, anger, fear and shame. Naturally, most adolescent victims are less equipped than adult victims to deal with these issues. The adolescent is developing a unique self-image that is shaped by dizzying physiological changes, sudden awareness of one's own sexuality as well as others, academic and social demands, the need to become independent of one's parents and the need to remain within "the safety of the nest".
Few teens ever report sexual assault to their parents and even fewer report to criminal justice authorities. Rather, the greater percentage of teen victims of this violent crime suffer in silence alone. The temptation to "escape" the painful memories of sexual assault or sexual abuse may lead adolescents into experimenting with drugs or alcohol, particularly when either adult or peer role models are known to use addictive substances. Too, adolescents often are tempted to use mind-altering chemicals to decrease feelings of loneliness and isolation--two emotions that are often consequences of sexual assault.
Because adolescents who have been sexually assaulted or abused generally do not have positive self-images and often do not feel that they can relate to other teens who have not experienced the same trauma, the temptation to use
mind-altering chemicals is particularly alluring. If the young person gives in to drug abuse as a means of denial to distance themselves from the pain of the trauma, then they may never find healing or recovery from the memories of the assault.
Without resolving the emotional issues related with sexual trauma, the youth cannot develop coping mechanisms, cannot identify character strengths, and cannot resolve ambivalent feelings about the past. In effect, their emotional and psychological growth is stunted. As adults, the chances are great that they will not be able to relate well to others or "connect" with other adults in mature relationships. The risk is also high that the youth will develop self-destructive patterns of substance abuse and become chemically dependent.
In fact, a high percentage of sexual assault victims become addicted to alcohol or other drugs. Many patients seeking treatment for substance abuse also admit to having been sexually abused at least once in their lifetime. 44% of all female patients at one drug treatment center in New York City reported having been incestuously abused.
For instance, in a recent study of rape victims conducted by the National Institute on Drug Abuse (NIDA), it was determined that victims below the age of 17 were more than 3 times as likely to have used marijuana, six times more likely to have used cocaine, and more than ten times as likely to have used drugs other than cocaine (Singleton, Pandora, (6/1999), Project AZUKA INC., Savannah, Georgia. From a speech delivered at the SAMHSA 2nd National Conference on Women, Los Angeles, California.)
In a study conducted by the University of Texas Health Science Center at San Antonio, the effect of childhood trauma on HIV risk behavior among drug-addicted women found that of the 300 women participating in the study, 60% reported having suffered some form of sexual abuse, 80% physical abuse and 70% physical and emotional neglect. Furthermore, the initiation age of cocaine, heroin and marijuana use for those categorized as abusers was much younger than for those who were not abusers, leading the researchers to conclude that drug abuse histories were an essential element in the development of HIV/AIDS interventions (Medrano, Martha A., M.D., M.P.H., University of Texas Health Science Center at San Antonio, Department of Psychiatry, San Antonio, Texas. From a speech presented at SAMHSA's 2nd National Conference on Women, Los Angeles, California).
Some tips for working with the young person who has suffered sexual abuse are:
Kathryn M. Turman, Acting Director of the Office for Victims of Crime, U.S. Department of Justice, Office of Justice Programs, recently stated in an OVC Bulletin that:
"The investigation and prosecution of child sexual abuse cases often present a jurisdictional maze. This confusion is the result of difficulty in determining jurisdiction combined with provisions for concurrent jurisdiction of certain cases for tribal and federal officials."
(Turman, Kathryn M., Acting Director. Office for Victims of Crime. OVC Bulletin, 12/05/2000. http://www.ojp.usdoj.gov/ovc. )
The jurisdictional difficulties Ms. Turman refers to have led the Justice Department to implement new multi-disciplinary, multi-jurisdictional and multi-agency approaches to prosecuting child victimization cases, especially in Indian Country. The Department of Justice has taken steps to employ a number of Assistant U.S. Attorneys to work in districts with large Indian populations and a Tribal Justice Office has been established. Additionally, an American Indian and Alaska Natives Office has been created in the Justice Department's Office of Justice Programs. It is hoped that these initiatives will serve to more effectively monitor program support and provide technical assistance to tribes (Turman, Kathryn M., Acting Director, OVC. OVC Bulletin, 12/05/2000.
The new initiatives were also enacted to improve investigation and prosecution of child sexual abuse cases across jurisdictional boundaries since under the Major Crimes Act, 18 U.S.C.S. 1153, certain criminal offenses may be subject to both federal and tribal jurisdiction concurrently. For instance, cases that involve a non-Indian perpetrator and a non-Indian victim are within State jurisdiction according to case law, but if the perpetrator is Indian, tribal agencies generally have jurisdiction.
Tribal courts may even have jurisdiction over a non-Indian if the offense committed is a civil infraction. For example, a tribal court can exclude a non-Indian from tribal lands in civil actions related to child sexual abuse allegations. Still, depending on the type of crime charged, federal agencies may also have jurisdiction since criminal jurisdiction over non-Indians rests solely with the federal government.
While a Tribal Court will have no jurisdiction over a case in which an Indian child is abused outside of "Indian Country", the court will have jurisdiction over a civil custody action involving the child if the child is an enrolled member of the tribe or is eligible for enrollment in the tribe through the Indian Child Welfare Act, 25 U.S.C.S. 1901-1963.
Because these issues blur the lines between jurisdictional responsibility, the possibility for interviewing a child victim of sexual abuse multiple times by multiple agencies exists:
"The lack of clear protocols among agencies that may have jurisdiction over crimes in Indian Country has also led to confusion among law enforcement and prosecutorial professionals over who is responsible for criminal investigation and prosecution. The determination of which agency has criminal jurisdiction (which includes investigative and prosecutorial responsibilities) over cases in Indian Country is influenced by several factors: where the crime occurred, the type of crime, the race of both the victim and the perpetrator, and statutes specifying Federal, State and Tribal jurisdiction over certain cases. The law enforcement agency that receives the initial report of the crime may assume the responsibility for determining criminal investigative jurisdiction." "Tribal police may be the first to respond to a suspected crime, while BIA criminal investigators may perform the actual criminal investigation. Hence, it is critical that the investigative roles be clarified and understood by each agency as well as by the affected parties (i.e., offender, victim, and the Tribal community). Some tribes have their own Tribal criminal investigators who perform the same duties as BIA criminal investigators. In addition, investigative responsibility for all serious
federal crimes rests with the FBI, regardless of where the crime occurred."
(Turman, Kathryn M., Acting Director. Office for Victims of Crime. OVC Bulletin, 12/05/2000. http://www.ojp.usdoj.gov/ovc. )
Ms. Turman suggests that the following scenario may happen frequently when different actors in the federal and tribal justice systems take steps to investigate and prosecute a child sexual abuse case in Indian Country:
Tribal police receive an after-hours report of alleged child sexual abuse. A tribal police officer responds to the crime scene and performs a preliminary investigation. The officer's initial investigation is reviewed by his or her superior and assigned to a BIA criminal investigator for further investigation. The case is also forwarded to the FBI. The BIA criminal investigator and tribal child protective services worker jointly interview the child and prepare their reports. The criminal investigator's report goes forward through the criminal justice system, and the child protective service worker's report goes through the civil court system. In processing the criminal case, the FBI agent may feel that further investigation needs to be undertaken, including additional interviews of the victim performed by either the agent or the criminal investigator. The case is presented to both the tribal prosecutor and the U.S. Attorney's office. One or both of theseprosecutors may feel that it is necessary to personally interview the child, perhaps to assess the child's ability to testify in court. The federal prosecutor may request additional information prior to making a prosecutorial decision. By the end of this scenario, the child could have been interviewed by six separate individuals in six or more separate interviews. Each individual has a legitimate interest in the case and the need to obtain specific information.
18 U.S.C. Section 1153 establishes federal jurisdiction for 16 major criminal offenses (including child sexual abuse) if the crime was allegedly committed by an Indian defendant. The General Crimes Act, 18 U.S.C. Section 1153, provides for federal criminal jurisdiction over a broader range of possible criminal actions involving interracial crimes in Indian Country. Other federal code that applies to child sex offense cases includes:
Victims of Child Abuse Act of 1990,
Subtitle D -- Federal Victims' Protections and Rights
Section 225. Child Victims' Rights:
(g) Use of multidisciplinary child abuse teams:
Indian Child Protection and Family Violence Prevention Act (Public Law 101-630)
Section 3210(d). Funds provided pursuant to this section may be used for:
U.S. Code: Title 18, Chapter 109A Offenses:
Special Federal Evidentiary Rules for Child Sexual Abuse Cases:
Special Rules and Statutes concerning Confidentiality:
18 U.S.C. 3509, Protection of Identity of Victim:
According to federal code, the term "sexual acts" is defined as:
Sexual contact includes over the clothes or direct touching of genitalia, groin, buttocks, inner thigh, or breasts, with the intent to harass/abuse or arouse/gratify sexual desire.
In Oklahoma, most sexual assault cases involve female children, of which approximately 65% are Caucasian and approximately 5% are Native American according to Arvo Mikkanen, Assistant U.S. Attorney and Special Assistant for Tribal Relations, U. S. Department of Justice, United States Attorney's Office, Western District of Oklahoma. These figures are consistent with the demographic population statistics for Oklahoma.
Mr. Mikkanen cites the following common misperceptions about child sexual abuse cases:
From his experience in prosecuting child sexual abuse cases in Indian Country, Mr. Mikkanen lists the following tips to aid in the prosecution of Indian Country Child Sexual Abuse cases in federal court:
According to Mr. Mikkanen, ideally, a child's statement, taken under proper conditions, together with an offender's confession and a medical interview by an acknowledged "expert" in child sexual abuse cases is needed to successfully prosecute. At least two of these three items is essential to a successful prosecution. The evidentiary issues he cites as necessary to the case as testimony that is admissible are:
The prosecutor can also help to ease the child's trauma while testifying in court by:
As presented in Benchbook for Tribal Courts on Domestic Violence Laws in Indian Country and Full Faith and Credit for Domestic Violence Protection Orders,State of North Dakota Attorney General's opinion of 10-23-95, Heidi Heitkamp, Attorney General, with Robert P. Bennett, Assistant Attorney General, and Seema Zeya, staff attorney for the Full Faith and Credit Project of the PCADV:
Custody:
Protection orders often contain provisions granting custody of the parties' minor children to the battered parent. Many civil protection order statutes include temporary custody as one form of available relief since, in the absence of a court order, abusers may threaten to take the children as a means to coerce reconciliation or to punish and control the battered parent. Temporary custody provisions within civil protection orders permit battered parents to avert the retaliatory taking of children and to enhance the safety of both the children and the battered parents. Similarly, visitation provisions are often included in protection orders to prevent any future threats or violence which might result from unprotected access or uncertainty about access arrangements (thus requiring that the victim to negotiate the terms and conditions of visitation arrangements with the batterer).
However, currently there is dispute about whether custody and visitation provisions in all protection orders are subject to the full faith and credit mandate of the VAWA. Some, including staff within the United States Department of Justice, have opined that such provisions are entitled to full faith and credit when issued for safety purposes within civil protection orders, but not when restraining orders are issued pursuant to custody and visitation matters filed in divorce proceedings. Other persons submit that the language of the statute explicitly exempts custody and support from the full faith and credit provision in the VAWA. Whichever position eventually prevails, attorneys and advocates for abused parents must address this potential problem when seeking relief under state or tribal protection codes.
The issue of whether custody awards in protection orders are entitled to interstate enforcement turns on three laws (Note from NAC: And a fourth law, the UCCJEA, recently adopted and discussed in the following pages): the Violence Against Women Act (VAWA), the Uniform Child Custody Jurisdiction Act (UCCJA), and the Parental Kidnapping Prevention Act (PKPA). Custody provisions within protection orders are entitled to interstate enforcement if they meet the jurisdictional requirements of the UCCJA and the PKPA, otherwise it may be difficult to obtain interstate enforcement.
Every state has adopted its own version of the UCCJA into state law. Under the UCCJA, there are four possible bases for a state to assert jurisdiction in a custody matter. The first basis is "home state" jurisdiction which is determined by where the child has lived for six (6) consecutive months immediately preceding the filing of the action or, if the child has been wrongfully removed from that state, it remains "home state" for one (1) year. The second is the state where the child and at least one contestant have "significant connections". This basis for jurisdiction, however, may only be invoked if it is in the best interests of the child. The third basis is "emergency jurisdiction" where the child is physically present in the state and is in need of protection from abuse, mistreatment or neglect. Finally, the fourth basis for jurisdiction is where the child is physically present and no other state has jurisdiction. The UCCJA holds "home state" and "significant connections" equal in terms of priority.
The PKPA is federal law, preempting the UCCJA in cases where laws of the issuing and enforcing states conflict. It applies to all interstate child custody cases and requires states to honor sister state's custody and visitation orders, provided they comply with the Act. Under the PKPA there are four bases for the state to assert jurisdiction. These are the same as under the UCCJA; however, the PKPA gives "home state" the highest priority. In other words, "significant connections" under the PKPA applies only if "home state" jurisdiction has been waived. Moreover, no other state may assert jurisdiction when another state has continuing jurisdiction under the PKPA.
Emergency jurisdiction may be confirmed in a non-issuing state, but only temporarily and only to protect endangered children. Some juvenile courts have asserted jurisdiction over children for purposes of protection under the state child protection codes when they conclude that a child who is within the state requires protection of the courts and child protective services in the state to which a parent has fled with the endangered child. The juvenile courts asserting such jurisdiction have articulated that the juvenile code of the asylum state prevails over the PKPA and state custody codes in both states.
In summary, a custody provision within a protection order may not always be easily enforced across state lines. A custody provision in a civil protection order is entitled to full faith and credit if it meets the jurisdictional requirements of the UCCJA and the PKPA. If, however, it does not comply with both laws, it may be difficult to enforce across state lines. Battered women and their attorneys need to be aware of these issues when seeking custody as part of the relief in a protection order.
Per Arvo Mikkanen, Assistant U.S. Attorney and Special Assistant for Tribal Relations, U. S. Department of Justice, United States Attorney's Office, Western District of Oklahoma, under the Indian Child Welfare Act, child custody is a federal decision and the State is mandated to uphold the federal decision of the Indian court. However, Section 2265 of Full Faith and Credit has not been definitively determined to cover child support and custody issues, but specifically excludes support and custody. Federal laws that may be examined in this event are those of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping and Prevention Act.
Recently, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been enacted by Congress to address specific problems with the original UCCJA. The UCCJEA, currently being promoted in many state legislatures for adoption, contains specific language to provide protection in domestic violence cases. These include:
The UCCJEA also states preference for the child's home state or the child's residence during the last six months, making or modifying the permanent custody decision. The act allows parties to be involved in telephone conferences between judges in the home state and the refuge state, gives courts in both states more power to obtain evidence from the other state, and provides that the temporary custody order in the refuge state can become permanent under some circumstances.
As of December 1999, the UCCJEA had been enacted in 15 states. New York's governor, however, vetoed the act.
(Lemon, Nancy (February/March 2000). "Release of Special Family Violence Issue". Domestic Violence Report, Volume 5, No. 3, pg. 42.)
According to some studies, fathers who batter mothers are twice as likely to seek sole physical custody of their children than are non-violent fathers (American Psychological Association, "Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family (1996), pg. 40.)
Native American Circle urges judiciary to presume that batterers are not fit to be the sole or joint custodian of children.It should be presumed that it is never in the best interest of a child to allow an abuser joint or sole custody of children. Such a presumption was unanimously passed by Congress in 1990 because it had been noted that too many batterers were able to present well in court and obtain custody of their children, and that too often, the courts minimized or rationalized the violence in the home and its impact on the children. Most states now require that courts consider evidence of domestic violence in making custody determinations. Whenever allowed by law, the abusing parent should:
Additionally, courts should deny overnight visitations when appropriate. Abusers who have threatened to kidnap their children should also be required to post bond to ensure the childrens' safe return.
Contrary to popular belief, most fathers who attempt to gain custody of their children do so successfully. Too often, this outcome is the product of a simple dynamic: the battered mother did not have access to legal counsel and did not know how to defend herself against the attorney of the batterer. Additionally, it may take the mother an intolerable length of time to provide the evidence to court officials that her abuser has threatened her and/or the children whose custody he seeks or has been granted, that the abuser has alienated the children from their mother, hidden assets from the mother, making it impossible for her to provide for the children, etc. Too, the recommendations for custody by child psychologists to courts often do not even take issues of domestic violence into account:
"Surveying psychologists from 39 states, researchers found that of the criteria used to make custody decisions, a history of domestic violence was seen as relevant by just 27.7% of respondents (Child Custody Evaluation Practices: A 1996 Survey of Psychologists. 30 (3) FAM.L.Q. 565 (1996), as cited in Joan Zorza, Domestic Violence Seldom Considered in Psychologists' Child Custody Recommendations. 2 Domestic Violence Report 65 (June/July 1997). This study's findings are shocking given that over forty states' statutes require judges to consider domestic violence in custody decisions. Particularly disturbing were the factors which custody evaluators did believe were more important than a history of abuse. 75% of the psychologists believed that sole or joint custody should not be granted to a parent who "alienate[s] the child from the other parent by negatively interpreting the other parent's behavior" (Zorza, Id. at 72). For psychologists without training in the dynamics of domestic violence, the abused parent's efforts to protect herself and her children could easily be misinterpreted as intentionally alienating the batterer-parent. This in spite of the American Psychological Association's determination that there exists no scientific basis for the theory of parental alienation syndrome (See 1 (6) Domestic Violence Reports 11, 12 (1996), as cited in Id). Surprisingly, just 54.7% stated they would recommend sole custody being given to the primary caretaker, while 25% weighed economic stability as a key factor (Id.). Clearly, it is the lawyer's responsibility to identify and engage psychologists who have received training regarding domestic violence and its adverse impact on children."
(Buel, Sarah M., J.D. (1998). The Impact of Domestic Violence on Children: Ten Practical Recommendations for Lawyers, Advocates, Judges, and Court Personnel. Reprinted in materials given to participants in the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment.)
Many feel that battered women are often re-victimized when our criminal justice systems prosecute on grounds that she failed to stop or prevent abuse inflicted on her children by her abusive intimate partner. Nevertheless, women are convicted of crimes or have their parental rights terminated on grounds of failing to protect their children every day. Child abuse statutes in approximately 48 states contain criminal penalties, and about 35 statutes define child abuse to include acts or omissions. Where child abuse statutes incorporate omissions into the definition, the parental duty to care or protect children is expressly identified.
In this hotly debated issue, many contest that the duty to protect must necessarily revolve around the mother's ability to protect. But in an estimated 50% of the households where there is child abuse, there is also spousal or intimate partner abuse.
While it may seem reasonable to expect an abused mother to leave her batterer or call for police assistance, those working within the crisis intervention field recognize that these expectations are far from reasonable. An abused woman who is accused of "allowing" her intimate partner to also abuse her child or children, has also been blamed for being a victim herself since the accuser has assumed that the woman possessed the power to protect her child, but simply failed to use it. One battered mother described the circumstances she endured:
"My three-month-old woke up in the middle of the night with an ear infection and temperature. My husband screamed, "Shut the baby up, I'm trying to sleep." I was trying to comfort her, but nothing worked. He got up, took her from my arms, and whacked her. She had a black- and-blue rear end. Now what should I do? I thought, "If I take her to the doctor, they'll take her away from me because I'm the mother and I allowed this." My husband told me, too, "No matter what you say, I'm going to tell them that you did it."
(Schechter, Susan, and Jeffrey L. Edleson, et al. (1998). Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice. Recommendations from The National Council of Juvenile and Family Court Judges, Family Violence Department.)
Too often, the battered woman's legitimate fear of her abusive partner is not taken into consideration by those who would prosecute her for child abuse, neglect or endangerment. If the woman's attempts to protect her child are found to be "lame", "poor" or "ineffectual and faulty", the mother who has suffered abuse may lose the custody of her children, serve a prison sentence for child abuse and/or neglect, and of course, suffer the indignity of being labeled a "bad mother". Additionally, if the mother cannot provide a paper trail to the court that demonstrates she has protested her abuse and the abuser's presence in her home, her tolerance of the abuse and the abuser may also be considered against her.
Abused women who take substantial steps to protect themselves and their children are apt to provoke worse violence and unlikely to obtain effective protection or intervention assistance. In her 1995 article on this issue, Jill Davis, J.D. of the Family Violence Project, National Council of Juvenile and Family Court Judges:
"A much higher duty of care seems to be imposed on the mothers than on the fathers. In the exercise of discretion involved with statutory interpretation, there are seemingly inconsistent outcomes in the prosecution of failure to protect cases. Where one court refuses to read more than the stated conduct into a statute, thereby reversing the non-participating father's conviction for child abuse, another court allows for broad interpretation of the statute to affirm the mother's conviction for failing to protect her child."
(Davis, Jill, J.D. (1995). The Family Violence Project, National Council of Juvenile and Family Court Judges, University of Nevada, Reno, State Justice Institute. Volume 1, No. 3, pg. 6.)
A safe mother is essential to the safety and well-being of children, but our courts often overlook the very real danger posed to both mother and child when the abused mother determines to remove herself and her child from a violent environment, or when an abused mother concludes that she cannot escape her abuser without greater risks to herself and her child and consequently, decides that to stay is safer than attempting to leave.
Again, the court system and all those involved with the system send the message that the victim has no excuse for remaining in a hostile environment, although the victim may very well understand that should she leave, the violence in her life will not cease, but will instead very probably escalate:
"'[a]n abused mother may remain in an abusive relationship because she believes leaving may place her and the children in a more dangerous position, which may be a rational choice given the circumstances. Or her attempts to stop the abuse of the children may have resulted in severe beatings to herself. However, the judge may not be aware of these circumstances, since under current practice the voice of the battered mother is often missing from child neglect proceedings. This is especially the case where the standard is strict liability, meaning that there is no defense allowed; this standard, which some states have adopted statutorily, 'requires the mother to do what society is incapable of doing'--i.e., stop the abuse or successfully remove herself and the children from it. Especially given the fact that domestic violence tends to escalate when the victim leaves, this is an impossible standard to live up to without major assistance from the state."
(Lemon, Nancy (June/July 2000). "From the Bookshelf", Domestic Violence Report , vol. 5, no. 5, pgs. 73-74, 79, and citing an article written by Professor G. Kristian Miccio for 22 Harvard Women's Law Journal 89 (1999), entitled "A Reasonable Battered Mother? Redefining, Reconstructing, and Recreating the Battered Mother in Child Protective Proceedings.)
In her article, "A Reasonable Battered Mother?", Professor G. Kristian Miccio suggests that instead of removing children to foster care, the court should consider whether the mother has taken every reasonable action to protect herself and her children. If she has been unable to protect her children because of repeated incidents involving inaction by the state, tribal or some other form of governmental institution, then "failure to protect" might more appropriately be blamed upon the institution than the mother.
The reality in most cases, however, is that the victim is asked why she stays and in many instances is severely punished, both by the criminal justice system and the abuser, for staying, while only scant attention may be given to the question of why the abuser batters or indeed, the fact that if the abuser did not batter, the abused mother would never have been compelled to live between two dreadful choices: committing herself and her children to remain in an abusive situation or fleeing the situation only to discover that the violence in her life has intensified as a result of her attempt to escape, that her children may be stripped from her by the courts, and that she may herself be sentenced to a prison term for "failure to protect":
"Fathers who batter their partners but do not physically abuse their children are rarely charged with child abuse or neglect, yet mothers who are battered in front of their children may be charged with neglect. This practice divides responsibility along gender lines; men are not being held responsible for the impact of their behavior on their children, and mothers are being blamed."
(O'Sullivan, Chris, Ph.D. (June/July 2000). "Estimating the Population at Risk for Violence During Child Visitation", Domestic Violence Report, vol. 5, no. 5, pgs. 78-79.)
(The following suggestions and checklist for community services for battered mothers and their children were proposed by: Schechter, Susan, and Jeffrey L. Edleson, et al. (1998). Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice. Recommendations from The National Council of Juvenile and Family Court Judges, Family Violence Department.)
The authors of Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice also suggested that community programs should work together as much as possible to identify and close gaps in services, to coordinate multiple interventions, and to develop interagency agreements and protocols for providing basic services to families experiencing domestic violence and child maltreatment. Pointing out the need to cross-train child welfare, domestic violence and juvenile court system personnel, and other service providers in the community, some recommendations made included:
At least 70% of men who abuse their intimate partners, either physically or sexually, also abuse their children. Statistics from the 1985 National Family Violence Survey reveal that 154 of every 1,000 pregnant women are assaulted by their intimate partners during the first four months of pregnancy and 170 per 1,000 are assaulted during the fifty through the ninth month (Gelles, 1988). Some statistics established by the Journal of the American Medical Association in other studies approximate that almost 37% of obstetric patients of every race, class and educational background report being physically abused while pregnant.
While the myth is constantly perpetuated that battering men are only dangerous to their wife or intimate partner and are good, decent men on the whole, and loving fathers to their children, the reality is that abusive men should never be granted sole or joint custody of their children unless they have first satisfactorily completed batterer intervention therapy. Even then, such fathers should be carefully supervised when exercising privileges of child visitation.
In a study conducted to investigate how courts handle batterers' petitions for child visitation in New York City and Westchester County, New York, attorneys interviewed reported "occasional violence" against their clients in the course of court-ordered visitation. Two cases cited included an attack with a hammer and an assault in which the victim's face was smashed against the glass wall of a restaurant during a public exchange of the children:
"In neither case was the attorney able to secure a suspension of visitation or supervised visitation from the court."
(O'Sullivan, Chris, Ph.D. (June/July 2000). "Estimating the Population at Risk for Violence During Child Visitation", Domestic Violence Report, vol. 5, no. 5, pgs. 78-79.)
The article goes on to state that:
"The attorneys interviewed said they never requested that the court deny visitation to an abuser, for fear of angering the court. Some attorneys explained that even requesting supervised visitation creates hostility toward their client. For example, one lawyer reported that a judge threatened to change custody to the father if the mother's allegations of domestic violence proved to be false. The attorneys said they advise mothers to tell the court that they favor the father's involvement in their child's life, to avoid incurring the "friendly parent" provision, which gives custody to the parent most likely to encourage the other parent's involvement...Lawyers representing victims of domestic violence said that they do not dare propose that visitation be denied to an abuser, because they do not want to 'incur the wrath' of the court. The 'friendly parent' provision in the law, which gives preference in custody decisions to the parent most likely to encourage contact between the non-custodial parent and children, works in opposition to the interests of domestic violence victims."
(O'Sullivan, Chris, Ph.D. (June/July 2000). "Estimating the Population at Risk for Violence During Child Visitation", Domestic Violence Report, vol. 5, no. 5, pgs. 78-79.)
Fear for the safety of their children is one of the most important concerns faced by battered women. A woman who realizes that she may lose custody of the children she desires to protect because she requests supervised visitation privileges for her batterer will most likely withhold information about the abuse she has endured. Also, some judges may require evidence that a child has been harmed by exposure to the violence in the home prior to ordering supervised or limited rights of visitation to the batterer. Establishing this type of harm to the court's satisfaction can be extremely difficult since usually, the court will require that the child exhibit symptoms of harm that can be attributed to the violence.
Abusers commonly attempt to manipulate judges and prosecutors into allowing them access, unsupervised, to their children in the event of child custody actions. By allowing the abuser unsupervised access to his children, the court also allows the abuser unsupervised access to the mother, placing the victim and the children in further danger. Possible kidnapping risks to the children are elevated, the mother is subjected to further harassment, humiliation and possibly violence, even death. In addition, the possible apprehension of children who are witnesses to violence is a major deterrent to women who otherwise might wish to report abuse.
Courts can place effective interventions in these situations by:
Visitation centers can also assist survivors of domestic violence and their children by developing child and parent-friendly programs. Some suggestions might be:
A word of caution: supervised visitation centers should not be seen as a panacea for every situation involving child visitation between an abuser and the children's' mother. Supervision is not a guarantee of safety, which has been proven on more than one occasion. A noteworthy and tragic incident in Seattle, Washington occurred in 1998 when an abuser shot the mother of his children in the parking lot of a supervised visitation center. Without the facility, the abuser may not have had access to his victim.If you or your organization determine to establish a supervised visitation center, go the extra distance and make provision for adequate security on-site.
