Sharing Our Stories of Survival: Native Women Surviving Violence (48 page)

Some jurisdictions provide a cover sheet for protection orders that set out that the provisions of the VAWA have been met requiring full faith and credit be given to the protection order. Tribes can create their own cover sheets. Law enforcement officers tend to enforce orders that look familiar to them

In addition, it is critical to note that the VAWA federal gun laws require the order to set forth a finding that the defendant is a credible threat to the physical safety of the intimate partner or the child or the terms of the order must explicitly prohibit the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury. Consequently, all protection orders should contain that language.

Violations of Protection Orders

No piece of paper can protect me from him.

—A NATIVE AMERICAN SURVIVOR OF DOMESTIC VIOLENCE

A recent study reports that more than 60 percent of the women who obtained temporary restraining orders reported the order was violated within one year.
²⁴
More than two-thirds of the restraining orders obtained by women against intimate partners who raped or stalked them were violated.
²⁵
Finally, approximately one-half of the orders obtained by women against intimate partners who assaulted them were violated. Equally troubling statistics indicate that those violations were rarely prosecuted.
²⁶

There are some steps you can take in the event of a violation to enhance the probability that your client’s case will be prosecuted. First, advise your client to report all violations to the proper law enforcement agency as well as reporting those violations to your office. The client should document as clearly as possible any violations in great detail, such as the time, what the violator was wearing, what he was driving, and any other details that can be safely obtained. If possible, have your client record the batterer’s telephone contacts on a message machine or tape recorder. The client should make note of any witnesses that might have observed the violation and relay that information to the law enforcement agency as well as the victim advocate and the attorney. Next, take appropriate safety planning precautions with your client. Safety should always be your paramount concern.

If the case is prosecuted, the victim advocate or attorney should make sure that a victim witness coordinator is obtained, if such a person is provided by the prosecuting jurisdiction. The victim witness coordinator’s role is to prepare the victim for trial and accompany the victim to court appearances in the criminal justice system. However, if no victim witness coordinator is available, the victim advocate may assist the victim throughout the criminal trial.

Conclusion

You gave me hope and helped me be strong. You changed my life by helping find the strength to start over. My children and I are free.

—A NATIVE AMERICAN SURVIVOR OF DOMESTIC VIOLENCE

Representing Native American victims of domestic violence presents unique challenges for the attorney and victim advocate. To properly and safely represent these clients in protection order hearings, the attorneys and victim advocates must have a thorough understanding of the dynamics of domestic violence as well as the cultural needs of the client. Protection order cases must be carefully and strategically prepared and all protection orders must contain specific and detailed language to comply with VAWA’s full faith and credit parameters.
²⁷
Representing Native American victims of domestic violence can be so rewarding when your efforts have played a part in enabling your client to break free from the cycle of violence to begin a new life. Even if the victim chooses to return to the batterer, the victim has been empowered through education and the knowledge of domestic violence and how the systems work. Power makes her stronger. Keep in the mind that the next time she chooses to break free just might be the time she stays free. Your work can help her change her life.

Notes

1
  Defined in this chapter as a pattern of coercive behavior aimed at controlling the behavior of another in an intimate or familial relationship.

2
  Patricia Tjaden and Nancy Thoennes,
Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence Against Women Survey
(National Institute of Justice and Centers for Disease Control and Prevention, NCJ 181867, July 2000), p. 25.

3
  Tjaden and Thoennes,
Extent,
p. 26.

4
  Tjaden and Thoennes,
Extent,
p. 26.

5
  Margaret Martin Barry, “Protective Order Enforcement: Another Pirouette,”
Hastings Women’s Law Journal
6 (1995): 348.

6
  18 U.S.C. §2265 (1994) (amended 2000).

7
  See
Valistreri v. Pacifica Police Dept.,
855 F.2d 1421 (9th Cir. 1988) and
Dodish v. City of Allentown,
665 F. Supp. 381 (E.D. Pa 1987). But see
DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 (1999) (setting forth the requirements of what constitutes a special relationship for purposes of 1983 claims). Note also that tort claim actions against state or tribal officials will require the claimant to overcome the issue of sovereign immunity from suit.

8
  Research demonstrates that women are victimized at a rate higher than men. Tjaden and Thoennes,
Extent,
p. 17.

9
  The term “victim advocate” is used to mean the service provider, safety planner, and lethality assessor that accompanies the victim through the civil and sometimes criminal systems. This term should not be confused with a “lay victim advocate.” A lay victim advocate is usually an elder or tribal member that has permission to practice tribal law and represent clients in a particular tribal court.

10
  Genevieve James, speaking at the Tribal Trial College, Seattle, Washington, July 9—11, 2003.

11
  Lenore E. Walker,
The Battered Woman Syndrome
(New York: Springer, 1984), p. 59. More than 50 percent of the perpetrators who batter spouses will also batter children, and the pattern of spouse abuse usually precedes the abuse of the child.

12
  Maria Roy,
Children in the Crossfire
(Deerfield Beach, FL: Health Communications, 1988), pp. 92—93.

13
  Donald G. Dutton and Susan K. Golant,
The Batterer: A Psychological Profile
(New York: Basic Books, 1995), pp. 24—35.

