Tribal Legal Code Resource: Sexual Assault and Stalking Laws
Guide for Drafting or Revising Victim-Centered Tribal Laws Against Sexual Assault and Stalking

A product of the Tribal Law and Policy Institute

June 2008

This project was supported by Grant No 2004-WT-BX-K085 and Grant No. 2006-MU-AX-K028 awarded by the Office on Violence Against Women, U.S. Department of Justice. Points of view in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Table of Contents

1. Introduction
2. Criminal Jurisdiction
3. Criminal Sexual Assault Stature
   1. Facts About Rapists
   2. Reviewing Federal Sexual Assault Law
   3. Reviewing Specific Language
   4. Other Key Considerations for an Effective Sexual Assault Law
   5. Evidence in Sexual Assault Cases
   6. Sanctions in Sexual Assault Cases
4. Basic Criminal Stalking Stature
   1. Defining Stalking as a Crime
   2. Punishments for Stalking
5. Glossary

Part 1: Introduction

Overview

All governments should be very concerned about sexual assault against Native women. Tribal governments across the United States are creating programs to improve response to violent crime. As sovereign governments, tribes can assert concurrent criminal jurisdiction in sexual assault and stalking cases. Tribal criminal laws are, with a few limited exceptions, a pre-requisite for intervention by tribal criminal justice agencies, including law enforcement and prosecutors.

There is a close relationship between stalking and sexual assault. Thirty-one percent of female victims of intimate partner stalking indicate that they have been sexually assaulted by their stalker.

This resource guide was developed to provide a starting point for drafting or revising tribal criminal laws on sexual assault and stalking. It is written with a philosophy that tribal laws should reflect tribal values. In addition, writing a tribal law usually requires careful consideration of how state and/or federal laws might apply in the community. This resource guide includes sample language and discussion questions which are designed to help tribal community members decide on the best laws for your community. The sample laws may not be appropriate for every community and are provided as examples only.

The main goal of this resource guide is to offer suggestions on how tribal criminal laws can be drafted in a way that provides safety and support for adult survivors of sexual assault and stalking.

Developing a statutory response to child sexual abuse cases is beyond the scope of this resource guide. Child sexual abuse cases require separate statutory attention for a variety of important reasons.

What This Resource Guide Can Do

This resource guide provides discussion questions and exercises to assist in the development of criminal statutes to address sexual assault and stalking. (Note: Child sexual abuse is not specifically addressed in this guide.)

This resource guide was designed for non-attorneys. It assumes that tribal governments already have the ability to draft their own laws. Tribal beliefs, cultures, and language already include good words about protecting women and children. Tribal leaders and community members are usually the best people to decide what is needed in the laws. Attorneys can be important to the process, but not always required.

We encourage you to create a committee to discuss the ideas in this guide and develop a plan for moving forward. Bringing a facilitator who is experienced in sexual assault and stalking laws can be helpful. The facilitator can help move discussions forward, establish plans for action, and provide overall structure to the process.

What This Resource Guide Cannot Do

This resource guide cannot teach about the dynamics of sexual assault and stalking. The exercises and language assume that you have a basic understanding of these crimes. If you do not have training in the dynamics of sexual assault and stalking, we strongly encourage you to contact one or more of the following organizations for information and training:

A Few Words of Caution

Protocol development (how the systems in your community respond to sexual assault and stalking cases) is a separate but critical discussion. This resource guide is not a replacement for training or protocol development. It is very important that all people who come into contact with survivors of sexual assault receive specific training and education on the appropriate responses to victims. Even the best law in the world is not effective if people do not understand it and support it.

This resource guide is not a model code. Your tribal community is the best judge of what language will work best for your people. There are advantages and disadvantages to certain kinds of legal language, and not every tribal government has the same needs or resources. Most importantly, the sample language in this guide is not necessarily consistent with every tribe’s culture and traditional practices. The exercises and discussion questions are provided to help you design a code that fits your community.

How Should We Proceed?

You should consider different ideas before making a final decision about how to use this resource guide. Some tribes may spend several days in a row working through the questions and exercises. Others may hire a facilitator to help organize meetings and community forums. You may want to consider creating a community team to tackle the issue over a longer period of time. There are many ways to develop a code that meets the needs and customs of your tribe. You should develop a plan which is consistent with your needs, goals and resources.

Keep in mind that this resource guide provides a very broad overview of important points of criminal law. It does not include every detailed legal issue, so you will probably need to do additional research to develop more detailed laws.

Writing a tribal code can sometimes be a very long process. Be realistic about the time needed to complete this process. Making decisions about how to respond to sexual assault and stalking is important. Take the time to do the job right, keeping in mind that you will need to listen to many different opinions.

A Note on Terminology

Tribal governments use a variety of terms to describe their laws, including “statutes,” “ordinances,” and “codes.” Generally, the term “code” refers to an organized listing of all laws for a given subject matter, while a specific subsection may be entitled a “statute” or ordinance.” In this resource guide, the terms will be used interchangeably in order to be relevant to a wide variety of audiences.

When using this guide and throughout the drafting process, it is a good idea to keep at least one dictionary by your side. We recommend using one or more of the following:

• A general dictionary, such as Webster’s Dictionary
• A law dictionary, such as Black’s Law Dictionary
• A law dictionary for non-lawyers, such as Law Dictionary for Non-Lawyers by Daniel Oran

This resource guide also includes a glossary at the back.

How to Use This Resource Guide

There are four main sections:

1. Introduction
2. Jurisdiction (tribal sovereign authority)
3. Criminal Sexual Assault Statute
4. Basic Criminal Stalking Statute

Each of these sections has five main parts:

1. Overview
2. Tribal Code Examples
3. Tribal Code Commentary
4. Exercises
5. Additional Resources

The overview will introduce you to the section. Reading the overview should give you basic background on the issue.

The tribal code examples provide language from existing tribal codes. Whenever possible, we have included laws that other tribes have written to address sexual assault. We also provide information on the federal sexual assault law, as many tribes share jurisdiction with the federal government. After each section of tribal code examples, tribal code commentary is provided. This commentary is designed to help you consider the variety of possibilities when constructing statutory language.

The exercises are probably the most important part of this resource guide. They are designed to help you think about the important issues and select words that will fit your community.

There are several ways to use the exercises. Consider having each member write answers to the exercises separately, and then come together and share your individual answers as a group. You may also choose to go through the exercises together. A facilitator may be helpful in this process.

Each section concludes with additional resources. This is a list of books, articles, and websites that you can use for further research.

Who Should Write the Laws?

We encourage you to think broadly about the community members who may have information that will help draft good laws. The following is a checklist of people/agencies that may be useful in drafting codes – but each community is different.

• Survivors of sexual assault and their advocates
• Tribal prosecutors
• Tribal court personnel
• Tribal law enforcement / Tribal probation/parole
• Elders
• Family Services / Social Services
• Medical personnel
• Corrections
• Defense attorneys
• Traditional healers / spiritual leaders
• Child protective services/ ICWA workers
• Housing Authority
• School system
• Youth council
• Legal aid
• Casino / tribal businesses
• Others ___________________

10 Tips for Working as a Team

Writing or revising a tribal law usually does not happen quickly or easily. Code-writing involves a great deal of time, effort, and cooperation. There is no one “right” way to research and draft laws. The tips below come from successful efforts of other tribal nations.

1. The primary work should be done by a group of “problem solvers.”

The effort will not succeed if it simply becomes a process of finger-pointing and blaming others for weaknesses in the current law. The best laws are developed one step at a time by a group that is committed to brainstorming and reviewing possible solutions to problems.

2. There should be equal representation from various tribal agencies and advocacy programs.

Equal representation is important. The code development process is not the “property” of any one agency or group.

3. The work should be completed in a setting of mutual respect.

The setting should be a safe environment in which the group can share, learn, and explore. It is okay to acknowledge differences of opinion, but not in a stereotypical or judgmental manner. The safety of women must be respected.