Children who witness violence in their home are naturally at an increased risk for experiencing violence, abuse and neglect. Every person, private citizen or professional, who has reason to believe that a child under age eighteen (18) has been or is being abused or neglected is mandated to report the suspected abuse to the appropriate authorities. Reports of suspected abuse or neglect may be made to the State Department of Human Services, to the Child Abuse Hotline at 1-800-522-3511, or to the National Indian Child Welfare Association.
Suggestions for working with parent(s) and their children as a family unit:
One suggestion that has been proven to have a positive impact on parents and children of all races and cultures is to find time at least a few nights a week to say prayers, sing and tell stories. Besides allowing the parent to maintain cultural connectedness, this simple custom will also serve to pass traditions and pride in culture on to the children and will also effectively keep the lines of communication between parent and child open, in a positive atmosphere of warmth and acceptance while building self-esteem and self-confidence in both parent and child.
The following describes a protective order that is typically obtained by a victim (in any State), whether Indian or non-Indian, against an offender who committed violence against the victim on land that is not defined as reservation or Indian Trust land, Allotted Indian Land or land belonging to a Dependent Indian Community, but as "fee" land, the title to which is held in public or private domain.
A protective order is ordered by the court on behalf of a victim of domestic violence. It may order the abuser to:
Commonly referred to as a "VPO", the protective order is available to persons as defined by State law or by tribal codes and policies*, but generally speaking, those who are eligible include spouses, ex-spouses, parents (including foster parents), children, other relatives by blood or marriage, people who now live or formerly lived in the same household, people who have a child in common, and/or people involved in a "dating relationship" as the term is defined by law. If the victim is a minor or is legally incompetent, another adult can file on behalf of the victim. The VPO is not available to a victim who has suffered an isolated incident of assault by a non-related person or a person who does not specifically fit into any of the categories listed.
(*Note: Protective orders issued according to tribal code will be reviewed separately.)
A protective order instructs the batterer that the victim intends to have him or her arrested should the abuser violate the victim's protected rights as established by the order. Arrests for violation of a VPO will result in a criminal misdemeanor charge being filed against the party subject to the order.
Emergency protective orders issued pursuant to Oklahoma Statute 22, Section 40.3 may be issued when an arrest has been made and the court is not open for business. In this instance, the peace officer making the preliminary investigation is to provide the victim with a petition for an emergency temporary order of protection and, if necessary, assist (cause to be assisted) the victim in completing the petition form.
Afterward, the peace officer will notify the judge of the district court of the request for the emergency order and describe the circumstances. The judge will inform the peace officer of his decision to approve or disapprove the order at that time and then the peace officer will inform the victim whether or not the order has been approved. If the order is not approved, the victim may petition for a hearing for a protective order. But if the emergency order is approved at the time of the initial request and arrest, the officer will provide the victim with a copy of the petition and a statement signed by the officer that the judge has approved the order.
The order will remain effective until the close of business on the next day that the court is open for business. The person subject to the order is then notified, either in person or in writing, of the issuance of the order. A copy of the petition and the statement of the officer attesting to the order is made available to the person subject to the order. Finally, a copy of the petition and the statement of the officer is filed with the district court of the county upon the opening of the court on the next day the court is in session.
If a plaintiff requests an emergency ex parte order, the court will hold a hearing on the same day that the petition is filed. This order will remain in effect until a full hearing is conducted within fifteen (15) days of issuance of the emergency order, as specified by Oklahoma Statute Title 22, Section 60.3. If made permanent, the Final Protective Order is effective for a period of three years unless the order is modified, vacated or rescinded by the court, as stipulated in Title 22, Section 60.11.
There is no fee for filing an emergency protective order. Court costs are assessed at the full hearing for a permanent order and are often split between the two parties or charged to the abuser. Costs may be assessed to the victim if he or she fails to appear for the hearing.
Protective orders are obtained at the County Seat and are enforceable anywhere in the State of Oklahoma. (The victim must be a resident of the county in which she is filing.) The procedure may vary from county to county. Crisis Centers and Domestic Violence/Sexual Assault Programs throughout the State also have information about the protective order process and can often provide technical assistance and support for the person desiring to file.
"No Drop" Policies:
It is being recognized that domestic violence incidents, historically treated as civil matters requiring mediation, should in fact be criminally prosecuted as felony assaults. As a result, many local judicial branches are adopting "no drop policies" which state that a domestic violence case will not be dismissed because the victim indicates an unwillingness to cooperate with the prosecution or expresses a desire to drop charges against a defendant. In the (numerous) instances when a domestic violence survivor does not wish to press charges, the District Attorney's office, operating under a "no drop policy" may prosecute on behalf of the State.
Most Oklahoma counties have adopted a "no drop policy" with regard to domestic violence cases. The policy came into effect because in the past, when a victim refused to testify, cases were usually dismissed. For the prosecution to proceed with a case against a batterer without the assistance of the victim, however, it is necessary for the prosecutor to have evidence that will assist with the building of the case against the batterer. Evidence that can assist with domestic violence cases include witnesses to the violence, corroborating evidence (such as formal statements taken by investigating officers), photographs, medical reports, physical evidence and observations by officers or investigators. Defendants are not allowed to enter "no contest" pleas, but are required to enter a plea of guilty, proceed to trial, or use plea bargaining alternatives.
Victims who reconcile with their batterers may find that law enforcement officers are unwilling to enforce the order (although it should be pointed out that the privileges of law enforcement do not extend to making judgments about the victim's choices--law enforcement's duty is to enforce the protective order, whether they agree with the victim's choices or not). The victim may also find that Judges are often reluctant to approve a renewal or extension of a protective order when the victim has reconciled with her batterer or has begun cohabiting with her batterer since the time of the protective order's issuance. Courts in some states, however, are recognizing that victims who reconcile with their batterer still need protection and are therefore requiring independent evaluation of the victim's circumstances before agreeing to vacate protection orders, even when the victim requests that the order be vacated. (More on this topic in the section of this handbook entitled "Criminal Justice Responses".)
Oklahoma Statute Title 22, Section 60.2 provides that "petition forms shall be provided by the clerk of the court and shall be in substantially the following form:
State of Oklahoma Sample Protection Order (Word Document)
(Compiled from Benchbook for Tribal Courts on Domestic Violence Laws in Indian Country and Full Faith and Credit for Domestic Violence Protection Orders, (undated), Northern Plains Judicial Training Institute and University of North Dakota School of Law.)
Title 18 U.S.C.S. 2261A, effective September 23, 1996--
Title 18 U.S.C.S. 2262, effective September 13, 1994--
Interstate violation of protection order
Comments:
These sections of federal law, enacted as part of the Violence Against Women Act, allow a federal prosecution against any person who enters or leaves Indian country with the specific intent to violate a provision of a protection order prohibiting bodily injury, repeated harassment or credible threats of violence, and then engages in that violation. It also prohibits any person from forcing or causing a person with a protection order to cross into or out of Indian country if that victim is subsequently injured in violation of a protection order. Because it is a specific intent crime, where the government would have to demonstrate that the person charged crossed a state or reservation line with the intent to commit the underlying act of domestic violence, tribes should not anticipate that this federal crime will be charged every time a person comes onto a reservation and violates a protection order. However, in those cases where a perpetrator takes a victim of domestic violence off a reservation, in violation of a protection order, federal prosecution is possible and thus the criminal investigator and/or FBI need to be consulted. Interestingly, it would not appear to apply to a person who leaves a reservation and enters onto another without crossing out of Indian country (such as, leaving the Standing Rock reservation and crossing onto the Cheyenne River reservation in South Dakota).
Title 18 U.S.C.S. 2264:
Restitution.
Comments:
This provision of federal law determines what amount of restitution a person who is found guilty of interstate domestic violence shall repay the victim. Tribes and tribal domestic violence organizations oftentimes provide substantial assistance to victims of domestic violence, both in monetary terms and in terms of time and resources devoted to protecting the victim. Under this section of federal law, some of those costs may be recouped from the perpetrator for things such as time spent in a shelter for victims or counseling provided the victim of domestic violence. It is important that tribal advocacy organizations confer with the local U.S. Attorney's office and the federal victim's assistance coordinator in order to recoup necessary expenses.
Title 18 U.S.C.S. 2266 --
Definitions. In this chapter [18 U.S.C. Statute 2261, et seq.]--"bodily injury" means any act, except one done in self-defense, that results in physical injury or sexual abuse; "Indian country" has the meaning stated in section 1151; "protection order" includes any injunction or 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 support or child custody orders) whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection; "spouse or intimate partner" includes--
"State" includes a state of the United States, the District of Columbia, a commonwealth, territory, or possession of the United States; "travel across State lines" does not include travel across State lines by an individual who is a member of an Indian tribe when such individual remains at all times in the territory of the Indian tribe of which the individual is a member. "Indian country" has the meaning stated in section 1151.
Comments:
This is the definition section for the Violence Against Women Act and for the crime of Interstate Domestic Violence. A few things should be noted from this definition section. First, the definition of "spouse or intimate partner" is broad enough to encompass any definition enacted by the Tribe because of subsection (B) which defines the term by reference to the law of the State or Tribe. Second, because of this definition section, a tribal member from a tribe whose reservation extends into two or more states (for example, The Navajo or Standing Rock reservation), who crosses a state line but remains on his reservation is not violating the interstate Domestic Violence statute.
Title 18 U.S.C.S. 921 --
(32) The term "intimate partner" means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
(33)
Comments:
18 U.S.C. Statute 921 et seq. Prohibits a person who has been convicted under state or federal law of a misdemeanor offense of domestic violence from legally possessing a firearm. The statute does not specifically refer to tribal criminal convictions and most United States Attorneys' offices have concluded that tribal convictions are not sufficient to disqualify a person from possessing a firearm.
Title 18 U.S.C.S. 922 --
Unlawful acts
Comments:
Unlike the prohibition on the possession of a firearm by any person convicted of a misdemeanor offense of domestic violence, which by its terms applies only to federal and state convictions, Statute 922 prohibits any person who is subject to a protection order against an intimate partner from possessing a firearm. This includes protection orders entered by tribal courts provided that the order was entered after notice and a hearing and the tribal court makes a finding that such person represents a credible threat of safety to the intimate partner.
Title 18 U.S.C.S. 2265
Full faith and credit given to protective orders --
Comments:
By passage of the full faith and credit provision of the Violence Against Women Act, 18 U.S.C. Statute 2265, Congress now requires that the protection orders of state and tribal courts "be accorded full faith and credit by the court of another State or Indian tribe and enforced as if it were the order of the enforcing State or tribe." In theory, this provision seeks to ensure that a victim of domestic violence can travel freely across state boundaries or in and out of Indian country, as that term is defined at 18 U.S.C. Statute 1151, with the assurance that the courts of an adjoining jurisdiction will recognize and enforce domestic violence protection orders utilizing both civil and criminal remedies available to the enforcing jurisdiction. Congress' inclusion of tribal court orders in the full faith and credit provision of VAWA is an explicit recognition of the important role tribal courts have played and will continue to play in the protection of women from domestic violence.
(The following discussion of federal domestic violence laws and the enforcement of the laws was abstracted from a paper written by Margaret S. Groban, which appeared in the Oklahoma Association of Chiefs of Police training handbook, presented at the Oklahoma Police Chiefs Training Foundation 6/2000 symposium in Del City, Oklahoma):
In 1994, the U.S. Congress, as part of the Crime Bill, enacted legislation empowering the federal government to participate in the fight against domestic violence. The following is a summary of the federal offenses/statutes now available in both VAWA and the Gun Control Act to prosecute domestic violence offenders in the federal courts. It also provides a summary of selected prosecutions under each statute and a checklist of offenses.
18 U.S.C.S. 2261(a)(1)
It is a federal crime for a person to travel interstate (or to leave or enter Indian country) with the intent to injure, harass, or intimidate that person's intimate partner when in the course of or as a result of such travel the defendant intentionally commits a violent crime and thereby causes bodily injury. The law requires specific intent to commit domestic violence at the time of interstate travel. The term "intimate partner" includes a spouse, a former spouse, a past or present cohabitant (as long as the parties cohabitated as spouses), and parents of a child in common. The intimate partner definition does not include a girlfriend or boyfriend with whom the defendant has not resided unless protected by state law. There must be bodily injury for prosecution under this statute.
18 U.S.C.S. 2261(a)(2)
It is also a federal crime to cause an intimate partner to cross state lines (or to leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress or fraud. As in subsection 2261(a)(1), the defendant must intentionally commit a crime of violence during the course of or as a result of the travel and there must be bodily injury to the spouse or intimate partner.
Interstate Stalking, 18 U.S.C.S. 2261A
As of September 23, 1996, it is a federal crime to cross a state line with the intent to injure or harass another person, if in the course of or as a result of such travel, the defendant places such person in reasonable fear of the death of, or serious bodily injury to, that person or a member of that person's immediate family. The law requires specific intent to violate this subsection at the time of interstate travel. "Immediate family" includes a spouse, parent, sibling, child, or any other person living in the same household and related by blood or marriage. It is also a federal crime to "stalk", as it is defined in Section 2261A, within the special or maritime jurisdiction of the United States. This includes Indian reservations and military bases.
18 U.S.C.S. 2261(a)(1)
This law prohibits interstate travel (or travel into and out of Indian country) with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment, or bodily injury. To establish a violation of this statute, the Government must demonstrate that a person had the specific intent to violate the protection order at the time of interstate travel and that a violation actually occurred. This statute does not require an intimate partner relationship--although this relationship may be required by the state or other governmental body issuing the order--nor does it require bodily injury.
18 U.S.C.S. 2262(b)(1)
It is also a federal crime to cause a spouse or intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress, or fraud during which or as a result of which, there is bodily harm to the victim in violation of a valid order of protection. This subsection does not require a showing of specific intent to cause the spouse or intimate partner to travel interstate. It does, however, require proof that the interstate travel resulted from force, coercion, duress or fraud. The Government must also prove that a person intentionally injured an intimate partner in violation of a protection order during the course of or as a result of the forced or coercive travel. This subsection, unlike corollary Section 2262(a)(1), requires an intimate relationship between the parties.
The Department of Justice recognizes that under both 2262(a)(1) and (a)(2), law enforcement may be unable to verify the validity of a protection order at the time of arrest. The national data center from which law enforcement and prosecutors will be able instantaneously to verify protection orders will be of enormous benefit to federal authorities in the prosecution of criminal cases under Section 2262. Until such time as this registry is in place and fully operational, law enforcement should consult with the U.S. Attorney in their district for guidance in these cases.
To assist in prosecution under Section 2262 it is necessary to examine the protection orders currently issued in the relevant jurisdiction. For example, in Maine, the Protection-from-Abuse Order did not conform to the language of Section 2262 and made no provision for a judicial finding that the defendant posed a credible threat of violence, repeated harassment, or bodily injury. To correct this statutory deficiency, the U.S. Attorney's Office in the District of Maine, with the support of key members of the state legislature, proposed legislation that would bring the State into conformity with the VAWA provisions. The legislation received no opposition and passed the Legislature on May 30, 1997. The law went into effect on September 19, 1997.
Penalties
Penalties for violations of Sections 2261, 2262A, and 2262 hinge on the extent of the bodily injury to the victim. Terms of imprisonment range from 5 years for bodily injury to life if the crime of violence results in the victim's death.
Possession of Firearm While Subject to Order of Protection, 18 U.S.C.S. 922(g)(8)
It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing in which the defendant had notice and an opportunity to appear. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury. The statutory language of Section 922(g)(8), in addition to the language of Section 2262, provides additional justification for review of a jurisdiction's protection order form to determine if they conform with the federal requirements. Again, refer any questions about the applicability of this statute to the United States Attorney's Office in that district.
Transfer of Firearm to Person Subject to Order of Protection, 18 U.S.C.S. 925
It is also illegal to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of Section 922(d)(8) must be knowing. Proof concerning knowledge on the part of the supplier may be difficult to establish absent a fully operational central registry for protection orders.
Official Use Exemption, 18 U.S.C.S. 925
The restrictions of Sections 922(d)(8) and (g)(8) do not apply to firearms issued by governmental agencies to a law enforcement officer or military personnel so long as the officer of military personnel is on duty. Personal firearms do not fall within this exemption nor may these personnel possess officially issued firearms when off duty.
Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C.S. 922(g)(9)
As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date. A qualifying misdemeanor domestic violence crime must have as an element the use or attempted use of physical force or the threatened use of a deadly weapon. For example, a conviction for a misdemeanor violation of a protection order will not qualify, even if the violation was committed by a violent act, if the statute does not require the use or attempted use of physical force or the threatened use of a deadly weapon. The U.S. Attorney's Office can determine which misdemeanor convictions qualify.
In addition, the statute contains due process requirements regarding counsel and jury trials. Absent compliance with these due process requirements, the misdemeanor conviction will not qualify as a domestic violence conviction for purposes of Section 922(g)(9). Moreover, a person may be able to possess a firearm if the conviction has been expunged or set aside.
Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence, 18 U.S.C.S. 922(d)(9)
It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of Section 922(d)(9) must be knowing. Assistance in satisfying this requirement is provided by amendment of the Brady statement to require a purchaser of a firearm to state that he or she has not been convicted of a misdemeanor crime of domestic violence.
Official Use Exemption, 18 U.S.C.S. 925
The official use exemption does not apply to Sections 922(d) (9) and 922(g)(9). This means that law enforcement officers or military personnel who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties. Additional questions about this statute should be referred to the U.S. Attorney and/or to the Alcohol, Tobacco and Firearm Office in your jurisdiction.
Penalties
The maximum term of imprisonment for a violation of Sections 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9) is 10 years.
Full Faith and Credit to Orders of Protection, 18 U.S.C.S. 2265
This civil law provides that a civil or criminal domestic protection order issued by a court in one state or Indian tribe shall be accorded full faith and credit by the court of another state or tribe, and is to be enforced as if it were the order of the court of the second state or tribe. This law applies to permanent, temporary and ex parte protection orders that comply with the statute's requirements. To comply, the protection order must have provided the defendant with reasonable notice and an opportunity to be heard, in a manner consistent with due process. This law does not apply to mutual protection orders if (a) the original respondent did not file a cross- or counter-petition seeking a protective order or (b) if such a cross- or counter- petition was filed, but the court did not make specific findings that each party was entitled to such an order.
Amendment of the Brady Statement, 18 U.S.C.S. 922(s)
The Brady statement requirements were amended as of September 30, 1996, to include a statement that the recipient of the firearm has not been convicted in any court of a misdemeanor crime of domestic violence. The Brady statement still does not require that the firearm recipient state whether he or she is currently subject to a valid protective order. The recipient will be compelled to fill out, at the time of receipt of the firearm (s), an ATF form requiring certification that he or she is not subject to a valid protection order.
Right of Victim to Speak at Bail Hearing, 18 U.S.C.S. 2263
The victim of a VAWA crime has the right, a right that need not be exercised, to be heard at a bail hearing with regard to the danger posed by the defendant. Depending upon the basis of the case, the U.S. Attorney's office may move for pre-trail detention of the defendant.
Other Victims' Rights, 42 U.S.C.S. 10606(b)
All federal crime victims, including a domestic violence victim, have the right to:
Restitution, 18 U.S.C.S. 2264
In a VAWA case, the Court must order restitution after conviction to reimburse the victim for the full amount of losses. These losses include costs for medical or psychological care, physical therapy, transportation, temporary housing, child care, lost income, attorney's fees, costs incurred in obtaining a civil protection order, and any other losses suffered by the victim as a result of the offense. In a conviction under the Gun Control Act, the court may order restitution.
Self-Petitioning for Battered Immigrant Women and Children, 8 U.S.C.S. 1154
VAWA specifically provides that battered and abused spouses and children of citizens and lawful permanent residents may self- petition for independent legal residency. This statute prevents citizens or residents from using the residency process as a means to exert control over an alien spouse or child. This statute allows victims to remain in the United States independent of their abusive husbands/parents.
Notes:
The Federal Bureau of Investigation is the lead federal investigative agency for VAWA violations.
The Bureau of Alcohol, Tobacco and Firearms is the lead federal investigative agency for Gun Control Act
violations.
Section 1152. Laws governing:
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country (defined in Section 1151).
This section shall not extend to offenses committed by one Indian against the person or property or another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
Section 1153. Offenses committed within Indian country:
Section 2241. Aggravated sexual abuse:
Section 2242, Sexual Abuse:
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly--
Section 2243, Sexual Abuse of a Minor or Ward:
Section 2244, Abusive Sexual Contact:
Section 2245, Sexual Abuse Resulting in Death:
A person who, in the course of an offense, under this chapter, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life.
Section 1169, Reporting of Child Abuse:
A federal domestic violence victim has the following rights under 42 U.S.C. Section 10606(b):
The following was provided by Sarah Deer, Esquire, Program Director for the STOP Violence Against Indian Women formula grants, Office of Justice Programs, Department of Justice, Violence Against Women Office, Washington, D.C.:
Violence Against Women Act II extends the allocations and provisions of the first VAWA. The legislation has the potential to restore tribal jurisdiction over non-Indians in cases of domestic violence. Here's the language (see section f):
(d) Registration for protection orders: Title 18, U.S.C.S. Section 2265, is amended by adding at the end the following:
(d) Registration:
Note from NAC: This language specifically addresses the inequities that resulted from Oliphant vs. Suquamish (1978). See Section 6, "Judicial Response", for an in-depth treatment of this Supreme Court decision regarding the prosecution of non-Indian offenders by tribal courts. VAWA II passed Congress in early October, 2000, and was signed into law by President Clinton October 28, 2000, effective November 1, 2000.
(The following is code adopted by the Apache Tribe of Oklahoma, as written by Charles B. Morris, Attorney-at-Law, Norman, Oklahoma):
Section 1: Enactment Clause
BE IT ENACTED BY THE COUNCIL OF THE APACHE TRIBE OF OKLAHOMA THE ORDINANCE OF DOMESTIC VIOLENCE PROTECTION CODE FOR ALL MEMBERS OF THE APACHE TRIBE OF OKLAHOMA.
The purpose of the Domestic and Family Violence Code is to recognize domestic abuse as a serious crime against society, the Tribe, and the family, and to provide the victim of domestic abuse the maximum protection from further abuse which the law, and those who enforce the law, can provide. Furthermore, the purpose of this Code is to recognize that the strength of the Tribe is founded on healthy families, and that families damaged by domestic abuse, including children, must be healed by immediate intervention of law enforcement, prosecution, education, counseling, and other appropriate services.
It is the intent of the Apache Tribal Business Committee that the official response to cases of domestic abuse shall be that violent behavior will not be excused or tolerated. Intoxication of the abuser is irrelevant. Furthermore, it is the intent of the Apache Tribal Business Committee that criminal laws against domestic abuse be enforced without requiring that the persons be married, cohabiting or presently involved in a relationship.
Section 2: Definitions
Section 3: Protective Orders
A victim of domestic abuse, a victim of stalking, a victim of harassment, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of this act by filing a petition for protective order with the district court in either the county in which the victim resides or the county in which the defendant resides.
When the abuse occurs when the court is not open for business, such person may request an emergency temporary order of protection as provided by Section 9 of this title.
The petition forms shall be provided by the clerk of the court and shall be in substantially the following form:
In addition to any other provisions required by the Protection from Domestic Abuse Act, or otherwise required by law, each ex parte or final protective order issued pursuant to the Protection from Domestic Abuse Act shall have the following statement printed in bold-faced type or in capital letters:
"THE FILING OR NONFILING OF CRIMINAL CHARGES AND THE PROSECUTION OF THE CASE SHALL NOT BE DETERMINED BY A PERSON WHO IS PROTECTED BY THIS ORDER, BUT SHALL BE DETERMINED BY THE PROSECUTOR. NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."
Section 4: Emergency Ex Parte Orders of Protection
Section 5: Emergency Temporary Orders of Protection
If a plaintiff requests an emergency temporary ex parte order of protection as provided by Section 10 of this title, the judge who is notified of the request by a peace officer may issue such order verbally to the officer or in writing when there is reasonable cause to believe that the order is necessary to protect the victim from immediate and present danger of domestic abuse. When the order is issued verbally, the judge shall direct the officer to complete and sign a statement attesting to the order. The emergency temporary ex parte order shall be in effect until the close of business on the next day the court is open for business after the order is issued.
When an arrest has been made pursuant to subsection B of this article and the court is not open for business, the victim of domestic abuse may request a petition for an emergency temporary order of protection. The peace officer making the preliminary investigation shall:
Provide a victim with a petition for an emergency temporary order of protection and, if necessary, assist the victim in completing the petition form. The petition shall be in substantially the same form as provided by Section 3 or this title for protective order;
Immediately notify, by telephone or otherwise, a judge of the district court of the request for an emergency temporary order of protection and describe the circumstances. The judge shall inform the peace officer of his decision to approve the emergency room temporary order;
Inform the victim whether the judge has approved or disapproved an emergency temporary order. If an emergency temporary order has been approved, the officer shall provide the victim with a copy of the petition and a statement signed by the officer that the judge has approved the emergency temporary order of protection and notify said victim that the emergency temporary order shall be effective only until the close of business on the next day that the court is open for business;
Notify the person subject to the emergency temporary protection order of the issuance and conditions of the order. Notification pursuant to this paragraph may be made personally by the officer in writing. A copy of the petition and the statement of the officer attesting to the order of the judge shall be made available to said person; and
File a copy of the petition and the statement of the officer with the district court of the county immediately upon the opening of the court in the next day the court is open for business.
The forms utilized by law enforcement agencies in carrying out the provisions of this section may be substantially similar to those used under Section 3 of this title.
Section 6: Service of Process, Hearing, Period of Relief
Section 7: Penalties for Violation
IF THE PERSON IS INDIAN:
Any person who has been served with an ex parte or final protective order violates said protective order and without justifiable excuse causes physical injury or physical impairment to the plaintiff or to any other person named in said protective order shall, upon conviction, be guilty for not less than twenty (20) days or more than one (1) year. In addition to the term of imprisonment, the person may be punished by a fine not to exceed Five Thousand Dollars ($5,000.00).
In determining the term of imprisonment required by this section, the jury or Sentencing judge shall consider the degree of physical injury or physical impairment to the victim.
The provisions of the subsection shall not affect the applicability of Tribal Criminal Violations Code.
When a minor child violates the provisions of any protective order, the court may, if the violation is to be heard in a juvenile proceeding, order the child to participate in counseling services necessary to bring about a cessation of domestic abuse against the victim and order community service hours to be performed in lieu of any fine or imprisonment authorized by this section.
No police officer or sheriff may release a person arrested for a violation of an ex parte or final protective order as provided in Sections 3 and 4 of this title, or arrested for an act constituting domestic abuse, stalking or harassment as defined by Section 2 of this title without the violator appearing before a magistrate, judge or court. The magistrate, judge or court shall determine bond and other conditions of release as necessary for the protection of the alleged victim.
IF THE PERSON IS NOT INDIAN, THE VIOLATION SHALL BE FORWARDED TO THE U.S. ATTORNEY'S OFFICE FOR PROSECUTION UNDER 9 U.S.C. 2265.
Section 8: Notice of Rights to Victims of Domestic Abuse
Upon the preliminary investigation of any crime involving domestic abuse, it shall be the duty of the first peace officer who interviews the victim of the domestic abuse to inform the victim of the Apache Tribe VAIW program and other domestic violence advocates and to give notice to the victim of certain rights. The notice shall consist of handing such victim the following statement:
"As a victim of domestic abuse, you have certain rights. These rights are as follows:
Section 9: Notice of Rights of Victims of Sexual Assault
A peace officer shall not discourage a victim of rape, forcible sodomy or domestic abuse from pressing charges against the assailant of the victim.
Section 10: Warrantless Arrests
A peace officer may arrest without a warrant a person anywhere, including his place of residence, if the peace officer has probable cause to believe the person within the preceding four (4) hours has committed an act of domestic abuse as defined by Section 2 of this title, although the assault did not take place in the presence of the peace officer. A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of the alleged victim.
