Sharing Our Stories of Survival: Native Women Surviving Violence (59 page)

If the probationer admits that something did occur, he will no longer worry about where the probation officer got the information, only about portraying his actions in the most innocent way. A domestic violence offender usually is so compelled to justify his actions that he will sometimes readily admit the behavior, focusing more on how logical his action was or how the victim caused his actions.

That admission is more than sufficient to justify for the court any corrective action the probation officer needs to pursue. The court will not be interested in how the admission was solicited, as long as the probation officer did not make promises, use force to get the admission, or otherwise coerce the probationer into admitting to a violation. Remember, probation is an administrative function and does not have to adhere to a probable cause standard or beyond a reasonable doubt standard of proof for a finding that a violation has occurred. A lower standard of proof, reasonable belief, applies. When compiling a sworn report for the court or testifying in a revocation hearing, the officer need only state that he or she asked the probationer about numerous indications that a violation had occurred and that the probationer had admitted to certain actions or activities. Miranda warnings also do not apply to this administrative procedure.

This technique allows victims to feel safe in disclosing further violence or abuse, confident that the probation officer can confront the abuser without disclosing the source of any information concerning violations. The same holds true for community, family, or neighbors who might be added sources for information.

The probation officer should also keep his or her sources confidential when dealing with positive reports on the probationer’s behavior. Appropriate response to probation conditions may quickly erode or result in retaliation if the probationer can verify that his partner, or any other specific person, has been providing information to his probation officer.

Offender Supervision

Supervision means active supervision, not sitting at a desk waiting for probationers and information to come to you. Actively checking with persons and entities having regular contact and interaction with the probationer can provide a wide-angle deterrent effect to the probationer. It also extends the resources and ability of the probation officer to monitor more of the probationer’s behavior by enlisting the eyes and ears of others in the community.

The following is a list of some of the more common investigative sources probation officers might rely on for information on the probationer’s behavior:

• The woman herself
  
• The woman’s advocate
  
• Shelter services
  
• The probationer
  
• Scheduled check-ins
  
• Safety checks on victim
  
• Home visits with probationer
  
• Work-site visits, both announced and unannounced
  
• Probationer’s children
  
• Other household members
  
• Family (both his and hers)
  
• Friends (both his and hers)
  
• Law enforcement
  
• Neighborhood Watch volunteers
  
• Service providers (social services, housing, child protection, CASA, and so forth)
  
• Health care providers (EMS, emergency room, midwives, dental, prenatal, acute care, community health representatives, and so forth)
  
• Employers (his and hers)
  
• Babysitters or daycare workers
  
• Teachers
  
• Counselors (mental health, medicine persons, elders, occupational, and so forth)
  
• Criminal court personnel and records
  
• Civil court personnel and records
  
• Civic or traditional Native societies, organizations, clubs, and so forth
  
• Psychological evaluations
  
• Chemical dependency evaluations
  
• Random drug testing
  
• Liaisons or agreements with adjacent or other law enforcement and/or probation agencies
  
• Administrator of community service time
  

These types of contacts and information-gathering efforts involve an active probation response rather than a static one. The probation officer does not just sit in the office waiting for information to come to him or her, but actively pursues information through contacts in the community, in person, by phone, by fax, and/or by e-mail.

Utilizing some information sources has the potential to place the victim at increased risk or at least make life with her batterer very uncomfortable for her. The supervision plan should be discussed with her at the initial victim contact to minimize risk and to keep her informed. She should be told that there will be frequent safety checks and why. The probation officer should encourage her to call at any time and allow her to ask any questions she may have. Requesting a release of information to speak with her advocate should also be a priority of this first meeting.

This type of supervised probation strategy appears time-consuming at first. Establishing a contact network for each offender does take time and energy; however, the probation officer working in a Native community will soon recognize that many of the contacts will be the same for most of the probationers.

Exchanging probationer lists with state and/or federal probation agencies and surrounding law enforcement agencies should be done on a regular basis. Routine cross-reporting can be established by a memorandum of understanding or interagency agreement. The probationer should get the feeling that all law enforcement agencies everywhere are watching him and reporting on his behavior.

Scheduled probationer check-ins and periodic evaluation meetings remain an important part of intensive supervision. The stability of regularly scheduled meetings with the probation officer strengthens the probationer’s relationship with the probation officer, while regularly affirming the probationer’s accountability for a crime of domestic violence. On the other hand, implementing only scheduled weekly, bi-weekly, or monthly check-ins as the primary source of supervision allows too much time between contacts to deter violence. Offenders may end up “scheduling” their abusive behavior to coincide with their probation reporting schedule.

Partners of some probationers have reported renewed abuse, sometimes escalating to violence, immediately after a scheduled check-in. Those same offenders later admitted they wanted to show their partners that, although on probation, they could still have control. Offenders reasoned that they had the interval until their next check-in or announced home visit to intimidate or placate their partners into not reporting the abuse to the probation officer.

Still other probationers said they were abusive to their partners during the several days before a scheduled check-in, hoping to intimidate and threaten their partners into remaining quiet about any abuse or other probation violation that might have occurred.

To intervene, probation officers can use unannounced and random home visits, drug tests, worksite visits, or partner safety checks, along with scheduled reporting conditions. Random telephone contacts can also be used. Periodic unscheduled notices to report, whether by telephone or mail, can also derail any planned abusive behavior on the part of the probationer.

These unannounced visits and supervisory activities might appear unduly harassing or unwarranted infringements on the probationer’s time and privacy. They are, however, totally in keeping with established probation practices. Probation is a sentence and unannounced safety checks are a part of that sentence. Detention guards would not announce such checks if the offender was in jail and neither should a probation officer.

The frequency of additional supervisory activities varies by individual offender. Several weeks of monitoring strategies at the beginning of the probation term or following a probation infraction may be needed for some individuals. Others may warrant a longer or shorter period, depending on the level of threat perceived by the victim, the individual’s attitude, and the level of past violence. Still other probation officers may choose to inject several days of unannounced checks and visits at random intervals throughout the probation term. Whatever strategy is used, the idea is to keep the probationer aware that there are restrictions on his life and activities during the term of probation that are a direct result of his conviction and his choice to use violence against his partner.

Rehabilitation

The community expects the tribal criminal justice system to provide for the rehabilitation and reintegration of these offenders back into the community. Probation programming is the vehicle for that rehabilitation. Accordingly, specific problems and needs of each probationer must be considered when deciding what programming is appropriate. Rehabilitative programming must also serve to undermine and strip away the probationer’s carefully developed excuses and justifications for using violence.

Rehabilitation plans must be developed individually for each probationer. Assembly-line and cookie-cutter approaches to rehabilitation will not work because each probationer has a specific history, needs, degree of dangerousness, life situation, and excuses for the violence.

Alcohol/drug abuse plays a large part in many types of criminal behavior in Indian Country, including domestic violence crimes. In fact, many batterers use alcohol and/or drug dependence as an excuse for their violence. When alcohol and/or drug abuse is a substantial problem in the community, chemical dependency assessments and treatment referrals should be a basic probation condition for all offenders. The community and the court will readily support this strategy, and addressing this issue will strip the offender of one of his excuses. Also, a probationer who is still using alcohol or drugs is not clear-headed enough to fully accept responsibility for his actions or take an active part in any rehabilitation measures.

Many Native people suffer from depression and other stress-related psychological disorders, due in part to conditions of abject poverty, unemployment, and related social factors. This includes many domestic violence offenders. Probation officers should not hesitate to require psychological evaluations for probationers. Mental illness can be a major contributor to violence. Impaired cognitive abilities and delusions will seriously hamper any other rehabilitative efforts and reeducation programming.

Domestic violence offenders also rely on other socioeconomic justifications for using violence against their partner, including unemployment, poor anger management, lack of parenting skills, lack of education, housing issues, and job-related stressors. These issues need to be addressed because any excuse that appears viable by the offender, the community, and his family will prevent acknowledgment of the root cause of his violence, which is predominantly the need to establish and maintain power and control in the relationship. Some solutions are to send the probationer to anger management classes, parenting classes, educational programs, employment training, or any other resource available in the community to address what he feels is the real problem.

Of course such programming must be supplemental to domestic violence awareness and batterer reeducation programming. The probation officer should consult with the reeducation facilitator as to whether the probationer should continue attending reeducation classes while other programming is implemented, or if reeducation classes should be required only after other programming has been completed.

No single strategy has been demonstrated as being effective with all offenders, although one promising strategy uses a combination of culturally appropriate reeducation and programming with supervised probation that is mandated through the coercive power of domestic violence laws.
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The law requires adherence with specific probation conditions, one of which is attendance at domestic violence reeducation classes, as well as mandated cultural classes and traditional role-model education. Addressing ready-made excuses and soliciting community involvement with batterers is also an essential part of this strategy.

New probation strategies have not been implemented in any jurisdiction long enough to establish a statistical basis that proves one specific strategy will work for all Native offenders. Individual cultural considerations and community expectations make establishing one domestic violence probation strategy for all of Indian Country highly inappropriate.

Pre-Sentence and Pre-Arraignment Investigations

Probation officers are also routinely asked by the court to prepare
pre-sentence
and/or
pre-arraignment reports
on offenders who have pled guilty or who may plead guilty at arraignment. This is an extremely important function of probation because it provides the court with a picture of past criminal behavior and enables the judge to make informed decisions as to bond conditions or sentencing. This function is entirely investigative and requires that the probation officer locate and articulate any facts that may have a bearing on the offender’s likelihood of reoffending, the dangerousness of the offender to his victim, and his likelihood of returning to court for trial.

There is an old saying in law enforcement about sex offenders, which also applies to domestic violence offenders: “There are no first time [domestic violence] offenders, only ones who have been caught for the first time.” Domestic violence offenders develop a pattern of behavior that has usually manifested itself in prior offenses or in specific incidents in the past, both documented and undocumented. To find and present that information to the court, the probation officer must use all available sources of information, including public records, past probation history, past release history, documented incidents of violence, and prior orders for protection. By interviewing previous partners and/or victims of the offender, the probation officer can uncover information on undocumented behavior. Even rumored incidents should be investigated and documented, if possible.

Those coming from a traditional law enforcement or legal advocate background might question the use of unsubstantiated rumors or undocumented incidents in preparing a pre-sentence or pre-arraignment report for the court. The argument is that the offender should not be held accountable for alleged behavior if it cannot be proven in court. To the contrary, any information uncovered will be presented to the court as the result of an “administrative investigation” and not an adversarial criminal proceeding. He is not being tried for the unsubstantiated rumors or undocumented incidents. They may only be considered in deciding if he will return for court or if he presents a substantial risk to his victim or the community at large.