Sharing Our Stories of Survival: Native Women Surviving Violence (46 page)

Profile of a Native American Victim

I was so ashamed to even speak of what he had done to me. I thought I would embarrass my family and his. These things were sacred and private.

—A NATIVE AMERICAN SURVIVOR OF DOMESTIC VIOLENCE

Representing Native American victims of domestic violence in protection order hearings often presents difficult challenges for the practicing attorney and victim advocate. To adequately represent your client, you need to have a basic understanding of the dynamics of domestic violence, including the types of behaviors that the victims may present. It is also important to understand and respect the intense life struggles the victim may be encountering. Your actions as an attorney or victim advocate
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will do one of two things for your client—help make her safer or put her in even more danger.
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Victims of domestic violence may suffer from a variety of problems that will impede your ability to gather the information and evidence necessary to prepare the case. The victim may present with a variety of symptoms, such as trouble concentrating, night terrors and flashbacks, depression, feeling suicidal, feeling lonely, feeling isolated or confused. Your client is also sixteen times more likely to be using drugs and/or alcohol to deal with her painful situation. You should inquire regularly about any drug or alcohol usage if you suspect that behavior. The best way to address drug and alcohol issues in court is to identify the issue early on and get treatment to demonstrate to the court the client recognizes the problem and is taking positive steps to correct it.

The victim may have a profound and justified fear of losing her children. In many cases, the children are the pawn by which the batterer will try to maintain his control. Unfortunately, research shows that more than half the men who abuse their partners beat their children.
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In cases where the mother leaves because of homicide dangers, the children often become the direct target of the father’s anger.
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The client may determine that she should stay with her abusive husband to keep her children.

She may return to the batterer despite your best efforts. Despite the difficulty for all involved, you must respect her decisions. Research indicates that a victim on average will attempt to leave the batterer at least seven or eight times before she finally breaks free. She may return to him despite all of the concerted efforts to allow her to remain safe and free from the abuse. Many attempts have been made to explain why the victim stays with or returns to the batterer (see chapters 3 and 12). Research reveals that she blames herself for the violence, she has no money, she fears she will lose her children, she has been isolated and has no one to reach out to that she can trust, and she feels the system will fail her as it has in the past.

A Native American victim may be struggling with additional issues regarding her extended family. She may be fearful of the batterer’s family if that family is politically powerful in the tribe or particularly aggressive in their behaviors towards her. She may be mourning the loss of the batterer’s extended family as her own. She may be fearful of having to trust nonmembers or non-Indians with her safety and the secrets of her abuse. She may be extremely embarrassed to speak of these things to an outsider. Further, the community attitude regarding domestic violence comes into play when you are representing victims in Indian Country.

A Native American juror once told me that a black eye and broken ribs did not equal domestic violence because many of the Native American women in the community were suffering severe injuries at the hands of their partners and not complaining about it. This internalized oppression is a direct result of the attitudes and beliefs of the community towards domestic violence. I have had many of the women who sought services from our project tell me that they did not know they were being abused. The abuse these victims suffered was entirely acceptable and even expected in the communities in which they resided. Many of these women were brought up to believe that abuse was acceptable. Further, the only apparent punishment was by the community, which sanctioned the victim for bringing family issues before the court and embarrassing the family. You must understand the community’s attitude towards domestic violence and plan your case accordingly.

Profile of the Batterer

He was such a smooth talker. He always got what he wanted. He made it seem like it was all my fault. I just froze when the Judge asked me questions and I knew the Judge wouldn’t believe me.

—A NATIVE AMERICAN SURVIVOR OF DOMESTIC VIOLENCE

While no one profile fits all batterers,
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a discussion of typical characteristics or behaviors that the batterer might exhibit may assist you in better representing your client. Batterers use a variety of different methods to control their victims (see chapter 3). You may expect some or all of the following characteristics from the batterer: may be a control freak observing rigid roleplay (won’t allow the victim to work); may distance himself from the victim and refuse to give her any type of emotional contact (this is extremely damaging to the victim’s self-esteem); may have an extensive criminal history; may be extremely jealous; may express remorse after an episode; and the batterer may take offense easily. A look or even the mildest attempt at limit setting can trigger a violent episode.

Batterers may be well-liked by others and respected in the community. The batterer may view himself as the victim. Some of the punishments and tactics used by batterers are similar to those tactics used on prisoners of war. The victim becomes psychologically broken down and becomes emotionally and physically drained. Moreover, the majority of batterers I have encountered in the last eleven years are extremely good talkers and masterful manipulators of the system. In the majority of my cases, the batterer has slowly but steadily isolated the victim financially, physically, and emotionally. Pay close attention to the isolation issues during your domestic violence screening.

The batterer will usually not cooperate with you or anyone connected to the case for any extended period of time. It has been my experience that the batter will usually not even cooperate with his own attorney. He will continue to intimidate the victim through financial means, the children, or any other method he can find that works. He most likely will not pay his child support regularly, especially if the victim is financially dependent on receiving that money. The victim may be facing economic hurdles. Keep this in mind when you are advising her and work with the victim advocate to find other sources of financial support.