Section 11: Seizure and Forfeiture of Weapons
Section 12: Confidentiality of Records
Except as otherwise provided by subsection B of this section, the case records, case files, case notes, client records, or similar records of a domestic violence or sexual assault program certified by the Department of Mental Health and Substance Abuse Services or of any employee or trained volunteer of such program regarding an individual who is residing or has resided in the program or who has otherwise utilized or is utilizing the services of a domestic violence or sexual assault program or counselor in such program shall be confidential and shall not be disclosed. For purposes of this paragraph, the term "client records" shall include, but not limited to, all communications, records and information regarding clients of domestic violence and sexual assault programs.
The records, files or notes of programs specified in subsection A of this section shall be confidential and shall not be disclosed except:
The district court shall not order the disclosure of the address of a domestic violence shelter.
Section 13: Child Custody
In every case involving the custody of, guardianship of or visitation with a child, the court shall consider evidence of ongoing domestic abuse that is properly brought before it. If the occurrence of ongoing domestic abuse is established by clear and convincing evidence, there shall be a rebuttable presumption that it is not in the best interest of the child to have custody, guardianship or unsupervised visitation granted to the abusive person.
Section 14: Court Ordered Counseling for Perpetrators
In addition to the other sentencing powers of the court, in the case of a person convicted of any crime related to domestic abuse, as defined in Section 2 of this title, the court shall require the defendant to undergo treatment or participate in the counseling services necessary to bring about the cessation of domestic abuse against the victim. The defendant may be required to pay all or part of the cost of the treatment or counseling services; or
In addition to the other sentencing powers of the court, the court, in the case of a sex offender, shall require the person to participate in a treatment program designed specifically for the treatment of sex offenders, if available. The treatment program must be approved by the probation officer who has supervisory authority over the defendant if the defendant is placed on probation, or the court, if the court retains supervisory authority over the defendant. Such treatment shall be at the expense of the defendant based on the defendant's ability to pay.
Section 15: Testimony in Cases of Domestic Abuse
Any written statement made by the alleged victim under oath and signed by the victim under oath and signed by the victim which describes the alleged acts of domestic violence shall not be considered inadmissible hearsay evidence, but shall be admissible in any proceeding related to a prosecution.
Section 16: Training of Judges
All judges having juvenile or domestic docket responsibility may attend training pertinent to issues relating to juvenile law and child abuse and neglect and domestic abuse issues.
Section 17: Service to Minor Domestic Abuse Victims
A domestic violence shelter facility may provide shelter and care to a minor mother, who is the victim of domestic abuse or is seeking relief from domestic abuse for herself or on behalf of any of her children or both herself and any of her children.
A domestic violence shelter facility may provide such shelter or care only during an emergency constituting an immediate danger to the physical health or safety of the minor mother or her child or both the minor mother and any of her children. Such shelter or care shall not extend beyond thirty (30) days unless the facility receives an order issued by the court to continue such services or the parent or guardian of the minor mother consents to such services.
A complaint of contributing to delinquency of minors-punishment shall not apply to any domestic violence shelter facility and any person operating such facility who in good faith is providing shelter and care pursuant to the provisions of this section, to a minor mother and any of her children who is a runaway from her parent or legal guardian.
The "show cause" hearing shall be provided for the minor mother who is seeking relief from domestic abuse for herself or on behalf of any of the children.
Section 18: Health Professionals Reporting of Criminally Inflicted Injuries
Any physician, surgeon, osteopathic physician, resident, intern, physician's assistant, or registered nurse, examining, attending, or treating the victim of what appears to be criminally injurious conduct shall report orally or by telephone the matter promptly to the nearest appropriate law enforcement agency to the jurisdiction wherein the criminally injurious conduct occurred.
Section 19: Crime of Domestic Abuse
A person commits the crime of domestic abuse if he or she:
Section 20: Sexual Assault
Section 21: Mandatory Arrest
Without a warrant, a law enforcement officer shall arrest a person if the officer has probable cause to believe that the person has committed domestic abuse, whether that crime was committed in or outside the presence of the officer.
Section 22: Primary Aggressor
Section 23: Officer's Report Required
In addition to any other report required in the usual course of duties, any law enforcement officer who does not make an arrest after investigating a complaint of domestic abuse or who arrests two or more persons for the crime of domestic abuse, must submit a report documenting the grounds for not arresting a person or for arresting two or more persons. This mandatory report must contain:
Section 24: Authority of Law Enforcement to Seize Weapons
Incidents to an arrest for domestic abuse or violation of a protection order, a law enforcement officer shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of the crime.
Section 25: Conditions of Release
Section 26: Criminal Case May Not be Dismissed Because Civil Compromise is Reached
A court shall not dismiss a criminal complaint charging domestic abuse for the sole reason that a civil compromise or settlement is reached.
Section 27: Testimonial Privileges
The privilege does not relieve a person from any duty imposed in the mandatory reporting of child abuse or neglect. A person may not claim the privilege when providing evidence in proceedings concerning child abuse or neglect.
As used in this subsection, "advocate" means an employee of or volunteer for a program for victims of domestic violence who:
Section 28: Penalties
Section 29: Severability
If any section of this act is found to be a violation of an individual's rights, the other sections are to be held separate and apart.
The following is a story of Western Apache origin:
In the beginning, the Supreme Being, known as Giver-of-Life, took the People from under the earth's surface and brought them up into the land where they were to live. Having been placed there, they were instructed to conduct themselves reverently as a part of nature, preserving the land and in particular, caring for all living things on the land.
The People were told: "You must not be greedy or selfish. You must not long to possess anything that belongs to another person. You must not behave promiscuously and you must not betray the trust of your mate, your friends or your family. You must behave foolishly to no one, but be kind to everyone. Share what you have with each other. Love each other. Do not lie to anyone or steal from anyone. Do not kill anyone."
Indeed, Giver-of-Life gave the People many laws so that they might live together in a good way, but since they were human beings, they were limited and flawed, as all humans are. The People gave in to corruption and bad behavior and the evil powers pressed upon them hard. So the concerned Giver-of-Life sent the Ganhs to teach the People how to live a better way.
The Ganhs were supernatural beings, not human beings, yet they loved the People and wanted to help them live good lives. Giver-of-Life instructed the Ganhs to live among the People and the Ganhs obeyed Giver-of-Life and made their home with the People. They taught the People how to live decently, humbly, honorably, and with modesty. The Ganhs showed the People how to cure the sick, to govern fairly, how to hunt responsibly and effectively, how to plant and harvest, and how to discipline those who failed to live as Giver-of-Life wished them to. As supernatural beings, the Ganhs possessed power to harm or help the People and so for a time, the People did everything just as they were instructed.
But as time passed, human nature began to prevail and the People rejected what the Ganhs had taught them. The People began to behave in a wicked fashion. They forgot to pray at times, or they forgot how important it was to seek a spiritual path for each day of one's life. Sometimes greed crept in, or passion, or anger.
The Ganhs were too good, too pure and holy to continue to live with People who were determined to do evil to each other. Saddened, the Ganhs decided to leave the People. But because the Ganhs and Giver-of-Life loved the People and still hoped that in time, the People would realize how important it was to live good lives, the Ganhs drew pictures of themselves on rocks near the sacred caves and within the caves. Then the Ganhs withdrew into the sacred caves in the sacred mountains.
When the Ganhs had gone, the People were ashamed of their bad behavior. They studied the drawings for a long time and at last, they decided to imitate or impersonate the Ganhs in order to remind themselves and each other that it was important to live as Giver-of-Life wished them to insofar as their frail human nature would allow. The People copied the clothing they saw drawn in the images on the rocks and began to use the clothing when performing the power-filled dances the Ganhs had taught them.
The People still wear the clothing and dance the dances of the Ganhs today and it helps humans to remember how Giver-of-Life wants them to live and behave toward one another.
Some advocates today express the belief that there is no basis in traditional Native American cultures for violence against women, but that these behaviors have been adopted as a result of Euro-American cultural and racial oppression targeted at indigenous peoples. Proponents of this viewpoint state that violence against women is the result of an "unnatural belief system", as opposed to a "natural belief system". Natural belief systems are described as systems which empower people and inspire and encourage them to live respectfully and harmoniously with one another. Unnatural belief systems are defined as systems that influence people to value "might over right", male dominance, greed, materialism and dishonesty.
Native American Circle agrees that traditional Native American cultures worked hard to promote admirable qualities in people, good behavior and harmony. However, we disagree with the definitions applied to unnatural and natural belief systems. As the ancient Apache story above clearly illustrates, human beings are, in fact, naturally prone to self-centered behavior that leads to all manner of misdeeds and wrongdoings, some of which can have tragic consequences for both the perpetrator and the innocent victim alike.
Studies of the human brain have revealed that "male" brains and "female" brains have noted differences, and that generally, males are born with more aggressive instincts than females. This "natural aggression" varies widely from man-to-man and person-to-person, but aggressive instincts in any person are most often activated when the person perceives that "territorial rights" are endangered or when feelings of power and control over a particular place, thing or person are challenged. The arousal of aggressive instincts does not trigger aggressive behavior in every individual, but the triggering of naturally aggressive tendencies may often act as a prerequisite for battering behavior in persons who rely on power and control tactics to maintain a power base.
Throughout the history of our world, every culture and society has grappled with the problem of unacceptable behavior in its citizens, and every culture and society has found it necessary to establish rules, codes, policies and laws to govern people, police their behavior, and when necessary, punish the insubordinate. The history of our world also clearly shows that laws alone are not sufficient to hold the determined, the stubborn, the indifferent, or the purely evil lawbreaker in check. Only attitudes and convictions of the mind and heart can effectively influence a person to behave in appropriate ways. However, laws and the consequences of breaking the laws often represent the most powerfully motivating tool available to a society to effect reform in wrongdoers.
Studies performed in the early-to-mid 1980's and more recently were considered to reveal that mandatory arrest policies for batterers often initially stop the violence, but arrest may cause violent episodes to increase later on. In one 1992 study conducted in San Diego, California, for first-time offenders who dropped out of the batterer intervention program, the recidivism rate over two years was 70%. Of those who completed counseling, the re-arrest rate was 5%.
In Duluth, Minnesota, the law enforcement's mandatory arrest model since the early 1980's, prosecutors achieved a 78% conviction rate and in the ten years between 1983 and 1992, there had not been a single domestic homicide. Nevertheless, the number of new cases introduced to the system each year remained constant at approximately 450 and statistics revealed a recidivism rate of at least 40%. However, of the victims surveyed about how the Duluth system worked for them, 80% reported they were no longer being battered. (Benson, Katy (3/1993). "Studying the Broken Family". Police Magazine.) Other studies reflect a recidivist rate of up to 44% among those batterers who were arrested as a result of mandatory arrest policies, leading some legislators to urge for a repeal of mandatory arrest laws.
In the Milwaukee study most often cited as evidence that mandatory arrest increases violence, 95% of the men arrested were never prosecuted and only about 1% of those arrested and prosecuted were ever convicted (Stark, Evan (June/July 2000). "Do Mandated State Interventions Contribute to Woman Battering?" Domestic Violence Report, Volume 5, No. 5, pg. 65, 75-76). A study performed in Charlotte, North Carolina, concluded that police in that city make arrests in only 3.6% of domestic violence cases, despite mandatory arrest laws in the State, and that only 1% of the arrested offenders actually go to jail. (Also cited in Evan Stark's article in the Domestic Violence Report, taken from Hirschel, J.W. and I.W. Hutchison (1996). "Realities and Implications of the Charlotte Spouse Abuse Experiment". Do Arrests and Restraining Orders Work? Sage: Buzawa & Buzawa, eds.)
Through a series of tests conducted by various law enforcement agencies across the nation, it was concluded that arrest has different results with different "types" of individuals and circumstances. Arrest may also have different results in different locales or environments (Benson, 1993/& Pate and Hamilton 1992). Indeed, six replication studies of the Minneapolis Experiment revealed nothing to simplify the debate on this topic. Test results in three of the studies revealed that arrest deters further violence, but in the remaining three studies, arrest was determined to accomplish nothing, at best, or at worst, increase the violence. (Included in the study were Omaha, Charlotte, Milwaukee, Colorado Springs, and Miami Metro-Dade-all urban areas. No studies were conducted in rural areas and there are no demographic breakdowns included in the studies.)
It was determined that arrest in one test area proved to have no deterrent effect on employed offenders, but served to increase violence among the unemployed. From the total test results, a conclusion was drawn that arrest tends to deter only those with the most to lose. Therefore, a policy that could help the working class victim might make the situation worse for poor women. Further, a policy that might have an affect on batterers in an urban area among a mostly employed population might have no affect (or a reverse affect) in a rural area or an inner-city ghetto area where unemployed populations are high. (Benson, Katy (3/1993). "The House Divided: Handling Domestic Violence". Police Magazine.)
As investigator and author, Lawrence Sherman, put it, "The whole idea of punishment in Western society is that it deters crimes. But if it doesn't, it brings up the question, what do we do about the fact that justice causes crime?" (Benson/1993)
In the book, Policing Domestic Violence: Experiments and Dilemmas, the authors suggested that arrest may work best on people who are "socially bonded", which means that a battering individual may weigh carefully the social risks before he indulges in violent behavior. If the batterer stands to lose his job, his reputation or standing in society, if he is risking humiliation before a valued peer group by being arrested and brought before a court, then he may hesitate to resort to violence. (Sherman, L. W., Schmidt, J. and Rogan, D.P.(1992). Policing Domestic Violence: Experiments and Dilemmas. New York: Free Press.)
American Indian people recognized the positive impact of "social bonding" for centuries prior to European colonization. The social consequences of battering in traditional Indian communities often held severe penalties. Social censure by one's peer group acted as a strong deterrent to all sorts of criminal or violent behavior within tribal communities while encouraging characteristics and traits of generosity, kindness, courtesy, integrity, truthfulness, mercy and justice.
For instance, if an Apache man beat his wife, it was likely that his mother-in-law would simply come to live in his home. Since in traditional Apache society (as in many other tribal societies and cultures), a daughter was not separated from her mother by marriage and the son-in-law could not look upon his mother-in-law, this intervention method was an effective tool. If the mother-in-law remained in the man's household long enough, the situation constituted divorce and it was unlikely, afterwards, that the man would have success in finding another wife. Few families agreed to relinquish a treasured daughter to a man who had a reputation for violence.
The Honorable Judge Philip D. Lujan, who presides over judgments in domestic violence and sexual assault cases in the Court of Indian Offenses in Anadarko, Oklahoma, for the Kiowa, Comanche, Apache, Wichita, Caddo, Delaware, and Fort Sill Apache Tribes, has described the method by which Kiowa people traditionally disciplined battering behavior. According to Judge Lujan, should a man beat his wife in pre-reservation times, her brothers and uncle would first take the man away from the village alone and warn him not to behave badly toward the woman again. If the man should beat his wife a second time, having been warned once against such behavior, the brothers and uncles would take him outside camp, remove the strings from their bows, and beat him with their bow staves. If even after this punishment the man continued to mistreat or abuse his wife, the woman's relatives would effect an enforced divorce between the couple and the man might be banished from the society or even killed.
"...A woman's husband hurts her, and her brothers want to kill him...[If a man killed his wife] They took everything he had, his clothes and his weapons and his horses and his equipment, and they turned him out of the tribe. Nobody could give him anything. He had to go naked and starving and thirsty. He never could come back. He had to go clear away. Maybe he found another tribe, and they let him in with them..."
(Marriott, Alice (1945). The Ten Grandmothers. "Winning Horse Race", pg. 214. Norman, OK: University of Oklahoma Press. First edition, 1945, twelfth edition,1989.)
Unfortunately, these same customs and traditions have become severely undermined and in fact, abandoned, undoubtedly because of the influences of colonization and assimilation. As Judge Lujan points out, the first persons to come to the defense of a battering offender in today's tribal courts are typically the offender's mother and aunts.
This is largely because Indian families tend to be large families, comprised of not only mother, father, and children, but also grandparents, uncles, aunts, and cousins as members of the "immediate" family, rather than the "extended" family. When poverty, substance abuse, physical or sexual abuse, divorce and other negative factors intrude upon the family, rendering it dysfunctional, the traditional Indian family becomes unable to pass on traditional value systems.
Without the traditional value systems that previously kept the family intact and all family members working together in harmonious and responsible ways, the family may find itself in a downward-spiraling cycle of neglect and abuse of family members. When this happens, family members often attempt to defend or protect the violent offender, leaving the victim(s) vulnerable to further abuse and creating an environment and circumstances in which intervention methods may not be successful. Too, when inter-family and intra-family violence enters the large Indian family, family and clan members often become rivals and the community itself is strained to develop and provide appropriate responses.
Since the studies performed in the early to mid-1980's focused only on mandatory arrest policies and the affect of arrest alone upon a batterer's behavior, it is difficult to determine whether arrest policies should differ between cities or other rural and urban environments, or between employed and unemployed populations, or populations with certain education levels or race and culture factors. Many professionals point out that the study done did not involve any other form of motivation, other than arrest, to induce batterers to choose not to batter. Critics of the study feel that the evaluation was inconclusive since advocate programs, batterer intervention programs, protective orders and vigorous prosecution of batterers were factors that were not utilized in the study on mandatory arrest and its influence on battering behavior.
The conflict of opinions on this subject highlight the need for researchers and advocates, criminal justice professionals and law enforcement to "go back to the basics" when evaluating the effectiveness of sanctions against battering behaviors. It is important, for instance, to remember that some battered women will be harmed by any arrest policy or reporting procedure-- and even by judicial interventions widely used--since arrest and prosecution of a batterer will commonly impact the victim's financial status, employment, housing, child care and other factors. Most battered women are assaulted numerous times over a period of several years, resulting in substantial personal losses to the victim (and her children) of not only economic, employment, and housing deprivations, but also in losses to the victim's health, her employer and society as a whole.
Only the interventions available to society, in the form of mandatory arrest policies and court-ordered sanctions, have proven to make a lasting impact on battering behavior. Often, these interventions are made without the victim playing an active role in the process since it is not the actions or decisions of the victim, but the batterer's continued access to and control over his partner that is the determining factor in whether or not abuse will continue. The protective order is perhaps the most powerful and effective tool we have in place in our judicial systems today for ensuring that batterers and stalkers cannot elude responsibility for their violence. For law enforcement personnel, protective orders are the teeth that provide arrest policies and procedures with "bite".
Critics of this stance often insist that protective orders do not protect the victim, but may in fact, cause the incidents of abuse to escalate. This perspective also asserts that protective orders tend to be an exercise for victims promoted by law enforcement, prosecutors and judges to provide evidence that the victim actually is seeking liberty from the violence in her life. Until the victim has offered this "proof" that she really needs and desires assistance, these critics charge, the criminal justice system will rarely take steps to even protect her, much less assist her.
In some cases, there may indeed be a basis for this argument (even among advocates who feel the frustration of attempting to provide assistance to a victim who is a reluctant witness or who returns to her abuser). Many either misunderstand, "misplace" their empathy, or simply do not comprehend the emotional, psychological, economic and physical devastation that are well-traveled ground for all survivors of domestic violence and many survivors of stalking and sexual assault. But as one author on the subject points out:
"...in most cases, the victim's dependence [on her batterer] has less to do with psychological trauma than with a state of objective domination that makes expectations of "free choice" a cruel joke."
The same author describes an abusive relationship as "characterized by 'coercive control', where offenders employ isolation, intimidation and control alongside repeated assault to deprive victims of material necessities (such as food, money and transportation) as well as basic liberties". (Stark, Evan (June/July 2000). "Do Mandated State Interventions Contribute to Woman Battering?" Domestic Violence Report, Volume 5, No. 5, pg. 65, 75-76.)
Gavin de Becker, whose firm specializes in predicting violence, feels that protective orders (called temporary restraining orders or TRO's in some states) may often serve to increase violence. In Mr. de Becker's book, The Gift of Fear: Survival Signals that Protect Us From Violence, he states:
"A more recent study done for the U.S. Department of Justice found that more than a third of women had continuing problems after getting restraining orders [or protective orders]. That means, favorably, that almost two thirds did not have continuing problems--but read on. While only 2.6 percent of respondents were physically abused right after getting the orders, when they were re-contacted six months later, that percentage had more than tripled. Reports of continued stalking and psychological abuse also increased dramatically after six months. This indicates that the short-term benefits of restraining orders are greater than the long-term benefits." (de Becker 1997)
Despite these statistics, Mr. de Becker states that he is a proponent for restraining orders and protective orders, and he also suggests a theory for why protective orders may work in some cases, and yet in others, may actually encourage more violence:
"...Charges for breaking the law involve the system versus the lawbreaker, whereas restraining orders involve an abuser versus his wife. Many batterers find intolerable the idea of being under the control of their victims, and with a court order, a woman seeks to control her husband's conduct, thus turning the tables of their relationship. Conversely, when the system pursues the charges for a crime like battery, it is the man's actions--not those of his wife--that bring him a predictable consequence..."
These comments and studies are particularly meaningful to peace officers, prosecutors and judges because they indicate that arrest policies alone will not have a deterrent effect on career batterers. The law only works for the victim when law enforcement makes the necessary arrest under mandatory arrest laws, when prosecutors vigorously prosecute offenders, and judges issue and enforce protective orders, require offenders to attend intervention therapy, and when appropriate, order more stringent forms of punishment for repeat offenders.
According to the Bureau of Justice Statistics Factbook (NCJ-167237, March 1998), Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, and Girlfriends:
While many studies appear to render conflicting reports, and while many professionals debate the best methods and models for addressing the problems of domestic violence and stalking in our communities today, some reports that initially seem negative may, in fact, offer encouragement and promise.
The Duluth, Minnesota Domestic Abuse Intervention Project, which has served as the model for many other systems, reports that the number of new cases introduced to the system has remained constant for many years, without any rise, and that 80% of the victims interviewed state that they are no longer being battered. This would seem to support the view that pro-arrest and prosecution policies work with most offenders most of the time.
Critics point out that these studies indicate 40% or more of the offenders in Duluth who receive batterer intervention therapy and counseling later appear as domestic violence suspects in police reports. However, champions of the Duluth model argue that the recidivism rates compare favorably with figures for other difficult-to-treat behaviors and addictions, such as substance abuse treatment. (Benson/1993) (Again, however, other studies contest these findings, claiming that the study focused solely on arrest as a deterrent without considering whether the criminal justice system's subsequent handling of the case had an impact on the offender's behavior.)
One known factor in batterer recidivism rates remains constant: arrest policies are most effective when the law enforcement agency making the arrest has a strong working relationship with the attorney(s) prosecuting domestic violence cases. While evidence is a key element in prosecuting domestic violence offenders, finding a statute that fits each independent offense is also an important factor in successfully holding batterers accountable for their actions.
The prosecutor will make the final determination whether to prosecute an offense as a felony assault, a misdemeanor assault, or violation of a protective order, but the most significantly influencing factors on future violent incidents may lie in how the arresting officer interviews the witnesses, collects the evidence and chooses a statute for making the initial arrest. (More on this topic in the section of this handbook regarding Law Enforcement Approaches.)
The purpose of a protective order is to prevent violent offenders from doing further harm to their victim. It is the burden of the court to make certain that the safety of the "true" victim and his/her children is ensured.
The word "true" is used here since it is a common tactic of batterer's to request that a judge issue a protective order to protect the batterer's property and person from the victim. Batterer's request mutual protection orders in order to serve their own personal agenda: that of denying responsibility for their actions, and if possible, deflecting blame for their violence onto others, thereby avoiding accountability altogether.
Remember that victims often come to feel that they are responsible for the violence in their life simply because the batterer conditions the victim to accept responsibility by repetitively accusing the victim of "provoking" or "earning" the violence, and then reminding her that she "deserved" violence. Judges should be aware of this ploy and remain constantly vigilant against the batterer's use of it in the courtroom.
It is typical of batterers to insist, "she hit me first" or "I was only defending myself against her attacks". But it is neither uncommon nor unnatural for a victim to "hit first" if she senses she is about to be physically attacked, nor is it wrong for a victim to strike back in an effort to defend herself or her children. Unless the court finds clear evidence that mutual combat has taken place, rather than defensive action, only one protective order should be issued: an order which protects the victim from the abuser.
Too often, counsel will coerce or cajole a victim into accepting a mutual protective order, imagining that the acceptance is a harmless concession. Legal counsel may argue that if the victim accepts a protection order (and partial responsibility for the violence), then the victim will appear to the court as a cooperative and reasonable person. Counsel may persuade the victim that if she presents the appearance of a reasonable person who is willing to accept a portion of the blame, she may improve her position on various other issues before the court, such as requests for child custody or requests for child support.
In fact, these arguments are not reasonable, but rather, such arguments may ensure the attorney a "paper" victory while placing the victim in greater danger. The victim's safety is clearly compromised by the presence of mutual protective orders and worse, mutual orders play directly into the batterer's own agenda, allowing him to re-offend with virtual impunity. Mutual protective orders allow a batterer opportunity to intimidate, stalk, harass and control his victim through physical and verbal threats and continued terrorist tactics.
In addition, mutual protective orders compromise the power of law enforcement to provide protection to the victim since it is impossible for law enforcement officers to determine who the true victim of abuse is in the presence of mutual orders.
When only one protective order is issued, the victim's children are enabled to develop trust, rather than suspicion, for the justice system since they are able to see that "the law" really does desire to protect them and their mother. The batterer suddenly, miraculously, ceases to be an "all powerful", omnipotent and overwhelming threat who possesses supreme authority in all matters. Instead, the violent figure that often haunts the troubled dreams of a child is exposed as a mere human who is not powerful enough to overcome the superior strength and power of the court. Thus, when only one protective order is issued, and that one to only the victim, children can be more easily protected from further trauma.
In addition, refer to the chapter, "Full Faith and Credit for Protection Orders" in this section of the handbook for cautionary warnings on the dangers of mutual protection orders.
Like mutual protective orders, court-ordered couples counseling and mediation are exercises that judges should never impose upon couples when domestic violence is involved. Both forms of judicial "relief" result in power imbalances in which the victim's safety will always be at risk.
Whether through couples counseling or mediation, the victim cannot be honest and open, frankly discussing the issues that concern her most: the batterer's abusive and controlling behavior. No matter what the victim says, she runs the risk of violent retaliation from the batterer. Knowing this, the victim will make it her policy to reveal little or nothing to the mediator or counselor. Regardless of the mediator's skill, the victim realizes that disclosure of information will be indulged in at her very real personal risk.
Custody battles and/or custodial interference are common tactics of abusers in the wake of a separation. The criminal justice system should take care not to satisfy the batterer's personal agenda by indulging in the batterer's power and control game:
"Batterer's experts report that most batterers will not negotiate in good faith. Mediation relies on the assumption that both parties will enter all agreements with the intention of compliance. However, since batterers operate on the premise that they are entitled to use violence to achieve their goals, mediation is an inappropriate venue to attempt resolution of domestic violence. Given that most mediators are not familiar with the complex dynamics of family violence and the batterer's relentless persecution of the victim, without sufficient, on-going training mediators cannot be expected to effect safe resolutions."
(Buel, Sarah M., J.D. (1998). The Impact of Domestic Violence on Children: Ten Practical Recommendations for Lawyers, Advocates, Judges, and Court Personnel. Reprinted in materials given to participants in the "Quest for Peace" Conference, hosted by Kalyn Cherie Free, District Attorney 18th District, Pittsburg and Haskell Counties, Oklahoma, and the P.E.A.C.E. Unit (Prosecuting to End Adult Child Endangerment.)
Some steps criminal justice professionals can take to ensure that the safety of victims is not compromised by court-ordered mediation resolutions are:
Amending laws is perhaps the single most important action an advocate can take on these specific issues. Ideally, laws should be amended to prohibit mediation or couples counseling in cases involving domestic violence. Laws prohibiting mediation in domestic violence cases ensure the victim's safety, and also ensure that the victim and her children are not further re-victimized by courts that may order, for instance, joint custody or sole custody of children to a batterer who will probably, in turn, use the children as leverage to further abuse and traumatize the victim.
