Many victims are aware of the common criminal consequences of sex crimes, which often include sentencing and restitution. Although these are the most known forms of punishment, civil justice systems are also able to provide remedies and services for sexual violence victims. Accessing civil justice systems offers many additional benefits for American Indian and Alaska Native victims of sexual violence.
Civil law is also essential when the victim has a protection order against the perpetrator. When a perpetrator of domestic violence violates a protection order, they can be held in civil or criminal contempt of court, regardless of whether he is a member of a federally recognized Tribe. The Contempt of Court tab discusses civil contempt of court.
Civil law is especially important for sexual assault victims who are legally married to the perpetrator, live in the same home as the perpetrator, or have children in common. Some Tribal jurisdictions may be "fault-based divorce" jurisdictions. A fault-based divorce means that a spouse must prove that the other party is at "fault" for causing the dissolution of the couple's marriage. In these jurisdictions, evidence of sexual violence in the marriage can assist victims in proving "fault" and winning a favorable divorce decree.
Unlike criminal courts (where tribal courts have only limited jurisdiction over some non-Indian domestic violence perpetrators), tribal courts have expansive civil jurisdiction over non-Indians. Tribal courts can hear civil cases related to sexual violence provided the court has both "personal jurisdiction" over the parties and "subject matter jurisdiction" over the issue in question. The Jurisdiction tab further discusses personal and subject matter jurisdiction.
In civil cases, the victim is a named party to the litigation. In civil proceedings the tribal court can:
Award restitution and monetary damages to a victim
Grant an injunction or protection order
Resolve divorce, custody, visitation and support issues
Settle landlord/tenant and other housing disputes
Resolve personal injury or tort claims related to the sexual violence
Hold a defendant in contempt of court
Order the perpetrator to post a Peace Bond
The conduct in question (sexual violence) occurred within the territorial jurisdiction of the tribal court AND the defendant:
What is a tort and how does it relate to civil law?
An emerging trend in Tribal and state courts is for victims to sue the perpetrator in civil court for "torts." The definition of tort means twisted or wrong. Visit the Torts tab for more information on torts.
Under civil law, sexual assault victims can sue their perpetrators for their twisted and wrong acts. The money awarded to victims from perpetrators under tort law is known as damages. There are a wide variety of damages available to victims. For example, victims can collect for medical and other expenses they have incurred as a result of the assault. Damages can include an award of money used to pay for traditional healing ceremonies. Victims can also receive compensation for their "pain and suffering" in tort cases. Since society considers sexual assault to be especially wrong and evil, the victim may also be entitled to "punitive damages" Punitive damages are not related to any of the victim's pain, suffering, hardship, or expenses. These are damages that are awarded to the victim because the court wants to send a strong message that sexual violence is against the values of the Tribe and is extremely harmful.
Due to high unemployment rates in Indian Country, Tribal courts may be especially open to awarding non-monetary damages to victims. Non-monetary damages may take the form of services performed by the defendant that benefits the victim directly. Examples include ordering the perpetrator to chop and stack cords of firewood for a victim's home before the onset of winter, sharing fish or meat, providing the victim's livestock with hay or feed, or maintaining the victim's well or irrigation system.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.