Sharing Our Stories of Survival: Native Women Surviving Violence (50 page)

Was it fair of the judge to issue a mutual protection order including relief against Penny? What about her right to due process? Ron did not fill out a written petition for protection. Penny was never served with notice that Ron was going to argue that she was violent toward him. Penny did not have a two-week opportunity to prepare to defend against those accusations or to hire an attorney, if possible, to represent her at the hearing. Often, mutual protection orders will appear as if the judge had an afterthought. They will say, “Respondent shall not contact, abuse, threaten, harass, and so forth, the Petitioner in any way.” And, then, at the end, the order will say, “Petitioner shall not contact the Respondent either for the duration of this order.” Sometimes a court will order a Petitioner into counseling for alcohol or drugs if the court sees that she may be “self-medicating” to cope with the trauma to which the Respondent has subjected her. This is also a type of mutual protection order because it is making an order against the person who sought help and protection from the court instead of just against the person alleged to have committed acts of violence against her. In such situations, the Petitioner, here Penny, is deprived of her right to due process. Judges are often very concerned with protecting a Respondent’s right to due process but they sometimes forget to afford Petitioners the same right.

To address this common problem, Congress responded by amending the full faith and credit provision of the VAWA to include the present subsection (c), which reads:

Cross or Counter Petition
—A protection order issued by a State, tribal or territorial court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if—

(I) no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or

(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.
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This change means that if Penny travels into another jurisdiction with that mutual protection order and Ron violates that order, law enforcement officers and courts in that new jurisdiction must enforce the order against Ron but not against Penny. That is because she is the one who petitioned for protection against abuse, Ron did not file a written cross-petition, and the judge did not make specific findings that Ron was also entitled to protection under such an order. In that case, the judge was merely frustrated and issued a mutual order without protecting Penny’s right to due process by requiring Ron to file a written cross-petition and without making specific findings that perhaps this was one of the very rare instances in which both parties might need protection from abusive acts of the other. In short, under the VAWA, mutual protection orders are usually enforceable only against the Respondent and not against the Petitioner.

Registration, Filing, and Notice

Another change Congress made to the full faith and credit provision of the VAWA in 2000 was to prohibit states, tribes, and territories from requiring women to register or file their protection orders from other jurisdictions before law enforcement officers and courts in the new jurisdiction would enforce them. Although registration
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may be beneficial to survivors of domestic violence and stalking in some instances, it may also be dangerous in others.

One way in which it might be helpful to a survivor to register her protection order is where the order may not have been entered into the national protection order registry, the National Crime Information Center Protection Order File (NCIC POF) maintained by the Federal Bureau of Investigation (FBI). Currently, almost all of the states are contributing at least some of their protection orders to this national registry. This can be beneficial in several ways. If a survivor does not have a paper copy of her protection order or a critical part of her order is not legible to law enforcement officers responding to the scene of an apparent protection order violation, anywhere in the United States, those law enforcement officers have the ability to check the NCIC POF to verify the existence and key portions of her protection order if it has been entered into that national registry.
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Another reason a survivor might wish to register her protection order is that if it is entered into the NCIC POF, it may help stop the person subject to the order from legally purchasing a new firearm. If someone subject to a protection order tries to purchase a firearm lawfully, the FBI may deny the sale under certain conditions. That is because it is illegal under federal law for anyone subject to a current, qualifying protection order to possess firearms or ammunition for the duration of that protection order.
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Finally, it might be important for a survivor to register her protection in those tribes or with those state officials who may still require registration as a prerequisite to enforcement. Remember that that practice is contrary to the federal law and ignores the safety concerns that prompted the amendment. Nonetheless, many local officials have not yet been educated about the changes in federal and state law, so they may still advise survivors that they need to register their protection orders. Presently, Alaska is the only state in the United States with a state law that still requires registration of
foreign protection orders
prior to enforcement.
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All forty-nine other states have amended their laws to reflect the change in the federal law. Many tribes also require “recognition” of foreign protection orders prior to enforcement. This is a requirement that the tribes may wish to reconsider in light of the serious safety concerns that may be involved in that process.

When a woman registers her protection order in a new jurisdiction, she must first find out where she must register. This varies from state to state and tribe to tribe. For example, in some jurisdictions registration is through the courts, while in others it is through the state police. She must also know the hours of operation during which she can bring her order there for registration; for example, the court may only be open for business between 8:30 a.m. and 4:30 p.m. She might also find out once she arrives at the courthouse that she must have a certified copy of her protection order, which she may not have with her, in order to register it. She may also need to make childcare arrangements while she goes to court, and she may have to find a means of transportation or money to travel to the courthouse. In the past, many jurisdictions also required a filing fee for registering a foreign protection order. Although this is now contrary to federal law and most states’ laws as well, that has not yet filtered down to a few court clerks and other officials who might mistakenly request payment of fees prior to accepting a protection order for registration.
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In short, it is often very inconvenient and even impractical for survivors of domestic violence or stalking to register their foreign protection orders in a new jurisdiction.

