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Violence Against Women Reauthorization Act of 2011--Continued

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. KYL. Mr. President, I support reauthorization of the Violence Against Women Act. Throughout my career, I have worked on a number of crime victims' rights measures that, taken together, provide the mosaic of protections for all crime victims.

As a member of the House of Representatives, I cosponsored the Sexual Assault Prevention Act--SAPA--which was incorporated into the Omnibus Crime Control Act signed into law by President Clinton in 1994. Among a number of reforms, SAPA increased penalties for stalking and sexual assault, and it changed the Federal Rules of Evidence to allow admission of prior sexual offenses in sexual assault cases. In 1997, I successfully petitioned the Arizona Supreme Court to adopt this change to Arizona's rules of evidence.

In 2004, I co-authored the Crime Victims' Rights Act with Senator Feinstein. This legislation included a bill of rights for victims of Federal crimes, including the right to be informed, present, and heard at critical stages of the proceedings. That bill was signed into law by President Bush.

I also supported the 2005 reauthorization of the Violence Against Women Act, which included a section Senator Cornyn and I wrote that expanded the Federal DNA collection program.

Today, I am pleased to support the Hutchison/Grassley bill reauthorizing the Violence Against Women Act. I regret that there are competing versions of reauthorization, especially since I believe that virtually all of us support the current law.

I cannot, however, vote for the Leahy version for a number of reasons. First, a new section, 904, is blatantly unconstitutional. This new section would give Indian tribes criminal jurisdiction to arrest, prosecute, and imprison non-Indians under tribal law for certain domestic-violence offenses.

Adding this language to the existing law violates basic principles of equal protection and due process. All tribes require either Indian ancestry or a specific quantum of Indian blood in order to be a tribal member. Even a person who has lived his entire life on the reservation cannot be a tribal member if he does not have Indian blood. Such a person, no matter how long he has lived in the area, cannot vote in tribal elections and would have no say in crafting the laws that would be applied against him by section 904.

Section 904 breaks with 200 years of American legal tradition that tribes cannot exercise criminal jurisdiction over non-Indians. By doing so, it creates a clear violation of the Constitution's equal protection and due process guarantees.

I also take issue with the new Section 905 of the Leahy bill, which would allow Indian tribes to issue ``exclusion orders'' barring non-Indians from lands within the tribes' ``Indian country.'' ``Indian country'' is a term of art in Federal Indian law. It is meant to include lands that were allotted and sold to non-Indians, or allotted to Indians who later sold the land to non-Indians, but that are within the exterior boundaries of a historic Indian reservation. Many non-Indian families have lived on such lands for generations. Other such residents include people with Indian blood, but who have been expelled from membership in the tribe for various reasons. Section 905 would literally allow the tribes to issue orders that bar these individuals from entering their own land, land which they own in fee simple absolute.

The primary rationale for these proposed additions to VAWA was to provide protection for tribal members. The Hutchison/Grassley alternative does that by replacing the unconstitutional provisions of the Leahy bill with an authorization for tribes to seek protection orders to prevent domestic violence, issued directly by a Federal court, upon a showing that the target of the order has assaulted an Indian spouse or girlfriend, or a child in the custody or care of such person, and that a protection order is reasonably necessary to protect the well-being of the victim. Violations of the order would be subject to criminal prosecution in Federal court.

While punishing an offender for any underlying crime is important, preventing harm is critical; and it is often easier to prosecute violations of the terms of a protection order. For example, parties who are not in a romantic relationship with the defendant typically will be available to testify that the defendant entered areas from which he is excluded under the order. Protection orders, thus, tend to provide an effective means for preventing acts of domestic violence. And because orders would be issued by a Federal court, we can be reasonably certain that such orders will comply with basic principles of due process and will be enforced.

The Hutchison/Grassley reauthorization of the Violence Against Women Act contains other improvements on the Leahy version, and I urge its adoption.

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