Sharing Our Stories of Survival: Native Women Surviving Violence (57 page)

T
he role of
probation
in domestic violence cases, a rapidly developing area in the criminal justice field, is fueled by an increased awareness of the dynamics and societal consequences of domestic violence. Criminal justice systems, including probation departments, must adjust to new laws addressing violence against women. Established probation strategies are recognized as woefully inadequate (and often dangerous) to the victims. They tend to be ineffective in dealing with the manipulative domestic violence offender.

Nowhere is this problem more apparent than in Indian Country, where Native women
¹
have the horrifying distinction of being three and a half times as likely to be victims of physical and sexual violence as any other ethnic group in the United States.
²
Federal funding provided for the addition of law enforcement officers to tribal departments without a corresponding increase in jail space. New tribal domestic violence codes result in an increased number of identified offenders with no place to incarcerate them for their violence. Yet something must be done to make them accountable for their behavior, while providing rehabilitation and hope for successful reintegration back into our Indian communities.

One answer is to increase the number of Indian Country probation officers with funds from the Violence Against Women Act. Cultural and community resources also must be identified to enhance probation efforts. A customized strategy of intensive supervision appears to be our best hope for enhancing the safety of our women and children. That strategy must incorporate the specific customs and traditions of individual tribal jurisdictions to make it a viable sentencing option for tribal courts.

Probation must be redefined, because it has become a static entity, with procedures and processes becoming the primary force behind supervision and enforcement. The needs and safety of the victim, and even the offender, are routinely secondary to the process itself. The challenge for Indian Country domestic violence probation officers is to develop a new strategy that gives priority to the safety and needs of the victims.

The majority of this chapter focuses on developing or enhancing tribal probation strategies to best provide for the safety of women in Indian Country. However, many Indian nations lack the resources, infrastructure, or personnel to implement a functioning probation department. This chapter concludes with strategies that could provide a tribe with some level of supervision and accountability for domestic violence offenders without having an established probation officer or probation department.

Evolution of Indian Country Probation

In precolonized Native communities of North America, probation as we know it today was an alien concept. Social and community standards were constantly monitored and reinforced by all the members of the community, instead of by a designated individual or group. Teachings of respect and responsibility promoted individual accountability for inappropriate or harmful behavior. Timely intervention and support of family and community members reinforced individual responsibility.

The consequences for noncompliance with the standards of the community were commonly understood to be traditional reparations, such as
mediation
by an elder or medicine person,
shunning,
a request to leave the group, forced
banishment,
or death, depending on the seriousness of the violation. Everyone monitored adherence to the rules of the community, which were passed from generation to generation through oral tradition. It was the responsibility of each individual to find out what reparation was necessary and what changes in behavior were required for inappropriate behavior. The offending individual could accept guidance and was expected to seek it from elders, relatives, and other community members in his or her efforts to change his or her ways. The responsibility for rehabilitation was the individual’s and the individual’s alone. Consequences were clear, and the offending person knew the community was watching to see if he or she did change.

This traditional form of justice, although seemingly unstructured and simplistic to European outsiders, did have structure,
precedent,
and procedures that were determined by the community. Some Native nations had more formalized processes and some had less-structured ways of addressing bad behavior. But all used a community-based form of offense monitoring and rehabilitation that placed the responsibility for change directly on the individual offender. Help was available, but the offender had to accept responsibility for his or her actions and ask for that help.

With the advent of colonization and military occupation, traditional Native tribal justice practices were discouraged or forbidden. Subsequent Indian Country policies helped shape tribal criminal justice systems that mirror those of the Anglo-American system.
³
Most Native court systems have lacked the resources to implement and maintain a consistent and effective probation effort. Those tribes with functional probation departments implemented probation following Anglo-American processes, procedures, values, and priorities. They were more concerned with
restitution
for property damage than rehabilitation and reintegration of offenders into the community. Probation efforts addressing domestic violence offenders followed the same practices.

For many tribes, this was the case until the Violence Against Women Act of 1994 provided an influx of resources for tribal criminal justice systems, allowing tribes to expand existing probation departments or establish domestic violence probation services within their courts for the first time. Additionally, many tribes now have the resources to develop and implement new probation strategies for domestic violence offenders that are culturally consistent with traditional Native concepts of justice.

Currently Indian Country’s westernized criminal justice system depends on the courts, law enforcement, and probation officers to function as the enforcers of community standards. This system replaced the underlying teachings and participation of the family. Unfortunately, this Western response has not stopped violence against women in Indian Country. Indian Country probation practitioners recognize that it is time to implement new strategies that include higher levels of supervision and the assistance and coercive power of the community to shape and change criminal behavior.

Historical Native Justice and the “New” Non-Native Justice Strategies

For those unfamiliar with traditional Native justice practices, one only has to look to several supposedly “new” national criminal justice strategies to understand the traditional Native community-based response to crime.

