Although the federal government can prosecute rape and sexual assault crimes committed by Indians in Indian Country, nothing precludes most tribes from enacting their own sexual assault codes.
These codes can be used to prosecute Indian offenders in tribal courts. Indeed, many tribes have already adopted sexual assault codes or are actively working towards adoption of these codes. Non-Indians who commit acts of sexual violence against an intimate partner or former intimate partner may also be prosecuted in tribal court.
Even where no tribal sexual assault code exists, tribal criminal justice professionals can work collaboratively with federal criminal justice professionals to ensure a successful federal prosecution and conviction of the offender. Tribal prosecutors may also be able to charge an Indian perpetrator of sexual assault for the commission of some of the following crimes under their current tribal codes:
Assault or Aggravated Assault
Disturbing the Peace
Violation of a Protection Order
Violation of a Court Order
Threats and Intimidation
Peeping Tom/Window Peeping
Criminal Damage/Malicious Mischief
Many of the above listed crimes can also be used when a tribal sexual assault code has been enacted, but tribal prosecutors cannot meet their burden of proof in proving every element of that crime.
It is important to note that Indian perpetrators can be convicted in tribal court of both sexual assault and of any other crimes committed during the course of the sexual assault. The maximum sentence an Indian defendant can receive in tribal court for any single crime committed in Indian Country is up to one year of imprisonment and a $5,000 fine unless the requirements of the Tribal Law and Order Act have been met. Under TLOA, tribes may impose sentences of up to 3 years and a $15,000 fine. Tribal prosecutors may be able to utilize the above listed crimes to “max and stack” criminal charges and sentences against Indian defendants in tribal courts. In other words, tribal judges can force defendants to serve their tribal sentences consecutively instead of concurrently. This can result in significantly more jail time for Indian perpetrators than in cases where the perpetrator was only charged with sexual assault.
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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.