What Is My Potential Role in Helping Farmworker VIctims Through the Criminal Justice System?
Sexual violence victims may have many questions about what will happen if they report the crime to law enforcement. It is probable that a farmworker victim will have little or no experience with the U.S. criminal justice system15. When you first meet, assess whether the victim:
- Is aware of the option of reporting the crime to the police;
- Needs any additional information to help decide whether or not to report;
- Is aware of any risks that might be present by reporting;
- Wants to report to the police but needs logistical help such as locating a police station, communicating with a police officer or arranging transportation to the police station;
- Needs information to help understand the potential implications of reporting the assault to law enforcement; and
- Has already reported to the police and needs help navigating the criminal justice system.
Take the time to inform your client about the criminal justice system. This discussion may take longer than you anticipate but it is important not to rush or omit it. Allow ample time to educate farmworker victims about the criminal justice system so that they have sufficient information to make an informed decision about whether to report the assault to the police. It is paramount for victims to understand that if they report to law enforcement and the perpetrator is charged, the prosecutor represents the state’s interests–not the victim’s interests. Some police departments may allow a victim to file an incident report and not press criminal charges. Contact the local police department to determine if and when this option is available to victims.
Immigrant victims may have a heightened fear because of widespread immigration raids nationwide as well as partnerships between immigration and local law enforcement—known as 287(g) agreements—that permit local officers to enforce immigration law.16 In some of these communities, victims of crime have been reported to immigration authorities for deportation which has a chilling effect on the willingness of immigrant crime victims to report the crime and cooperate with law enforcement. Know whether you are located in a jurisdiction that has a 287(g) agreement and whether crime victims are impacted.
Be realistic about outcomes. It is common for farmworker victims, when asked what they want from the legal system, to reply “justice.” It is vital to explore what “justice” means to each victim and to discuss how and whether it can be achieved. For example, inform victims that only 2% of rape victims who report the rape to law enforcement ever see their assailant apprehended, convicted and incarcerated.17 Because of biases against immigrants, language barriers, and migratory and relocation issues of victims and witnesses, farmworker victims may face even greater prosecution hurdles and lower conviction rates.
Respect the decision not to report or pursue. It is possible that clients may decide not to report the assault for any number of reasons, including concerns regarding safety, economic stability, immigration status, migration, time away from work to pursue prosecution, and/ or fear of putting their family in jeopardy. It is vital to advise your clients that they do not need to report the sexual assault to law enforcement, and for you to respect their decision.
It is important, however, to advise them about what to do in an emergency. Additionally, refer clients to an immigration attorney or advise them about immigration remedies that may be available if the sexual assault is reported to law enforcement.
Educate law enforcement and fact-finders about rape myths and the power and control dynamics within the agricultural industry. Rape myths affect the way that sexual assault victims’ credibility is assessed. One is that “real rape” is violent and results in profound physical injury to the victim. In truth, most sexual assault victims do not suffer serious physical injuries as a part of the rape. Moreover, farmworker victims may be less likely to physically resist an assault in cases where they—and their family—are vulnerable to the perpetrator in various ways, including relying on the perpetrator for income, housing, transportation, etc. Another myth is that victims lie—that they claim rape, when it was consensual sex. Outsiders may perceive that rape victims consented such as when there is continued contact with the perpetrator post-assault. Here again, farmworker victims may be even more vulnerable to attacks on their credibility because of on-going dependence upon the perpetrator for food, transportation and shelter. An additional myth is that victims of real rape report to law enforcement immediately after being assaulted. Few sexual assault victims report immediately to law enforcement, if at all; farmworkers may take even more time to report due to additional barriers such as transportation, language and fear of retaliation. You can help debunk these myths—and acknowledge the enormous power imbalance in the rural workplace—with law enforcement, prosecutors, judges and juries, among others. Finally, law enforcement and fact-finders must be educated about cultural backgrounds and mores and how they might bear on credibility. For example, victims may be reluctant to make eye contact with an interviewer not because they are being untruthful but because they have grown up in a culture in which averting someone’s eyes is a way of showing respect.
Ensure accurate explanation of legal terms. Understanding and interpreting legal concepts is another challenge farmworker victims may face in a criminal or civil case. It is possible that certain legal concepts or vocabulary do not exist in the victim’s native language. Allow ample time to make certain that farmworker victims understand legal terms and work closely with qualified and culturally sensitive interpreters.
Assist your client through the criminal justice process. If your client decides to report to law enforcement and the perpetrator is prosecuted, the following are ways in which a civil attorney or advocate may assist the victim through the criminal justice process:
- Answer clients’ ongoing questions about the criminal justice system;
- Explain to your client the interaction between civil and criminal legal systems;
- Help protect your client’s privacy;
- Ensure that your client’s safety is protected and help access any civil or criminal safety remedies, including relocation;
- Explain that the prosecutor is the state’s attorney and not the client’s attorney;
- Explain the role of the prosecutor’s victim advocate as well their duty to turn over information about the victim to the prosecutor and to the defense; explain the role of a community-based victim advocate and the potential for their records to be subpoenaed as well.
- Help prepare your client for interviews with law enforcement, prosecutors and defense attorneys;
- Help your client understand evidentiary rules, hearings and motions, etc.;
- Help your client recoup financial losses through restitution and the victim compensation fund;
- Help your client access immigration remedies available to certain victims of sexual assault;
- Oppose the use of a victim polygraph test;
- If necessary, work with criminal defense attorneys to represent your client or handle necessary defenses for your client;
- Explain the Sexual Assault Forensic Examination (SAFE) process; and
- Work with the District Attorney’s Office for updates on the case.
- How would I describe the difference between the criminal and civil legal justice systems to a farmworker?
- Do Immigration and Customs Enforcement (ICE) and my local law enforcement agency have a partnership that permits local officers to enforce immigration law?
- What types of protection orders are available to victims of non-intimate partner sexual assault in my state, tribe or territory?
- How will I support my client if she requires criminal defense?
- Who are members of the local criminal bar association to whom I can refer my client, if necessary?
- What opportunities for cross-training exist in my community between social service providers, legal service providers and law enforcement interested in assisting farmworker victims of sexual violence?