As presented in Benchbook for Tribal Courts on Domestic Violence Laws in Indian Country and Full Faith and Credit for Domestic Violence Protection Orders, State of North Dakota Attorney General's opinion of 10-23-95, Heidi Heitkamp, Attorney General, with Robert P. Bennett, Assistant Attorney General, and Seema Zeya, staff attorney for the Full Faith and Credit Project of the PCADV:
The Full Faith and Credit provision of the Violence Against Women Act (VAWA), 18 U.S.C.A. Section 2265, requires states and Indian tribes to enforce valid protection orders issued by foreign states and Indian tribes as if the orders had been issued by the non-issuing, enforcing state or Indian tribe:
Valid protection orders are protection orders that have been issued by a court which has jurisdiction over the parties and matter under the laws of such state or Indian tribe, and in circumstances where the defendant has been given reasonable notice and the opportunity to be heard sufficient to protect that person's right to "due process". In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by state or tribal law, and in any event, within a reasonable period of time after the order is issued, sufficient to protect the opposing party's right to due process.
The full faith and credit provision also applies and extends to temporary and final, civil and criminal protection orders, as set out in 18 U.S.C.S. 2266:
Definitions
In this chapter--"bodily injury" means any act, except one done in self-defense, that results in physical injury or sexual abuse.
"Indian country" has the meaning stated in section 1151.
"Protection order" includes 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 support or child custody orders) whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection.
"Spouse or intimate partner" includes:
"State" includes a State of the United States, the District of Columbia, a commonwealth, territory, or possession of the United States.
"Travel across State lines" does not include travel across State lines by an individual who is a member of an Indian tribe when such individual remains at all times in the territory of the Indian tribe of which the individual is a member.
Mutual Protection Orders:
Should the issuing court enter orders of protection against both the plaintiff and the defendant, only the order in favor of the plaintiff constraining the defendant is entitled to full faith and credit unless the defendant filed a separate petition or pleading seeking such an order and the court made specific findings that the defendant, as well as the plaintiff, was entitled to such an order.
This should be interpreted to mean that a protection order issued in favor of a defendant and against a victim who has filed seeking protection should not be given full faith and credit unless the batterer filed a cross or counter petition also seeking an order of protection and the court made specific findings that the defendant was entitled to such an order.
For this reason, it is imperative that advocates fully inform battered women of the ramifications of agreeing to mutual consent orders that include findings of fact that the defendant is entitled to such an order (i.e., that the plaintiff has inflicted acts of abuse upon the defendant).
Implementation:
The full faith and credit provision of the Violence Against Women Act does not prescribe the specific procedures that a battered woman must follow in order to qualify for interstate enforcement. A number of states have enacted legislation and established procedures to facilitate full faith and credit implementation. A battered woman who is planning to relocate to another sate should comply in advance with the new state's procedures to ensure proper enforcement of her foreign order.
Law Enforcement:
Law enforcement officers should enforce out-of-state protection orders that are presented to them if the orders appear valid on their face. In other words, if a battered woman shows the officer her foreign order, the officer should enforce it as long as it contains both parties' names and has not yet expired. Even if the out-of-state order is uncertified, it should be enforced if it meets the requirements of facial validity.
Many police officers express concern about liability for false arrest if they enforce a foreign order which has not been reviewed by a court in the enforcing state. Officers too often are unaware that they are exposed to liability for failure to arrest if they refuse to enforce a valid out-of-state order. More importantly, police officers should recognize the dangers that battered women face when abusers follow them to another state or tribal land in violation of protection orders. This stalking behavior may evidence acute desperation and a settled intent to use whatever force may be necessary to compel the battered women to return to a relationship with the batterer. The sharply escalated dangers posed by batterers in inter-jurisdictional pursuit is best met with a vigorous enforcement by law enforcement in whatever jurisdiction a violation occurs.
In response to law enforcement's concerns, a number of states have enacted qualified immunity statutes which protect police officers from liability and enable them to arrest if there is probable cause to believe that a violation has occurred.
Even if the victim doesn't have a copy of the foreign order with her, the law enforcement officer should attempt to verify the existence and terms of her order through communicating with appropriate court or law enforcement personnel in the issuing state or jurisdiction. If the issuing state has entered the protection order into a centralized database, the officer should be readily able to verify the existence and status of the protection order by contacting the statewide protection order registry. (But tribal protection order registries are virtually non-existent and there are no viable links between current tribal protection order registries and state or national registries.)
At the present time, nearly half of the states have established or are developing centrally automated protection order registries. In May 1997, the National Crime Information Center's Protection Order File went into operation. Law enforcement officers may access the registry to verify the status of a foreign protection order. (NAC Notation: However, there are few automated protection order registries that link tribes to states, to other tribal registries or to a national database. As a result, protection orders for Indian women often receive poor or no enforcement by police officers.)
Judiciary:
Judges need to be familiar with the full faith and credit provision of the VAWA when they are issuing and enforcing protection orders. It may be particularly helpful to law enforcement and courts in other judicial districts if issuing judges craft orders that are explicit, unambiguous, comprehensive and legible.
At the time an order is being issued, the judge should inform both parties orally and in writing that the protection order is valid in all fifty (50) states, the District of Columbia, tribal lands, and U.S. territories. More specifically, the judge should advise the party against whom the order is being entered that violations of the order are subject to both state and federal criminal penalties.
At the time an order is being enforced, the judge should follow the procedural enforcement mechanisms of the enforcing (non-issuing) state. In other words, if the judge determines there has been a violation of the order, he/she should impose whatever sanctions are available under the laws of the enforcing state for that type of violation.
The judge should enforce the substantive relief that was granted by the issuing state even if the order provides relief that would not be available under the enforcing state's laws. This means that even if the battered woman is ineligible for a protection order in the enforcing state, the judge must enforce her order as long as the issuing judge has the requisite personal and subject matter jurisdiction.
The enforcing judge can determine if the out-of-jurisdiction protection order is still in full force and effect or can obtain clarification as to any questions about the content of the order in a number of ways. In particular, the judge may contact the issuing court in the state where the protection order was entered. Moreover, if a statewide or national protection order registry is in place, the judge may confirm the validity of the foreign order by accessing one or both of these databases. (Again, some tribal courts are creating shared databases for protection order registries. Many tribal courts and tribal police do not currently have access to national registries commonly used by State and federal courts and law enforcement authorities.)
Beyond this, as a matter of judicial courtesy, an enforcing judge may want, at a minimum, to notify the issuing judge of the enforcement proceedings in the foreign state. Information about the enforcement action will be invaluable to the issuing judge should the case come before him/her for modification, extension or termination. Furthermore, conversation with the issuing judge may enhance the enforcing court's insight into the circumstances giving rise to the order and the rationale for specific relief awarded. Judicial communication will advance the protective intent of the codes in the states and tribal nations involved.
An additional method for facilitating interstate enforcement of protection orders is the use of a uniform certification form. The Full Faith and Credit Project of the Pennsylvania Coalition Against Domestic Violence has devised such a form which may be attached to a protection order at the time of issuance. The certification form confirms that the protection order has been entered in compliance with the jurisdictional and due process requirements of the VAWA.
(Note: Discussion of child custody issues in relationship to Protection Orders can be found in the section of this handbook regarding Children's Issues.)
A final note: The Full Faith and Credit provision of the Violence Against Women Act (VAWA), 18 U.S.C.A. Section 2265, was established to provide protection to victims of domestic violence who obtain orders of protection from state or tribal courts, but this federal law may not carry onto military bases. Military authorities have jurisdiction over military personnel on base, yet may have no jurisdiction over the non-military family member. When a state or tribal court issues an order of protection against a military member, the military may or may not honor the order. Likewise, the military may issue Military Protective Orders on behalf of persons within their command, or to protect other individuals from persons in their command, but there is no statutory requirement provided by Section 2265 that a military protective order be honored by state or tribal courts.
Section 1. Full faith and credit for valid foreign protection order:
Any valid protection order related to domestic or family violence, issued by a court of another state, tribe, or territory shall be accorded full faith and credit by the courts of this state and enforced as if it were issued in this state.
Section 2. Valid foreign protection order:
A protection order issued by a state, tribal or territorial court related to domestic or family violence shall be deemed valid if the issuing court had jurisdiction over the parties and matter under the law of the state, tribe or territory. There shall be a presumption in favor of validity where an order appears authentic on its face.
A defendant must be given reasonable notice and the opportunity to be heard before the order of the foreign state, tribe or territory was issued, provided, in the case of ex parte orders, notice and opportunity to be heard was given as soon as possible after the order was issued, consistent with due process.
Failure to provide reasonable notice and opportunity to be heard shall be an affirmative defense to any charge or process filed seeking enforcement of a foreign protection order.
Section 3. Exclusion from full faith and credit:
A protection order entered against both the plaintiff and defendant shall not be enforceable against the plaintiff in a foreign jurisdiction unless:
Section 4. Statewide Protection Order Registry:
Section 5. Filing of foreign protection order:
Section 6. Law Enforcement:
A law enforcement officer may rely upon a copy of any foreign protection order which has been provided to the officer by any source and may also rely upon the statement of any person protected by a foreign order that the order remains in effect. A law enforcement officer acting in good faith shall be immune from civil and criminal liability in any action arising in connection with a court's finding that the foreign order was not enforceable.
When developing a model program for law enforcement and criminal justice effectiveness in addressing domestic violence, sexual assault and stalking, it may be particularly helpful for problem areas to be openly identified and honestly acknowledged. There may be circumstances involved that are as simple as misunderstanding policy, laws or procedure.
In the case of the law enforcement officer, the officer's own personal history, life experiences, culture and background may have caused him to be uninformed, misinformed or even indifferent to the dynamics and psychology involved in battering relationships. In rural areas particularly, when peace officers are not responding to calls, not investigating, arresting or making reports, issues of racial prejudice may be involved or there may simply be a question of jurisdiction between law enforcement agencies.
For instance, in the rural vicinity of Anadarko, Oklahoma, the County Sheriff has traditionally been responsible for intervention in rural calls made on county land, including public domain and private domain lands, or on Indian allotted land where the Department of the Interior, Bureau of Indian Affairs (BIA) has relinquished supervision of the property. Bureau of Indian Affairs law enforcement has traditionally been responsible for responding to calls regarding crimes perpetrated on Indian trust land or reservation land, allotted Indian land which remains under the supervision of the Department of the Interior, or on land judged to be "Dependent Indian Community" land, including all rights-of-way running through the land.
Allotted Indian land is defined in Title 18, U.S.C.S. 1151 as "all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same…". Since highways often run along the boundaries of Indian land, "Indian country" may "end" at the centerline of the road and the remaining half of the road will often be considered to fall within the jurisdiction of the State.
The term "Dependent Indian Community" is difficult to define. According to Charles B. Morris, esquire, (Attorney General for the Iowa and the Kickapoo Tribal Courts, and Prosecutor in the Court of Indian Offenses, Chickasaw Agency, and the Court of Indian Offenses, Pawnee and Anadarko Agencies), each community to be defined as a "Dependent Indian Community" must be qualified according to whether or not the land has been set apart for the exclusive use of Native American people. The term may be further defined by whether the State or a tribal nation (or nations) provide services to the community. It is conjectured that Riverside Indian School in Anadarko, Oklahoma may be the only community that actually meets the qualifications of description to be classified as a Dependent Indian Community in the State of Oklahoma. However, it has also been suggested that in the State of Oklahoma, Otoe Village and perhaps, Tonkawa West, may also meet the criterion for qualification as a Dependent Indian Community.
Likewise, Reservation or "Trust" land status is sometimes difficult to establish since Oklahoma exists on a checker-boarded system of tribal reservations (and these reservation systems rarely take the form of the idealized concept of formal reservations as they exist in other states.)
It may be virtually impossible for a peace officer to determine when allotted Indian land is land that remains in federal trust for the use of the individual Indian allottee and his/her descendants.
Indian hospitals, in contrast to what may be naturally presumed, often are built on federal land and may be surrounded by Indian trust land, but hospitals, in Oklahoma at least, are rarely located on federal "trust" land, so it may be argued that the State has jurisdiction over crimes that take place at the site of an Indian hospital.
Although cross-deputation has been implemented between Bureau of Indian Affairs law enforcement officers and other branches of law enforcement in a few regions of Oklahoma, collaborative efforts between agencies often are impeded by inadequate staffing and policing of territories that span such large areas that the limited number of agency officers is often insufficient to adequately police the regions assigned. Law enforcement officers cite, as specific problematic issues, the policing of territories covering 250 miles or more. With jurisdictions so large as to make the provision of services difficult, long response times result and evidence collecting becomes compromised. Budget constraints may also place one officer in charge of a particular territory or region, preventing peace officers from adhering to accepted policy (particularly prevalent in "non-Indian" law enforcement offices) for responding to calls with two or more officers.
Where the possibility exists for confusion over jurisdictions, victims (and offenders) "slip through the cracks" in our systems and programs. Each of these potential trouble zones must be carefully evaluated and addressed by any proposed program model in order to provide the greatest measures of safety and protection to victims, as well as the greatest protection to law enforcement agencies in issues of legal liability and furnishing equal protection under the law to all victims of violent crimes.
Of particular importance in implementing the Full Faith and Credit provisions of the VAWA, of course, is the development and adoption of State and tribal protection code. As discussed in other sections of this handbook, there is no direct federal law denying the sovereign right of American Indian tribes to make their own laws regarding domestic violence, sexual assault and stalking. The Full Faith and Credit provision (Title 18, U.S.C.S. 2265) directs that foreign orders be considered valid, or that a protection order issued by a court of one state or Indian tribe be accorded full faith and credit by the court of another state or tribe. But because the provision is not self-executing, states, Indian tribes and U.S. territories are free to establish their own procedures for compliance with the federal mandate.
With the passage of House Bill 2038, amending Title 22 of Oklahoma Statute Section 60.1 et seq., the Full Faith and Credit provision of the VAWA has been implemented by the State of Oklahoma. The amendment declares that all protection orders issued pursuant to the provisions of the Protection from Domestic Abuse Act to have statewide and national validity unless specifically modified or terminated by a judge of the district courts. The amendment also prohibits violation of foreign protective orders and authorizes warrantless arrest for violation of foreign protective orders under certain circumstances. The amendment, which effectively becomes law November 1, 2000, also establishes "rebuttable presumption" of validity for foreign protective orders.
House Bill 2038, while making provision for foreign protection orders to be honored, also includes additional enforcement procedures. In Oklahoma, the peace officer may arrest, without a warrant, and take into custody a person if the officer has "reasonable cause" to believe that:
Protection Orders may vary in length and content, and they may be identified by different names, such as "stay away order", "order of no contact", "injunction for protection", "harassment order", or "restraining order". American Indian or Alaska Native victims of domestic violence, stalking or sexual assault often seek protection orders from their tribe only to discover that the tribe does not have protection code in place. In these instances, the victim may seek a restraining order issued by the tribal court.
However, the victim should be made aware that tribal restraining orders are often a poor substitute for the victim protection order. Restraining orders constitute a "relief in equity" and often are not as strongly worded as to "actions and consequences". In other words, restraining orders typically contain language relative civil penalties, but they do not typically contain language relative criminal penalties, as cited in most VAWA-compliant protection orders.
If the restraining order does not contain all of the VAWA elements of Full Faith and Credit under Title 18, U.S.C.S. 2265, the order will not provide the appropriate level of federal protection to the victim. As a result, it has become particularly important that each American Indian and Alaska Native tribe adopt protection code establishing procedures for complying with the Full Faith and Credit provision of the VAWA.
Often, battered women are simply advised to carry a copy of their protection order on their person at all times, but law enforcement officials frequently refuse to honor a protection order that hasn't been registered in their jurisdiction. This is a particularly troublesome obstacle for a victim carrying a tribal court protection order because tribal courts rarely have access to any State or national tracking system for repeat offenders.
Likewise, criminal justice professionals operating outside tribal governments rarely have access to tribal or CFR court records. If a law enforcement official cannot access information on the tribal court protection order through a national tracking system, he may hesitate to enforce the order, offering the excuse that he cannot be certain the order is valid. (For this reason alone, it is strongly suggested that victims carry a certified copy of their foreign protection order, whether the foreign order has been registered at the victim's new home or not, as a certified order will sometimes encourage law enforcement officers to a presumption of validity.)
These issues are partially the result of the complex relationships that have historically existed between American Indian tribes, the United States government and States. In 1831, the U.S. Supreme Court decision in Cherokee Nation vs. State of Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25, defined the relationship between Indian Nations and the federal government as like that of a guardian to a ward. But the decision also concluded that the result of treaty provisions between the tribal nations and the United States government was to limit the Indian Nations to sovereignty over their internal affairs, while the external sovereign powers of the tribal nation were to be vested in the United States courts. Additionally, the Supreme Court decided that the tribal nations' sovereignty and supremacy of the Federal government placed Indian Nations beyond the authority of state government.
In 1832, while asserting federal supremacy over Indian country, Chief Justice John Marshall of the Supreme Court created judicial precedent when he wrote that Indian tribes are "distinct, independent, political communities" which retain rights of self-government, at least in a limited fashion (Worcester vs. State of Georgia, 31 U.S. 515, 8 L.Ed. 483).
The Congressional Act of 1871, however, stated that: "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." (Under Constitutional Law, only the Senate had the authority to ratify treaties. The Congressional Act of 1871 made provision for "agreements" between tribes and the U.S. by vote of both houses of Congress and signature by the President.)
The new law, in effect, changed only the political rituals by which treaties were negotiated and approved, although it could be argued that its intent was to divest tribes of all claims to sovereignty and reduce Indian people to the status of penniless beggars as "wards" of the federal government. It is argued, however, that regardless of Congress' opinion in 1871, the United States government had entered into treaties with Indian nations since the beginning of the Republic, thus recognizing the rights of Indian nations to self-government.
This argument was supported in 1896 when the U.S. Supreme Court ruled, in Talton vs. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, that since the governments of Indian Nations pre-dated the U.S. Constitution and did not receive any governmental authority from the U.S. Constitution, the tribal governments were not bound by the Constitution or any of its Amendments. The Supreme Court also held in this case that rights of criminal defendants under the United States Constitution did not apply to tribal criminal proceedings since the CFR Courts (Court of Indian Offenses) were operated under code imposed by the Secretary of the Interior.
Another Supreme Court case that impacts criminal jurisdiction of State and tribal courts is that of Ex Parte Crow Dog (1883). Four years after the murder of the Lakota war leader, Crazy Horse, the chief of the Brule band of Teton (Lakota) Sioux, Spotted Tail, was murdered by one of his relatives, a warrior named Crow Dog. There is some speculation that Spotted Tail had been manipulated by the U.S. government to a great degree to obtain his cooperation and loyalty, placing him in a position of constant friction with his own people in events leading up to the murder. Having been elevated by the U.S. government to the position of "paramount chief" over his Brule people, Spotted Tail was rumored to have become proud, self-centered and demanding. When he demanded (and appropriated) one of Crow Dog's female relatives against her will, Crow Dog resolved the matter in the traditional way, only to be sentenced to death for the murder of Spotted Tail by a non-Indian Dakota circuit court.
The Supreme Court, however, overturned the decision in Ex Parte Crow Dog 109 U.S. 556 (1883), ruling that Indian nations possess full jurisdiction over their members and that the federal government has no jurisdiction over crimes involving Indian against Indian. The decision dismayed and alarmed the U.S. Congress, perhaps because of its implied recognition of Indian sovereignty issues.
Largely as a result of the Supreme Court decision in the Crow Dog case, Congress passed the Major Crimes Act, 18 U.S.C.S. 1153, enacted in 1885, which followed the Indian Country Crimes Act, 18 U.S.C.S. 1152. The Major Crimes Act authorized federal jurisdiction over any major offense committed by Indians on Indian land, "thereby ending exclusivity of tribal jurisdiction in such matters".
The enactment of the Assimilative Crimes Act followed, allowing federal jurisdiction over offenses that did not violate federal enclave laws, but were spelled out in state laws regarding Indians vs. non-Indians or non-Indians vs. Indians. The Act opened debate concerning which state-defined crimes were applicable and permitted states to regulate conduct involving Indians without the consent of Indian tribal nations. This was in direct contradiction with Chief Justice Marshall's decision in Worcester vs. Georgia (1832), determining that states had no jurisdiction over Indian nations in Indian Country unless explicitly granted by Congress. (American Indian Development Associates (2000). Working Effectively with Indian Nations, pg. 72.)
The Major Crimes Act was supported by the Supreme Court decision in U.S. vs. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), when the Supreme Court concluded that Congress is the branch of government that has total authority over Indian tribal nations.
Although tribal sovereignty issues continue to be a matter of fierce debate in some arenas, the 1832 Supreme Court decision firmly established a base from which American Indian tribes still defend their rights to self-determination and self-government. (This same decision also served to distinguish the civil rights of Native Americans from the civil rights of other racial minorities.)
On November 7, 2000, President William Clinton signed an executive order to promote tribal sovereignty, tribal self-government and government-to-government relationships between Indian Nations and the United States. The order, according to President Clinton, "will ensure that all executive departments and agencies consult with Indian tribes and respect tribal sovereignty as they develop policy on issues that impact Indian communities".
For many tribal nations, the power of self-governance may be all that remains of their legacy as Native Americans. Sovereignty is the concept that recognizes the power of the Indian Nation to self-governance, regardless of the cultural form the government might take. The right to self-government on the part of tribal nations is inalienable and includes the right to enter into government-to-government relationships with other nation-states.
Since Article 1, Section 8 of the U.S. Constitution vests the federal government with the authority to engage in relations with Indian tribal nations, reaffirming the right of Indian Nations to be considered a part of the constitutional family belonging to the United States of America, Indian Nations continue to retain authority over most activity on reservation or Indian trust land. Tribal Nations have the authority to form their own government, establish leadership, create and enforce their own laws, and to punish criminal activity, except when a non-Indian or a federal crime is involved.
The Indian Re-Organization Act (IRA) was passed in 1934 and contained four main points: (1) repudiation of allotment policy, (2) re-establishment of Indian governments, (3) establishment of Indian business corporations and (4) Indian preference in BIA hiring. A tribal government could be accomplished, under the IRA, through the creation by the Indian Nation of a Constitution. (The Navajo Nation and most of the Pueblos voted not to adopt a constitution.)
In 1953, Congress passed Public Law 280, Chapter 505, H.R. 1063 (cited as 67 U.S. Statutes At Large, Chapter 505, pp. 588-590, 1953) Indians--Criminal Offenses and Civil Causes--State Jurisdiction. By this Act, Congress transferred to certain states criminal and civil jurisdiction over Indian persons in Indian country within those states without tribal consent (California, Minnesota, Nebraska, Oregon and Wisconsin), thereby negating the power of self-government by the tribes in these "mandated" states and superceding both tribal and federal authority. Upon statehood, Alaska, became the sixth of the mandated states under the Act. Only the Red Lake Reservation in Minnesota, the Warm Springs Reservation in Oregon, and the Metlakatla Indian Community on the Annette Islands in Alaska were excepted from this law.
Tribes within the affected States retained concurrent jurisdiction with the State in both investigation and prosecution matters. The Act also authorized "non-mandatory" states to "assume jurisdiction" over tribal nations within their state boundaries by "affirmative legislative action" and without tribal consent. Under authority of Public Law 280, Washington enacted RCW 37.12.010 in 1957, providing that the State could assume civil and/or criminal jurisdiction over Indian country within the State boundaries with tribal consent. Nine tribes consented to the State obtaining both criminal and civil jurisdiction over reservation lands, being: Chehalis, Colville, Muckleshoot, Nisqually, Quileute, Quinault, Skokomish, Squaxin Island, Suquamish and Tulalip Tribes. Several other reservations have been created since 1963 in Washington State, but there is debate as to whether or not P.L. 280 jurisdiction would apply to those lands.
Other States which have assumed jurisdiction, either in whole or in part, over Indian country within their borders now include Nevada, Florida, Idaho and Iowa. South Dakota has also assumed partial jurisdiction for civil and criminal actions on highways only. Five states--Washington, Montana, North Dakota, Arizona and Utah--have assumed jurisdiction, either in whole or in part, over Indian country within their states, but their claims are subject to legal challenges since their state constitutions possess legal disclaimers limiting state jurisdiction over Indian country and the state constitutions have not been amended. (Note: Montana has recently approved a retrocession of P.L. 83-280, ceding "exclusive jurisdiction over misdemeanor crimes committed by Indians" back to the Tribes. The retrocession precipitated a striking increase in police activity, almost doubling the demand for police response between 1993 and 1996.)
In 1968, P.L. 280 was amended to require tribal consent of subsequent transfers of jurisdictions to states, effectively halting the spread of P.L. 280. Title 25 U.S.C.S. 1323 then authorized a retrocession of jurisdiction by any State back to the federal government of "all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of Section 1162 of Title 18, Section 1360 of Title 28, or Section 7 of the Act of August 15, 1953 (67 Statute 588), as it was in effect prior to its repeal by subsection (b) of this section." (Section 7, the only portion of Public Law 280 that was repealed, allowed for States not possessing jurisdiction with respect to criminal offenses or civil causes to "assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.")
The tribal consent requirement of the amendment is not retroactive, however, and did not apply to transfers of jurisdiction which had already taken place prior to 1968. Wisconsin, Nebraska, Oregon and now, Montana, have since partially retroceded jurisdictions back to the federal government. Not one Tribal Nation has consented to state jurisdiction since the amendment took affect in 1968.
Retrocession (at least as to certain rights), as authorized by Title 25, U.S.C.S. 1323, has taken place on the Port Madison Reservation of the Suquamish Tribe. In 1986, Washington State also retroceded criminal jurisdiction over Indian persons to the Colville Tribe on the Colville Reservation. The same retrocession has now also been extended to the Quileute, Chehalis and Swinomish Reservations (1988). (Johnson, Professor Ralph W. and Rachel Paschal, editors. Tribal Court Handbook for the 26 Federally Recognized Tribes in Washington State. Second Edition: 9/1992. Sections V and VI. May also be found at internet web address http://msaj.com/papers/handbook.htm )(See the insert following this chapter on P.L. 83-280 for more information regarding this controversial law.)
The Indian Civil Rights Act (ICRA), 25 U.S.C.A. Sections 1301-13032 (1968, Suppl. 1986), in part, responded to the Supreme Court ruling in Talton vs. Mayes,(1896), in which it was held that the governments of Indian Nations pre-dated the U.S. Constitution and did not receive any governmental authority from the U.S. Constitution, nor were they bound by the Constitution or any of its Amendments. The ICRA placed limitations on the sentencing authority of tribal courts, making certain provisions of the U.S. Bill of Rights applicable to Indian court proceedings, resulting in concerns that traditional customs and practices of Indian "jurisprudence" had been jeopardized.
The consequence was that the ICRA amendment of P.L. 280 required states to obtain tribal consent before assuming jurisdiction over Indians in Indian country. The Act was not retroactive, however, and therefore did not affect state jurisdictional assumptions made prior to 1968 under P.L. 280.
P.L. 102-137, Criminal Jurisdiction Over Indians, 105 Stat. 646 (1991), further amended the ICRA, affirming the power of Indian tribes to exercise criminal misdemeanor jurisdiction over all Indians, regardless of tribal affiliation, on reservation or trust lands.
However, in 1978, in the Oliphant vs. Suquamish Indian Tribe (435 U.S. 191) case, the U.S. Supreme Court decided that tribal courts do not have criminal jurisdiction over non-Indians. The Major Crimes Act and the General Crimes Act, which makes all crimes committed by non-Indians against Indians in Indian Country subject to exclusive federal jurisdiction, regardless of the seriousness of the offense, has had the effect of "blurring" jurisdictional authority between Indian Nations and the U.S. government. In effect, major crimes may fall under federal and/or tribal jurisdiction, but as a general rule, tribal courts typically address misdemeanor crimes, while federal courts typically address major crimes, such as murder, kidnapping, maiming, assault with a dangerous weapon, or sexual abuse. (Refer to the next chapter in this section, entitled "Indian Country Criminal Jurisdictional Chart".)