4. The agenda should be focused upon areas of mutual concern or shared interest.

Try to focus on areas of common interest instead of differences. A shared vision (such as “a safe community”) can create confidence and trust.

5. The participants should be willing to examine not just the way things are, but also be willing to explore ways of improving the laws.

All participants must be willing to explore new ways to help make sure that women are safe. However, different people may have different ideas. Listen and learn to each other.

6. The participants should be willing to be creative and persistent.

To be successful, you must be willing to be creative and persistent. The process will undoubtedly have frustrations and difficult times. Think “outside the box.”

7. The participants should be willing to share the burden.

The participants must also be willing to share in the burden of the process by sharing resources, training, technical assistance, and limited available funding. Alternate locations of meetings and focus groups.

8. All agencies should be allowed input into draft statutes prior to finalization.

All tribal agencies involved should have a chance to review the draft laws before they are completed. Since each agency will have to follow the law, they need to know what is going to be proposed.

9. Consider traditional / culturally appropriate strategies.

In some cultures, it is important to share and provide food for participants. You will be spending a lot of time together, so make sure everyone is comfortable. (Please note that there are substantial restrictions on the use of federal grant funds for food. The safest practice is to use non-grant funds for food. If you are considering using federal grant funds, be sure to check with your grant manager.)

10. Expect to spend a lot of time working together.

It cannot be stressed enough that this is a lengthy project, but one that is well worth the effort. Your cooperation in creating these new laws will help protect the women and families in your community.

Sexual Assault and Stalking Code Development Dos and Don’ts

Before You Begin….

As you sit down together to begin the process of developing sexual assault, and/or stalking statutes for your tribe, keep your main goal in mind.

You should review your constitution and by-laws or other foundational legal documents. Additionally, it is important to understand the federal and/or state laws that impact your tribe. Review the Violence Against Women Act (VAWA) and other federal laws aimed at protecting women.

It is also important to evaluate what sexual assault and stalking laws are already in place in your community. Be sure to analyze the strengths and weaknesses in any current sexual assault or stalking law.

If appropriate, you should review your traditions and stories, as well as your customs, regarding healing and justice. This research may be done by interviewing elders within your community. In addition, you can also consult anthropological documentation about your tribe, historical records, or other tribes that share similar cultural or linguistic tie.

Keep in mind that crimes against women may be located in different places throughout the tribal code – check the criminal, civil, and family law.

Many times, existing tribal laws may have originated in the laws from another tribe or from a city, state, or county. Take the time to go through a review of your current laws to:

• evaluate them for relevance to your particular community and situation,
• analyze how they have been working,
• discuss the weaknesses, and
• determine if they represent how your tribe wants to respond to sexual assault and stalking.

Be prepared to remove or edit entire sections as necessary.

Part 2: Criminal Jurisdiction

Overview

Jurisdiction refers to the power or authority of a court over a particular person, territory, and subject matter. Criminal jurisdiction laws at the tribal level determine what kinds of sexual assault and stalking cases can be prosecuted by the tribe. If a tribal government asserts broad authority, then the tribal court can take action in many case.

From a tribal perspective, tribal jurisdiction is based upon sovereignty, an independent, inherent power by which a tribe can govern itself. Tribal jurisdiction has been negatively impacted by federal laws. However, tribal governments still have the power to address sexual violence and stalking in many circumstance.

An important basic philosophy to remember is: If a tribal government power has not been specifically taken away by federal law that power still exists because the tribal government is a sovereign authority.

This resource guide focuses on criminal jurisdiction:

Criminal jurisdiction refers to the power of a court to prosecute a crime. If a person is found guilty of a crime, the penalty may be incarceration. The state, tribe, or United States is the party prosecuting a criminal proceeding or action.

NOTE: Civil jurisdiction generally refers to the power of a court to handle law suits or actions between two private persons or parties. In sexual assault and stalking cases, a victim may bring a civil action by petitioning for a protection order against her offender or suing the offender for damages. This resource guide focuses on criminal jurisdiction. If you are interested in developing or strengthening tribal laws on protection orders, please refer to our domestic violence publication:

Tribal Legal Code Resource: Domestic Violence Laws
Guide for Drafting or Revising Victim-Centered Tribal Laws Against Domestic Violence
available at www.tlpi.org or by calling 651-644-1125.

Section five of the domestic violence resource guide includes information about civil jurisdiction, protection orders, and full faith and credit. Much of this information will be relevant to developing civil protection order statutes for victims of sexual assault and/or stalking.

Tribal jurisdiction laws need to address three important areas in order for a court to have the power to act.

1. Personal Jurisdiction
   Power of a court over a specific person

2. Territorial Jurisdiction
   Power of a court to hear a case that occurs within a specific area of land

3. Subject Matter Jurisdiction
   Power of a court to deal with the general subject involved in the action.

It is rare to have a jurisdiction law that is specific to a certain crime (like sexual assault). Therefore, you need to review your tribe’s current criminal jurisdiction laws (if they exist) to decide if they need revisions.

Criminal Jurisdiction

Overview

Criminal jurisdiction is a critical part of the right of self-governance. It refers to the right of tribes to protect their people from criminal behavior. Holding perpetrators accountable can include fines, jail/prison time, probation, restitution, and other sanctions.

In tribal communities, criminal jurisdiction is sometimes limited by federal law. It is important to understand these limits when drafting tribal jurisdiction statutes. Tribal governments may chose to assert their maximum rights in regards to criminal prosecution.

Two Important Limitations

The U.S. Supreme Court decision Oliphant v.Suquamish(1) limits the ability of tribal governments to try and punish non-Indians. Therefore, tribal governments cannot criminally prosecute a sex offender who is not considered “Indian.”

The Indian Civil Rights Act(2) (ICRA) limits a tribe’s ability to incarceration for any one crime to one year in jail and/or a $5,000 fine. If a person is convicted of more than one crime (kidnapping and rape, for example), federal law allows up to 1 year for each offense.

ICRA does not limit other forms of sanctions – including restitution, banishment, and probation.

Concurrent Jurisdiction

Concurrent jurisdiction means that more than one government can take action. In most cases of sexual assault, your tribe shares criminal jurisdiction with either the federal (United States) government or the state government.

Federal Jurisdiction

Federal (United States) courts have concurrent jurisdiction over violent cases under the Major Crimes Act (MCA) in many tribal communities. The MCA currently refers to the following crimes:

• Murder
• Manslaughter
• Kidnapping
• Maiming
• Felonies under chapter 109A (includes sex crimes)
• Incest
• Assault with intent to commit murder
• Assault with a dangerous weapon
• Assault resulting in serious bodily injury
• Assault of a person under the age of 16
• Felony child abuse or neglect
• Arson
• Burglary
• Robbery
• Felonies under 661 (Stealing property worth more than $1,000)

Criminal Jurisdiction on Reservations Not Affected by Public Law 280/State Jurisdiction
 

Public Law 280

In 1953 the U.S. Congress passed a law which substantially affected criminal jurisdiction in Indian Country. Public Law 280(4) transferred federal jurisdiction over crimes occurring in Indian country to certain states. Six states (California, Minnesota, Nebraska, Oregon, and Wisconsin with certain exempted reservations and then Alaska upon statehood) were required to accept the transfer of jurisdiction. The other states were given the option of asserting jurisdiction. Dissatisfaction with Public Law 280 has lead to the partial or full retrocession (return of jurisdiction from the state to the federal government) of 25 reservations once covered by PL 280.

If you are on a reservation in which the state still exercises full criminal jurisdiction under Public Law 280 (or similar acts such as those affecting Kansas and New York), then the chart below would apply.

Criminal Jurisdiction for States and Reservations where Public Law 280 Applies
 

Tribal Code Examples

Criminal Jurisdiction

The following tribal laws are provided as illustrative examples. There are many different ways for a tribe to protect victims.