For millennia, Native warrior or social societies were asked to carry out policing and security duties at events, special occasions, or during times of conflict.
⁴
These societies enforced strict community guidelines at all events. Their authority derived from the community and from the respect they earned by demonstrated strength of character and integrity. They may have played a traditional role or they may have been appointed on an as-needed basis. They were answerable to the community, responding to the immediate needs and concerns of that community. The warrior and social societies actively solicited the input of the community and requested community assistance in carrying out their responsibilities. This community-oriented policing was practiced by Native law enforcement long before non-Indians set foot in North America or thought to
emulate
this practice.

Every
infraction
of the rules of the community was met with an immediate consequence, no matter how minor the offense. The idea was to prevent major infractions by addressing minor ones before they escalated. These societies were also expected to proactively address issues through education, mentoring, and role-modeling proper behavior to avoid conflict. The community assisted by reporting the actions of individuals causing concern, or situations that might lead to a conflict within the community. The society then addressed the issue before anything further happened. These are the primary goals of the contemporary “Broken Windows”
⁵
theory of crime intervention: address minor infractions, as reported by the community, before they escalate into major crimes.

The American Probation and
Parole
Association (APPA) has developed a model domestic violence probation policy that promotes appropriate and effective strategies for domestic violence offender probation, including enhanced supervised probation.
⁶
The idea is to incorporate an interagency and community-based monitoring effort with direct feedback from the woman, her family, the offender’s family, and other people in the offender’s community. The program is developed on a case-by-case basis, to reflect the specifics of the crime, the needs of the victim, the needs of the community, and the needs of the offender. The offender takes an active part in formulating his program and is aware of the specific consequences of noncompliance at the start of his probation. The goal is to reeducate the domestic violence offender and modify his behavior by making him accountable not only to the probation officer but also to individual members of the community. The approach is victim-based with a focus on strict offender accountability. Historically, Native communities employed this same approach to rehabilitation and accountability, but with each member of the community providing supervision and monitoring on a daily basis.

Although the above-noted strategies may be oversimplified here, the underlying point should give hope to Native communities. Our people had effective ways to deal with inappropriate behavior before the influence of the predominant culture. Combining these strategies into an effective and culturally consistent probation approach with domestic violence offenders in our current system is the challenge.

The “Paper Chase”

Domestic violence offenders are chronic offenders who are extremely manipulative. They do not voluntarily change their behavior.
⁷
Without effective intervention and programming, they will keep offending, the violence becoming more frequent and more severe. The probation officer must use the coercive power of the law and community pressure to draw attention to any subsequent violent behavior, otherwise the offender escapes responsibility. If the system allows him to continue his violence without holding him accountable, and community members either condone or ignore his behavior, the offender feels he has been given the green light to use violence against his partner whenever he pleases.

Past probation efforts were a “paper chase.” The probation officer made reports to the court based on monthly check-ins by the offender, accompanied by a printout of the offender’s interim criminal activity, on-time check-ins, and proof of employment. If an offender wanted to successfully complete probation, all he had to do was snow his probation officer during check-ins, keep his job, and avoid being arrested. The message to the offender was to avoid getting caught committing a crime. It did not address whether his partner was still being victimized.

Fortunately, the inadequacies of this approach with domestic violence offenders have become increasingly evident as the dynamics of intimate partner violence are researched and articulated. We now recognize that system manipulation is especially prominent among domestic violence offenders.
⁸
A batterer likes nothing more than a predictable bureaucratic response to his violence. They are adept at playing mind games with their victims and spreading disinformation among acquaintances, family, friends, and law enforcement personnel. Why should it be a surprise that they also strive to manipulate their probation officers? Their main goal is to convince any probation officer they are not dangerous or violent and that they do not warrant more than a cursory check-in now and then. They might be cooperative, rational, and docile with their probation officers, while still intimidating, harassing, and assaulting their partners. As far as they are concerned, the less attention or monitoring their probation officers gives them, the better.

For those on probation in tribal courts, playing the game was even easier. Tribal courts and state courts do not regularly share information on offenders. An offender was less likely to have anything come to the attention of either a tribal or state probation officer if the activity occurred in the other jurisdiction. Consequently, an offender could have had several arrests in one jurisdiction while being considered fully compliant with probation conditions in the other. In addition, neither system was actively looking for violent behavior, only reported crimes.

Enhanced monitoring was usually the exception rather than the norm, since statistics were not available to make it a viable option. So probation falls back on its established paper chase in addressing all crimes. Closely watching those on probation or parole is not a new idea. The strategy was implemented in the late 1980s and throughout the 1990s to address child sexual abuse, abduction, and exploitation. Parents and other concerned citizens demanded that authorities actively monitor the activities of child sex offenders on probation or parole. Probation strategies have since adapted to include enhanced monitoring for all offenders who may be especially dangerous and highly likely to reoffend, including batterers.

Indian Country domestic violence probation must develop similar strategies. Supervision must focus on whether or not the violence is still occurring, not whether the offender has been arrested for a crime. The result is monitoring the current behavior rather than waiting for the next crime. Domestic violence probation is thus more effective and focused on keeping victims safe, rather than focused on satisfying a specific probation process.