Together with the various Supreme Court decisions, the Congressional Acts have had a particularly detrimental impact on how domestic violence, stalking and sexual assault cases in Indian country may be addressed by tribal courts, as well as how such crimes can be handled by tribal police. Sarah Deer, Department of Justice, Violence Against Women Office, has stated that the overall effect of the Major Crimes Act "has been an inconsistent ability of tribal judicial systems to protect women members. Especially in cases involving Indian women, police may often ignore crimes of abuse on the pretext of jurisdictional uncertainties." (Deer, Sarah, Esq. (1997) As quoted in "Sexual Assault in Indian Country--Confronting Sexual Violence". National Sexual Violence Resource Center (NSVRC). May also be seen at internet web address http://new.vawnet.org/category/Documents.php?docid=652 )
Since Oliphant makes it clear that tribal governments do not have criminal jurisdiction to prosecute non-Indians for any violation of tribal law, and since approximately 75% of the intimate victimizations in Indian country involve a non-Indian offender (compared to 11% of non-Indian victimizations by offenders of another race, as provided by American Indians and Crime, U.S. DOJ Bureau of Justice Statistics, February 1999), it has become particularly important that tribal governments develop policy and procedure to provide as much protection to Indian victims as possible.
VAWA II, signed into law effective November 1, 2000, attempts to address some of the inequities that have resulted from the various Supreme Court decisions and Acts of Congress, particularly providing for the prosecution of non-Indians in civil "domestic relations" actions by tribal courts. (And in February 2002, a bill was introduced by some tribal leaders that proposes to restore full criminal and civil jurisdiction over Indian lands, and at a very basic level, reaffirm tribal sovereignty.)
As United States citizens, American Indians and Alaskan Native people are subject to federal, state and local laws, but within the confines of Indian reservations (or on allotted Indian land or dependent Indian community land), a tribal member is generally subject only to federal and tribal laws. The difficulties of defining "jurisdiction", as the term applies to judicial decisions involving protection orders (and in many cases, restraining orders) issued by a tribal court, lie in:
If the tribal court does not have certain jurisdiction in each of the three areas specified, then any protection or restraining order issued by that court may be effectively challenged and may be found to be invalid by a higher court.
As an additional consideration, Arvo Mikkanen, Assistant U.S. Attorney and Special Assistant for Tribal Relations, U. S. Department of Justice, United States Attorney's Office, Western District of Oklahoma, has explained that under VAWA I, a non-Indian offender is not subject to civil jurisdiction, for instance (either arrest or detention) on behalf of a CFR tribal court, unless the offender stipulates. In other words, a valid tribal protection order (or restraining order) against a non-Indian offender must have the offender's consent to the order or it may be challenged and found to be neither valid nor effective.
It remains to be seen how the new provisions of VAWA II will affect this state of affairs, but it is doubtful that VAWA II's provisions will noticeably impact these problems in the absence of (independent) tribal protection code.
Nevertheless, the Full Faith and Credit Project (800-256-5883, ext. 2), and the Pennsylvania Coalition Against Domestic Violence (PCADV) suggest the following practical tips about tribal courts and law enforcement:
Many tribal courts do not have the authority to impose criminal sanctions against non-Indians who commit crimes within the tribe's boundaries.
However:
(Susan Kelly-Dreiss, Executive Director, from a brochure entitled "Increasing Your Safety: Full Faith and Credit for Protection Orders", created by PCADV and dated 12/22/2000 through a grant provided by the Violence Against Women Office, Office of Justice Programs, Department of Justice.)
It has been suggested that the tribes pass code allowing a non-Indian party to be restrained and prosecuted in a tribal court, in accordance with the provisions of VAWA II. However, such code may be in direct conflict with the Supreme Court ruling in Oliphant and, as Arvo Mikkanen points out, while judges may sometimes state in case law that a non-Indian abuser has already "stipulated" by his actions, there is a possibility that an appellate court may not agree with this judgment. The validity of such a protection order is questionable and therefore, may not be enforceable under Full Faith and Credit.
When an Indian court is unable to determine or establish jurisdiction, a State court may be petitioned to prosecute a non-Indian offender who commits a crime in Indian country, as often happens when a "victimless crime" occurs (such as a traffic violation, loitering, or "drunk and disorderly"). The State may also be able to prosecute a crime that occurs in Indian country if both the victim and the offender are non-Indians.
Basically, non-P.L. 280 States do not have the power to prosecute a crime in Indian country when either the victim or the offender is Indian. But pursuant to case law, civil cases that involve a non-Indian perpetrator and a non-Indian victim are within State jurisdiction and in these cases, no tribal or federal court exercises jurisdiction. Criminal jurisdiction over non-Indians rests solely with the federal government.
To further complicate this issue, it should be recognized that it may often be difficult, at first glance, to establish whether or not an offender or victim is a member or citizen of an Indian nation. Each federally recognized tribe has full authority to establish criterion for determining who will be allowed to claim citizenship as a member of the tribe. Many persons who cannot obtain admittance to a tribal role may still be able to claim heritage to a particular tribe by blood.
For instance, in Oklahoma, the Fort Sill Chiricahua Apaches require proof of 1/8 Chiricahua blood prior to inclusion as a member on the tribal role. The Kiowa and Comanche Tribes each require 1/4 blood quantum. In contrast, the Citizen Potawatomi, Cherokee, Choctaw and other tribes require only proof of descendancy from a previous tribal role member to obtain admission to the tribal role of the tribe. An individual may only be enrolled as a member of one tribe, not more than one, so a person whose ancestry involves several tribes may be unable to obtain a C.D.I.B. (Certificate of Degree of Blood) card, which provides proof of Indian ancestry, because they cannot meet tribal blood quantum requirements.
As an illustration, a person whose ancestry is 3/4 Kiowa and 1/4 Comanche may be enrolled in the Comanche tribal role, rather than the Kiowa. In the event that this person marries a non-Indian, their children's blood degree would amount to 3/8 Kiowa and 1/8 Comanche, or in effect, 1/2 American Indian. Despite this high degree of Indian blood, the children would not be able to gain admittance to either the Kiowa or Comanche tribal role since: (a) their ancestor was listed only on the Comanche role, and (2) the ancestor on the Comanche role possessed 1/4 blood quantum, the lowest degree allowed by the Comanche Tribe for inclusion on the tribal role. Because these (hypothetical) children possess only 1/8 Comanche blood and they have no ancestor on the Kiowa role, they will be technically considered non-Indians.
Due to these issues (and to the fact that it may be impossible to ascertain at a simple glance whether or not a person is a role member of a tribal nation), it is recommended that tribal courts and law enforcement officers request proof of tribal membership prior to presuming "jurisdiction" has been established. And it should be recognized that some people, not enrolled as a tribal citizen, may still meet the test for American Indian nationality if that person is recognized as an Indian by his/her community of origin. (For instance, the year 2000 census concluded that 273,230 American Indian and/or Alaskan Native persons reside in Oklahoma, which represents 7.9% of the total State population of 3.5 million persons, but this figure may actually be much higher if one included persons who do not possess C.D.I.B. cards, but do possess American Indian heritage.)
Some criminal justice professionals argue that should a State court issue a protective order on behalf of an Indian victim, there may be a question of validity for the protective order, even when the court is confident that there were actions involving a non-Indian offender (or a crime committed on non-Indian land) that validates the court order. If the order should be challenged and determined to be invalid, Full Faith and Credit would not apply.
The best solution for these issues may lie in a change of the federal regulations by the Department of Interior, granting tribal CFR courts jurisdiction over non-Indian offenders (which may have been adequately accomplished by the new language in VAWA II). Until definitive measures have been put in place--or until such time as the elements of VAWA II have been appropriately tested, if a violent incident involving a non-Indian offender and an Indian victim should occur, the appropriate action most often is that of involving the U.S. Attorney's office. Unfortunately, however, the federal authority generally prosecutes only in the event of serious bodily injury or death and will not usually prosecute misdemeanor or minor crimes.
As Arvo Mikkanen points out, charges that meet the standards for prosecution in a federal court are often difficult to establish and more difficult to prove. Although federal authorities may, in theory, be able to assimilate State law and make an arrest on misdemeanor charges in some instances, they may not often wish to if it is determined that successful prosecution of the offender will be particularly difficult. As a result, the non-Indian offender often will elude prosecution and punishment for crimes against an Indian victim, substantiating the belief that all too often, non- Indians may commit violent crimes against Indian people with virtual impunity. This argument may be supported by the Bureau of Justice Statistics for 1999 which seem to suggest that the lack of federal prosecution has contributed to the high number of Indian people who are victimized by non-Indian offenders.
Where the violent incident involves Indian vs. Indian, the U.S. Attorney's office may prosecute on four levels in Oklahoma, described by Mr. Mikkanen as being:
It has been suggested that a Memorandum of Understanding could be created between American Indian and Alaska Native Nations to establish the use of a standard protection order code and a standard protection order form. In addition, it is recommended that law enforcement personnel (tribal, State, City and County) be cross-deputized with Bureau of Indian Affairs law enforcement and that cross-jurisdictional training be advanced to both law enforcement, service providers and criminal justice professionals.
Other partial solutions to these issues have been accomplished by appointing or "cross-designating" tribal prosecutors to serve as Special Assistant U.S. Attorneys to prosecute cases as federal misdemeanor crimes, or to appoint tribal prosecutors to serve as Special Assistant District Attorneys to the State District Attorney's office through commission cards issued by the County Commissioner, allowing the tribal prosecutors to prosecute these types of cases in State courts. Tribal governments are naturally reluctant to use either of these avenues to resolve the problems of prosecuting non-Indian crime in Indian country since either option abdicates a certain amount of judicial power (and self-governance, sovereignty power) to either the State or the federal government.
Indian Nations reason that tribal jurisdiction and code/ordinances should be expanded to include these crimes by an act of Congress, if necessary. Arguments in favor of this method of resolution include notice that the U.S. Bill of Rights does not apply to tribal jurisdictions, but that the Indian Civil Rights Act includes all the protections and basic freedoms covered under the U.S. Constitution.
The duration of a protection order varies from state-to-state and can vary between tribes as well, according to tribal code established by the individual, federally recognized sovereign Indian Nations. Conditions set out in protection orders frequently vary. For example, a protection order issued by one state or tribal court may make stipulations about firearms, custody of children, or the division of marital property. Statute 2265 for full faith and credit for protection orders requires that the original terms of a foreign protection order be honored by the jurisdiction enforcing the order. As a result, should a victim's tribal protection order be effective for a three-year period, the jurisdiction or state the victim flees to or seeks asylum in must honor the protection order's terms even if the victim's new jurisdiction of residence only provides for a one-year term for permanent protection orders.
Finally, registration of protection orders in a centralized tracing system or common database is key to implementing the Full Faith and Credit provision of VAWA across jurisdictional boundaries.
(For more information on protection order registries and tracking systems, refer to the Law Enforcement Approaches section of this handbook.)
| Persons Involved | Federal Jurisdiction | Tribal Jurisdiction | State Jurisdiction |
|---|---|---|---|
| Indian Offender v. Indian Victim | Major Crimes Act, the U. S. can prosecute Tribal courts may have concurrent None, except under PL 280 as Indian 16 listed offenses. Among these, burglary, jurisdiction over crimes under the amended, or other federal statute | Tribal courts may have concurrent jurisdiction over crimes under the Major Crimes Act. All other offenses, tribal courts have sole jurisdiction (except where federal statute provides otherswise.) | None, except under PL 280 as amendeded, or other federal statute or by tribal vote pursuant to 25 U.S.C. 1321. The tribe may retain concurrent jurisdiction |
| Indian Offender v. Non-Indian | Major Crimes Act General Crims Act Assimilative |
Tribal courts may have concurrent jurisdiction over crimes under the Major Crimes Act. They do have concurrent jurisdiction over offenses which can be prosecuted by the U.S. under the General Crimes Act. Except for major crimes, tribes may preempt federal prosecution. For any other offneses, (as defined by tribal codes) tribal courts have exclusive jurisdiction. | Same as above |
| Indian Offender Victimless Crime | The U.S. probably can prosecute under the General Crimes Act as explained above or Assimilative Crimes Act. Crimes Act | Same as above | Same as above |
| Non-Indian Offender v. Indian Victim | General Crimes Act, plus a substantive offense defined by federal statute or a substantive offense defined by state offense defined by state law incorporated by the Assimilative Crime Act. | Tribal courts have no jurisdiction to prosecute non-Indians, unless Congress delegates such power to them. | Probably no state jurisdiction except under PL 290, as amended or with tribal consent pursuant to 25 U.S. c 1321. |
| Non-Indian Offender v. Non-Indian Victim | No federal jurisdiction except for distinctly federal offenses | Same as above | State courts have jurisdiction over all offenses defined by state law and involving ony non-Indians. |
| Non-Indian Offender Victimless Crime | General Crimes Act, plus a substantive offense defined by federal or a substantive offense defined by state law incorporated by the Assimilative Crimes Act. The law is still questionable whether federal jurisdiction is exclusive or concurrent with the state. | Same as above | State courts probably have concurrent jurisdiction with the U.S., although the law is unclear. |
| (National Indian Justice Center Legal Series, Petaluma, CA.) |
(Excerpted from an article by Ada Pecos Melton, President of American Indian Development Associates, Albuquerque, New Mexico, and Jerry Gardner, Executive Director of the Tribal Law and Policy Institute in San Francisco, California, printed in "Tribal Court Clearinghouse", which can be accessed on the worldwide web at http://www.tribal-institute.org/articles/melton1.htm .)
What is P.L. 280? Public Law 83-280 was the 280th Public Law enacted by the 83rd Congress in 1953. It is a complicated and controversial statute that represents a substantial transfer of jurisdiction from the federal government to the states in Indian country. This transfer of jurisdiction was required for the states specifically mentioned in the Act and for all Tribal Nations within the boundaries of those specific states. The Act also permitted other states an option to acquire jurisdiction over tribes within their boundaries. With the enactment of Public Law 280, affected states received criminal jurisdiction over reservation Indians and the federal government gave up, in those specific states, control over crimes in Indian country which involved Indian offenders or Indian victims.
What precipitated P.L. 280? Before P.L. 280's enactment, the federal government and Indian tribal courts shared jurisdiction over almost all civil and criminal matters involving Indians in Indian country. States had no jurisdiction. The Law was enacted during a period of termination and assimilation policies in Indian country, at a time when "tribal termination" had been established as official federal policy and the implementation of the Bureau of Indian Affairs "relocation" program was prodding Indian people to leave reservation and allotted Indian lands to seek employment in urban areas.
How was P.L. 280 different from earlier federal grants of jurisdiction to states? It allowed every state to assume jurisdiction at their own option at any time in the future, whereas most previous grants of jurisdiction to the states had been limited to some or all the reservations in a single state and most had called for prior consultation with the individual state and the affected Tribal Nations. But under P. L. 280, the Indian Nations which were affected had to deal with greatly increased state authority and control over a broad range of Indian country activities without tribal consent.
Which states were affected? Congress gave six states (five states initially, being California, Minnesota, Nebraska, Oregon, and Wisconsin; and then Alaska upon statehood) criminal and civil jurisdiction over tribal lands within the affected states. All Indian country was affected in the states of California, Nebraska and Wisconsin. In Minnesota, all Indian country except the Red Lake Reservation was affected. In Oregon, all Indian country except the Warm Springs Reservation was affected. And in Alaska, all Indian country except Metlakatla criminal jurisdiction was affected.
Were there states which "opted" to assume jurisdiction after the enactment of P.L. 280? Non-mandatory states had the option of taking partial jurisdiction without tribal consent (prior to any amendments of the law). In some instances, these transfers of jurisdiction under P. L. 280 have been returned to the federal government, overturned by the courts, or have never been implemented. States which assumed jurisdiction, either in whole or in part, over Indian country within their borders include Nevada, Florida, Idaho and Iowa. Some states desired to assume jurisdiction, but possessed disclaimers in their state constitutions limiting state jurisdiction over Indian country. Six states with such disclaimers have enacted legislation claiming full or partial P.L. 280 jurisdiction, but only one (South Dakota) has been successful in amending their state constitution to allow jurisdiction to be claimed. The remaining five states (Washington, Montana, North Dakota, Arizona and Utah) have not amended their state constitutions and although they have assumed jurisdiction, either in whole or in part, over Indian country within their states, their claims are subject to legal challenges. South Dakota claimed only partial jurisdiction, for civil and criminal actions on highways only.
How has P.L. 280 been amended since its enactment in 1953? In 1968, amendments were added to P.L. 280 which require tribal consent of subsequent transfers of jurisdictions to states and which authorized affected states to give back or "retrocede" jurisdiction to the federal government. The tribal consent requirement is not retroactive and did not apply to transfers of jurisdiction which had already taken place prior to 1968.
Have any tribes consented to state jurisdiction since the amendment of P.L. 280 in 1968? Since 1968, not one Tribal Nation has consented to state jurisdiction.
By what process could states retrocede jurisdiction to the federal government over affected Indian country lands? By sending a resolution to the Secretary of the Interior, an affected state can make application to return all or any portion of its jurisdiction granted under P.L. 280 to the federal government, but the retrocession is at the Secretary of the Interior's discretion. Also, Tribal Nations do not have a formal role in the retrocession process and cannot initiate return jurisdiction on their own or force retrocession on an unwilling state.
Have any states retroceded jurisdiction to the federal government since the amendment of P.L. 280 in 1968? Wisconsin retroceded jurisdiction over the Menominee Reservation in connection with the Menominee Restoration Act (Public Law 93-197). Nebraska retroceded jurisdiction over the Winnebago and Omaha Reservations. Oregon partially retroceded jurisdiction over the Umatilla Reservation.
(The following was provided by Arvo Mikkanen, Assistant U.S. Attorney and Special Assistant for Tribal Relations, U.S. Department of Justice, United States Attorney's Office, Western District of Oklahoma.)
Crimes committed within Indian Country, as defined by 18 U.S.C.S. 1151 (a) tribal trust lands, (b) dependent Indian communities, and (c) Indian allotments held in trust.
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| Indian (enrolled or recognized as Indian by community of origin) | Major Crimes Act Crimes: Murder, manslaughter, kidnapping, maiming, sexual abuse, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault on a person less than 16 years old, arson, burglary, robbery, theft under 18 USCS 661 (Authority: 18 USCS 1153) | FEDERAL (FBI &BIA Arresting Authorities) |
| -- | All remaining crimes contained in tribal code: (Authority: tribal code or 25 CRF Pt. 11, if no tribal code) | TRIBAL |
| Non-Indian | Major Crimes Act Crimes: Murder, manslaughter, kidnapping, maiming, sexual abuse, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault on a person less than 16 years old, arson, burglary, robbery, theft under 18 USCS 661 (Authority: 18 USCS 1152) | FEDERAL (FBI, BIA and Federal Marshals arresting authorities |
| -- | All remaining crimes contained in tribal code: (Authority: tribal code or 25 CFR Pt. 11, if no tribal code) | TRIBAL |
| -- | All remaining crimes contained in state code (where there is no federal statutute for the offense) under the Assimilative Crimes Act (Authority: 18 USCS 1152 and 13) | FEDERAL |
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| -- | a. Crimes in state code (where there is no federal statute for the offense) under the Assimilative Crimes Act (Authority: 18 USCS 1152 and 13) | FEDERAL |
| -- | b. Crimes in tribal code (Authority: tribal code or 25 CFR Pt. 11, if no tribal code) | TRIBAL |
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| -- | e.g. drug offenses, bank robbery, felony in possession of firearm, mail fraud, child pornography, theft from tribal organization, failure to report child abuse, etc.) (authority: individual federal statute) | FEDERAL |
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| Indian (enrolled or recognized as Indian by community of origin) | Indian Country Crimes Act (Federal Enclaves Act) Crimes: Murder, manslaughter, kidnapping, maiming, sexual abuse, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault on a person less than 16 years old, arson, burglary, robbery, theft under 18 USCS 661 and other crimes which apply to the "special maritime and territorial jurisdiction of the United States under the U.S. Code."(Authority: 18 USCS 1152) | FEDERAL |
| -- | All remaining crimes contained in state code (where there is no federal statutte for the offense) under the Assimilative Crimes Act (Authority: USCS 13) | FEDERAL |
| Non-Indian | All crimes contained in state code(Authority: U.S. vs. McBratney, (1882) 104 U.S. 621) | STATE ONLY |
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| -- | No Victim's Person or Property Involved in Crime (e.g. traffic offenses, disorderly conduct, prostitutions, etc) | STATE ONLY |
| Who is the Victim? | What was the Crime? | Jurisdiction |
|---|---|---|
| -- | e.g. drug offenses, bank robbery, felony in possession of firearm, mail fraud, child pornography, theft from tribal organization, failure to report child abuse, etc.) (authority: individual federal statute) | FEDERAL |
Also, it should be noted that if it is illegal to possess/sell alcohol on Indian land under any State law, then the possession of alcohol on Indian land is likewise a violation of federal law, and such a violation will potentially carry federal penalties.
The Constitutionality of Firearms Bans for convicted Domestic Violence offenders continues to be challenged in various States. Gun Control Act amendments prohibit domestic violence misdemeanants and persons subject to family violence protective orders from possessing firearms affecting interstate commerce (18 U.S.C.S. 922(g)(8) and (9). The following are summaries of recent rulings in a few of these cases.
United States Court of Appeals, Tenth Circuit, for the Western District of Oklahoma, February, 2000: U.S.A. vs. James Timothy Reddick
The defendant was charged with possession of a firearm while under a domestic violence restraining order in violation of 18 U.S.C.S. 922(g)(8). The defendant pled not guilty and made an offer of proof indicating that he did not know possession of a firearm while under a domestic violence restraining order was illegal. The district court disallowed the evidence and found the defendant guilty. He was sentenced to fifteen months imprisonment.
The defendant appealed the sentence, arguing that his conviction violated his due process rights on the grounds that he did not know of the federal law which prohibits firearm possession by a person under a protection order. He also argued that the district court incorrectly failed to require proof that the Defendant intended to harm the person who secured the P.O. against him. He also argued that 18 U.S.C.S. 922(g)(8) is designed to protect the person who obtained the protective order and that since he possessed a firearm to harm only himself, he did not violate the intent of the law.
The court ruled that:
Finally, the defendant agreed (after the Government filed a motion in limine to prevent the Defendant from arguing that he only intended to commit suicide) that lack of intent to harm others is not a defense to the charge. The sentence was affirmed by the appellate court.
(The following were excerpted from Perry, Anne L., Esquire (February/March 2000). "Debate Continues on Constitutionality of Firearms Ban for Domestic Abusers". Domestic Violence Report, Volume 5, No. 3, pg. 37-38, 46.)
United States District Court, Northern District of Texas: U.S.A. vs. Timothy Joe Emerson (1999)
After threatening to kill his wife's lover, a restraining order was sought against Emerson. The District Court noted that "no evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson against any member of his family". The Court also noted that Emerson had not been advised that the restraining order would subject him to federal criminal prosecution for possessing a firearm while subject to the order.
The Court dismissed Emerson's argument that the statute was unconstitutional under the Commerce Clause, citing Fifth Circuit precedent upholding the statute on those grounds. Nevertheless, the Court also ruled that the statute prohibiting possession of a firearm while subject to a restraining order violated the Second Amendment right to bear arms, which the Court held supports an individual's right to bear arms. The Court stated the Second Amendment rights are "personal" and that 922(g)(8) is unconstitutional because "it allows a state court proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights."
The Court also ruled that Emerson's Fifth Amendment due process rights had been violated by subjecting Emerson to "prosecution without proof of knowledge that he was violating the statute".
(Note: The United States District Court for the Western District of Texas did not align itself with the decision in the United States District Court, Northern District of Texas. Emerson is the only opinion interpreting gun prohibition statutes to find a constitutional violation based on the individual right to bear arms. Other district courts have also ruled that the Second Amendment confers a collective (as opposed to individual) right to bear arms.
United States District Court, District of Nebraska: U.S.A. vs. Ficke (1999)
The defendant, Gerald A. Ficke, pled no contest to a domestic violence misdemeanor assault charge. After a second arrest for assault on his wife, law enforcement confiscated two shotguns and a rifle from the home. No allegations were made that Ficke had used the guns to threaten his wife.
The Court ruled that Ficke "simply did not know and did not receive fair warning that his conduct had become unlawful" since his earlier "no contest" plea had been made two years' prior to the effective date of the gun ban amendments. As a result, he could not have been informed when he entered his "no contest" plea that one consequence of state conviction would be a federal felony firearm conviction if he firearms were discovered in his possession. The indictment was dismissed with the Court ruling that the defendant's right to notice and fair warning under the Fifth Amendment "due process" clause had been violated.
United States Court of Appeals for the First Circuit: U.S.A. vs. Meade (1999)
The defendant, who was subject to an anti-harassment order and had previously been convicted of a domestic violence misdemeanor, challenged 922(g)(8) on the basis that it violated his Tenth Amendment (Commerce Clause) and Fifth Amendment due process rights.
The Court ruled that the statute's clear jurisdictional element forbidding the possession of firearms, either "shipped or transported", in interstate commerce was a valid exercise of congressional authority. The Court further held that there was no Tenth Amendment violation by imposition of federal law on state sovereignty since the Gun Control Act requires only the existence of a state court order as an element of a federal offense. Finally, the Court held that the defendant's due process rights had not been violated because "the dangerous propensities of persons with a history of domestic abuse" naturally brought into question the innocence of gun possession by such an individual. Additionally, the Court stated that in its opinion, the statute satisfies due process as "both the proscribed conduct and the affected class of persons are explicitly set forth".
United States Court of Appeals, Seventh Circuit: Gillespie vs. City of Indianapolis (1999)
This complaint was initially brought by a police officer, who appealed for injunctive relief to protect his continued employment after his misdemeanor domestic violence conviction resulted in losing his job with the police department as a consequence of the firearms ban for convicted domestic violence offenders. The initial complaint was dismissed by the Southern District of Indiana, but the officer appealed the case on the basis of "equal protection", Second Amendment and Tenth Amendment challenges.
In part, the Court's opinion stated: "That someone previously convicted of engaging in domestic violence may possess a firearm for public rather than private purposes does not negate the possibility that he might use that gun against someone in his household." Insofar as the equal protection issue was concerned, the Court held that there was no irrationality in making a distinction between domestic violence and other violent misdemeanors. The Court also held that the firearms ban was not irrational, although it extended to individuals who carried firearms in the public interest.
The defendant argued that his Second Amendment rights had been violated since, as a police officer, he was subject to call for the National Guard (state's militia), but the court found "no reasonable relationship" between the defendant's prohibition against carrying a firearm and the "preservation or efficiency of a well-regulated militia". The Tenth Amendment argument was also dismissed since the Court was satisfied that the firearm in question had traveled interstate. The firearm's procurement from outside the state was held to be sufficient to overcome Commerce Clause challenges.
Note: Although the constitutionality of the Gun Control Act has been challenged at a district court level on several occasions, the federal courts of appeal continue to confirm its provisions. Possession of a firearm and/or ammunition after conviction of a "qualifying" domestic violence misdemeanor is a federal crime under Section 922(g)(8).
Additionally, in states where there are no gun manufacturers (such as Oklahoma), crimes involving guns may (automatically) be determined to be felonies with federal jurisdiction since the gun involved in the crime necessarily entered the state by crossing state lines. In this instance, "Indian" or "non-Indian" does not apply when determining federal jurisdiction.
It is recommended that all courts adopt a written notice to be attached to the face of all protective orders issued providing warning that firearm possession carries federal criminal liability for offenders convicted of domestic violence crimes. A sample follows:
Notice of Gun Ban for Protection Orders (Word Document)
(The following is a summary of an article written by NOW Legal Defense and Education Fund (August/September 2000). "US Supreme Court Strikes Down VAWA Civil Rights Remedy: U.S. v. Morrison". Domestic Violence Report, Volume 5, No. 6, pg. 81-82, 94-95.)