Tribes with Concurrent Federal Jurisdiction
 

Tribes with Concurrent State Jurisdiction
 

White Earth Band of Chippewa Judicial Code Title 1 - Courts, Chapter II. Jurisdiction Section 1. White Earth Band Tribal Court Jurisdiction The jurisdiction of the Tribal Court shall extend to: All actions arising under the Codes, Laws, and Ordinances of the White Earth Band of Chippewa, and to all persons alleged to have violated provisions of those Ordinances, provided that the action of violation occurs within the boundaries of the White Earth Reservation, including all lands, islands, waters or any interest therein hereafter added to the Reservation. Hereinafter, reference to “Reservation” shall include all lands and waters described in this paragraph. The White Earth Band of Chippewa Tribal Court shall have criminal jurisdiction over all persons who violate any Band codes, laws or ordinances provided that such violation occurs within the boundaries of the White Earth Reservation, including all lands, islands, waters or any interest therein hereafter added to the Reservation. The jurisdiction invoked by this Code over any person, cause of action, or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state, or any political subdivision thereof; provided, however, this Code does not recognize, grant, or cede jurisdiction to any other political or governmental entity in which jurisdiction does not otherwise exist in law.

Tribal Code Commentary

Each of the examples comes from a general criminal jurisdiction law. These laws are not specific to sexual assault. It is not common to have a separate law on sexual assault jurisdiction that differs from general criminal jurisdiction.

The Poarch Band of Creek Indians law acknowledges shared (concurrent) jurisdiction with the federal government in dealing with crimes in the Major Crimes Act (which includes sexual assault).

The White Mountain Apache Criminal Code expresses the tribe's sovereign right to prosecute criminal cases. It acknowledges limitations due to U.S. laws, as well as the federal government’s responsibility to prosecute Major Crimes.

The White Earth Band of Chippewa Judicial Code acknowledges concurrent jurisdiction with a state (Minnesota), as they are currently a tribe affected by Public Law 280.They also spell out their territorial jurisdiction and account for future additions to their reservation. They have a broad statement of jurisdiction over all persons.

Tribal codes are not required to mention federal or state laws. The example from the Ho-Chunk asserts its broad authority without acknowledging other governments.

Exercises

These exercises are designed to guide in reviewing and revising your tribal criminal jurisdiction laws.

Step 1: Determine Existing Tribal Law

Does your tribal code already contain laws concerning criminal jurisdiction?

Step 2: Determine Concurrent Jurisdiction

Which government has concurrent (shared) power to prosecute sexual assault cases that occur in your tribal community?

Step 3: Drafting Law

Use your answers to Steps 1 and 2 to draft or revise the criminal jurisdiction sections for your tribal code.

This checklist will help make sure you have covered the major criminal jurisdiction issues.

Criminal

� Personal Jurisdiction

� Territorial Jurisdiction

� Subject Matter Jurisdiction

Additional Resources

Part 3: Developing a Tribal Criminal Sexual Assault Statute

Overview

American Indian and Alaska Native women are victims of sexual assault at a higher rate than any other population. One in three Indian women will be raped during her lifetime. Indian women are stalked at more than twice the rate of other women. Only 16 – 32% of rape victims report the crime to law enforcement authorities.(5)

Over the past five years, several national surveys, including the National Crime Victimization Survey and the National Violence Against Women Survey, have consistently indicated that American Indian and Alaska Native women experience rates of violence far exceeding those of other racial groups. The National Violence Against Women Survey, for example, concluded that 34.1% of American Indian and Alaska Native women will be raped during their lifetime. The National Crime Victimization Survey indicates that American Indian and Alaska Native women suffer a rate of sexual assault of 7 per 1000 people, compared to 2 per 1000 for all women. Several other state and local studies reveal similar high sexual victimization rates among Native women. Individual tribal nations have also reported a high rate of sexual assault. In 2003, for example, the Navajo Nation estimated that sex crimes may account for more than 70 percent of criminal investigators' time.(6)

Making sure that your tribal code defines sexual assault and stalking as crimes is one way (but not the only way) to respond to sexual assault and stalking.

Some tribes do have criminal laws against sexual assault. However, many of these tribal laws were copied from state or federal statutes many years ago. States and the federal government have significantly changed their laws through “rape law reform” which began in the 1970’s. Many tribes have not changed their sexual assault laws since they were enacted, mostly because tribal governments have not had money or attorneys to help re-write laws.

In order to enhance safety, you should consider reviewing your tribe’s sexual assault laws. If they do not meet the needs of your community, this resource guide can help you revise them.

Sexual assaults that occur on reservations are generally criminally prosecuted in federal court unless criminal jurisdiction has been transferred from the federal government to the state under Public Law 280 (PL 280) or similar federal legislation.(7) However, the tribe also has the power to prosecute sexual assault cases. On a PL 280 affected reservation, the state and tribe have concurrent jurisdiction. If a reservation is not affected by PL 280, than the federal government and the tribe have concurrent jurisdiction.

The federal government has limited tribal sovereignty by restricting who tribes can punish criminally and how much punishment they can impose. Tribes cannot prosecute non-Indians.(8) Tribes cannot impose more than a one year sentence or a $5,000 fine for each criminal violation.(9) Yet, many tribes are enforcing criminal sexual assault laws, and updating sexual assault, stalking and sex offender registration laws. The limitations do not prevent the tribe from taking action.

If a state or federal government is already prosecuting a person for sexual assault or stalking, why should the tribe use its limited resources to prosecute the same offender? There are many possible reasons.

A federal or state prosecution may take a long time. The tribe may have the benefit of being the first on the scene of a crime, the first to investigate and can act quickly. Imagine the difficulty a victim has when her rapist or stalker is freely moving about the community sometimes for months and years, while cases are prepared. There may also be differences between a tribe’s sexual assault and stalking laws and the federal/state law, which make a difference in the ability to prosecute a particular case.

If a particular stalking case does not rise to the level of the Major Crimes Act or one of the federal stalking or cyberstalking statutes (these are so-called “misdemeanor” or “no-contact” stalking cases), then the tribe may have exclusive jurisdiction.

The main reason to prosecute is that the victims are members of your tribal community, and your tribe has a responsibility to protect them to its best ability.

This section focuses on the drafting of a criminal sexual assault law. Having a law is just the beginning. The ability to enforce and prosecute is very important. Cooperation and sharing information and evidence between jurisdictions is vital. Agreements and protocols with other tribes, states, and the federal government are often necessary.

A.  Facts about Rapists

Most rapes are not committed by strangers. 77% of all rapes are committed by someone who knows the victim (an acquaintance). When you review your tribe’s laws, think about the behavior you are trying to stop. Many times, we have been programmed to believe that rape is something that happens when a stranger attacks a woman and uses a lot of violence. The reality is different.

David Lisak, Ph.D.,(10) a leading researcher in the area of acquaintance rapists, has found that acquaintance rapists fit the following patterns:(11)

A. Rapists who attack acquaintances usually plan their crimes in advance.

• They trick their victims into positions where they will be alone – in a room, or in a car, or in a private area.
• They often give their victims alcohol and/or drugs – or they target women who have already used alcohol and/or drugs.
• Like other kinds of criminals, rapists are very good at picking out vulnerable women; women who are least likely to fight, least likely to scream, and least likely to report the crime once it has been committed.

B. Rapists who attack acquaintances do not always use a lot of physical violence.

• They may threaten the victim with violence. (Example: “If you don’t do what I say, I will beat you up.”)
• They may scare their victims into not telling anybody. (Examples: “You’re drunk -- no one will believe you,” or “If you tell anyone, you will lose your kids.”)
• They usually don’t need a weapon. They can use their body weight and arms to pin down their victims. Victims often say they were terrified.

When you write your tribal sexual assault law, you want to consider all kinds of “excuses” and “defenses.” See box below for examples.

B.  Reviewing Federal Sexual Assault Law

Most tribes with criminal court systems have concurrent jurisdiction with the federal government for sexual assault prosecutions.(12) Consequently, this section reviews the federal law on sexual assault. It is important to understand the federal law, so that the tribe can develop laws that are more effective and comprehensive. The federal laws use the term “sexual abuse” rather than “sexual assault” or “rape.”

The Major Crimes Act(13) gives federal courts the jurisdiction to prosecute Indian suspects for rape occurring in Indian country.

The General Crimes Act(14) gives federal courts authority to prosecute non-Indian suspects when the victim is Indian.

Tribal sexual assault laws do not have to match the federal laws. Tribal laws may be stricter or cover more issues than federal laws.

Both the Major Crimes Act and the General Crimes Act refer to the following federal statutes:

A Review of Federal Laws

The federal sexual assault laws distinguish between “types” of sexual abuse on the basis of the degree of force or threat of force. These types are sometimes called “degrees.”

The federal laws are gender neutral. It doesn’t matter if the victim is a man or a woman.

Federal law has two main categories of sexual assault: aggravated sexual abuse and sexual abuse.

Aggravated sexual abuse (18 U.S.C. § 2241) is the most serious federal sex offense. This crime carries a statutory maximum term of life imprisonment and a minimum of 30 years when a child is involved.

• It is “aggravated sexual abuse” for a person to knowingly engage in a sexual act through the use of force (violence) or threats of serious physical harm.
• It is “aggravated sexual abuse” to use other ways to commit a sexual assault such as giving the victim drugs and/or alcohol. This is sometimes called a “non-forcible” sexual assault.
• Any sexual act with a child under the age of 12 is “aggravated sexual abuse.” This type of sexual assault is sometimes called “statutory rape.” It requires no violence. A child under the age of 12 can never agree or consent to sexual behavior.
• If a child is between the age of 12 – 15, and the suspect is more than 4 years older than the child, it is “aggravated sexual abuse” to use force, threats, or drugs/alcohol to commit sexual assault.

Sexual abuse (18 U.S.C.§2242), is considered a “less serious” crime than aggravated sexual abuse. (This does not mean that the victim doesn’t experience serious harm.) Sexual abuse carries a maximum term of 20 years imprisonment.

• It is “sexual abuse” to cause someone to engage in a sexual act by threatening or placing the other person in fear, but not fear of serious bodily injury, kidnapping or death (as is required in “aggravated sexual abuse”).
• It is “sexual abuse” when one engages in a sexual act with another who is incapable of understanding the conduct or is physically incapable of declining participation.

The following information is needed in order to prosecute for aggravated sexual abuse or sexual abuse under federal law.

• The victim’s state of mind at the time of the crime (fear of death or serious bodily harm);
• The victim’s physical and psychological injuries (to assist in classification);
• Types of unwanted acts which were committed (to assist in classification);
• Types of force or coercion used by the perpetrator; and
• The ages of the victim and the perpetrator.

Sexual abuse of a minor (18 U.S.C.§2243) makes it illegal for anyone to engage in a sexual act with child between the ages of 12 and 15, if the person engaging is at least 4 years older. This is often referred to as “statutory rape” and a federal conviction carries a maximum penalty of 15 years in prison.

Abusive sexual contact is another federal crime, but it does not require sexual penetration. It includes intentional touching of the genitalia, anus, groin, breast, inner thigh or buttocks of any person with intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person.

C.  Reviewing Specific Language

If your tribe currently has sexual assault laws, review these issues:

1. Marital immunity (domestic violence).
2. Corroboration requirement (proof).
3. Prompt complaint.
4. High threshold for proving rape – the strict force requirement.

Marital Immunity

Most non-tribal American governments did not traditionally recognize that a man could rape his wife (or ex-wife). This means that a man forcing his wife (or ex-wife) to have sex was not considered a crime – no matter how violent.

Nearly all states and the District of Columbia have now eliminated total immunity (exception) for sexual assault crimes for perpetrators who are married to the victim. Many tribal laws, however, still retain this immunity provision.

Corroboration Requirement

Older Anglo-American laws looked very suspiciously at the complaining witness (victim) of sexual assault. These special laws allowed the judge to tell the jury that there needs to be evidence of the assault beyond the statement of the victim. Most experts say that these laws were based on the belief that women lie about rape. There are tribal governments which still retain this type of law.

Prompt Complaint

Along with the idea that women tend to “lie” about sexual assault, older Anglo-American laws said that women should report the crime immediately after it happens. As most advocates know, most victims wait several days (or weeks or years) before they tell anyone what happened.

It is always easier for a prosecutor to make a case if the crime is reported right away. Prompt reporting is helpful in the conviction of all crimes. Many sexual assault victims, however, are unable to come forward until they have established a strong support system.

High Bar for Proving Rape - Strict Force Requirement

Older sexual assault laws may require a certain level of physical injury in order to prove rape. A statute may include language requiring that there be proof that force was used or death or serious bodily injury threatened and that the victim believed the threat. When this is the only definition of sexual assault, it eliminates the possibility of holding most rapists accountable.

Most victims of sexual assault do not have physical injuries.

Tribal Code Examples

The following tribal sexual assault laws are provided as illustrative examples. There are many different ways for a tribe to protect victims through criminal laws.

Sexual Assault Codes
 

Tribal Code Commentary

The Hannahville Indian Community has specifically addressed marital immunity by flatly rejecting it in its statute. It states that a married person can be charged with rape even if the victim is the offender’s spouse. The Nez Perce Tribal sexual assault statute simply indicates that it is unlawful for any person to engage in intercourse against the will of the other.

The Hannahville statute also specifically states that evidence corroborating the victim’s testimony is not needed. The Nez Perce statute does not have any mention of the need for corroborating evidence, so it is implied that it is not necessary.

Neither statute requires prompt filing of a sexual assault complaint nor do they have a high threshold for proving rape. The Nez Perce definitions of sexual assault in section (a)(4), indicate that sexual activity against the will or consent of another is always a crime.

D.  Other Key Consideration for an Effective Sexual Assault Law

Defining Consent

The trend in state laws has been to define sexual violence as a consent-based crime as opposed to a force-based crime. However, the federal aggravated sexual abuse, U.S.C. Title 18 § 2241 (a), focuses on the forcible rape.

§ 2241 (a) Aggravated sexual abuse: Whoever…causes another to engage in a sexual act ..by using force against the person or threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury or kidnapping…

Many tribal laws have been modeled after older federal statutes or older state statutes and contain similar requirements of force, but do not contain other options that do not require force. However, tribes are increasingly redefining sexual assault as a lack of consent.

What is the meaning of “consent?” In relation to sex, consent is usually considered to be an agreement that two people make if they want to have sex.

What if one person says “yes” because she is afraid? What if one of the people is drunk, drugged or sleeping? Most laws say that a person who is intoxicated, drugged or sleeping can’t knowingly consent to engage in sex.

There are different methods to address “consent.”

Some laws define “consent” using words such as “voluntarily” or “knowingly.” Other laws don’t define “consent,” but instead define “nonconsensual” sex.

The definition section of the sexual assault statute is a very important portion of the statute. The definition of the crime lays the foundation for prosecution and sentencing.

Varying “Degrees” of Sexual Assault

Most states and the federal government have different degrees or categories of sexual assault. As shown earlier, the federal law divides sexual assault into two key categories: aggravated sexual abuse and sexual abuse. Most states also divide sexual assault into different degrees.

On one hand, defining sexual assault in “degrees” might send the message that some sexual assaults are more “serious” or “dangerous” than other sexual assaults.

Sentencing

After a defendant is convicted of sexual assault, the tribal court imposes sanctions or sentences the defendant. Sanctions are used to punish people who disobey the law and encourage people to obey the law. Sanctions should reflect the community’s feeling about the crime.

The Indian Civil Rights Act limits the amount of jail time and monetary fines which can be given by a tribal court. The maximum jail time is one year (per crime) and/or a $5,000 fine per offence.

However, a tribe does have the power to order other forms of punishment. Some examples are: Restitution, banishment, electronic monitoring, probation, forfeiture, exclusion from tribal housing or tribal employment, seizure of weapons or other cultural sanctions. In addition, the tribe can order the defendant into treatment programs or other programs when appropriate. Requiring a minimum sentence is a common practice used in federal and state courts, and has been adopted by some tribes.

Some sexual assault laws have stronger punishments for repeat offenders. If someone has been convicted of a sexual assault before (in tribal, state, or federal court) – this can be considered in sentencing.

Tribal Code Examples

The following tribal sexual assault laws are provided as illustrative examples. There are many different ways for a tribe to protect victims through criminal laws.

Defining Sexual Assault Simply
 

Degrees of Sexual Assault
 

Tribal Code Commentary

The Little Traverse Bay Band statute provides an example of a law treating all types of sexual assault as one offense no matter whether it is inappropriate touching or sexual penetration. Law enforcement and prosecutors work with one single definition as opposed to a variety of “degrees” of the crime. Since the tribe has such limited punishment, it makes some sense. A downside to this practice, however, is the confusion it can cause. It does not provide community members with any information concerning the relative danger presented by a person convicted of this crime. It could also cause confusion when it comes to requiring registration of sex offenders.

The Blackfeet statute is also quite simple. However, it does not provide a definition for consent. Consequently, it is not clear how consent will be interpreted by the tribal court.

The Hannahville Indian Community statute provides an example of a law that uses the term sexual conduct, and has criminal sexual conduct in the 1^st degree and criminal sexual conduct in the 2^nd degree. The 1^st degree requires sexual penetration without voluntary consent. The 2^nd degree requires only sexual contact without voluntary consent. Voluntary consent is not defined; however there is an entire section which describes under what circumstances a defendant is prohibited from using consent as a defense. These circumstances include everything from being under the age of thirteen or mentally disabled (incapable of giving consent) to the use of a weapon or use of force or coercion. The statute also includes unethical sexual contact by medical staff.

Hannahville further grades the sexual assault act through assault with intent to commit criminal sexual assault in the 1^st degree and assault with intent to commit criminal sexual assault in the 2^nd degree. These are the crimes where sexual assault was intended, but not achieved.

Hannahville’s sentencing includes some mandatory sentencing. The second offense in both 1^st degree and 2^nd degree sexual conduct requires mandatory sentences of the maximum penalty for each offense. For a first conviction in the 1^st degree the Judge can order up to 1 year imprisonment and a $5,000 fine. For a second conviction, 1 year and a $5,000 fine is the mandatory sentence. The Tribe considers not only convictions in their own court, but also in courts of other jurisdictions.

E.  Evidence in Sexual Assault Cases

Evidence laws can be extremely important in cases of sexual assault. Evidence laws are rules that describe what and how evidence (testimony or exhibits) can be considered in court. They are designed to make sure the case is fair, help the judge or jury determine the truth, and prevent wasted time and cost.

Rape Shield Laws

A common issue in a sexual assault case is whether a defendant should be allowed to submit evidence of the previous sexual activity of the victim.

In historical Anglo-American rape trials, the defendant may have been allowed to say, “This woman who claims to be a victim is an unmarried mother. She has a bad reputation sexually. She is promiscuous.” This kind of testimony was extremely damaging to victims. Women did not come forward and report sexual assault because they feared being humiliated in public. The question is one of “relevance.” Is a victim’s past relevant to the crime?

Rape shield laws are designed to provide some protection for victims against character attacks. At times, evidence of past sexual history is still admissible if it is relevant to the issue of consent or credibility of the victim. The theory is that it is necessary in these limited situations in order to support the defendant’s right to due process.

If your tribe has adopted the Federal Rules of Evidence, there is some protection for victims. Federal Rule 412 excludes the victim’s sexual behavior from being entered into evidence:

• except to prove another was responsible for the injury or physical evidence;
• sexual conduct with the accused is admissible to prove consent;
• evidence which if excluded would violate the defendant’s constitutional rights.

Tribal Code Examples

The following tribal sexual assault laws are provided as illustrative examples. There are many different ways for a tribe to protect victims through criminal laws.

Rape Shield Laws
 

Tribal Code Commentary

The Skokomish Tribal statute prohibits the admission of the victim’s past sexual activity into evidence to prove the character of the victim. It allows the admission of past sexual activity for the purposes of proving consent provided the procedure for a pre-trial motion is followed and the judge determines that the evidence is strong evidence that substantially outweighs the prejudice that may result to the victim. The judge must also find that if the evidence were excluded it would result in a substantial injustice to the defendant. The judge is required to issue an order that specifically describes the evidence that is admissible.

The Salish and Kootenai statute provides for the exclusion of evidence of the victim’s sexual activity except for the victim’s past sexual activity with the defendant or to show evidence of semen, disease, or pregnancy which is at issue in the case. It allows admission of the evidence of the victim’s sexual activity in only a few situations. If the defendant seeks admission of such testimony, it does require a separate hearing before the judge.

Prior Bad Acts of the Defendant

Another evidence issue relating to sexual assault is whether the defendant’s prior convictions or “bad acts” should be admissible.

Generally, evidence of other crimes and bad acts are not admissible to prove the character of the defendant. However, the evidence of bad acts or prior convictions is admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.

Many rape convictions have been overturned by appellate courts because the courts disagreed on the purpose served by the admission of evidence of the prior bad acts. As a result, some jurisdictions changed their rules of evidence or statute to allow greater use of prior bad acts in sexual assault cases. For instance, the Federal Rules of Evidence include the following Rule.

Under this rule, evidence of the defendant's commission of another offense or offenses of sexual assault can be admissible. If the prosecutor intends to offer evidence under this rule, she must tell the defendant in advance. This disclosure must also include statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause.

Confidentiality (Privacy) for Sexual Assault Victims

Over the past 20 years, many jurisdictions have passed laws which protect private conversations between sexual assault and/or domestic violence victims and their advocates. Some of these jurisdictions have determined that these communications should always be strictly confidential. Other jurisdictions have decided that they should be made available to the defense in a criminal case under special circumstances.

When certain conversations and information are considered confidential and not subject to disclosure, it is called “privileged”. If the information can be disclosed in some situations, it may be a qualified privilege and in other situations where the information can never be disclosed without consent, it is an absolute privilege.

Sexual assault advocates or domestic violence advocates perform many services to victims similar to the services provided by attorneys, social workers, psychologists or clergy. Most jurisdictions recognize the need for confidentiality in these relationships.

Confidentiality promotes trust between the victim and advocate, which allows a victim to feel comfortable sharing information. Information can help the advocate promote healing and safety. A victim who is concerned that the advocate may have to tell the defendant what she said may be too afraid to seek help.

Four elements are generally considered necessary to justify establishing a testimonial privilege: (1) the communications must originate in confidence; (2) confidentiality must be essential to the proper maintenance of the relationship; (3) the relationship must be one that society deems worthy of protecting and (4) disclosure must injure the relationship more than it benefits the litigation.(15)

Tribal Code Examples

The following tribal sexual assault laws are provided as illustrative examples. There are many different ways for a tribe to protect victims through criminal laws.

Victim-Advocate Privilege
 

Tribal Code Commentary

Both the Oglala Sioux and the Turtle Mountain Chippewa have a victim-advocate privilege which extends to conversations a victim has with an advocate, elder or medicine person. The Oglala law defines advocate to clarify that it can include an employee or volunteer whose primary function is to provide advice, counseling or assistance to victims and has received the 40 hour advocacy training. Both statutes indicate that the privilege does not apply to child abuse and neglect cases. Although both laws apply to domestic violence and have not included sexual assault within the provisions, the principle and the laws would be similar. Many tribes have not yet focused on updating and revising their sexual assault laws.

F.  Sanction in Sexual Assault Cases

Sanctions Overview

After a defendant is convicted of sexual assault, the tribal court imposes sanctions (penalties) on the defendant. Sanctions are used to provide an incentive for obedience to the law, as well as punishment for disobeying the law. The tribal code provides the legal expectations and possible penalties to be imposed. These penalties reflect the community’s anti-violence sentiment.

Different governments operate from different philosophical perspectives. The tribal code-writing committee may choose to discuss the primary purposes of punishment from the tribal perspective. For example, discussing the following questions will help to illuminate the tribal “philosophy.”

