Read Sharing Our Stories of Survival: Native Women Surviving Violence Online
Authors: Jerry Gardner
Problems arise when advocates are subpoenaed to testify in court. There are two main reasons that advocates are
subpoenaed
. First, an advocate may be subpoenaed to testify about something confided to her, something she heard, or something she saw while working with a specific woman. A second reason an advocate might be subpoenaed is to provide expert testimony.
Testifying as a direct witness is a clear conflict of interest for an advocate; as a biased supporter of women who are battered, confidentiality must be maintained. It is best to avoid these situations. Once on the stand, an advocate has little control over what will happen or what will be asked. However, there are times that testifying may be possible without compromising the woman’s safety if the situation is discussed with the woman and her attorney. In those rare cases, the woman herself should sign a release of information authorizing the testimony. Proceed with caution. Advocates and advocacy programs are watched by all the women in the community who are being battered (and their relatives) to see if advocates keep their word and can be trusted to protect them. Even the perception of impropriety or breech of confidentiality will become known in the community and can devastate an advocacy program. If women feel that the advocacy program cannot be trusted, more women will be battered and murdered.
Privileged communication is a legal status that usually exists between doctors and patients or attorneys and clients. This means that information shared within the working relationship cannot be disclosed in court. The vast majority of jurisdictions, including tribal, do not have victim-advocate privileged communication. As sovereign nations, however, tribes can pass laws to recognize victim-advocate privileged communication. Such laws help protect confidentiality. Often, advocacy programs are the catalyst for developing and lobbying tribal councils to pass victim-advocate privileged communication (and other domestic violence) laws. If the tribe codifies victim-advocate privilege, state and federal jurisdictions must honor the privilege because state or federal courts cannot compel an advocate to testify in violation of tribal law. Be aware that any information shared with a third party may negate this privilege.
An advocate may also be called to testify as an expert witness. This requires no knowledge of the particular court case or connection to any of the people involved with the case. Domestic violence expert witnesses can provide foundational information about domestic violence in general. They can testify about such topics as the dynamics of domestic violence and why women recant (change their story) or refuse to testify. The court must qualify expert witnesses to prove they actually do have expertise in the field. Since there is no degree in “advocacy,” most legal advocates refer to their years of experience, the number of battered women they have worked with, attendance at workshops, the books and studies they have read, and membership with domestic violence associations to prove their expertise.
Providing expert testimony as an advocate is not without controversy. For example, if the woman in a particular case does not want the case to go forward, testifying as an expert witness may challenge the stance of advocates as the biased supporter of women who are battered. Each advocacy program should have thoughtful discussions about this dilemma, perhaps on a case-by-case basis. Certainly if the woman wants an expert witness in her case, the legal advocate should support her decision. However, consider the possibility of finding expert witnesses from neighboring communities or forming coalitions to meet this need in order to avoid the perception that local advocates breech confidentiality or are biased.
Tribal Program or Nonprofit?
One of the challenges faced by advocate programs is the overarching agency under which they operate. Many times, the supervising agency may present a barrier for providing effective and comprehensive advocacy and maintaining confidentiality. Many domestic violence programs in Indian Country consist of one or two women operating under the umbrella of a tribal social service or mental health agency or criminal justice department. Often these advocates have dual roles such as “child protection worker/domestic violence advocate, or “social worker/domestic violence advocate.” This creates a dangerous and precarious situation for all involved by making conflicts of interest an inherent aspect of the work. For example, it is impossible for someone to be a child protection worker (responsible for reuniting families) and simultaneously be a biased supporter of women who are battered.
If advocates are tribal employees, they operate under tribal personnel policies and procedures that usually reflect little history or experience with advocacy programs, or safety and accountability issues. Additionally, tribal programs are often fraught with the negative effects of tribal politics. Under tribal government programs, advocates are often expected to act as emissaries for the employer’s program or systems and are often charged with the responsibility of getting women to cooperate with those systems, rather than the other way around. For example, it is impossible to work for the tribal police department and also claim to protect women’s confidentiality. It is the role of law enforcement to be objective and provide evidence to aide in prosecution. An advocate working under the auspices of tribal prosecution has the same problem. It is the role of prosecution to get convictions, and an advocate working for the prosecutor might be expected to pressure a woman to testify. Prosecution may or may not be in the best interest of the woman who is battered. Safety might mean leaving rather than testifying.
Oftentimes, advocates working for tribal government programs face conflicts of interest. Here are some things to consider:
In all of these scenarios, whom will women trust? How can advocates act on behalf of women who are battered without being insubordinate? It is important to find a way for domestic violence programs to operate independently.