The Civil Rights Remedy provision of the 1994 Violence Against Women Act empowered victims of domestic violence or gender-motivated violence to sue their abusers in state or federal courts for compensatory and/or punitive damages, attorney's fees and other relief. However, in the recent United States vs. Morrison (5/15/2000) case, this provision was challenged successfully in the U.S. Supreme Court.
For a victim to successfully sue an offender under the Civil Rights Remedy provision of VAWA, the plaintiff is required to provide proof that she is the victim of a crime of violence that would constitute a felony under existing federal or state law, whether or not the felonious act resulted in criminal charges, prosecution or conviction. Secondly, a victim is required to provide proof that the defendant named perpetrated the crime as an act of gender-motivated violence.
U.S. vs. Morrison was initially a case brought by Christy Brzonkala against Antonio Morrison and James Crawford, who she accused of raping her in September 1994 while she was enrolled as a student at Virginia Polytechnic Institute. No adverse action was taken against Morrison and Crawford, who were also students and football athletes at Virginia Tech, although Brzonkala had filed a complaint under the school's sexual assault policy. When the school took no action on her complaint, Brzonkala stopped attending classes and dropped out of college.
Brzonkala later filed a Civil Rights Remedy claim against Morrison, Crawford and Virginia Tech in federal district court, along with a Title IX claim against the school for sexual discrimination. The Title IX claims were settled out of court between the parties. However, Morrison and Crawford moved to dismiss the remaining claims on the ground that the Civil Rights Remedy was unconstitutional. At that point, the United States intervened in the case to defend the constitutionality of the VAWA statute, which had been upheld by lower courts.
In enacting the Civil Rights Remedy, Congress partially relied on its power to regulate interstate commerce. Under the Commerce Clause, Congress's legislative power is limited to three categories of activity:
Since Congress had previously concluded that gender-motivated violence substantially impacts the national economy (through discouraging potential victims from traveling interstate or engaging in employment in interstate business), the Supreme Court focused its opinion on whether or not the Civil Rights Remedy provision was a valid exercise of Congress's authority under the third category of the Commerce Clause. Although Congress had determined that discriminatory violence discourages women from full participation in the national economy at the time that it enacted VAWA I, the Supreme Court ruled that neither the Commerce Clause, nor Section 5 of the 14th Amendment (guaranteeing that no person shall be deprived of life, liberty or property without due process of law, nor deny any person equal protection under the laws) provided a valid basis for the Civil Rights Remedy provision of VAWA. Additionally, the Supreme Court reasoned that gender-motivated crimes cannot be classified as "economic activity". Therefore, Congress's Commerce Clause authority does not apply to these types of crimes.
As to the 14th Amendment, the Court held that Section 5 was not a valid basis for the Civil Rights Remedy provision despite letters from the attorney generals of 38 states supporting Congress's determination to establish federal assistance programs to counteract practices of bias against victims of gender-motivated crimes in state justice systems. Nevertheless, the Supreme Court rejected the argument that the Section 5 language allows Congress to "create a cause of action against private actors in an attempt to remedy state discrimination".
The Court's invalidation of VAWA I's Civil Rights Remedy provision does not affect other provisions of VAWA, but may impact the ability of victim's to achieve redress for gender-motivated violent crimes. It may also impact Congress's authority in the future to protect civil rights by enacting federal legislation.
The Tribal Council of the Yakama Nation recently voted to enforce a ban on alcohol created by an 1855 treaty, whereby alcohol was forbidden within the confines of the Yakama Nation's Washington State reservation The ban was to take effect in September, 2000, on a reservation where nearly 80% of the 25,000 person population is non-Indian. The Tribal Council's decision has created divisions on the reservation between Indian people who are opposed to the ban and Indian people who support the ban, but the largest opposition to the ban is by non-Indians who own most of the nearly 4 dozen taverns and liquor stores within the boundary of the 1.2 million acre reservation (Verhovek, Sam Howe (12/24/2000). "Test of Indian Sovereignty and Government Resolve". http://query.nytimes.com/gst/fullpage.html?res=9E0DEEDF1538F937A15751C1A9669C8B63&n=Top/Reference/Times%20Topics/Subjects/A/Alcoholic%20Beverages.
Since Indian people account for only about 20% of the population on the Yakama Reservation, non-Indians who live on the Reservation do not feel that the Yakama's should have the power to enforce the civil regulation banning the sale of alcohol, at least where non-Indians are concerned. Tribal leaders, of course, argue that tribal sovereignty gives them the power to outlaw liquor sales on reservation land. Studies conducted by the tribe reveal a fetal alcohol syndrome rate of 5 times that of the national average, and alcohol-related traffic deaths on the reservation accounting for 80% of traffic deaths on Yakama land. The studies do not reflect the number of violent incidents that are alcohol-related, but many tribal members eloquently describe lives shattered by alcohol as they advocate removing alcohol from the reservation completely.
State officials, however, defend the rights of bar, tavern and store owners in State courts, defying the authority and sovereign rights of the Yakama Nation to govern the behavior and activities of non-Indians on the reservation. Since the non-Indian owned taverns and stores are located on privately-owned land within the reservation boundaries, the 1855 treaty may be judged as being of no effect as to such property. The Yakama tribal council, however, feels that the federal government has a responsibility, established by the 1855 treaty, that it has never carried out. The tribe has asked for federal intervention to enforce the Yakama Nation intention of removing alcohol from the reservation altogether.
(The following was partially excerpted from an article by Professor Kathleen Waits (June/July 2000). "Insights Into the Judicial Response to Domestic Violence". Domestic Violence Report, Volume 5, No. 5, pg. 67-68,74.)
James Ptacek, a sociology professor at Suffolk University, Boston, MA, conducted a two-year-long study of courts in the Boston area between 1992 and 1994 and published his findings in his book, Battered Women in the Courtroom: The Power of Judicial Responses (Northeastern University Press, 1999). The book focuses only on the judicial response to the request of domestic violence victims for protection orders and his discoveries were revealing, and in some instances, disturbing.
Ptacek's study covered fifty cases from Dorchester District Court and fifty cases from Quincy District Court, randomly selected. He also observed 150 restraining order hearings conducted by 18 separate judges in the two courts, and he interviewed 8 other Massachusetts judges. Telephone interviews were conducted on his behalf by domestic violence advocates with 40 women who had sought protective orders in the courts studied. The Dorchester Court serves a large African-American and Latino population, whereas the Quincy Court primarily serves an Anglo-American population. Overall, the women served through the Dorchester Court are, generally speaking, economically more deprived than the women served by the Quincy Court.
During the course of his research, Ptacek came to categorize judges based upon his observations of their behavior displayed toward victims and perpetrators. His categories as they apply to victims include good-natured, bureaucratic, either firm or formal, or condescending and harsh. The categories applied to judges' behavior toward male defendants include either firm or formal, bureaucratic or good-natured.
Ptacek noted that his "good-natured" judges displayed courtesy and supportive behavior toward victims, even expressing concern for the woman or sympathy for her suffering and what she had endured. If the judge was good-natured toward the victim, he tended to be firm toward the batterer. Conversely (and perhaps, predictably), if the judge was good-natured toward the male defendant, he was usually firm, condescending or harsh with the victim. If the judge was "bureaucratic", he generally displayed the same behavior toward the victim as the defendant. Seven of the eighteen judges Ptacek studied were good-natured toward women and firm toward the male defendants. Two of the eighteen judges were firm or condescending to the victims and good-natured toward the men. But not a single judge, among the 18 Ptacek observed, was categorized as either condescending or harsh towards men. One of the 18 judges studied, who presented a demeanor of sympathy for the female victim, intoned, "You truly are a victim". Yet the same judge then ruled that the victim's batterer be released from jail, sending "mixed signals" to both batterer and victim as to what the court's convictions and stance on violence in the home actually are.
Ptacek clears up two issues that have resulted in misunderstandings by victims, advocates, criminal justice professionals and society-at-large:
Rather than stating that all women are equally at risk for domestic violence, Ptacek makes it clear that while domestic violence is a "classless" crime, affecting all segments of society, including the wealthy, poor women are at greater risk of violence than other women. The inescapable conclusion must be that in-depth, complete knowledge of how violent crimes impact middle-class Caucasian women may have little or no value when assessing and addressing the special issues of poor victims and minority race victims.
But of even greater importance are the author's well-targeted observations and insights on the cases heard in both courts, which reflect that:
(Child support, child custody and child visitation judicial responses will be discussed in the section of this handbook regarding Children's Issues. Court-ordered batterer intervention will also be discussed in the Intervention and Treatment section of this handbook.)
Judicial responses similar to those cited occur daily in courtrooms across the country. Victims and advocates indignantly point to these judgments as evidence that judges are too often uneducated on the dynamics of domestic violence or hostile to the needs of victims and their children. When judges do not adequately understand the methods and techniques batterers use to manipulate and maneuver their victims, then judgements rendered will often leave the victim exposed and defenseless to the batterer's control tactics. When the batterer's personal agenda attains supremacy over the victim's safety and well being, the justice system has failed.
Tribal court judges may, perhaps, be in greater danger of becoming biased than judges in other courtrooms simply because a tribal court judge often has close family or friendship ties with people in the community who enter his/her courtroom, seeking judgments on one matter or another. When such conditions exist, or when tribal courts do not have protection code upon which to base the judge's rulings, American Indian victims of domestic violence and stalking will be discouraged from seeking assistance and protection through their tribe's criminal justice system. In these instances, injustice certainly can occur, but worse, crimes occur that go unpunished and victims are forced to endure terrible circumstances unnecessarily. In worst case scenarios, of course, a victim or her children may die simply because the only source they could look to for caring assistance did not provide them with the appropriate level of protection under the law.
It is unfortunately true that some judges are openly hostile or at least, inadequately educated to recognize the special issues and circumstances that surround domestic violence (and most stalking) cases. But there are also many judges who go above and beyond the letter of the law to adequately anticipate and meet the needs of victims who enter their courtrooms. Unfortunately, even compassionate and informed judges can be constrained by a lack of established (protection) code, a lack of legal precedent in case law, or by precise language that defines laws in narrow terms. If a judge has code in place (or legal precedent) that frees him to take a decisive stand against violence in the home, victims will be less fearful of reporting domestic violence crimes (even in tribal court settings where the judge may be the batterer's close relative) and may also feel at greater liberty to pursue protection orders and other remedies through the court system.
In some states or jurisdictions, extensions of protection orders are not automatic, but must be requested by the victim. When creating tribal code, it is advisable to establish provisions for injunctions that are not time limited and will continue in place until there is a motion to dissolve. With this type of code, the burden of proof will most often rest upon the batterer to show why the protection order should no longer be in place.
In a recent case in New Jersey (Stevenson vs. Stevenson, Superior Court of New Jersey, Chancery Division, 1998), the court ruled that dissolution of a final order at the request of the plaintiff is not mandatory, but is rather a matter of the court's discretion. The statute in place mandates that orders not be dissolved without a showing of "good cause", and that even when good cause is shown, dissolution is not mandatory.
In this case, the victim had reconciled with her batterer prior to the final hearing regarding her requested protection order against the defendant. Since the plaintiff had returned to her batterer, she requested that the court dissolve the order on the condition that the defendant had promised to commit no further violence. The court, however, felt compelled to make an independent finding to determine whether or not the continued protection order was no longer necessary before making a decision to vacate the order.
Concluding that a "reasonable, objective and independent determination of the facts leads to the inescapable conclusion that a real threat of recurrence of domestic violence by the defendant upon his battered wife will exist if the Final Restraining Order is dissolved", the court denied the plaintiff's request to vacate the order, stating that the court refused to be "an accomplice to further violence by this defendant". (Perry, Anne L. and Nancy K.D. Lemon, (February/March 2000). "Cases Involving Duration of Protection Orders". Domestic Violence Report, Volume 5, No. 3, pg. 43.)
The Superior Court of New Jersey, Appellate Division, has also considered a similar case, brought by the defendant, for dissolution of a protection order. The conclusions of the court in that action included an appropriate, well-thought-out caution to other judges to be wary of batterer's requests to dismiss, "as [the litigation] itself can constitute a form of abusive and controlling behavior". In addition, the statutory model in this case requires that orders be dissolved or modified by the same judge who entered the order or that a judge have the "complete record" (including pleadings and orders, the court file and a complete transcript of the final protection order hearing) of previous rulings upon which the order was based. For obvious reasons, this policy would seem to be an important part of any tribal code developed. (Perry, Anne L. and Nancy K.D. Lemon, (February/March 2000). "Cases Involving Duration of Protection Orders". Domestic Violence Report,Volume 5, No. 3, pg. 43.)
In yet another recent case heard by the New York State Supreme Court, Appellate Division (V.C. vs. H.C., 1999), the petitioner, a deaf woman who had previously filed for an order of protection against her husband and adult son, had been forced to flee her home. V.C.'s temporary order for protection was granted by a lower court, but her request that her home be awarded to her for her sole occupation was denied. The husband and son were allowed to stay in the home pending disposition. For various reasons, including the court's failure to provide an interpreter for V.C., the dispositional hearing was delayed for 18 months. At the hearing, a different judge refused to hear testimony and denied the petitioner's request for a 3-year final protection order. The judge also ruled that the husband and son could remain in the home.
Upon appealing the case, the New York State Supreme Court, Appellate Division ruled that "A victim of the outrageous and life-threatening sort of abuse set forth in this matter cannot be held hostage to the potential homelessness of her abuser, who created the intolerable situation in the first instance." The court remanded the case for a dispositional hearing before a different judge of the family court. (Perry, Anne L. and Nancy K.D. Lemon, (February/March 2000). "Cases Involving Duration of Protection Orders". Domestic Violence Report,Volume 5, No. 3, pg. 43.)
Language that may define the behavior of domestic violence survivors in a psychological setting, may be transferred to a courtroom setting with poor results. Legal opinions, which are based on the precise language found in laws, may imbue psychological or lay terms with equally legalistic and narrow definitions, with results that do not benefit domestic violence survivors.
A typical example of the misuse of language in a courtroom setting can be found in the term "battered woman syndrome", that first derived from the work of clinical psychologist, Lenore Walker, to explain what appears as irrational or erratic behavior in abuse victims. This term was meant to describe the mental and emotional condition of women living in abusive situations. "Learned helplessness" was considered a key factor in the syndrome, intended to describe a state of psychological paralysis in the victim that once reached, precluded the victim from leaving the situation, but instead dictated that she would surrender herself to the defeatist attitude of one who must merely suffer and endure. The second key factor in the analysis of the syndrome was the theory of the "cycle of violence". Walker hypothesized, in her research, that once a woman had been through the cycle of violence two or more times, she would be likely to have acquired a state of "learned helplessness".
Despite numerous and well-targeted challenges to Walker's theories, the psychological meaning of the term "battered woman syndrome" found its way into the courtroom, where it was assigned a new, more legalistic meaning:
"The battered woman syndrome is an anachronism that does not apply to the majority of women in present society...Walker's research paradigm was from the social sciences (psychology), yet, the terminology was adopted into the legal arena, which is an arena that uses precise definitions. A constant debate in law is to determine if the description of a situation fits the pre-given definition…the majority of women did not and could not fit this precise definition."
(Robinson, Michelle Elizabeth, M.A. (February/March 2000). "The Glue That Binds: Deconstruction of Walker's Battered Woman Syndrome". Domestic Violence Report, Volume 5, No. 3, pg. 33-34, 44.)
Robinson points out that many battered women are "strong, creative and assertive, in contrast to the impression of passivity and psychosocial pathology given by much popular and scholarly literature on abuse" (Campbell, J.C., Miller, P., Cardwell, M.M. and Belknap, R.A. (1994). "Relationship Status of Battered Women Over Time". Journal of Family Violence, Volume 9, No. 2, pg. 99-111).
To provide evidence supporting her opinion, Robinson goes on to cite the case of the British Ahluwalia, who had been trained as a lawyer and was completely capable and competent to guide her own affairs. Ahluwalia, however, battled her husband's violence in several instances with court orders before finally killing her husband in an act of apparent anger (Ahluwalia, K. and Gupta, R. (1997). Circle of Light: The Autobiography of Kiranjit Ahluwalia. New York: HarperCollins Publishers.).
The verdicts in several recent "battered woman syndrome" cases tend to support Robinson's perspective of the misuse that results from the adoption of a psychological or "medical model" term into the legal language of the courtroom. In the Georgia case of Graham vs. State (1999), Graham had been convicted of 12 criminal charges involving child molestation and sexual acts performed in front of and with the participation of two young children. Graham appealed her case, arguing that the trial court had refused to allow her a battered person defense. Both Ellen Graham and her children had testified that the children's father, Steven Graham, had slapped and abused his wife, then threatened to kill Ellen and the children if Ellen did not perform certain acts according to Steven's instruction. The Georgia Court of Appeals, however, stated that the court was satisfied that Ellen Graham had been allowed by the trial court to pursue a justification defense on the basis of coercion. The convictions were affirmed with the Court ruling that her case had not been "prejudiced by the court's failure to sever the trial as the battered person syndrome evidence would have been precluded in any case".
The ruling provides an excellent example of how narrowly many courts define the term "battered woman syndrome" and the evidence that a court may allow to be presented in support of pleas citing the syndrome. Like Georgia, many other courts will allow battered woman syndrome evidence only in cases of self-defense.
In the Appeals Court of Massachusetts in Commonwealth vs. Conaghan (1999), the court held that "although Conaghan provided evidence that she was emotionally abused, there was no evidence of physical abuse or the 'psychological learned helplessness' associated with battered woman's syndrome." The court further ruled that Conaghan "offered no evidence to show that battered woman's syndrome is a mental disease or defect that could have prevented her from being held criminally responsible for [her son's] death." (Perry, Anne L., Esquire (June/July 2000). "Recent Battered Woman Syndrome Cases". Domestic Violence Report, Volume 5, No. 5, pg. 70).
As Anne L. Perry points out in her article citing recent cases of this nature, "the majority opinion also erroneously refers to the 'battered woman's syndrome defense', which in fact does not exist--such evidence is relevant in the context of another defense, such as self-defense, duress, etc." Perry also acknowledges that battered women's syndrome is better characterized as "the typical experiences and reactions of victims of domestic violence", rather than as learned helplessness that is the consequence of a cycle of violence.
The following tips for Judges have been excerpted from the "Judicial Checklist" prepared by the Judicial Subcommittee of the American Bar Association's Commission on Domestic Violence:
Goals of Judicial Intervention:
Relief Prior to Full Hearing:
Most states authorize the court to prohibit further acts of violence; exclude respondent from residence; restrain further contact (in person, by phone or mail, or through third parties), threats, abuse or harassment by respondent; award petitioner exclusive possession of shared residence; exclude respondent from petitioner'' place of employment; grant temporary custody of minor children to non-abusive parent; direct supervised visitation where appropriate; or order such other relief as court deems proper for protection, including directives to law enforcement. Some courts order temporary child support or support for the petitioner.
Relief After Full Hearing:
Restrain further acts of violence, abuse, threats, harassment, contact (in person, by phone or mail, or through third parties); award possession of shared residence; exclude respondent from petitioner's place of employment; order temporary custody and support for minor children and supervised visitation where appropriate; order respondent to appropriate domestic violence intervention, substance abuse treatment, parenting classes, mental health counseling; refer petitioner to support groups, children to counseling programs; order no firearm access, relinquishment of firearm; and restitution and attorney fees where permissible.
Model No-Contact Clause:
Respondent shall stay at least 150 yards from petitioner and shall not go to the home, school, or place of employment of petitioner or make any contact, directly or indirectly, by phone, through third parties, or by mail, except to mail court-ordered support payments or to appear in court proceedings or to communicate through counsel.
Firearms and Ammunition:
Where appropriate, order surrender and verify surrender of weapons to law enforcement; order respondents to file receipt from police agency or proof of sale to court.
Drafting Orders on Custody/Visitation:
Bail: Restrictions on Pretrial Release:
Sentencing:
Goals in domestic violence cases are to hold perpetrator accountable, change perpetrator behavior, and provide clear and consistent consequences for failure to follow court mandates.
Consider:
Incarceration, restitution, fines, monitored probation with specific conditions, community control, community service hours, mental health evaluation and treatment, parenting classes, batterer intervention programs, drug and alcohol treatment, stay-away order from victim and children (if necessary).
A growing trend in the criminal justice profession is that of establishing domestic violence courts. Many jurisdictions have discovered that domestic violence is the fastest growing facet of their courts' caseloads (although it should be recognized that a portion of this caseload may be more appropriately described as stalking cases).
A domestic violence court may provide many advantages to victims, advocates, law enforcement, prosecutors and judges. One obvious advantage is that criminal justice professionals working through the limited forum of a domestic violence court will naturally be specialists in their field. If such a court can also adequately link to the data of other courts in the state or jurisdiction that handle cases involving domestic violence, stalking and sexual assault, victims may have the added advantage of strengthened protective measures.
A domestic violence court will typically maintain a specialized calendar. It may also issue child support orders and/or spousal support orders, as well as temporary custody orders and visitation orders at the time of issuance of the initial protection order, thereby lowering the rates at which victims return to their batterers.
Law enforcement officers and prosecutors tend to work more closely with one another when their cases are heard by a domestic violence court. Accustomed to what types of evidence the judiciary deems admissible and most desirable, law enforcement can streamline their arrest policies appropriately, and law enforcement and prosecutors can collaborate more effectively on evidence collection. By using effective pre- and post-arrest procedures, and through the medium of interagency collaboration, domestic violence courts are in the best possible position to ensure the safety of victims and to hold offenders accountable for their crimes, while yet administering justice fairly, even in complex cases. Standardized batterer intervention treatment programs with increased judicial monitoring of individual cases may help to ensure that fewer batterers drop out of treatment.
The Court of Indian Offenses (or CFR Court) was established to eliminate the authority of traditional dispute resolution through the imposition of a Code of Federal Regulations. The Code prohibited most Indian medicinal, cultural and religious practices. In 1884, law and order codes developed by the Bureau of Indian Affairs were imposed on Indian Nations unilaterally and Congress, for the first time, appropriated funding of Indian police and judges under the 1921 Snyder Act 42 Statute 208.
Nevertheless, as sovereign nations, Indian tribal nations retain the authority to determine the legal structure used in administering justice, as well as the right to determine the relationship of the legal structure with other governing bodies. While limited by the Indian Civil Rights Act in sentencing matters, tribes have concurrent jurisdiction over the felony crimes enumerated in the Major Crimes Act, later reinforced by the Supreme Court in Oliphant vs. Suquamish Indian Tribe (1978). (American Indian Development Associates (2000). Working Effectively with Indian Nations, pg. 72.)
Tribal courts today, as a result of the various Supreme Court decisions and Congressional Acts, have been developed through several means, and different approaches have been implemented to administer justice. In many instances, dual justice systems co-exist in tribal court systems, allowing for justice to be administered from an Anglo-American value-based position, and the other to be administered from a tribal tradition and culture-based position.
Indian courts fall into four basic categories, which include peacemaking courts, traditional courts, tribal courts and the Courts of Indian Offenses, or CFR Courts. The only variance to these categories would lie in community and family courts, which are less "courts", by the generally understood definition, as they are forums for discussion without "official" sanction by most tribal governments.
CFR Courts are federal courts, not tribal courts, and their guidelines for justice have been established by Title 25 of the Code of Federal Regulations. CFR Courts are established upon the request of a tribal nation or in circumstances when tribal courts are not operating. The judge of a CFR Court is a federal magistrate. Federal procedure is followed, including federal rules for evidence documentation. There are few CFR Courts still in use in tribal communities (primarily in communities that have limited funding resources).
Tribal Courts are established by the tribal council, typically according to the tribal Constitution. These courts are subject to the authority of the tribal council and ordinances that have been adopted by the tribal council govern decisions, policy and procedure. The tribal judge, however, will typically establish courtroom policy and procedure relative conduct codes during hearings held by the judge. The judge may be elected by a unanimous vote of the tribal membership or appointed by the tribal council. Judges are often "lay" judges from the Indian community or tribe the court serves, as adverse to "law-trained" judges.
Appeals may be heard by the tribal Appellate Court, presided over by either judges or by the tribal council. Tribal courts primarily handle misdemeanor cases, not felony crimes, and since the Indian Civil Rights Act did not require Indian Nations to provide legal counsel, plaintiff and defendant must hire their own legal counsel, if desired. If not, the parties may represent themselves or invite a friend or relative to advocate for them in court. Few tribal courts keep complete transcripts of court proceedings.
Traditional Courts, strictly defined, are maintained only by the Pueblos of New Mexico and are based wholly on Pueblo tradition, with the governor of the Pueblo acting as judge. In some instances, members of the tribal council sit with the judge in the administration of justice. Typically, the Traditional Pueblo Court does not function with written laws, but makes decisions based on moral codes and value systems imbedded in Pueblo traditions and customs. An appeal of a decision made by the governor of the Pueblo is typically heard by the Pueblo Council.
Peacemaking Courts are, generally-speaking, courts that have been established by a tribal community through unwritten laws, moral codes and value systems imbedded in the traditions and customs of the tribe. These Courts are presided over by elders or other tribally-selected adults from within the community, who are well-respected and have knowledge of traditional methods for resolving conflict, as well as knowledge of the tribe's spiritual traditions and customs. Courtroom procedure is generally informal, with the Peacemaker acting as facilitator for discussion in the gathering of family, friends and other persons who have an interest in the case. Methods for judging matters between parties focus most often on providing reparation to the victim, while (re-)establishing peaceful relations between victim and offender, and restoring the offender to the tribal community.
In recent years, the Navajo Nation has begun its own pioneering work in establishing "Peacemaker (or Peacemaking) Courts". The Courts, located in Window Rock, Arizona, and Shiprock, New Mexico, were officially established in 1982 as a division of the Navajo court system, but they actually represent the adaptation to contemporary Navajo society of time-tested traditions that had been forced into disuse under the pressure of the early reservation systems.
Dr. Robert Bergman, a psychiatrist who began working on the Navajo Reservation in the 1960's, described the duties of the traditional Navajo medicine men:
"...Moral guidance is [also] an inextricable element of ceremonial practice, and outside of the ceremonial, it was again the medicine men, because of their knowledge, experience and integrity, who were called upon to play the leading role in the informal judicial process that settled disputes and dealt with wrongdoers until quite recently…Until the advent of tribal courts, disputes in a Navajo community were settled by discussions involving large families of neighbors along with medicine men or other leaders. Discussions were very long, but they were not long-delayed, and the knowledge of psychology possessed by the medicine man was often determining of a consensually-arrived-at group decision. "
(Bergman, Robert L., M.D., from an undated paper entitled, "The Medicine Men of the Future--Reuniting the Learned Professions". Furnished by Robert Black Wolf, 2001.)
The process of "assimilation and acculturation" for Navajo people into the predominantly white society was typical of what many other tribal people suffered: a society that had been matriarchal in structure was unable to wholly withstand the assault of a culture that defined status, hierarchy and power in male-dominated terms. Beginning in early reservation times, Navajo men were encouraged (and sometimes coerced) by the dominant society to assume the status and roles in the family and greater community that had previously fallen within the unique domain of women.
In this new, patriarchal society, only men were listed as heads of households. Children were sent to faraway boarding schools to learn (and adopt, if possible) beliefs and value systems foreign to the Navajo. The sheep and goatherds that had previously been the property of Navajo women suddenly became the property of Navajo men, changing the entire face of Navajo society--yet only in a superficial fashion. Beneath the surface, though, Navajo culture retained a rich foundation of customs and traditions that could not be shaken, however violently assaulted.
The Peacemaker Courts are an expression of those unique traditions and the value systems that are inherent to Navajo culture. Unlike Anglo-American court systems which focus on establishing the guilt of one party and the innocence of another, the Navajo Peacemaker concept relies on returning violent offenders to hozro, or harmony and balance, with themselves and all other living creatures.
Ancient Navajo beliefs do not assign guilt or blame. Cultural tradition dictates that if a person acts or behaves in a bad or violent way to others, violating basic tenets of Navajo behavioral code, it is because evil forces (or "a dark wind") have entered the individual, destroying the person's good judgment.