In addition, registering an order can actually be dangerous for some survivors of abuse. If a woman has just fled an abuser, she may not have had the time to get to court or the law enforcement office in the new jurisdiction before she needs to have the order enforced for her safety. If a woman is worried that her abuser or stalker may try to find her, she may not want to register her order. That is because once a woman registers her foreign protection order it may become a searchable public record. If so, an abuser who may have some idea where she might have fled can try to track her down by the public record paper trail. Moreover, some jurisdictions include protection orders along with other court records on the Internet, although most experts discourage the practice. Here, the concern is that a moderately computer-savvy abuser sitting in North Dakota may be able to locate his ex-girlfriend who fled his abuse and then registered her protection order against him in a particular county in Alabama. He may decide to get in a car or on the next bus, plane, or train to Alabama to find her there. For all of these reasons, Congress changed the federal law to prohibit the requirement of registering one’s protection order before it will be enforced in a new jurisdiction. The relevant subsection of the full faith and credit provision of the VAWA reads:

(2) No Prior Registration Or Filing As Prerequisite For Enforcement.—Any protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State or tribal jurisdiction.
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Additionally, Congress recently changed the law to ensure that states and tribal governments were not providing access to information via the Internet that should be protected:

(3) Limits on Internet publication of registration information.—A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance of a protection order, restraining order or injunction, restraining order, or injunction in either the issuing or enforcing State, tribal or territorial jurisdiction, if such publication would be likely to publicly reveal the identity or location of the party protected under such order. A State, Indian tribe, or territory may share court-generated and law enforcement-generated information contained in secure, governmental registries for protection order enforcement purposes.
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Another safety concern Congress recognized and addressed in the 2000 amendments to the VAWA was the practice some jurisdictions had of sending notice to the Respondent when a survivor registered her protection order. The following example illustrates the problem:

Jenn is married and lived with her new husband in Oklahoma until recently when he became violent and abusive. She then fled to a small town in Texas where a cousin of hers had moved and where she thought her husband would never look for her. Her husband, Jim, was trying to find her and calling all of her friends and relatives for information about where she might have gone. In one of those conversations he learns that she has a cousin who moved to Texas and he finds that cousin’s phone number and calls. Jenn goes to the local sheriff’s department and asks the officers to keep an eye out for her cousin’s home in case Jim happens to arrive there. The sheriff’s officer, who has not yet been properly trained on full faith and credit, tells Jenn she must first register her protection order. She does and, without first informing Jenn, the court clerk sends notice to Jim back in Oklahoma informing him that a protection order against him was filed in that county in Texas. When Jim receives that notice he knows exactly where to find Jenn. Without warning to Jenn, Jim arrives at her cousin’s home a few days later.

The safety issues raised in this scenario are precisely why Congress changed the federal full faith and credit law to prohibit the practice of sending notice to the Respondent when a survivor does choose to register her protection order in a new jurisdiction. The law now reads:

(I) Notification.—A State, Indian tribe or territory according full faith and credit to an order by a court of another State, Indian tribe or territory shall not notify or require notification of the party against whom a protection order has been issued that the protection order has been registered or filed in that enforcing State, tribal or territorial jurisdiction unless requested to do so by the party protected under such order.
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As the statute indicates, there is an exception to the prohibition against sending notice. That is, when a survivor expressly requests, preferably in writing, that the court or other agency responsible for registering her order send notice to the Respondent informing him that her order will be enforced in that new jurisdiction. This may be helpful in a situation where, for example, the Respondent has insisted that a different jurisdiction has no authority to enforce the protection against him. The following hypothetical helps explain this issue:

Stephanie is a Native woman living and working in Tucson, Arizona. She has been dating Bill, a non-Native man. Stephanie is an enrolled member of the Tohono O’odham Nation, and she regularly visits her family and friends back on the reservation. When Stephanie obtained a protection order against Bill after he assaulted her, he told her, “I’ll just wait for you on the reservation to talk some sense into you because that order is no good there. Those tribal cops can’t touch me; I’m not an Indian.” Stephanie, who has a well-trained advocate in Tucson, knew about full faith and credit, so she decided to register her Arizona order with the tribal court and specifically request that the court send notice to Bill that the order would be enforced against him on the reservation. In that case, Bill already knew the other jurisdiction to which Stephanie was going to travel (she was not fleeing somewhere secret), so it made sense for her to request that he receive notice that she registered her order there.

Tribal Authority over Non-Indians

When Congress amended the VAWA in 2000, it clarified the right of tribal courts to use their full civil powers to enforce protection orders on tribal lands:

Tribal Court Jurisdiction—For purposes of this section, a tribal court shall have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms, in matters arising within the authority of the tribe.
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