Developing an advocacy program is a process. If that process begins within a tribal governmental agency, consider the following:
It is the responsibility of the tribal domestic violence shelter/program to create space within the tribal structure that reflects and honors the experience of the native woman who is battered. It is also the responsibility of the tribal program to ensure that a woman seeking advocacy and related services will receive confidentiality and immunity from a tribal government structure that can be fraught with politics . . . In some tribal communities, native women have incorporated their shelter/advocacy program with the state and become a 501 (c) (3) private, nonprofit and/or a tribally incorporated/chartered organization. Just like the federal government or state government, Tribes can enter into a sub-grant relationship with the incorporated domestic violence shelter/program. In this relationship, the Tribe is the grantee and a legal document known as a Memorandum of Agreement, contract, etc., outlines the program and financial responsibilities of the Tribe and the sub-grantee.
4
Legal Advocates
The title of “legal advocate” is relatively new. In the beginning of the movement to end violence against Native women, before there was funding available, battered and formerly battered women worked as advocates on a grassroots level. There was no distinction between “types” of advocates. The recent institutionalization of advocacy has resulted in specialization for many advocates. Though this may have its benefits, it may also re-create barriers that social change work attempts to overcome. Specialization can be dangerous if it leads to a “case management approach” that responds to parts of women and pieces or incidences in their lives rather than creating a relationship and responding with the woman to the whole of her life.
Advocates must be aware of the potential for splintering their relationships with women and weakening their advocacy if they do not consciously attempt to make connections with all aspects of a woman’s life when working with her. Solely concentrating on the legal process is contrary to the holistic response to domestic violence. Advocacy is largely about making connections. In order to create social change and undo internalized oppression, ending violence against Native women and reclaiming the natural, Native belief system/lifeways must happen simultaneously. They are integral parts of each other. Making connections is “thinking Indian,” thinking as Native women.
When advocates work collectively, individual areas of expertise and skill are acknowledged and used as the situation requires. No specialization is designated. Many programs might officially use only the title “advocate,” although individual advocates may be informally considered the program’s “legal advocate,” “shelter advocate,” “housing advocate,” and so forth. The difference between this approach and a specialized approach is that each advocate, regardless of special skills, is expected to willingly and knowledgeably work with any woman on any issue. That said, legal advocacy is an extremely powerful aspect of assisting women in regaining control over their lives and that of their children. Legal advocacy occurs on three levels: individual, systems, and societal.
Individual Advocacy
Individual legal advocacy can include (but is not limited to) the following:
Advocates cannot provide legal advice unless they are attorneys. However, advocates can offer basic information, refer to attorneys, and assist women in filing protection orders and other court-related paperwork. Advocates can act (with the woman’s permission) as the contact person for law enforcement, attorneys, and others involved in her legal situation. Legal advocates commonly help women with or find available resources to deal with divorces, child custody and visitation, and even things like taxes and bankruptcy. Legal advocacy also includes tracking paperwork through the system, making sure papers get served, and keeping contact with law enforcement officials and attorneys to assure a woman’s case is not lost in the system or mishandled.
At the same time, legal advocates must be aware of and respond to other crises and concerns affecting the women with whom they work. Women can be unsafe due to hunger, homelessness, exhaustion, constant worry about the children, and concussion syndrome (the usually short-term effects of a concussion, including confusion, difficulty in concentrating, blurred vision, headaches, and so forth) that can last for months or years. Juggling these concerns is the challenge for women and advocates. Legal advocates must focus on the priorities of the woman, not those of the program or the system. Many women simply want the resources to get on with their lives. If advocates do not listen to women about what they know about their batterer and his response to her actions, or to what she really wants, it can result in further victimization. Programs of all kinds are known to impose a maze of hoops and barriers, further victimizing women. By definition, women who are battered have had power and control taken from them. Our job as advocates is to step up, with the woman’s permission, and act as equalizers in those situations.
Protection Orders
Advocates routinely help women write protection orders and make sure they are served (see chapter 15). Women must learn how to obtain a permanent protection order and know about its enforcement and limitations. Protection orders are not bulletproof. Is child custody an issue for the victim? Is filing for emergency child custody at the same time as filing a protection order necessary? Throughout the process, advocates must visit with women to learn about the tactics their batterers use against them and the potential for escalation of the violence. Together, an advocate and a woman can develop a comprehensive safety plan. As far as the protection order, a legal advocate should listen to the woman and ask her exactly what she wants. She might also need to ask how her batterer might manipulate the system. An advocate should also ask the woman about her specific expectations. The advocate can then work with her to individually tailor her protection order petition.
A woman may need to have some contact with her batterer for several reasons, including the exchange of children or to get money (alimony or support) from him. Visit with her ahead of time to discuss ways to safely accomplish those meetings and detail the process in the protection order. This way, she can have minimal contact with him (or none at all). Be creative when filling out the protection order. Ask for everything—a judge cannot order things not requested.
Most protection orders require the removal of firearms from the batterer. Legal advocates can make sure this requirement is specifically addressed by the court and enforced by law enforcement. A woman should be given information about what constitutes a violation of the protection order, including phone calls and third-party contacts. A legal advocate can tell a woman how to report and how to document violations so that law enforcement and courts can enforce the protection order.
Women who are battered often drop protection orders or have contact with their batterers while a protection order is in place. This aggravates a lot of people who do not understand the dynamics of battering. This occurs for a variety or reasons, including: