Just in time for Veterans Day, the Department of Veterans Affairs has made a long-overdue institutional commitment to addressing the needs of veterans who are survivors of sexual assault occurring within the military.
Just in time for Veterans Day, the Department of Veterans Affairs has made a long-overdue institutional commitment to addressing the needs of veterans who are survivors of sexual assault occurring within the military. The VA will open a treatment center next month specifically targeting and addressing the needs of female sexual assault survivors. According to Cynthia Smith, spokesperson for the Pentagon, the center will track cases of sexual assault and, through training, ensure a "consistent level of care and support for victims of sexual assault." Democratic presidential candidate Sen. Barack Obama (D-IL), a member of the Senate Committee on Veterans' Affairs, stated, "We have a moral obligation to provide these [survivors] with the support and care they need."
In 2005, the Department of Defense instituted a system whereby sexual assault survivors could make complaints that would allow them to access counseling and medical attention without triggering an official investigation, and Department does have an office of Sexual Assault Prevention and Response. But, as Sara Corbett wrote in the New York Times in March, noting a forty percent increase in crimes reported from 2004 to 2005,"While victims may be feeling more empowered to report sexual assault, it appears that the number of assaults are not diminishing."
The St. Louis Post-Dispatch has reported over several months that rates of sexual assault in the military are rising, with astonishing increases of up to twenty percent in a single year. And nearly 3,000 women were sexually assaulted last year, says the Post-Dispatch.
It's hard to sustain excitement about the VA's new treatment center when you read the personal accounts of women who suffered sexual assault and harassment in the military. Their offhand remarks —
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So then you're in Iraq, driving down Highway 1 with an M-16 in your hand. You have those doubts people had about you in the back of your head. You're thinking 5,000 things at once, trying to be everything everybody wants you to be. And you still have to take the crap from the men. You're 20 years old and growing into your own body, having an actual sex drive. But you've got 30 horny guys propositioning you and being really disgusting about it.
as says Abbie Pickett, a combat-support specialist with the Wisconsin Army National Guard, or
They basically assume that because you're a girl in the Army, you're obligated to have sex with them.
as says former Army specialist Suzanne Swift —speak to the profound and still intractable problems of gender and power in the military. All the treatment centers in the world don't address the root of the sexual assault epidemic in the military — that lies within the soldiers who perpetrate these crimes, and the troubled psychological imperatives fostered by our nation's military institutions.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.
Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
Signs of Progress
The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedtstruck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear.
Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.
More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.
As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.
But the Assault Continues
Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:
Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.
The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:
South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
Advocates and tribal leaders briefed Congress Tuesday, saying that the Violence Against Women Act should be expanded upon to grant greater protections to tribal citizens at risk of assaults by non-Natives, and that Nations should receive adequate resources to implement the law.
Tribal leaders and advocates gathered in Washington, D.C., Tuesday to brief Congress on implementation of a provision in the 2013 Violence Against Women Act, which affirmed tribes’ ability to exercise special domestic violence criminal jurisdiction over non-Natives who commit domestic assault, or engage in dating violence, on tribal lands.
Recognizing that the Department of Justice’s 2014 decision to grant special domestic violence criminal jurisdiction under VAWA was a “historic” step toward upholding tribal sovereignty, advocates and tribal leaders say that the law should be expanded upon to grant greater protections to tribal citizens at risk of assaults by non-Natives, and that Nations should receive adequate resources to implement the law.
The special provisions were introduced in 2014 when the justice department announced that the existing jurisdictional scheme, which prior to VAWA 2013 had effectively banned tribal governments from prosecuting non-Natives on tribal lands, was failing to “adequately protect the public—particularly native women—with too many crimes going unprosecuted and unpunished amidst escalating violence in Indian Country.”
Native women experience a disproportionately high rate of domestic violence, with some sources suggesting they face assault rates that are 50 percent higher than other demographics. By various estimates, between 23 and 39 percent of Native women identify as victims or survivors of domestic violence and intimate partner abuse. The vast majority of domestic and sexual abuse cases involve a non-Native perpetrator, according to the National Congress of American Indians.
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Prior to the implementation of special criminal jurisdiction under VAWA 2013, “there were few, if any, legal avenues through which Native women could seek criminal charges against non-Indians who committed intimate partner violence on tribal lands,” said Jessica Mason Pieklo, vice president of law and the courts at Rewire.
While the special provisions have enhanced tribes’ ability to prosecute violent offenders on Native lands, many say that they don’t go far enough.
“For one thing, there are many hurdles to simply implementing the statute,” Jacqueline Agtuca, a policy consultant to the National Indigenous Women’s Resource Center (NIWRC), told Rewire.“What many people don’t understand is that each sovereign Indian Nation has its own Constitution, its own criminal and civil codes, its own body of law—so meeting the criteria under the statute typically requires changes to tribal law to exercise special jurisdiction as just the first step.”
Among the criteria that the Department of Justice requires tribal governments to meet are protections for non-Native defendants under the Indian Civil Rights Act of 1968, and additional protections under the 2010 Tribal Law and Order Act, including “[f]ree, appointed, licensed attorneys for indigent defendants” and “[l]aw-trained tribal judges who are licensed to practice law.”
“For another thing,” Agtuca said, “the law itself is so narrowly tailored that tribal police and prosecutors can only respond to the charge of a non-Indian perpetrator for domestic violence—they cannot, for instance, charge a non-Indian with child abuse, abuse of elders or senior citizens, or destruction of property. They are also unable to charge a perpetrator or abuser who is violent towards responding officers. Domestic violence cases are very complicated and often involve more than just an abuser and his victim—they can involve the parents of the victims, neighbors, cousins, pets—anyone who happens to be in the home at the time of the assault. So while the [granting of special domestic violence criminal jurisdiction] is historic, we feel it ran short of offering comprehensive protections to Native women.”
The eight tribes exercising special jurisdictions over non-Natives under VAWA 2013—out of an estimated 562 federally recognized Indian Nations in the United States—have so far made 44 arrests, resulting in 18 guilty pleas. Five cases have been referred to federal prosecutors, 12 were dismissed, six are pending, and one resulted in an acquittal by a jury.
Three of the implementing tribes—the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon—have more concrete data on the efficacy of the legal provisions, on account of receiving advance clearance for implementation under a justice department pilot project that began in 2014.
The Pascua Yaqui Tribe, for instance, has made 21 special domestic violence criminal jurisdiction arrests involving 16 different offenders, as of September 2015, resulting in seven convictions, six guilty pleas, four referrals to federal prosecutors, and ten dismissals. The tribe says that since it began exercising special jurisdiction, cases involving non-Natives have accounted for 25 percent of its domestic violence caseload.
Prosecuting non-Natives is an expensive exercise. Alfred Urbina, the attorney general of the Pascua Yaqui Tribe, told Rewire in a phone interview that his tribe’s domestic violence caseload has increased by 12 percent since implementation began, resulting in a 10 to 20 percent spike in operational costs for the tribal court system.
“We’ve had to hire prosecutors, two public defenders, and additional court staff,” Urbina said. “We also have additional costs associated with expert witnesses and evidentiary analysis. And because these are multi-jurisdictional cases they are also more complex than average cases: they take longer, they generate more paper, they require more court time.”
He said that exercising special jurisdiction in domestic violence cases also incurs “indirect” costs.
“Relationships generally involve children, either of the mother or the perpetrator. For instance three of the cases we’ve seen have been pretty violent, and we’ve had to remove the children from their homes and place them in foster care. The cost involved with administering those cases and the placement of children in foster homes was something … the law didn’t account for.”
These additional expenses represent a significant financial burden for tribal governments.
“Tribal budgets are like federal budgets,” Agtuca said in a phone interview with Rewire. “Everything is line-itemed. Nobody, least of all tribal governments, has money sitting unallocated, waiting to be spent. But tribes recognize this problem as a life or death issue, and so they are pouring their limited resources into addressing the situation.”
She said that Congress initially authorized $5 million to assist implementing tribes. “This was very little, but at the time everyone was grateful for it,” she said. However, to date Congress has released $2.5 million of the promised funds.
“Today we are asking for, minimally, full appropriation of those funds, and hopefully in the next VAWA reiteration we will be able to increase the allocation that was initially authorized,” Agtuca explained.
“There is much work to be done to successfully implement this law,” Melvin Sheldon Jr., chairman of the Tulalip Tribes, said in a press release issued before the congressional hearing. “We have stretched our tribal resources and have engaged in advocacy for better access to national criminal databases and for children to be included under the umbrella of [special domestic violence criminal jurisdiction]. Every life is important and every victim’s voice should be heard.”