The Navajo definition of the reasons for this type of behavior might be considered generally equivalent to the Anglo definition for the term "temporary insanity". Like those persons who successfully plead temporary insanity defenses, a Navajo person whose behavior has been corrupted by a dark wind is thought to be someone who is "not guilty" of actions that would bring punishment upon other people. Rather, the behavior is held to be the result of evil forces that have interfered in the offending individual's life. The person's community and family then work together to restore the offending person to a right way of thinking that will place him "in tune" once again with the harmony and beauty of the universe. When the person is able to reclaim his rightful place in the universe and his society, he has found hozro.
In the Navajo Peacemaker Court, the local unit of government selects the peacemaker. Usually, an elder is chosen who has knowledge of traditional Navajo oral history and is well respected by his/her peers. The individual selected as Peacemaker typically has acquired a reputation for being loving, encouraging and flexible, as well as eloquently persuasive.
Professor Donna Coker, who studied the Navajo Peacemaking Courts in depth, notes that peacemaking is "highly structured, involving all who have a special relationship to the parties or relevant expertise in the case". (Zorza, Joan (April/May 2000). "What Can We Learn from Navajo Peacemaking?" Domestic Violence Report, Volume 5, No. 4, pg. 49, 63.) A case that involves domestic violence may be referred to peacemaking only with the victim's consent and only if the peacemaker has received training in the dynamics of domestic violence.
The peacemaking session opens with prayers in Navajo and English. All persons who have an intimate or special relationship with the parties are able to participate. Each of these persons, whether friends, relatives, or professionals working in the social services, crisis intervention or substance abuse rehabilitation fields, are provided the opportunity to describe the reasons that the peacemaking session has been convened.
"Peacemaking combines "mediation, restorative justice, therapeutic intervention, family counseling and Navajo reaching". …When it works well, peacemaking addresses the societal and familial support for battering by confronting batterers and families about their denial and minimization of the abuse or their tendency to blame the victim or life's circumstances for it. In addition to encouraging family participation, it can "provide a mechanism for transferring material resources to the victim, thus lessening her economic and social vulnerability"..."
(Zorza, Joan (April/May 2000). Remarks in quotations by Professor Donna Coker. "What Can We Learn from Navajo Peacemaking?" Domestic Violence Report, Volume 5, No. 4, pg. 49, 63.)
In addition to these benefits, Professor Coker asserts that peacemaking can provide other advantages for the victim as well, including:
However, some problems and concerns with the peacemaking concept have also emerged. Some of these concerns are that:
It would appear that one of the main problematic issues with peacemaking sessions is the concern that the batterer may not be held to the proper level of accountability to effect a permanent and lasting change in his behavior. The question remains: if a batterer is allowed the excuse of being compelled by dark forces to perpetrate violent deeds in a manner beyond his control, then do the ceremonies intended to return him to a right state of mind and attitude instead allow him to blame his behavior on outside factors, rather than accepting responsibility for the violence he has perpetrated?
As Professor Coker concludes "some of the benefits of Peacemaking...may exist more in theory than in practice at this" time. We should remain aware that the peacemaking concepts may not be refined enough to transpose them, in whole cloth, onto current court systems. On the other hand, the use of traditional methods, such as peacemaking courts or "sentencing circles" for intervention may well be the best tribal courts can prescribe for batterers.
Like peacemaking courts, sentencing circles often involve elders and/or other prominent or respected persons within the tribal community. Judgments pronounced by sentencing circles may involve a range of sanctions and interventions, including involving the batterer (and/or victim) in culturally relevant crafts or activities, such as canoe building. In some cases, the sentencing circle may impose exile on the offender, banishing him from the tribal community.
The Red Lake Tribe of Minnesota, as well as a few other tribal nations, have in place "citizen boards" that provide peacemakers or facilitators for circumstances related to peacemaking. When peacemaking works best, the process will embody all the characteristics of traditional resolutions, including reparation, distribution and restoration, and all the concepts of peace, healing and harmonious lifestyles are brought into play. Offenders are held accountable for their misdeeds and will accept responsibility for harm done, compelling them to make reparations to the victim.
Typically, the reparation process will involve the offender asking forgiveness of the victim, followed by restitution to the victim. Proponents of peacemaking suggest that this traditional method of correction and intervention allows offenders to remain active participants in the tribal community while also causing the community to be responsible, as a united body of people, for taking corrective actions necessary and enforcing sanctions determined against the offender.
The traditional resolution of distribution allows the community to provide protection for victims and require compliance with corrective measures on the part of the offender. Distributive justice principles require the blame and guilt for the offender's violent behavior to be shared by his relatives. With a personal investment in the offender's behavior, extended family and relatives are more likely to hold the offender to well-defined limits of accountability. Where shelters and/or correctional facilities and batterer intervention treatment programs are unavailable for use by the community, distributive justice can still provide the victim with high levels of safety and protection, while yet causing the offender's violent behavior to cease.
Finally, restorative justice enables the victim to claim an active role in her own healing, allowing effective tools for empowerment to replace vulnerability and powerlessness. At the same time, the offender is also allowed an opportunity to re-establish dignity, his place within the community, and in best case scenarios, the trust of the victim, allowing the offender an opportunity to regain his family.
The peacemaking response to violent crimes in Indian country has the additional advantage of allowing Indian people to re-discover their heritage, culture, customs and traditions in the process of addressing violence through traditional means. This "re-discovery" empowers Indian people to connect with their tribe's common historical experiences and traditions in positive ways.
Significant contrasts between the "peacemaking" method of restorative justice and the punitive justice alternatives typically imbedded in non-Indian forms of domestic violence courts often include the following:
Note: In a recent evaluation/assessment of the Navajo Peacemaking system, peacemaking was found "to be an effective tool in solving family conflict". The study reported that: "The problem that precipitated the peacemaking process reoccurred for 29% of the peacemaking participants; by comparison, 64% of family court participants experienced a reoccurrence of their problem. Results also showed that 86% of peacemaking participants agreed that the venue gave them the opportunity to express their feelings compared to 50% for family court participants. Rates of peacemaking settlement and satisfaction were consistent when measured against factors such as religion, income, and drug abuse. All respondents were 100% Navajo residing in the Chinle district of Navajo land." (Gross, E.K. Cited in "The NIJ Research Review", published by the U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, November 2001, Volume 2, Issue 3. The full abstract can be found at http://www.ncjrs.org/rr/vol2_3/3.html)(This page is no longer available as of October 22, 2002)
One of the many reasons why Indian victims do not report violence perpetrated against them is that few Indian people have confidence that their tribe's criminal justice system will be adequate to meet their needs or protect them. Lack of tribal code, further impacted by jurisdictional issues between state, tribal and federal authorities can erode a victim's confidence in the tribe's ability to provide adequate intervention strategies, encouraging silence and secrecy, not victim-reporting.
This lack of confidence on the part of victims is justified, too, in that most tribes have limited sentencing alternatives with which to handle violent offenders since few Indian Nations:
The sentencing judicial powers and authority of tribal courts have been severely and negatively impacted by the Indian Civil Rights Act, which allows tribal courts to sentence offenders to no more than a one (1) year jail term and/or $5,000 fine for domestic violence misdemeanor acts. For tribal courts that do not possess the option of traditional or peacemaking systems, the ICRA has the effect of weakening strictly punitive sentences that the tribal court may impose.
While Indian Nations retain authority to refer to certain crimes as "felonies" in tribal code, the ICRA sentencing restrictions on tribal courts have arguably reduced felony crimes in tribal law to a misdemeanor status, at least by Anglo-American definitions. Since Indian Nations do not have congressional authority to impose penalties appropriate to felony acts of domestic violence, offenders may re-offend with virtual impunity, knowing that the full extent of their punishment will be minimal and that the U.S. Attorney's office will generally not prosecute any but the most severe incidents of violence.
The survey was prepared to determine what degree of specialization courts which adjudicate domestic violence cases are currently employing. The results of the survey and its subsequent report were derived from the responses of 103 courts to the written questionnaire, as well as the responses from telephone interviews with representatives of 82 of the 103 courts, and a modified Delphi study with a panel of 27 professionals, including judges and court managers in courts using specialized processes for managing and adjudicating domestic violence cases.
Of the 103 courts represented, 2 were from the State of Arizona, 12 from California, 1 from Colorado, 1 from Connecticut, 1 Delaware, 9 Florida, 5 Iowa, 9 Illinois, 3 Kansas, 2 Michigan, 1 Minnesota, 10 North Carolina courts, 12 New Mexico courts, 6 Nevada courts, 1 New York court, 1 Oklahoma, 3 Pennsylvania, 1 Rhode Island, 1 Texas, 1 Utah, 1 Wisconsin and 20 Washington courts.
While some of these courts had in place certain components listed in the survey for a high degree of specialization in the field, few had all of the components, and the structure varied widely from State-to-State and court-to-court. Only 7 of the 103 courts, for instance, assign judges to hear domestic violence cases exclusively. None of the 103 courts answering the questionnaire were tribal courts and it is unclear whether or not the questionnaire was submitted to any tribal courts. However, the study estimates that approximately 300 courts across the nation now have some type of specialized structure, process or practice to address domestic violence cases.
The conclusion drawn from the report, in all, is that the concept of a domestic violence court is not well developed yet and has not been defined, within the court systems of either State or tribal courts, as to what processes and structure have the most positive impact.
According to Bonnie Campbell of the Violence Against Women Office, Department of Justice, the largest number of telephone calls received at VAWO are about police officers who batter their partners. The second largest number of calls are for women who do not have effective legal representation available to them. (Zorza, Joan (August/September 2000). "ABA Takes on Increasing Pro Bono Representation. Domestic Violence Report, Volume 5, No. 6, pg. 83.)
It is important that prosecutors, judges and advocates understand and are sympathetic to the unique challenges faced by law enforcement to avoid a breakdown in communications that will not serve the battered woman. It is equally important that law enforcement understand the unique needs of prosecutors to adequately prosecute a case, and that law enforcement, prosecutors and judges understand the emotional upheaval of the abused.
For instance, many battered women do not actually desire that their batterer be prosecuted or punished. If law enforcement, prosecutors and the judiciary do not understand the complexity of the issues, concerns and feelings from the woman's perspective that cause her to react to arrest, prosecution and punishment of the offender as a personal threat, then the result will inevitably be hostility and conflict.
Criminal justice professionals should recognize that a victim may offer willing testimony in a civil court simply because she has made the ultimate decision regarding if and when she will request a protection order. But in a criminal court setting, the same victim may present as an unwilling witness simply because, in most cases before a criminal court, several months have passed since the violent incident that precipitated the court hearing. By the time of the hearing, the victim has most likely returned to her batterer or otherwise taken action to go on with her life. If she has returned to her batterer, she will view the criminal court action as a threat to her personal safety and to her relationship with the batterer. If she has gone on with her life, taking steps to put distance between herself and past violence, she will very likely resent the court action for forcing her to relive unhappy memories or for interrupting the forward momentum of her life.
For prosecutors in particular, it is helpful to remember that two key factors in obtaining and keeping the cooperation of a victim witness are:
An accomplished victim advocate can provide the victim with support and information throughout the court process, whether in a civil case or in a criminal case. The victim advocate can also help provide protection for the victim through a shelter referral and can assist the victim in accessing victim services and public assistance appropriate to the victim's special needs.
The victim advocate, however, should not be asked by prosecution to share confidences that have been imparted to her by the victim for the advocate has confidentiality obligations that prosecutors must recognize. Also, an advocate is not usually a paralegal and should not be treated as such by the prosecutor. The advocate's role is not to do factual investigations or to develop evidence against the batterer. Conducting investigations and gathering evidence falls into the law enforcement officer's and prosecutor's unique jurisdictions and is a chore that should be accomplished between those two professionals.
By the same token, since advocates are not usually attorneys, they cannot understand legal terms and definitions if the prosecutor does not take the time to explain those terms. An uninformed advocate is a prosecutor's handicap and disables the victim to be an effective witness as well. An informed advocate has the ability to foster and encourage a strong and supportive relationship between the victim and prosecutor, resulting in the successful prosecution of the victim's case. If an advocate expresses an interest in working closely with the criminal justice system (as many legal advocates do), a prosecutor may discover that nurturing the advocate's understanding of legal issues can have a positive impact on the victim as a witness and on the prosecutor's caseload as well.
The most common response to domestic violence and stalking by the criminal justice system and society at large involves minimizing and trivializing the crime, instead of acknowledging the seriousness of the offense. When a victim's experiences are minimized and trivialized, she is most likely to determine that the expense and risk of prosecution is too great a burden to bear, particularly when she is also expected to bear the total burden for her own safety and that of her children's safety as well.
In the first contact between a prosecutor and the victim, it is suggested that the prosecutor openly state that he/she does not expect the victim to leave the battering relationship, but that decisions of that nature are entirely the victim's own. If the prosecutor makes it clear to the victim that his/her sole responsibility is to undertake the task of helping her to end the violence in her life, then the victim will more often than not respond to this approach in a positive way.
The prosecutor may also suggest that a common goal between them should be to provide the batterer with an opportunity to confess his violence and seek intervention therapy for his behavior. Additionally, the prosecutor may wish to carefully explain that by bringing the batterer into the criminal justice process, the weight of the burden for holding the batterer accountable for his behavior can be shifted from the victim to the court. This is a particularly meaningful approach when children are involved in the violence and/or the court process.
Prosecutors should, as a general rule, issue subpoenas for the victim witness, even when they are certain the victim will testify and testify truthfully. Subpoenas provide the victim with an "out"--an ability to say, often with great relief, that they are not responsible for bringing the batterer into a court action since it is not the victim's decision whether or not she should testify. The knowledge that the court enforces a "no drop" policy and will prosecute the offender with or without the victim's assistance is reinforced when the victim receives a subpoena, relieving her of the decision as to whether or not a case should proceed or charges should be dropped.
However, prosecutors should expect that some witnesses will refuse to comply with a subpoena. Other victims may go through the motions of complying by appearing in court at the appointed hour, but the victim may testify falsely or recant previous testimony. Such a reaction, while difficult for the prosecutor to bear, should provide further testimony to both the prosecutor and the judge of the victim's fear of retaliation from her batterer. After all, few people willingly choose, in the absence of duress or some type of highly persuasive motivation, to face contempt of court charges or perjury charges.
Therefore, while subpoenas are recommended, it is equally recommended that victims not be forced to comply with subpoenas issued since forcible compliance can have devastating consequences. If a victim is forced to comply with a subpoena, she may, in effect, be re-victimized by a system that conveys the loud, audible message that her safety is not as important as batterer accountability. Rather than empowering the victim and nurturing in her the notion that she has control over her life, forced compliance with a subpoena will most likely cause her to feel she has been battered by the justice system, stripped of choices and options in the same uncontrollable, self-centered fashion that her batterer would have employed against her.
Finally, a contempt of court charge that carries a jail term for a victim who refuses to comply with a subpoena not only represents a complete miscarriage of justice, but the batterer may also go free as a result. Should this unthinkable event take place, the batterer will likely come away from his encounter with "official" justice feeling vindicated and justified in his actions by the very system that was intended to protect his victim. That the batterer will return, in this event, to battering behavior is predictable. That his victim will hesitate to approach the justice system for assistance again is a foregone conclusion.
According to the National Crime Survey (NCS), an estimated 32% of battered women are re-victimized within six (6) months after the assault that resulted in the initial criminal justice intervention. Other studies reflect that as many as 1/2 of all batterers threaten retaliatory violence during the period of time just prior to prosecution (Davis, R., Smith, B., and Henley, S. (1990). Victim-Witness Intimidation in the Bronx Courts. New York: Victims Services Agency), and as many as 30% of batterers may follow through on their threats of violence during the predisposition phase of prosecution (Goldsmith, S. (1991). "Taking Spouse Abuse Beyond A 'Family Affair'". Law Enforcement News, 17(334), 7). Far from being groundless, a victim's fear of testifying against her batterer, both in civil and criminal court cases, have been statistically proven, over and over again, to be justified.
In the event that a victim witness refuses to testify (or recants her testimony), prosecutors may also wish to employ an "expert witness" to testify in lieu of the victim. The expert witness's role is to adequately explain to the court why victims recant or are reluctant to testify (fear of retaliation by the batterer, financial dependence on the batterer, etc.). An expert witness may be employed even when a victim is a cooperative witness since the expert witness's testimony may often have the result of further influencing the court to take firm and decisive action on the victim's behalf.
Prosecutors should be respectful when interviewing the batterer, even when the abuser's guilt is firmly established. The advantages of polite behavior cannot be underrated: (1) the Court will certainly take note of both the counsel's behavior and the abuser's behavior in considering a verdict; and (2) impolite behavior on the part of the prosecuting attorney will only antagonize the abuser, and may actually result in further violence to the victim since the victim will likely be more accessible and vulnerable to continued violence than the prosecutor is. Counsel for both parties should be open to creative solutions in sentencing options for convicted batterers, including electronic monitoring options and probation supervision.
(Note: Please refer to the section of this handbook on Children's Issues for other topics relevant to prosecuting attorneys in domestic violence, sexual assault and stalking cases, notably the issues of joint custody, custody to batterers and unsupervised visitation, as well as child support.)
Of utmost importance to every prosecutor, particularly in domestic violence cases, is a positive working relationship with the law enforcement agencies in the prosecutor's jurisdiction. A relationship founded on trust and mutual respect can create a solid foundation upon which to build a case that can proceed to conviction without the cooperation of the victim. Law enforcement and prosecutors can best achieve this goal when they have free, unhampered and open communication with one another and when they each understand the needs of the other.
Together, prosecutors, judges, law enforcement officers and probation officers will best serve the needs of victims of violent crimes if they recognize and agree that the victim:
It is also important that all members of the criminal justice system recognize that a first offense of domestic violence and/or stalking is routinely classified, according to the statutory law of most states and the code of most tribes (where code exists), as being a misdemeanor, despite the fact that many domestic violence assaults involved bodily injury as serious or more serious than 90% of all rapes, robberies and aggravated assaults (Langan, P. A. and C.A. Innes (1986). "Preventing Domestic Violence Against Women." Bureau of Justice Statistics Special Report. NCJ-102037. Washington, D.C.: U.S. Department of Justice).
To work efficiently with law enforcement (and develop positive relationships with law enforcement), counsel may find the following tips useful:
The majority of criminal prosecutions across the United States never reach trial. Most criminal charges, including domestic violence cases, are resolved through plea bargaining agreements and pre-trail proceedings. When a jurisdiction's record reflects a disproportionately high dismissal rate for domestic violence charges, however, communities, counsel and the Court should examine each of the following areas for a possible explanation and creative solutions:
(The following was partially adapted from material developed by Sarah Buel, former Assistant D.A. to the Norfolk County District Attorney's Office, State of Massachusetts, in association with Casey Gwinn, City Attorney Elect, San Diego, California, and Cindy Dyer, Assistant Criminal District Attorney, Dallas, Texas, as presented by Sarah Buel on behalf of Northwest Domestic Crisis Services, Inc. (9/1996).
As all attorneys know, the questions asked of prospective jurors, and the answers received from those potential jurors, will dramatically increase the likelihood for one attorney or the other to win the case. Here are some questions prosecutors may wish to ask:
Questions Regarding Violence in General:
Questions of Bias and Ability to Follow the Law
Questions Regarding Domestic Violence:
Proof of Offense:
Questions Regarding Stalking:
Crimes Against Society:
As a prosecutor, you may also wish to establish with potential jurors that:
All too often, legislation changes the way the criminal justice system is expected to respond to crimes of domestic violence, sexual assault and stalking, without addressing the fact that other professions are also impacted by these changes. For instance, if legislation is adopted regarding mandatory arrest, higher arrest rates may result, but higher prosecution rates may not follow. If law enforcement is not adequately educated in the types of evidence prosecutors need to effectively prosecute, then higher arrest rates may simply come to represent nothing more than a useless waste of energy and an exercise in frustration for the arresting officers. If judges are not properly educated in the dynamics of domestic violence, sexual assault and stalking, offenders may escape prosecution or at least come away from prosecution with the attitude that they can continue to perpetrate violence with impunity. If judges do not order offenders into batterer intervention therapy, or act on notices from probation officers or batterer intervention program specialists that batterers are not attending group sessions, the same consequence may result.
It is commonly suggested that in the training process, prosecutors should train prosecutors, judges should train judges, and law enforcement professionals should train law enforcement. However, it may be difficult for some law enforcement officials to speak freely in instances when the training program is provided by other law enforcement personnel from the same agency who possess a higher rank. Likewise, court personnel may feel hesitant to openly address existing concerns or problems if they are subordinate to the party providing the training. For example, a prosecutor may remain silent on issues that need to be addressed if the trainer is a judge whom the prosecutor must present cases to on a constant basis.
Because of these issues and the mediation diplomacy that is inherent to negotiating contracts or policy changes, a third party, outside agency is ideally the best administrative lead when offering training or negotiating policy changes. Also, a third party who has an in-depth, comprehensive knowledge of the specific policies and concerns of all professions that play major roles in the judicial process may be the best party to provide training that will ultimately generate a community-coordinated response. An outside party who possesses knowledge of the concerns and issues of each profession may provide valuable insights to all involved in the negotiating or training process. A third-party consultant may also be able to present perspectives that may not otherwise have been considered and/or may offer impartial, unbiased viewpoints that assist all concerned to find common ground from which to work together.
In order to meet the needs of Indian crime victims, tribal justice systems, together with appropriate State and Federal offices when necessary, must work together to create a range of responses. Issues currently impacting effective criminal justice services to Indian victims include:
Law enforcement holds the (perhaps unenviable) position of being the front line defense for the victim and her children. Since law enforcement officials are the only agents of the state or federal government authorized to use deadly force, society generally holds law enforcement to the highest standards of public accountability. Peace officers committed to upholding the law in this difficult and complex field will:
From an historical perspective, our society and judicial systems have encouraged peace officers to treat all but the most "extreme" cases of domestic violence as private disputes. Law enforcement generally referred to "domestic calls" in denigrating, condescending terms, as though the call were an unnecessary interruption or as though it represented a waste of the officer's valuable time that would be better spent on investigating a crime of "importance".
Many of American society's favorite syndicated television series in the 60's and 70's promoted the image of the "nagging wife getting what was coming to her" (such as Jackie Gleason's famous "one of these days--POW!! in the television series, The Honeymooner's). Other television programs promoted the notion that domestic violence involved a harmless "husband-and-wife spat" between two equal parties with equal power.
Even today, when American society perceives itself to be more "enlightened", excesses, abuses and stereotypes abound. At the 2001 Grammy Awards, sponsored by CBS and the National Academy of Recording Arts and Sciences (NARAS), the rap artist Eminem and Elton John performed together, singing "Stan", a song about a crazed Eminem fan who commits suicide by driving his car off a bridge with his pregnant wife bound and stuffed in the car's trunk.
More than 30,000 messages from the Stop Family Violence Activists sent to CBS and NARAS prior to the Grammys objected to Eminem's songs, many of which are replete with themes of violence and sexual assault. As a result of the protests, CBS ran public service announcements and advertisements at various times during the course of the program, denouncing hate speech, homophobia and domestic violence, but activists feel that this response to the protests was nothing more than a meaningless gesture since Eminem walked away with awards for Best Rap Solo Performance, Best Rap Performance for a Duo or Group, and Best Rap Album:
"...Over 30,000 messages to the producers and broadcasters by us alone, and many thousands more from other voices across this country raised in protest, and we get 3 public service announcements, while Eminem gets 3 awards..."
(Weiser, Irene (2/26/2001). Stop Family Violence Activists, E-mail to Stop Family Violence members, http://www.stopfamilyviolence.org)
Over the past two decades, victim's advocates and grassroots movements by battered women have worked hard to reframe and redirect the opinions and policies of general public, judicial and medical professionals and law enforcement professionals. Likewise, law enforcement officials, recognizing the importance of their indispensable role in addressing the ever-growing problem of violence in our communities, have worked hard to develop model programs that interact closely with battered women's advocates, prosecutors and the community at large. Peace officers today seek education about the psychology of domestic violence so that their role as law enforcement officials can have the greatest possible impact.
Still, too often, police academies allow only two or three hours of "compassion training", provided at the tail-end of an otherwise rigorous training schedule. In some instances, the training may be insubstantial enough to actually mislead the officer into thinking that compassion means talking to the batterer in a sympathetic manner in order to obtain the offender's trust, and consequently, admissions of guilt. But in the context of domestic violence, compassion for the batterer = collusion. Compassion should be reserved for the victim.
When a peace officer appears on the scene of a domestic call with pre-formed biased attitudes or misconceptions about the necessity or seriousness of the call, the victim will be left confused, re-victimized, and wondering why she bothered to "make the call" at all. Perhaps more importantly, a victim who does not receive the assistance she expects when she reports violence is left more fearful than before, more unwilling to report the violence again, and consequently, more defenseless, unprotected and at risk than ever before.
On the other hand, the batterer is left feeling all- powerful, justified in his abuse (because after all, the law enforcement officer didn't arrest him, so it must not be wrong), and more willing to resort to violence again to obtain what he desires. There have been no consequences for his behavior, so the behavior is reinforced by the rewards gained from abuse.
In these instances, the peace officer can be 100% certain that the batterer will batter again, although there may be no "domestic call" to request law enforcement intervention or assistance. The violence may continue in silent secrecy until the victim is killed, commits suicide or kills her abuser.
Peace officers should also recognize that when a victim does not wish to press charges or cooperate fully with law enforcement, it is usually not because she doesn't wish to be helped. Rather, this reaction has its roots in fear of retaliation or retribution by her abuser. In these instances, it is the peace officer's responsibility to:
Other steps may also be necessary, such as reporting abuse of children to the proper authorities if the peace officer sees evidence of abuse or neglect.
Inappropriate law enforcement responses to domestic violence include:
Any of these responses will serve to re-victimize the victim and her children. Most law enforcement officials today agree that there should never be a question as to whether or not a peace officer should become "involved" in a domestic violence incident. Rather, the questions a peace officer asks about his involvement in an incident should reflect how to handle the call most effectively.
Police and other law enforcement agencies working with diverse and underserved populations have specific challenges. One activist in Canada describes current concerns with this special relationship:
"Women's advocates have long called for criminal law reforms to ensure much needed protections for women and children, but we are disturbed by the way our safety issues are now used to justify law-and-order initiatives in place of effective social programs. Law-and-order rhetoric is based on the exploitation of public fears of 'stranger danger'. It favors the use of heavy-handed law enforcement strategies against socially disadvantaged groups, which in no way address the violence women face in their intimate and familial relationships. It also serves to scare off women in low-income and racialized communities from reporting violence, putting them at further risk of death or serious injury."
(Townson, Monica (2000). A Report Card on Women and Poverty. Canadian Centre for Policy Alternatives. https://www.policyalternatives.ca/documents/National_Office_Pubs/women_poverty.pdf)
"Indian Country" comprises approximately 56 million acres of land owned by Indian Nations and communities in the U.S. Virtually all of the reservation systems and communities in Indian Country have some form of policing arrangement. However, the prevalence and character of crime varies widely from reservation to reservation, rendering data collected from only a few tribes inadequate to project overall trends and assess appropriate law enforcement needs for the remaining American Indian Tribal Nations.
A research project conducted by the National Institute of Justice with the tribes and tribal police departments of the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana, the Gila River Indian Community in Arizona, the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota, and the Tohono O'odham Nation in Arizona, studied policing in Indian Country in 2000-2001, and much of the information which follows in this chapter is based on the research of that study. (Wakeling, Stewart, Miriam Jorgensen, Susan Michaelson, and Manley Begay, with Francis X. Hartmann and Joseph P. Kalt, Co-Principal Investigators, Harvard University's Program in Criminal Justice Policy Management and the Harvard Project on American Indian Economic Development, "Policing on American Indian Reservations". National Institute of Justice, Office of Justice Programs, Department of Justice, NCJ 188095, 7/2001.)
