The Violence Against Women Act (VAWA), authorized in 1994, created effective and cost-saving responses to domestic violence, dating violence, sexual assault and stalking. VAWA expired in December 2011 and must be reauthorized by Congress to ensure the continuation of lifesaving programs. The Senate (S. 1925) and House (H.R. 4970) have passed different bills that must be reconciled. While both bills adopt similar grant authorization levels and program consolidation improvements, the House bill fails to include important protections for some victims.
S. 1925 was crafted with new provisions based on interviews with over 2000 law enforcement, court personnel, prosecutors, grant administrators and advocates from across the country. The issues that surfaced included a lack of services to Lesbian, Gay, Bisexual and Transgender (LGBT) victims, barriers to services for immigrant victims, and continuing high levels of violence against Native American victims.
Battered immigrant victims have been included in VAWA since 1994 when first permitted to self-petition for legal residency if married to a US citizen or permanent legal resident. In the VAWA 2000 reauthorization the immigrant provisions were expanded to include victims of crime (U Visas) and trafficking (T Visas) allowing victims of qualifying crimes that have assisted with prosecution to obtain certification to move toward permanent residency. However, the federal government did not issue regulations and eligibility criteria until September 2007. Thus the U Visas permitted from 2000 to 2007 were never issued. S. 1925 recaptures these U Visas that were never issued.
Native American women suffer from violent crime at some of the highest rates in the United States. One study found that nearly three out of five Native American women had been assaulted by their husbands or intimate partners. Non-Indians constitute more than 76 percent of the overall population living on tribal land.
S. 1925 contains a new provision that extends the criminal jurisdiction of tribes to hold non-Indian offenders accountable for domestic violence crimes committed on federally recognized tribal land. For example, a non-Indian is married to a tribal member and they live on tribal lands. The non-Indian regularly assaults the Indian. The tribe has no jurisdiction to respond because the perpetrator is a non-Indian. The state lacks jurisdiction because the crime occurred on federal land and federal law enforcement does not have sufficient resources to respond. S. 1925 addresses this gap by giving tribes jurisdiction over non-Indians committing misdemeanor domestic violence offenses on tribal land. The provision in S. 1925 does not remove or alter the current criminal jurisdiction of the United States or any state. Rather, S. 1925 restores concurrent tribal criminal jurisdiction over a very narrow set of misdemeanor crimes including, domestic violence, dating violence and protection order violations where the defendant is the spouse or intimate partner of a tribal member. Tribal courts must provide defendants with the same constitutional rights as a state court including due process and the right to appointed counsel.
S. 1925 also includes provisions regarding services to the LGBT community. This reflects the comprehensive National needs assessment that consistently revealed the desperate need for training and targeted services to effectively address the needs of LGBT victims. The LGBT community experiences this type of violence at approximately the same rate as non-LGBT victims. There is nothing in S. 1925 that mandates programs, rather it simply clarifies that LGBT programs are eligible for funding.
H.R. 4970 fails to address the crisis of violence against Native American victims by not recognizing tribal court authority and not allowing them to hold perpetrators accountable. H.R. 4970 also fails to make specific eligibility for targeted services for LGBT victims.
H.R. 4970 erodes important provisions for immigrant victim's safety and gives abusers additional tools to potentially harm victims. Amendments allow the alleged abuser access and input into the self-petition process. This will create a chilling effect on help-seeking by victims. Abusers routinely deny abuse, retaliate against victims, and report their spouse to immigration authorities, in order to retain control and dependency of their spouse. H.R. 4970 also does not allow for the recapture of the unused U Visas.
Congress must reauthorize a strong bi-partisan Violence Against Women Act that improves upon life-saving protections and services for all victims and authorizes appropriate funding to ensure VAWA's vital programs.
Nancy Neylon is executive director of the Ohio Domestic Violence Network.
