Sharing Our Stories of Survival: Native Women Surviving Violence (38 page)

Whatever the case, dropping a protection order is her right. Advocates should support the decisions and autonomy of women in making these kinds of decisions about protection orders.

Children

Legal advocates must also be prepared to handle multiple issues involving children of a woman who has been battered. Custody, visitation, and child support issues can compromise the woman’s (and children’s) safety. Ignorance and misunderstanding of the dynamics of battering have led to removal of children by child protection agencies under an inappropriate charge of “failure to protect.” Judges have also been known to give custody to batterers. The legal advocate must establish priorities for the agencies involved—first the safety of the women and their children, then offender accountability The message must consistently be “Woman abuse is child abuse.” Work from the perspective that, if a woman is safe and has sufficient resources, her children will be safe and provided for as well.

“Using the children,” perhaps one of the most powerful tactics of battering, is complicated and intensified by the collusion of social services agencies. The success of this tactic is a major reason women return to their batterers, because they fear losing their children. Access to the woman is often achieved through court-ordered visitation, where children are just as vulnerable as their mothers. Ideally, legal advocates will proactively provide education in the form of model policies and procedures and codes. Legal advocates must continually remind law enforcement, criminal justice systems, and child protection programs that the majority of women who are murdered by their batterers have done everything the legal system suggests they do (protection orders, divorce, moving away, and so forth). One of the most dangerous times for a woman and her children is when they have to meet with the batterer for visitation.

The
ambiguity
and confusion surrounding custody awarded in protection orders is one of the major challenges when helping women be safe and keep custody of their children. When a woman flees to another jurisdiction for safety, her protection order is enforceable, no matter where she goes (see chapter 16). The one exception is the custody and support provisions of that protection order. Since the original federal law (VAWA) did not specifically mention custody and support, enforcing jurisdictions sometimes treat safety and custody as two separate issues. Consequently, efforts to have custody provisions enforced can result in a separate court action, which requires notice to the father, alerting him to the location of the woman and her children. Although a few jurisdictions are considering expanding their laws to give custody provisions full faith and credit, this will take time. The legal advocate should research the court history and laws where the woman is relocating to determine options. Related challenges may include tribal enrollment issues, conflicting custody orders from different tribal courts, and possible attempts to gain custody by other family members. Legal advocates must be prepared to work with individual women for long periods of time (often years) to resolve these issues.

Privileged Communication

Generally, legal advocates are not recognized as having any legal privilege protecting the content of victim-advocate communication (like an attorney would have with a client). As stated earlier in this chapter, a tribe could adopt such a statute. Regardless of any existing victim-advocate privilege, legal advocates can and should develop policies, procedures, and protocols for their programs honoring both confidentiality and privileged communication. These would afford the program some protection and give direction to legal and other advocates should a subpoena or court order for information be served. Another common and potentially devastating challenge to confidentiality or privileged communication includes child custody orders naming women assumed to be in shelter. The court may try to name the advocate as a co-respondent in such orders, trying to compel the advocate to surrender the children. Generally, policies should place the response to these situations in the hands of the advocacy program director. The program attorney (usually acting pro bono) can apply to the court to quash subpoenas and take other needed legal action to protect women, their children, and the program.

In Court

Preparing for court appearances is another important aspect of legal advocacy. Educating a woman about the process through role-playing, visiting the courtroom, and meeting court staff can make her less fearful of the experience. A police escort to and from the court may be a needed safety consideration and the advocate should ask her whether she thinks it will be necessary. It is also the responsibility of the advocate to think ahead about the layout of the courthouse. Is there a safe waiting room? Or can she (and the legal advocate) be cornered by the batterer or his family? Do you need to request a police presence before, during, and/or after court? Does she need childcare and transportation? All of these issues present safety concerns for women and their advocates. Legal advocates rarely worry about their own safety, but their vulnerability is also an indication of a heightened level of danger for the woman and other court staff. The court system should have written policies to address these safety issues. Helping the court write these policies is an excellent opportunity to make the staff and justices aware of the extraordinary dangers battered women face.

It is not the job of advocates to force women to cooperate with law enforcement or the criminal justice system. Both law enforcement and the criminal justice system have specific responsibilities that do not include the safety and sovereignty of women. Even successful prosecutions do not always ensure safety for women. It is the advocate’s job to ensure women are not used by the legal system as tools to obtain convictions without regard to overall safety. Certainly convictions can be an important aspect of offender accountability. But convictions are never a guarantee, and the chronic lack of jail space and underresourced probation departments may mean the batterer is back out on the street. Moreover, cooperation with the legal system can, in some cases, inflame the batterer and escalate the danger for the woman.

Legal advocates often work with women who are battered and accused of crimes ranging from failure to protect her children, drunk and disorderly conduct, assault, and sometimes murder of their batterer. Regardless of guilt or innocence, advocates maintain their relationship with the woman, while assuring her legal representation in court. If advocates are proactively educating the court and law enforcement on issues of collusion, self-defense, and batterer tactics to control his partner, fewer women will end up in court on trumped-up or legitimate charges.