There are two major limitations on the sanctions that can be imposed by a tribal government. The Indian Civil Rights Act, 25 U.S.C.1302(7) limits the sanctions imposed by a tribal court to sentences not exceeding one year in jail and/or a fine of up to $5,000, or both.

The Indian Civil Rights Act Imposes NO LIMITATIONS ON:

• Probation
• Restitution
• Public apology / personal apology
• Banishment
• Other remedies not related to incarceration or fines

Exercises

These exercises are designed to guide you in drafting and revising your tribal sexual assault laws.

Step 1: Review the Law in Concurrent Jurisdiction

Is your reservation affected by Public Law 280 or another law which gives criminal authority to the state government?

If your reservation is affected by PL 280 (state jurisdiction), what is the citation (or reference number) for the state’s criminal sexual assault statute? (You can skip this section if federal laws apply.)

To find the state laws on sexual assault, Tribal Law and Policy Institute’s web site: http://www.tribal-institute.org/lists/state.htm, will link you to state laws. State sexual assault coalitions also frequently have links to or sections of their web sites referencing their state’s sexual assault laws.

Step 2: Determine Existing Tribal Law

Does your tribal code currently have a criminal law on sexual assault?

If yes, does your sexual assault law apply to married persons?

Does your sexual assault law include a corroboration requirement?

Does your tribal sexual assault law require prompt reporting?

Does your tribal sexual assault law require that the victim have injuries or other proof of force?

Step 3: Make decisions on key parts of the law

Now that you have identified existing laws, you can begin to make decisions about what your new tribal sexual assault law will contain.

Step 4: Decisions on Evidence Laws

Do you want a “rape shield” section in your law?

If yes, write the key points you want in your tribe’s rape shield laws. You can refer to the examples or write your own.

Do you want to allow the admission of a defendant’s prior bad acts?

If yes, write the key points you want in your prior bad acts laws. You can refer to the examples or write your own.

Do you want to protect communications between advocates and victims?

If yes, write the key points you want in your privileged communication laws. You can refer to the examples or write your own.

Step 5: Sanctions

Does the tribal code already contain laws concerning sanctions for convicted offenders?

If the laws exist, discuss whether or not the laws are working well to protect victims. If the laws are working well, you may not need to work on this section.

It is important to have a set of “tools” that can be used by tribal judges in sentencing victims. When drafting the punishments, you may want to discuss the following issues and the resources necessary to implement them:

Discuss whether enhanced punishments should be imposed for the following acts:

Step 6: Draft the Law

Use your answers in the previous steps to help draft your sexual assault law.

This checklist will help make sure you have covered the major issues.

Additional Resources

Part 4: Basic Stalking Laws

Overview

Stalking, sexual assault, and murder are closely related. In the United States, 1 in every 12 women have been stalked and 31% of those women have been sexually assaulted by their stalker.(16) In addition 76% of female murder victims and 85% of female attempted homicide victims had been stalked by their intimate partner the year before their murder or attempted murder.

Native women are stalked at a rate twice that of all women.(17) Seventeen percent of American Indian and Alaska Native women are stalked in their lifetime, compared to 8.2 percent of white women, 6.5 percent of African-American women, and 4.5 percent of Asian/Pacific Islander women. Men are also stalked but at much lower incidence.(1 out of every 45 men has been stalked in the U.S.(18)) Strong stalking laws may result in a decrease in other serious crimes such as sexual assault and murder.

The definition of stalking varies depending upon the jurisdiction. The Stalking Resource Center(19) defines stalking as “a course of conduct directed at a specific person that would cause a reasonable person fear.”

Research shows that surveillance (watching, following) is the most common type of stalking behavior. Stalkers can cause serious emotional trauma and terror without ever communicating direct threats. Many victims experience loss of sleep, nightmares, weight loss/gain, depression, anxiety, and difficulty in concentrating. Some are forced to change jobs and homes to avoid a stalker.

Many tribes do not have stalking laws. In 1999 approximately 21 tribes had passed codes that address stalking.(20) Those that do have a stalking statute may not have updated their statute in years. The methods that a stalker can use to track his victim have substantially changed in the past ten years. Today stalking via the Internet is common, installation of surveillance software on a computer is possible, global position systems (GPS) have become available, and secret video cameras are an economic possibility. Generally, laws have not kept up with the technology.

This section will review various tribal codes as well as recent updates recommended to stalking codes by the Model Stalking Code Advisory Board at the National Center for Victims of Crime.(21) The January 2007 report entitled The Model Stalking Code Revisited, Responding to the New Realities of Stalking, was used extensively in this chapter in framing the issues, describing the problems and providing a model code. For more information on these issues, you can access the report and other useful materials on the Stalking Resource Center site, http://www.ncvc.org/src/main.aspx?dbID=dash_Home.

The model code and tribal codes are provided as a starting point for discussions about your own tribal laws.

A.  Defining Stalking as a Crime

Intent

Every criminal code requires that the offender intends to commit the crime. Intent is generally described either as specific intent or general intent.

Specific intent means a stalker must intend to cause the reaction in the victim, such as fear for her safety. This can be difficult to prove. A prosecutor needs to prove what was on the perpetrator’s mind when he performed the acts.

General intent means a stalker must intend the actions in which he is engaging (following, calling, emailing), but not necessarily the consequences of those actions. If a tribe desires to hold more stalkers accountable, it is suggested that the statute require general intent.

Fear and Emotional Distress

The main goal of a stalking law is to be able to take action to prevent violence. When has a person “crossed the line?” Many stalking laws look at the issue of fear. Is the stalker doing things that cause fear?

Many jurisdictions require that the victim personally experience fear, rather than using a reasonable person standard. If a prosecutor must prove the victim experienced fear, she must call the victim as a witness. This means that the victim must sit in front of the person she fears and in a public setting, describe her fear and the effect that fear had on her (anxiety or psychiatric problems).

If a reasonable person standard is used, it may not always be necessary for the victim to testify. The prosecutor must show that a reasonable person (not necessarily the victim) would feel fear when exposed to the stalker’s actions.

Some laws require that the victim fear serious bodily injury or death. However there are some milder forms of stalking which can also cause immense fear.

Some jurisdictions require that the victim fear for safety or suffer other emotional distress. The term emotional distress is meant to cover a reasonable person’s response to being followed, watched, or threatened.

Fear in many statutes not only includes fear of harm to self, but also to others. Sometimes the others is limited to family members or it could be extended to a broader group of people, such as a current social companion or someone with whom the victim has or has had a continued relationship, or the victim’s professional counselor or attorney or any person with whom the victim is acquainted.

Most stalkers are not strangers, and may have had some kind of relationship with the victim so the stalker may know the important people in the victim’s life.

Stalking laws should also include an understanding of context (the entire situation). Some behavior might look harmless unless you understand the background.

Example:
Joe sends his ex-girlfriend, Nancy, a dozen red roses.

One possible interpretation:
Joe is romantic. Joe wants to get back together.

Reality:
Joe once told Nancy that the next time she receives roses, she will be dead.

The use of phrase, "reasonable person in the victim’s circumstances" allows for the consideration of context in a law.

Acts and Course of Conduct

The following is a list of behavior (acts) which could be considered stalking under certain circumstances. By itself, an act may not be stalking. However, if you look at the background situation, it might meet the legal definition of stalking.

• Following
• Telephoning/texting
• Sending letters or packages
• Photographing person from a distance or with hidden camera
• Tracking or intimidating a person in any manner
• Violating protection orders
• Using the legal system to harass a victim (“litigation abuse”) by continuously filing motions or other civil process against victims
• Harassing a victim through visitation or custody arrangements
• Using surveillance in person, through technology, or through third parties
• Using the Internet or a computer to steal a victim’s identity or to interfere with a victim’s credit
• Engaging in obsessive or controlling behaviors
• Targeting third parties (e.g., a victim’s family member, friend, or child) to scare a victim
• Committing burglary or trespassing or moving items in a victim’s home
• Killing animals
• Attempting to harm self in a victim’s presence
• Sending flowers, cards, or e-mail messages to a victim’s home or workplace
• Contacting a victim’s employer or forcing a victim to take time off from work
• Using humiliating or degrading tactics such as posting pictures of a victim on the Internet, or disseminating embarrassing or inaccurate information about a victim
• Assaulting a victim
• Using children to harass or monitor a victim
• Impersonating a victim through technology or other means

At what point do these acts become stalking?