14
  Tjaden and Thoennes,
Extent,
pp. 37—38.

15
  F.R.E. 803(3). The attorney must check the rules of evidence in the appropriate jurisdiction. I cite the Federal Rules of Evidence in this chapter.

16
  F.R.E. 803(1).

17
  F.R.E. 803(2).

18
  For instance, 22 Okla. Stat. Ann. § 60.1 (Westlaw 2002) states that “domestic abuse means any act of physical harm, or the threat of imminent physical harm which is committed by an adult, emancipated minor, or minor child thirteen (13) years of age or older against another adult, emancipated minor, or minor child who are family or household members or who are or were in a dating relationship.” In contrast, the Spirit Lake Tribe’s Law and Order Code sets forth that “domestic abuse means inflicting or attempting to inflict physical injury on an adult by other than accidental means, physical restraint, emotional abuse or malicious damage to the personal property of the abused party.”

19
  18 U.S.C. §2265 (1994) (amended 2000).

20
  18 U.S.C. §2265 (1994) (amended 2000).

21
  In personam jurisdiction is jurisdiction over the person. Unlike subject matter jurisdiction, in personam jurisdiction may be consented to and may be waived by the parties. See
Hoffman v. Blaski,
363 U.S. 335 (1960). Basically, there are three ways to acquire in personam jurisdiction: serving a defendant while he or she is present within the forum; if the defendant has minimum contacts with the forum (see
International Shoe v. Worldwide Volkswagon Corp. v. Woodson,
100 S. Ct. 559 (1980)); or if the defendant comes into the forum and commits an act while there.

22
  Due process protects against fundamental unfairness by requiring that parties receive notice and opportunity to be heard. See
Armstrong v
.
Manzo,
380 U.S. 545, 550 (1965).

23
  28 U.S.C. §2265(d)(1994)(amended 2000).

24
  Tjaden and Thoennes,
Extent.

25
  Tjaden and Thoennes,
Extent,
p. 53.

26
  Tjaden and Thoennes,
Extent,
p. 51.

27
  Tjaden and Thoennes,
Extent,
p. 51.

Questions

1. What point of view is this chapter written from? Why is it important for a victim and her lawyer to understand the details of court proceedings in protection order hearings?
   
2. Why does Stoner point out that the client or victim might be using drugs or alcohol? Why does she suggest drug and alcohol issues should be brought up in court by the victim’s side? Why might the victim be abusing drugs or alcohol? How does it relate to her situation?
   
3. Why is it important for the victim to make the decisions concerning her case and not her lawyer?
   
4. Why is it essential to define the terms of child visitation in a protection order? What sort of dangers does this situation present for the mother and her children?
   
5. How can elders be important in tribal court domestic violence cases?
   
6. At the end of the chapter a victim indicates that protection orders are only pieces of paper and Stoner identifies statistics that indicate they are often violated by the abuser. Why are they still so important to obtain? What should be done in addition to a protection order to assure the victim’s and her children’s safety?
   
7. How can law enforcement and the legal authorities work to hold abusers accountable when they violate a protection order?
   
8. How can tribes craft their protection orders to better serve and protect victims while still retaining the necessary components to make them compliant with VAWA’s full faith and credit section?
   

In Your Community

1. What can your tribal community do to hold batterers accountable when they violate a protection order?
   
2. What can a victim do if she cannot afford to hire a lawyer to handle her case? Can she represent herself? What resources are available to assist her through this civil proceeding?
   
3. Why is it important to understand the specific statutory definitions of domestic violence and the requirements that need to be met to obtain a protection order in your jurisdiction or tribal community?
   
4. What types of challenges does the Anglo-American legal system that requires the lawyer and witnesses to theorize and tell their story in a clear chronology present for tribal members in your community?
   

Terms Used in Chapter 15

Declarant:
The person making a statement.

Hearsay:
Second-hand evidence in which the witness is not telling what he or she knows personally, but what others have said to him or her.

Mandatory reporters:
People who are required by law to report any suspicion of child abuse or neglect to authorities.

Relief:
Deliverance from oppression, wrong, or injustice.

Untitled

PAIN PAIN PAIN
A SHOWER OF BROKEN GLASS
YELLING, SCREAMING, HURTFUL WORDS
FEAR, NOWHERE TO HIDE.
HORROR IN LITTLE CHILDREN’S EYES
NIGHTS THAT LAST FOREVER
good morning dear

Sharon Lynn Reyna (Stockbridge-Munsee/Mohican)

Chapter 16

Using Full Faith and Credit to Protect Native American Survivors of Domestic Violence, Stalking, and Sexual Assault

DANIELLE G. VAN ESS AND SARAH DEER

After being battered by her husband for many years, Frieda decided to try to leave the relationship to find safety. She
petitioned
for and received a protection order from tribal court. While driving to visit her mother off-reservation, Frieda noticed her husband’s car following her. She made it to her mother’s house, ran inside, and called 911. “I have a protection order against him!” she told dispatch. An officer from the local city police arrived, but when he saw that her order was from the tribal court, he said, “I’m sorry—I don’t have authority to enforce a tribal court order.”