Documentation and Evidence

A legal advocate must be careful when documenting interactions with a woman who is battered because documents could potentially be accessed by the batterer. Anything written by an advocate is considered program property and can be subpoenaed if not protected by the tribal code. When it comes to writing things down, the general rule is “less is better.” Since a case management approach is inappropriate and disrespectful, advocates should not be writing anything similar to progress notes, opinions, observations, or treatment planning. This approach is unethical and potentially dangerous. A woman’s file can include basic contact information, documentation of resource referrals, referral agency response (as a basis for doing systems work), and demographic information. Documentation of threats, violence, and injuries inflicted by the batterer may be kept to hold him accountable. Law enforcement, medical, and other reports can be included in women’s files as they are often a matter of public record and usually document the history of the batterers’ violence. Generally, do not include any information that could be construed to reflect anything negative concerning the woman.

Some advocates recommend taking pictures of injuries and obtaining copies of official reports because they work in systems where such documentation has been known to disappear. That type of situation requires legal advocates to work toward systems accountability. Find out the source of gaps in the system. Visit with the prosecutor and see what information he or she needs. Establishing written agreements, policies, procedures, and protocols regarding evidence is important to ensure consistency. This is particularly important when personnel changes are frequent. The work is difficult enough without establishing operating policies with each new staff person or manager.

Legal Advocates as Paralegals?

Currently, tribal councils are hearing that legal advocates could work as tribal attorneys or paralegals. This is controversial because it moves away from the grassroots nature of advocacy and brings up issues of accountability. Becoming an arm of the court may compromise a legal advocate’s biased stance towards the women. As an arm of the court, who is the legal advocate accountable to? Every step and change made in how the work is done must take into consideration the impact on the safety and status of women who are battered.

Because legal advocates need to be accountable only to the women they serve, there is a need to recruit and train attorneys. It is important for women who are battered to have attorneys who are sympathetic to their issues. Domestic violence is certainly a legal specialty. Advocates can provide basic “DV 101” training for attorneys and also refer them to organizations like the Battered Women’s Justice Project (BWJP). BWJP can provide the consultation, research, and case law necessary for local attorneys to do their work effectively.

System Legal Advocacy

The role of legal advocates within the tribal criminal justice system is multifaceted. Most of the work is done on an individual basis with women. Advocates are often overwhelmed by this part of the work. However, it is important to step outside the crisis management mode and build working relationships with court system personnel. The context of these relationships is influenced by the history of tribal justice systems. Over time, federal laws and policies have resulted in fragmented tribal systems that often lack infrastructure, resources, and experienced personnel. Unstable political environments, poverty, and geographic distances complicate the work of everyone on tribal lands. Tribal courts aren’t immune to these difficulties.

Acknowledging these shared challenges as well as the shared goals of women’s safety and offender accountability creates common ground for advocates and court personnel. A legal advocate’s job is to earn the respect of the court, so that they see legal advocates as assets, not liabilities. Having conversations under nonthreatening circumstances about each other’s work responsibilities, roles, and priorities sets the stage for arranging cross-training and policy development and resolving future conflicts.

One consequence of the historic problems of tribal court systems is a general feeling of negativity. Politics, rumors, favoritism, and unprofessionalism can be issues in every tribal community. That’s not to say these phenomena don’t exist in non-Native communities. However, these issues can be labeled an “Indian problem” due to internalized oppression. All tribal entities can relate to this situation. But many questions need critical examination: Is this about lack of character? Internalized oppression? The imposition of an unworkable system? Or all of the above? Where do traditional methods fit into the court system? Regardless of the situation, how can the safety of women and offender accountability be top priorities?

If advocates seek to make alliances with the system, those questions need to be honestly considered. The dynamics of hierarchy require analysis from the perspective of power and control: who has it, how they use it, and what influences them. Advocates must be proactive in these situations rather than waiting for permission or approval from the “powers that be.” As women and community members, advocates have the right and responsibility to speak out. Advocates have the ability and status to act on issues concerning character, internalized oppression, and systems problems. Making allies and resolving problems involves strategy, conversation, and education.

For example, it’s cliché to say that Indian programs and court systems do not work because people favor their relatives or let them off the hook. We see this played out when our relatives are involved in domestic violence. How do we hold ourselves accountable as relatives? Is bailing out or justifying the violence of our son, father, nephew, or uncle helpful to them? Certainly we have not made the woman safer in doing this. As Native people, we know that when our relatives act badly, condoning their behavior does not help them in their life—mentally, emotionally, or spiritually. Legal advocates need to model how to hold relatives accountable and help them make the personal transformations necessary so they can also be good relatives. Legal advocates need to have difficult conversations with grandmas, mothers, and friends who act out of concern yet in ways that endanger everybody—endanger the woman’s health and endanger the man’s freedom. It is better to deal with the problem honestly now then to let it get worse by hiding behind an argument.

Legal advocates, as experts on the dynamics of battering and collusion, are usually the ones to write policies, procedures, and protocols for agencies detailing the response to these situations. Legal advocates should educate court staff about the dynamics of domestic violence, the reality of fear and danger women face, and the physical injuries and exhaustion women experience. Emphasize that women’s safety and offender accountability must be prioritized. Training is more effective if you can bring in a co-facilitator who has worked in the legal system (for example, another tribal court judge or clerk of court), and who also has experience in the effort to end violence against women. Those folks may not yet exist in your community, so educating or mentoring with allies from your programs is a way to create this resource.