Most jurisdictions have a requirement that the behavior be repeated or on two or more occasions. The words course of conduct can be used to describe the action. Some places require that the action take place within a certain time period. Minnesota defines a pattern of harassing conduct as two or more acts within a five-year period.

Some stalking statutes contain a list of specific acts, sometimes called a “laundry list.” The best way to use a laundry list is to add language such as “includes but is not limited to” so that new technology or new tactics can be applied.

Code Examples

Defining Stalking

The following laws are provided as illustrative examples. There are many different ways for a tribe to protect victims through criminal laws.

Code Commentary

The Model Stalking Code incorporates general intent into the statute, instead of specific intent. The stalker must intend the actions, but not necessarily intend the consequences. The course of conduct means two or more acts. The acts can be committed by the stalker or through others and include:

• Monitoring
• Surveiling
• Threatening
• Communicating

The stalker does not need to be physically close to the victim. The code has not been specific in naming all the possible acts, but provides some direction to the court on the type of acts.

Under the Model Stalking Code these acts need to be “sufficiently disturbing” that a reasonable person would be fearful of her safety or the safety of a third person. The acts could also be the type that causes a reasonable person to suffer emotional distress.

Under this law, a prosecutor would not need to show that the victim suffered emotional distress or feared for her safety, but rather that a reasonable person would. It defines a reasonable person as a person in the victim’s circumstance. This is a broad statute that is intended to punish a wide variety of stalkers, including stalkers using new technology.

The Model Stalking Code recommends that stalking laws specifically exempt two typical defenses claimed by stalkers: (1) that the perpetrator was not given actual notice by the victim that his conduct was not wanted; or (2) that the stalker did not intend to cause the victim fear or other emotional distress.

The Fort Peck law defines stalking much more narrowly. It requires specific intent. The prosecutor must show the perpetrator intended to cause the victim to fear harm. It also requires actual fear to the victim. It must be shown that the victim suffered substantial emotional distress or feared bodily injury or death. At a trial, evidence of the victim’s emotional distress would be a required part of the case, if the victim was alleging severe emotional distress.

The Fort Peck statute refers to the following stalking acts: harassing, threatening or intimidating the person repeatedly. The method is very broad covering mail, phone, in person, or other method.

The White Mountain Apache’s stalking statute uses general intent. This standard means that a reasonable person would fear for her own safety or the safety of her immediate family, if faced with the stalker’s actions. Additionally, a reasonable person could fear imminent physical injury or death to himself or his immediate family. This is narrower scope than the Model Code which refers to the victim or a third person. A boyfriend or good friend would not meet the requirement in the White Mountain Apache’s statute, although harm to a friend might cause an equal amount of concern as family member.

The White Mountain Apache statute does not consider emotional distress as a possible consequence of stalking, but rather only fear of imminent physical injury or death or his own or his family’s safety. The statute also requires physical proximity or visual proximity to the person stalked, which eliminates many modern means of stalking.

B. Punishment for Stalking

Tribal court sentencing limitations are discussed in Part 3 (see “Sentencing” section). These same limitations apply to criminal stalking cases.

Some governments have developed statutes which allow intervention at the early stages of stalking so that the behavior can be monitored and stopped. Many have used a graduated punishment system with the punishment increasing when there is a previous conviction of stalking or another serious crime or when weapons are involved.

Although a tribe can not hold a non-Indian criminally responsible in tribal court, it can hold a non-Indian civilly responsible.

A victim of stalking may feel safer and more secure if her stalker is excluded from tribal lands. Although stalkers can cause fear even if not physically close to the victim, there are cases in which a stalker is physically following his victim.

Some tribes have developed laws that permit the exclusion of both Indians and non-Indians from reservations. Many tribes have also expanded their protection order statutes to cover stalkers.

Code Examples

Punishments for Stalking
 

Code Commentary

The Fort Peck statute increases the penalty for those with prior convictions. It also increases the penalty on a first offense, if there is a violation of a restraining order.

The White Mountain Apache statute has no enhancement of the penalty in the statute, although a judge might be able to consider aggravating factors such as past crimes and use of a weapon into consideration at sentencing.

The Model Code increases the punishment for a number of reasons. A violation of a protection order increases the penalty. A previous conviction of stalking within ten years increases the penalty. If force is actually used or threatened or a weapon is used or threatened, the penalty increases. Also, if the victim is a minor there is penalty enhancement.

Exercises

These exercises are designed to guide you in drafting or revising your tribal stalking laws.

Step 1: Determine Existing Tribal Law

Does your tribal code currently have a criminal law on stalking?

Step 2: Make decisions on key parts of the law

What is the intent requirement you want in your stalking statute?

� General intent

� Specific intent

What standard of fear do you want in your statute?

� Actual fear to the victim (which requires the victim to testify)

� Reasonable person to feel fear

� A reasonable person in the same context as the victim (model code)

� Other ________________________________________________.

What must the victim fear?

� Fear for his or her safety or the safety of a third person (model code);

� Reasonable apprehension of bodily injury or death;

� Fear for his own safety or the safety of his immediate family; or

� Fear for imminent physical injury or death to his person or his immediate family.

� Other __________________________________________________.

Should emotional distress be included as an element of the crime as an alternative to the requirement of fear?

� Purposely or knowingly causes another person substantial emotional distress

�	Knows or should know that the course of conduct would cause a reasonable person to suffer other emotional distress (model code)

� Other ___________________________________________________.

Step 3: Addressing common defenses

Consider whether you want your stalking law to clearly eliminate the following common defenses?

� lack of actual notice that the behavior was unwanted

� lack of intent to cause the fear or emotional distress

Step 4: Decisions on Penalties

Does your tribal law categorize criminal penalties?

If yes, how is stalking categorized?

What penalty would be sufficient for the crime of stalking?

Other questions:

Are there certain actions or conditions which should increase the penalties, such as violation of a protection order, a minor victim, a previous stalking conviction or other criminal offense, or the use or force or a weapon?

If not, are there restrictions in your tribal constitution that prevent exclusion of non-members.

Step 5: Drafting the Law

Use your answers in the previous steps to help draft your criminal stalking law.

This checklist will help make sure you have covered the major issues.

� Offense provision

• Required intent (specific or general)
• Fear of what
• Fear for whom
• Emotional distress

� Course of conduct/repeated actions

� Jurisdiction

� Penalty/Punishment

� Define all necessary words

Additional Resources

Glossary

The definitions in this glossary are meant to provide a general definition in common language to legal terms. Legal definitions may vary from one jurisdiction to another.

A

Action: Term in usual legal sense means lawsuit.

Assault: An intentional attempt or threat to inflict injury upon another, when coupled with an apparent ability and any intentional display of force that could reasonably make a person feel in danger of harmful physical contact.

B

Banishment: Requiring a convicted offender to leave a reservation or country.

Burglary: A person enters a building or dwelling for the purpose of committing a crime.

C

Civil Action: A lawsuit brought to enforce a contract, compensate a party for a loss, or protect private rights. All types of legal actions are not considered criminal. Actions for divorce, actions to recover damages for injury, or actions for a protection order are a few examples of civil actions.

Civil Contempt: A civil contempt action is generally brought when a person fails to obey a court order, such as a violation of a protection order or injunction. Contempt of the court is the deliberate failure to comply with an order of the court. Punishment for civil contempt may be a fine or imprisonment. The purpose of such punishment is to compel compliance with the order of the court.

Civil Jurisdiction: The power of a court to hear and decide civil actions.