Preparing the Case

Interviewing Tips

Because of the trauma they have experienced, many survivors can find the legal process very confusing and frustrating. You can assist and empower your client by paying special attention to your interview techniques. Interview her in a quiet place to avoid any exaggerated responses that she may have developed due to the battering. Interview her in a place where the staff is instructed not to interrupt you. Remember, she may have trouble concentrating and may be experiencing difficulty with her memory so interruptions should be avoided.

Establish a relationship with the client. Focus more on listening during the first interview. I begin by asking general questions to see if the victim is able to speak freely. If not, I focus instead on specific questions such as “Has he hit you with his fist?” or “Has he touched you in a way that hurt you or scared you?”

You should also interview her on several occasions for no longer than an hour at a time. Be extremely cautious about following your interviews with a letter. Batterers often return to the client’s home either by invitation or trespass and have on occasion confiscated those letters.

One question that is often asked is whether to allow the victim advocate to sit in on the attorney’s interview sessions and whether that waives the attorney-client privilege.

Carefully consider whether to allow third parties (who are not your employees) to sit in on the interview process. Allowing third parties to be present during the interview may waive the attorney-client privilege thereby allowing opposing council to put the third party on the stand during a court hearing to testify as to what the client said during the attorney’s interview.

Some jurisdictions provide by statute that the victim advocates’ records are privileged and cannot be disclosed unless the client consents. The attorney may also have the victim and victim advocate sign an agreement allowing for the free exchange of information between the victim advocate and the attorney, setting forth that the victim advocate is working with the attorney on case preparation. The agreement presents a strong argument that the victim advocate and attorney are working together on case preparation resulting in a work product that is protected by the attorney-client privilege.

If your jurisdiction makes you a
mandatory reporter
regarding child abuse/ neglect, let your client know this up front. In some jurisdictions, statutes require an attorney or victim advocate to report suspected abuse or neglect and state forthright that the statute defeats any privilege. Some states make it a misdemeanor to fail to report.

Ensure that the victim advocate is serving the client’s needs. The foremost reason that victims return to their batterers is unmet need. The Apache Tribe of Oklahoma has set up a model where the victim advocate works closely with the civil legal attorney and reports to the attorney on a weekly basis regarding the client’s needs and whether those needs have been met. This gives the attorney the opportunity to better guide the client and avoid some legal issues by early intervention. It also provides the attorney with a better understanding of the client’s daily life struggles.

Empower the client with information. Do not make decisions for her. Instead, strive to give her all the information necessary for her to make an informed decision. Counsel her on the pros and cons of her decision, but respect her choice. Continually update your lethality assessment.

Lethality Assessments

This case looked a lot like every other domestic violence case coming through our office—but this one ended in our client’s murder. He stalked her, he blamed her and he killed her. You should treat every case as if it were the beginning of a homicide.

—AN ATTORNEY WHO REPRESENTS DOMESTIC VIOLENCE VICTIMS

The lethality assessment attempts to measure the present danger and assists the attorney when advising the client in ways that promote safety. To perform an assessment, the most important aspect of the process is to listen to your client. She knows the batterer far better than you ever will.

The following signs should be red flags that indicate the batterer is or is becoming unstable and plans should be made immediately to address the client’s safety:

• The abuse has changed forms (from verbal to physical)
  
• The batterer has shown signs or made threats of homicide or suicide against himself or family members (the more detailed the plan the greater the danger)
  
• The batterer idolizes his partner and depends upon her heavily (for instance financially)
  
• There have been repeated calls to law enforcement for domestic incidents
  
• The batterer’s actions demonstrate he does not fear legal consequences
  
• The batterer has killed or mutilated a pet, or is a hostage-taker or a stalker
  

The most dangerous time for a victim is when she is attempting to separate.
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The lethality assessment must be continually updated as the case progresses. The victim advocate and the client are critical sources of information when conducting the assessment.

If you determine the lethality risks are mounting, there are certain steps you and your client should take. First, have the victim advocate and the client prepare a detailed safety plan. This plan should include the collection and safe storage of important papers (such as birth certificates, tribal enrollment cards, and insurance cards) and an extra stash of money. Further, an extra set of keys and detailed instructions on an escape route and safe place to stay must be addressed. Victim advocates often develop key “code” words that alert the victim advocate of the danger without the client having to specifically state she is in danger. In some cases, it may be necessary to have a relocation plan in place. Finally, letters to local law enforcement agencies indicating the issuance of a protection order and setting forth in detail the fear of danger and need for protection may be in order in those cases where the client is struggling with lackadaisical law enforcement personnel.

I have written detailed letters to chiefs of police in areas where the officers have refused to respond quickly to my client’s calls for help or have made comments to my client to the effect that she was a bother to the officers because she had called for help so often. My letters set out in detail the date the protection order was issued, the terms of the order, the dangers facing my client, and details regarding why my client felt law enforcement was not performing sufficiently to her calls for help. In all cases I have handled so far, these letters to the chiefs of police have proven effective in changing response times and outward attitudes towards my client’s calls for help.

Finally, you must do a systemic assessment of the community resources and attitudes towards domestic violence. It does you no good to win a victory for your client in court if law enforcement will not respond when the enraged, emotional batterer appears at her door to make her pay for embarrassing him in court. It does no good to win a victory in court if the judge will not hold the batterer accountable for his actions. A sound determination of community support will assist you in the lethality assessment and better enable you to advise the client.