According to the study, there are more than 200 police departments operating in Indian Country. The departments range in size from 2 or 3 officers to more than 200. The communities served are as small as the Grand Canyon-based Havasupai Tribe, with a population of only 600, and as large as the Navajo Nation, with a population of more than 250,000 and a tribal land base larger than the State of Connecticut. In the mid-1990's, estimates of the non-Alaska service population (the number of Native Americans living on or very near reservations) ranged from 1.1 to 1.3 million (Indian Health Service Statistics).
The average tribal police department polices a reservation land area of 500,000 acres and serves approximately 10,000 tribal members. (The NIJ study's authors note, however, that the average acreage calculation is based on survey data, not on the "universe of reservations", and excludes the Navajo reservation, which is "atypically large". The average population estimate does not derive from survey data, the researchers comment, but rather was reported by members of the Executive Committee for Indian Country Law Enforcement Improvements. The estimate may substantially over-estimate the actual number of tribal members served by the typical tribal police department. Data from the U.S. Census, the BIA Labor Force Survey, and the tribes themselves suggest that the figure may be as low as 6,000 tribal members served. The authors of the study note that: "The simple and unfortunate fact is that figures on the Native population actually served by police in Indian Country are of limited reliability.")
The typical setting for the tribal police department is that of a large area with a small population that is patrolled by a small number of police officers. Also typically, the area is patrolled by no more than three police officers and as few as one officer at any one time, which represents a level of police coverage lower than in other urban and rural areas of the country.
One of the greatest challenges these police departments face is providing round-the-clock police coverage to their communities, which consists of small populations that are scattered over a wide geographic area. The law enforcement officers of these small tribal police units typically work without adequate backup and they work across numerous police and administrative functions. For example, the NIJ study researchers described tribal law enforcement officers as "true generalists", noting that tribal police often serve as dispatchers, investigators, officers, detention officers, and custodians, and upon occasion, may even prepare food for prisoners.
Few tribal police departments can afford to allow their small staff to specialize in any one area of law enforcement, such as substance abuse, domestic and family violence, armed robbery, etc. In fact, only two of the 200 police departments in Indian Country have 100 or more officers on staff (the Navajo Nation and the Oglala Sioux Tribe). These two departments serve about 15% of the residents of Indian Country and only these two departments have the manpower to specialize.
Specific problems cited by the NIJ's study on Policing on American Indian Reservations included:
Inadequate funding is the single-most important obstacle to policing in Indian Country.
It is estimated that tribal police departments can command between 55-75% of the resources available to non-Indian communities, effectively preventing them from organizing high police-to-citizen ratios on the tribal police force (estimated to be 3.9-to-6.6 officers per thousand residents in large, urban areas with high violent crime rates, such as New York City, Washington, D.C., and Detroit). Tribal police departments rarely can boast of a ratio of 2 officers per 1,000 residents, despite the fact that the violent crime rate in Indian Country is approximately twice that of the violent crime rate in the general population nationally.
Also, the facilities and equipment that support the typical tribal police department are generally out-dated: the office facility is commonly 20 or more years old, without appropriate waiting rooms for the public, quiet rooms for police to write reports in and do other work, and without changing rooms or locker facilities. The typical tribal police department generally relies upon a vehicle fleet that is at least three years old.
The average operating expenditure per employee for tribal police departments participating in the NIJ study was approximately $36,000, compared with approximately $43,400 for non-Indian police departments serving communities of between 10,000 and 25,000 residents. Because tribal law enforcement agencies generally serve large geographic areas, making police officers as available in Indian communities as they are in non-Indian communities would actually require resources substantially greater than those reported as being in place. The great distances that police must travel increase the need for facilities and technology that would require capital budgets far greater than those boasted by most tribal police departments.
Police departments in Indian Country function within a complicated jurisdictional web, answer to multiple authorities, and often operate without strategic direction from their tribal governments.
Law enforcement in tribal communities in American is provided by tribal, state and Federal agencies in varying degrees. Tribal police are employed by a specific Indian Nation and have authority only on that Nation's reservation, or in Oklahoma, within certain tribal jurisdictions. Tribal police are generally funded through contracts with the Bureau of Indian Affairs, which also manages a national police force. In the instances where tribal police are funded wholly by the Indian Nation they work for, the tribe sets the standards for law enforcement activities and policies.
Most typical of law enforcement in Indian Country is the tribal police unit of the Indian Nation that has contracted with the BIA to provide law enforcement services. In this instance, the tribe furnishes the service while the BIA furnishes the funding, pursuant to a "638 Contract" under the authority of P.L. 93-638 (Indian Self-Determination and Education Assistance Act of 1975). This law gave tribes the opportunity to establish their own government functions by contracting with the Bureau of Indian Affairs.
Tribal law enforcement contracted through the BIA under a 638 Contract is required to adopt BIA standards, policies and conditions. The tribe will also be subject to maintaining and meeting certain fiscal and personnel standards. Still, 638 contracting generally enables an Indian Nation to assume certain levels of control over its own law enforcement policy, provided the Nation meets the criterion set by federal regulations. Officers and non-sworn staff of these tribal police departments are tribal employees, not federal employees.
The next most common type of police department in Indian country are departments administered by the BIA. The BIA provides police protection and investigations of criminal activity through its criminal investigators. Staff in these departments are federal employees. For many years, patrol officers were under the line authority of the local BIA superintendent, and criminal investigators were under the line authority of the BIA's Division of Law Enforcement Services. Recent changes have placed the line authority for patrol under the BIA's Division of Law Enforcement Services also. BIA officers are not accountable to any person at Indian agency level, placing all law enforcement policy outside of the Indian Nation's reservation, community, or jurisdiction.
In P.L. 83-280 states, which have jurisdiction over crimes committed on certain Indian reservations within the State's boundaries, State law enforcement has jurisdiction over criminal and civil offenses. There are a significant number of Indian communities that rely on State and local police services, which are usually paid for by the surrounding non-Indian community. But state law enforcement tends to provide only very limited services in Indian Country, although the number of tribes subject to policing through P.L. 83-280 is relatively large. Generally-speaking, only victimless crimes or crimes committed by a non-Indian against another non-Indian in Indian Country are investigated by State law enforcement as crimes committed within the jurisdiction of State law enforcement.
The Community Oriented Policing Service (COPS) grant programs provide funding for new local-level officers who cannot be federal employees. Therefore, tribes receiving COPS grant funding, but which also have BIA-administered departments, will have on staff officers which are both tribally employed (COPS staff) and staff which are BIA federal employees.
As a result of the federal-tribal trust relationship, there is overlapping and shared jurisdiction in Indian Country between Indian Nations and the Department of Justice (DOJ) through the U.S. Attorney's Office and the Federal Bureau of Investigation (FBI). Often, when law enforcement is ineffective in Indian Country, it is because of overlapping jurisdictions. Too often, under these conditions, cases slip through the cracks because of a lack of coordination, cooperation and communication between tribal police, BIA police, FBI agents, local law enforcement, and U.S. Attorneys.
There may be investigative policies and procedures that are not clearly defined or investigating officers may not possess cultural competency in working with Indian people. Also, when numerous agencies are involved in circumstances where there are overlapping jurisdictions, data collection is inhibited and national or statewide statistics are difficult to obtain. Tracking systems for criminal offenders become inaccessible or impossible to create and maintain.
Federal law enforcement on Indian reservations or in Indian Country enforces federal laws within that unique jurisdiction. As a result of Congress's extension of federal authority over various crimes in Indian Country, the Federal Bureau of Investigation (FBI) or the BIA criminal investigator will generally investigate federal cases in Indian Country. The case will then be presented to the U.S. Attorney's office for a determination on whether or not the case can be prosecuted as a federal crime. If the U.S. Attorney's office is unable to seek an indictment in the case and refuses federal prosecution, the case is returned to the tribe for prosecution, which may or may not be possible, depending on whether or not a non-Indian is involved in the crime, either as an offender or a victim.
Overlapping jurisdiction issues have fostered creative solutions in some areas of the country. In Oklahoma, for example, Bureau of Indian Affairs law enforcement officers often "cross-deputize" with state, city, county and tribal law enforcement agencies to deal with gaps in services and problematic jurisdictional issues. It is hoped that cross-deputation, although still in the "model program" stages of development, will alleviate problems involved with making arrests and detaining offenders both inside and outside of Oklahoma Indian Country. In point of fact, some problems exist with the details of how cross-deputation works, but the basic concept may be an effective means of ensuring that offenders do not slip through any cracks in the "system".
Law enforcement agencies operating in Indian Country often have difficulty hiring and training qualified personnel, and when officers are not members of the tribal community they serve, community support of the officers may be poor.
The NIJ study on "Policing on American Indian Reservations" revealed that in general, the sworn officers in tribal police departments are high school graduates (100% of those officers who participated in the study) and most are graduates of certified law enforcement training academies (85% of those who participated in the study). But law enforcement agencies in Indian Country also struggled with serious problems in recruiting and training qualified applicants, many citing that:
"Although the figures are comparable to those for non-Indian departments cross the country, department leaders frequently noted that such figures mask important deficiencies in the qualifications of current police personnel... For instance, more so than in non-Indian communities, required background checks turn up issues that disqualify prospective officers from services. In a few cases, the percentage of graduates from law enforcement academies was substantially lower than 85%."
According to statistics obtained through the NIJ research, 2/3 of the officers serving law enforcement agencies in Indian Country are Native American. 56% are members of the tribes they serve. Only 13% of the police officers serving in Indian Country speak a language native to the community served. 33% of officers who are not American Indian in service to tribal police departments are Caucasian or Hispanic. 12% of tribal police officers are women.
Although many Native reservation residents live in rural, isolated areas, a significant percentage of reservation populations have settled in semi-urban communities. Much, if not most, crime on reservations occurs in these fairly dense areas.
While many experts argue that policing in Indian Country generally requires unique rural approaches to crime prevention and control, other experts disagree, expressing the feeling that most rural strategies do not adequately address the problem of how to provide adequate police coverage to widely spread communities. Responding to a single call in an isolated geographic location of a large reservation may take an officer out of service for several hours or even for a full day, which creates serious problems for departments with small staff resources.
Research has determined that many, if not most, crimes on reservations occur in more densely populated areas, whereas less crime occurs in far-flung rural areas of most reservations. As a result, strategies that have proven useful in urban areas also might be equally effective in the more densely populated housing areas of reservations. One of the more obvious and effective strategies for densely populated areas has been acknowledged by law enforcement on several reservations and simply involves removing signs of neglect, decay or abandonment from the housing project area, and implementing neighborhood watch programs.
There is a lack of accurate data on crime in Indian Country. This circumstance is partially due to the under-reporting of crime due to issues of culture, geography, economics, and limited administrative and technological resources. In some instances, it may also be due to inadequate coordination between tribal and federal agencies, and management and/or political problems common to both tribal and BIA police departments.
The problem of under-reporting crime in Indian Country is attributed by the NIJ Report to:
The failure to collect and submit data to appropriate federal agencies is a significant factor in underreporting of crimes in Indian Country. The small size of the typical Indian Country police department creates time constraints and staff shortages which further impact data collection in a negative fashion. Fighting crime and/or providing emergency services were problems cited by most law enforcement agencies in Indian Country as issues which hamper proper reporting. If the law enforcement department must also double as jail staff, reporting is further constrained.
The "dual authority" issues created by having both BIA/federal officers and tribally employed officers or COPS grant officers serving the same tribal police department often result in inequities between compensation, employee benefits, training and equipment of officers on staff, which inevitably leads to personnel and management problems. For example, COPS grant officers often receive salary and benefit packages less attractive than those of BIA or federal law enforcement officers, which usually leads to poor employee morale when officers compare benefit packages and salaries.
Too, since federal employees can command better job security, salary and benefit packages, and protection from political pressure, the BIA managed departments are able to attract better qualified candidates than tribal or COPS programs. Since COPS-funded departments do not provide training or equipment funds, some COPS officers may be perceived by other tribal or BIA law enforcement officials as poorly trained, poorly prepared to perform law enforcement tasks, and in other ways, simply "inferior" to the BIA-trained officers working for the Tribal Nation. Consequently, the sharing of information vital to performing law enforcement tasks and filing appropriate field reports may not take place.
The NIJ study researchers also noted that the dual authority structure created by having many officers serving tribal nations but answering to different managers may create a group of officers who are more loyal to the tribal government than their own BIA supervisors:
"In the dynamic political context of Indian Country today, this division of loyalties may be problematic. During intense political conflicts, for example, disputants have ordered tribal officers to arrest or detain federal officers and vice versa."
Tribal police departments often suffer from poor employee morale and high turnover, resulting in a lack of experienced officers, and inadequate budgets, fiscal mismanagement and even poor departmental management, corruption and/or "political interference" in police operations. For example, the Three Affiliated Tribes (Mandan, Hidatsa and Arikara) of the Fort Berthold reservation in North Dakota cited concrete reasons to the NIJ researchers for their unwillingness to support a transition to tribal management of the reservation's police force:
"While they recognized that their current approach to law enforcement distanced them from the community, they also asserted that in the volatile political atmosphere of tribal life, federal employment gave them the job security they needed to perform their work in an independent, responsible manner, without threat of political reprisals. Such dynamics were evident in a heated dispute overheard between two officers who were trying to decide which one should arrest a prominent tribal official: should it be the BIA officer, a federal employee, who was in danger of only social reprisals for arresting the official, or should it be the COPS-funded officer, a tribal employee, who would be in danger of not only social reprisals but also economic ones?"
Another example of political interference might go something like this:
A female officer on the tribal department force is constantly sexually harassed by her chief of police, who comes to her home, intoxicated and uninvited in the middle of the night. The female officer rebuffs the police chief's advances and the next day, he apologizes to her for his behavior, but over the next few weeks, he continues to make lewd remarks and comments to the female officer. The female officer, afraid of losing her job, yet becoming increasingly alarmed by the police chief's behavior, appeals to the Tribal Council for assistance. The Council advises her to "let it go" because they are uncertain how to proceed, don't want to become involved in a scandal, and because the Tribal Council member who stands up to the police chief may be subjected to police harassment afterward. Angry that the female officer has taken her concerns to the Tribal Council, the police chief retaliates by placing the officer on night-shift duty alone in an area of the reservation that reports a high incidence of sexual assault, rape and other violent crimes against women.
In this type of volatile political climate, underreporting will be less a chance circumstance than a chronic condition.
In addition, approximately 50% of current Indian Country law enforcement agencies lack automated call management systems (911 systems) and collection and analysis systems. (This lack is not exclusive of Indian Country law enforcement agencies, but also affects agencies outside of Indian Country. In 1993, only 70% of the departments serving (non-Indian) communities of fewer than 10,000 had 911 system technology or used an existing system in partnership with a local law enforcement agency, such as a sheriff's department or the State police.)
When the law enforcement department lacks these systems, data regarding reports and arrests can only be collected by reviewing handwritten records. Even this type of review and analysis is not often available due to the inconsistent maintenance of records. Among those agencies which do possess up-to-date call management, collection and analysis technology systems, the benefits of the systems are not often maximized because of a lack of trained staff.
Finally, competing local and federal priorities negatively influence whether or not data is collected, maintained and analyzed. According to the NIJ report:
"individual Indian police departments have little or no inclination to report data on major felonies. Because the communities they police are perceived to be small and highly interconnected, officers already have a good sense of the prevalence of serious crimes, and it is difficult for them to see how an official compilation of data would provide any better information. Because Indian police officers spend so much more time on routine patrol activities than they do on the crimes covered by federal reporting requirements, reporting may appear fairly unimportant to them. And, if tribal police think that federal agencies give low priority to the prosecution of crimes that occur on reservations, they may believe that reporting serves no purpose."
The NIJ study also reports one incident in which the many police district departments of a large plains tribe were required to submit incident report records to department headquarters on a fixed date each month. The district departments were typically late with their submissions. When the late submissions arrived, they were simply thrown away. As a result, the information was unavailable to either the tribe or to federal agencies.
While reporting problems often exist between tribal and federal agencies and authorities, reporting problems sometimes exist between tribal criminal justice agencies, too. For instance, the NIJ study noted that in several systems studied in depth, the juvenile division of the tribal courts compiled data on juvenile crime, but did not routinely pass that information on to the tribal police department, either because police never asked for it or because the police rarely used the information for planning purposes.
Additionally, there exists among many police departments in Indian Country a general lack of written policy and procedures for law enforcement agencies. While most tribal police departments say that written policy and procedure exists, many officers cannot actually recall having seen or discussed the written policy. Interviewees representing one particular agency which participated in the NIJ study:
" noted that the lack of policies and procedures handicapped even the best-intentioned officers, who were forced to work without useful guidelines for critical police activities. Conversely, it is difficult to hold negligent officers accountable when clear standards are not in place. Our interviews indicated that this lack of accountability seriously compromised the credibility of the department, not only among its criminal justice agency partners, but also with the tribal community."
The overall demand for police intervention and response to crimes in Indian Country has been increasing at a significant rate.
Problems incidental to the function of Tribal Nations which operate under P.L. 83-280 are common. The Confederated Salish and Kootenai Tribes, which were praised by the NIJ researchers for their law enforcement department's professionalism and effectiveness in a difficult-to-manage jurisdictional maize, reported a large increase in police intervention demands from the reservation community as a result of the retrocession by the State of Montana of P.L. 83-280 control over reservation policing. The retrocession agreement ceded "exclusive jurisdiction over misdemeanor crimes committed by Indians" back to the Tribes, which precipitated a striking increase in police activity, almost doubling the demand for police response between 1993 and 1996.
Further complicating the retrocession issues was the fact that the reservation population is comprised of several thousand more non-Indians than Indians. Of the Indians residing on the reservation, only about 1/2 were actually enrolled members of the Confederated Salish and Kootenai Tribes. The NIJ researchers noted:
"This mix of tribal and non-tribal residents creates a greater jurisdictional complexity than exists on most other reservations. In addition to the state and tribal police, for example, four counties (Flathead, Lake, Missoula, and Sanders) and four municipalities (Hot Springs, Polson, Ronan and St. Ignatius) operate their own law enforcement agencies within reservation boundaries."
Even when P.L. 83-280 issues do not impact reservation community policing, cross-deputation agreements may have the same effect as P.L. 280 retrocession since cross-deputation increases both workload and demand as a result of increased authority over offenses committed within tribal jurisdictions.
Regardless of either of these explanations for the higher caseload and demand for services, the reality of policing in Indian Country is that crime in Indian Country is on the increase.
Notwithstanding the recent reports of dramatic increases in violent crime on reservations, especially among youth, the crimes that most occupy police in Indian Country are directly or indirectly related to alcohol abuse.
According to the NIJ study, across all survey responses, the constellation of crimes that were directly related to alcohol abuse (such as driving under the influence (DUI), the sale of alcohol to minors, drunk and disorderly conduct, and the crimes indirectly related to alcohol abuse, such as domestic violence, child abuse and neglect, and assault) constituted the leading category of calls for service, incident reports and arrests.
The study suggests that a comprehensive community strategy for combating alcohol abuse was needed at a social service level. While acknowledging that police departments in Indian Country are the most effective tribal institution in dealing with alcohol-related crimes, police departments rarely place great emphasis on finding treatments and relief for alcohol problems. Being organized only to combat crimes related to the disease of alcoholism and not to provide social service interventions for alcoholism, police systems and agencies are not currently capable of stemming the rising tide of alcohol-related crimes committed in Indian Country:
"For example, although many departments have drug task forces, largely funded through federal programs, these focus on "harder" drugs than alcohol. Site visits revealed no evidence of similar comprehensive planning and deterrence programs that deal with alcohol-related crime...at one site visited, when asked for directions to the Department of Social Services, police department officials provided directions to a building that the agency had not occupied for a year. The lack of basic connections to a vital partner as Social Services signals that the police are not organized to respond to the dire problem of alcohol-related crime."
Providing appropriate law enforcement services in Indian Country becomes particularly difficult when the services must be provided in coordination with proactive responses to households where alcohol abuse is a factor in generating repeat calls, such as in cases of domestic violence and child abuse. In cases of crime related to alcohol abuse, Indian Country law enforcement can, more often than not, only substitute a brief stay in an overcrowded, outdated prison facility for alcohol treatment. The consequence in most circumstances may be an increased demand for police intervention from the community, without any long-term positive impact being made on the actual root of the problem.
Police departments in Indian Country often lack a sense of community support for--or partnership with--their service populations.
The researchers concluded that the reasons and explanations for much of the difficulty between law enforcement officers and the communities they serve can be found in history, when the reservation system was established in the early 1800's. At that time, law enforcement was exclusively the realm of federal troops. In many instances, tribal members were included in the ranks of reservation police, but Indian police did not have a voice in the policies and procedures imposed on tribes. More often than not, the policies imposed were in direct conflict with tribal and cultural values and norms, and the U.S. government's motive for allowing a representation of Indians on reservation police forces was that of gaining a tactical advantage in knowledge and experience over the tribal members the government wished to control.
Tribal members during most of the early years of reservation police policies feared and disliked their tribal brethren who submitted to the lure of good treatment offered by the federal government to Indian men who were willing to wear a reservation policeman's uniform. Reservation policemen, while being brave men who served important roles under unhappy circumstances, were also recognized by the tribal community as those who forcibly removed children from parents so that they could be sent to federal boarding schools, and who assisted soldiers in tracking down any who fled the reservation.
During the 1970's, the influence of the Bureau of Indian Affairs law enforcement policies came to dominate reservation police policy and procedure when the BIA Law Enforcement Academy was established in 1975. The BIA model of policing was based on the non-reservation model of policing practiced by non-Indian society outside the reservation:
"As a result, not only did tribes have less direction over general police policy, but because of the influence of the professional model, Indian communities were also further distanced from the police departments serving them. In fact, these factors preserved the legacy of police as an occupying army--Federal agencies imposed both the design and administration of policing on Indian nations with little regard for indigenous mechanisms of social control, just as they had in the late century."
Since the 1970's, however, Indian Nations have exerted great energy upon acquiring complete tribal sovereignty, self-determination and self-governance. While police policy in Indian Country is still most often driven by non-Indian policy and federal (rather than tribal) agencies, Indian Nations are more and more recognizing the need to develop police departments which reflect the cultural values of the tribal people served. Resistance to the BIA or other federal law enforcement presence on reservations has increased despite the additional resources a federal presence provides, simply because in the perspective of many tribal people, a federal presence implies a threat to sovereignty and may even be seen by some as "occupation" reminiscent of the early reservation period.
Today, the historical impact of federal policing policy can nevertheless be felt in most police departments in Indian Country. Many tribal communities are relying less on traditional methods of conflict and dispute resolution, and becoming more reliant on police intervention.
As previously discussed, where political interference exists, or where written policies and procedures do not exist to establish a foundation upon which tribal police departments can develop appropriate responses to crime, the credibility of the department is compromised, not only among its own criminal justice agency partners, but also with the community it serves. In a climate where written policies and procedure are not relied upon, crime tends to increase.
As the number and extent of criminal activities increase, so too does the isolation of the police department from the community intensify. As the department becomes increasingly insular, its focus on crime problems becomes the product of the department's own priorities, rather than the priorities of the community as a whole. At one of the agencies which participated in the NIJ research:
"Interviews with members of the department and members of the community suggested a mismatch both between police and community priorities and between police and community perceptions of the role of police in community life. Police complained that tribal members were pressuring them to pay too much attention to such "low-level" problems as disputes between neighbors, school-age children, and family members--problems that formerly would have been settled at either the village or the district level. On the other hand, community members complained that police officers were concerned only with such activities as chasing boot-leggers and drug smugglers. Community members often acknowledged that these and other conventional police activities were important--that they constituted police business--but they also stated that they needed someone who would help them with their problems."
Culture and tribal tradition may often conflict with training officers receive at police training institutes, too, since the institutes promote the federal standard of policing and are not geared toward the cultural norms of any tribe. For example, in the mystery/suspense novels of Tony Hillerman, Jim Chee, the Navajo Tribal Police officer, is daily working under the dilemmas faced by a law enforcement officer who is himself a tribal traditionalist, but who works in traditional communities under the weight of non-Indian and/or federal policing standards and policies. Hillerman's writing is fictional, but the problems he writes about mirror contemporary, real life issues.
In the novel The Dark Wind, Jim Chee, the traditionalist, is confronted with the demands of his superior officer, Captain Largo, who wants Chee to investigate a murder that is rumored to be linked to the witchcraft of a "skinwalker". But Chee has multiple issues in the areas of both tribal tradition and kinship that influence his investigative technique:
"It wasn't fair of the captain to expect him, still a stranger, to learn anything about witches. The clans of the northwestern reservation didn't know him yet. As far as they knew, he might be a skinwalker himself.
Largo didn't comment on the explanation. He fished out another manila folder. "Maybe you'll have some luck on this one," he said. "Somebody doesn't like a windmill." He slipped a letter out of the folder and handed it to Chee.
Chee read what Window Rock reported, with half of his mind trying to analyze Largo. The way the Navajos calculate kinship, the captain was a relative through clan linkage. Chee's crucial "born to" clan was the Slow Talking Dinee of his mother, but his "born for" clan--the clan of his father--was the Bitter Water People. Largo was born to the Standing Rock Dinee, but was "born for" the Red Forehead Dinee, which was also the secondary "born for" clan of Chee's father. That made kinsmen. Distant kinsmen, true enough, but kinsmen in a culture that made family of first importance and responsibility to relatives the highest value. Chee read the letter and thought about kinship. But he was remembering how a paternal uncle had once cheated him on a used-refrigerator sale, and that the worst whipping he'd ever taken in the Two Gray Hills Boarding School was from a maternal cousin"
(Hillerman, Tony (1982). The Dark Wind. Harper Paperbacks, a division of Harper Collins Publishers: New York, NY, pg. 18-19.)
Interviews conducted by the NIJ researchers with members of the tribal communities of the Three Affiliated Tribes (Mandan, Hidatsa and Arikara) of the Fort Berthold Reservation in North Dakota produced the overall feeling that law enforcement officers serving Indian Country should employee methods built on tribal values and culture:
"They felt that police could play a powerful role in preserving and extending tribal values and culture and that in doing so, the police could more effectively address crime. In a way, tribal members seemed to be pressing police to expand their mission beyond fighting crime and to become an institution equally concerned with maintaining and contributing to social order."
The researchers reasoned that those interviewed made this suggestion because they recalled the Black Mouth Society, a traditional society composed of well-respected, brave and wise older males who had at one time played a central role in maintaining social order:
"Conceived of in this way, policing was not a function that the Tribes' political history and culture had prepared them to adopt. Policing was seen as a necessary accommodation to modern reservation life, rather than a means of maintaining social order through the assertion of tribal values and culture (the role played by the Black Mouth Society). Given that the current 638 contracting process does not invite a consideration of the police function in these terms, but focuses instead on ensuring the provision of a standard menu of police services, it is not surprising that departmental and tribal leaders did not view 638 as an opportunity to reconsider the fundamental role of police in community life."
The NIJ researchers expressed the feeling that the Three Affiliated Tribes' police department "had the strongest orientation to proactive strategies [of policing] that we were able to identify in the course of our study". But while the police officers perceived their role in conventional law enforcement terms, the community clearly desired that the officers' interaction with the community be increased.
Indian Country has a greater representation of non-professionals in judiciary and the prosecution and defense bars than non-Indian communities do.
The NIJ study noted that officers working in small departments are "generalists", performing a wide range of law enforcement tasks, with few departments having the luxury of staff numbers to allow staff to specialize in any one area of law enforcement. The study also noted that in the recent past, it was not unusual for tribal police to double as prosecutors in tribal courts.
Indian Country has a severe shortage of jail space and corrections treatment programs, particularly with regard to substance abuse (Office of the Inspector General 1996).
When the BIA is the law enforcement agency for maintaining peace within a certain jurisdiction or reservation, or when the tribal law enforcement is contracted through the BIA, the BIA will generally provide correctional facilities and services. BIA correctional facilities often serve several Indian agencies, communities or reservations in order to provide the most cost-effective services. In the instances where a tribe maintains its own law enforcement independent of the BIA, the tribe must provide its own correctional services. Under some conditions, the BIA and/or a Tribal Nation will contract with a local correctional facility to provide correctional services on a per day per person basis.
Problems encountered with the concept of cross-deputation often deal with issues of detention facilities and of