Civil Process: May include all acts of the court from the beginning to the end of civil proceedings.

Code: A collection, of laws, rules or regulations organized in a particular manner, usually by subject.

Concurrent Jurisdiction: When two or more courts, legislative or administrative officers have the same authority to deal with a particular subject matter within the same territory.

Conspiracy: When two or more persons join to perform an illegal act.

Conviction: In a criminal action, the finding that the offender is guilty of the crime.

Correctional Personnel: A general terms used to describe people working in jails, prisons, reformatories and other places of detention.

Crime: An act committed in violation of a law which recommends a particular punishment; considered an offense against the state, tribe, or United States. Crimes are generally divided into misdemeanors and felonies.

Criminal Action: A proceeding by which a person charged with a crime is brought to trial and either found guilty or not guilty.

Criminal Contempt: A crime which obstructs a judicial duty generally resulting in an act done in the presence of the court; e.g. insulting a judge, disrupting a court proceeding or refusing to answer questions.

Criminal Jurisdiction: Power of a court to hear and dispose of criminal cases.

D

Divest: Deprive or take away a right.

Elements: The basic parts of a crime or civil action which must be proven. For example, some elements of a cause of action for battery are intentional, unwanted, physical contact. Each part, “intentional,” “unwanted,” etc. is one element.

Enhanced Penalties: Greater or increased penalties as a result of aggravating factors.

Exemption: Freedom from a general duty; a privilege allowed by law; immunity from certain legal obligations; or certain information required to be left out of public website.

F

Felony: A crime of a more serious nature than a misdemeanor. Under many state statutes it is punishable by more than a year in prison or even death.

Forfeiture: Loss of some right or property as a penalty for some illegal act.

G

General Intent: In criminal law, the offender intends the actions in which he is engaging, not necessarily the consequences.

H

Harassment: Words, gestures and actions that tend to annoy, alarm or abuse another person. Civil and criminal definitions of harassment vary. Criminal laws prohibiting harassment may list specific acts of harassment and increase the penalties based on the level of harassment.

I

Inchoate: Partial; unfinished; begun, but not completed.

Injunction: A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.

J

Jurisdiction: The geographical area within which a court has the right and power to operate. The persons about whom and the types of cases a court has the right and power to make binding decisions.

Jurisprudence: The philosophy of law and the study of legal principles on which legal rules are based.

Juvenile Delinquency: Illegal behavior by a minor child (age defined by laws).

L

Legislative Body: The branch of government whose appropriate function is the making of laws.

Litigation Abuse: The use of multiple legal actions to harass another, rather than for its proper purpose.

M

Misdemeanors: Any offense lower than a felony and generally punishable by fine, penalty, forfeiture or imprisonment otherwise than in penitentiary. Oftentimes misdemeanors are punishable by less than one year of imprisonment. There may be various classes of misdemeanors.

N

Noncompliant: Failing to conform or obey the requirements.

Notice: Information or written warning, in a more or less formal shape, intended to tell a person of some proceeding in which his interests are involved, or inform him of some fact which it is his right to know and the duty of the notifying person to communicate.

O

Offense: Violation of a criminal statute.

Offender: A person who commits a crime.

P

Perpetrator: A person who commits a crime.

Petition: A written request or application to a court that it takes a particular action, e.g.a petition for a protection order.

Petitioner: One who presents a petition to a court and starts a legal action.

Plea Agreement: The agreement between the offender and the prosecutor in a criminal case about the punishment.

Prejudice: Bias or preconceived opinion. Leaning towards one side of a cause for some reason other than justice. If a case is dismissed with prejudice, it cannot be brought back into court again.

Privileged Communications: Those statements made by certain persons within a protected relationship, such as husband-wife, attorney-client, which the law protects from forced disclosure on the witness stand.

Probation: A sentence of a convicted offender, whereby he is released into the community under the supervision of a probation officer.

Prosecution: A criminal action; a proceeding instituted and carried on according to the law before a court, for the purpose of determining the guilt or innocence of a person charged with a crime.

Protocol: The rules of correct or appropriate behavior for a particular group of people in a particular situation. For example, the hospital or police have a protocol for the handling of sexual assault cases.

R

Regulations: Rules issued by agencies of a government to guide the activity of those meant to be regulated by the agency and their employees to ensure uniform application of laws. Relevancy: Evidence which relates to and has a tendency to prove a particular issue.

Restitution: The act of restoring something to its rightful owner or giving an equivalent for any loss, damage or injury.

Retrocession: Refers to the act of a PL 280 state conveying some or all rights acquired by PL 280, back to the U.S. Government.

S

Sanction: A penalty or punishment attached to a law so that it is obeyed.

Sentencing: The phase of a criminal proceeding after the offender has been found guilty, when the punishment is imposed.

Solicitation: Asking, enticing, requesting, or encouraging someone to engage in an illegal act.

Sovereignty: The supreme, absolute and uncontrollable power by which any independent state is governed; supreme political authority.

Specific Intent: In criminal law, the offender intends the precise action the law intends to prohibit; e.g. assault with intent to rape, stalking with intent to cause emotional distress.

Stalking: Stalking is a pattern of repeated, unwanted attention, harassment, and contact. It is a course of conduct that can include a wide variety of activities which are usually specified in criminal law, including such things as following someone, threatening to harm the victim or her relatives, harassment through the internet and many other activities.

Statutes: A law; it can mean a single act of a legislature or a body of acts which are collected and arranged according to a scheme or legislative session.

Surveillance: Continual observation of a person, involving visual or electronic methods.

T

Trespass: An unauthorized entry or intrusion on private property or land of another.

Footnotes

1 435 U.S. 191 (1978).

2 25 U.S.C. §1301-1303.

3 United States v. Wheeler, 435 U.S. 313 (1978).

4 18 U.S.C. §1162

5 National Institute of Justice, 2000. The Sexual Victimization of College Women. Washington, DC: U.S. Department of Justice.

6 Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kans.J.L.& Pub.Pol’y 121 (2004).

7 For more information concerning PL 280, see: Goldberg, C. (1997). Planting Tail Feathers: Tribal Survival and Public Law 280 Los Angeles: UCLA American Indian Studies Center.
Goldberg, C., & Valdez Singleton, H. (2005). Public Law 280 and Law Enforcement in Indian Country: Research Priorities (No. NCJ 209839): U.S. Department of Justice, Office of Justice Programs.
Melton, A.P., & Gardner, J. (2000). Public Law 280: Issues and Concerns for Victims of Crime in Indian Country. Retrieved October 22, 2007, from www.tribal-institute.org/_articles/gardner_full.htm/

8 Oliphant v. Suquamish Indian Tribe, 435 U.S.191, 98 S.Ct.1011, 55 L.Ed.2d 209 (1978).

9 Indian Civil Right Act, 25 U.S.C.1301-1303.

10 Lisak, David Ph.D. is an Associate Professor of Psychology at the University of Massachusetts Boston and a leading expert on the behavior of men who commit sexual assault.

11 Lisak, David Ph.D. The Rape Fact Sheet, March 2002.Retrieved November 7, 2007, from http://www.sexualassault.army.mil/files/RAPE_FACT_SHEET.pdf.

12 Tribes affected by PL 280 are much less likely to have contemporary criminal court systems.

13 Major Crimes Act, 18 U.S.C.§1153 14 General Crimes Act, 18 U.S.C.§1152

14 General Crimes Act, 18 U.S.C.§1152

15 John H. Wigmore, Evidence in Trials at Common Law, §2285 (John T. McNaughton rev.ed.1961).

16 Tjaden, Particia, and Nancy Thoennes (1998), Stalking in America: Finding from the National Violence Against Women Survey, Washington, DC; U.S. Department of Justice, National Institute of Justice and the Centers for disease Control and Prevention.

17 Ibid.

18 Ibid.

19 http://www.ncvc.org/src/main.aspx?dbID=dash_Home

20 http://www.swclap.org/ArticleStalking.htm

21 The Model Stalking Code Revisited, National Center for Victims of Crime, Jan 2007