How Can I Support Victims Involved in Legal Proceedings?
You play a key support role for farmworker victims involved in civil and/or criminal legal proceedings15. You are in the position to educate victims about the legal system, identify legal issues with which victims may need assistance and make appropriate referrals, and educate other service providers about farmworkers so that they may provide culturally appropriate services.
The goal of identifying victims’ legal needs is to know enough to refer cases to lawyers without providing legal advice.
Make appropriate referrals to civil attorneys. Ask sexual assault victims during intake and on an ongoing basis about any concerns they have related to the following core needs and refer victims to appropriate attorneys for assistance:
- Financial stability
- Physical safety
- Tort (personal injury) law
- Family law
Help victims obtain protection orders. Depending on the jurisdiction, there are a variety of civil and criminal protection orders that may require the perpetrator to stay away from the victim’s person, home, school and workplace. The Violence Against Women Act requires states, territories and tribes to enforce protection orders issued in another state, territory or tribe, so long as certain conditions were met when the order was issued; this provision may be especially helpful for migrating farmworkers.16 Be aware, however, that seeking a protection order may increase the likelihood of retaliation by the perpetrator and place the victim in greater risk of harm. Refer victims to civil attorneys to determine what types of protection orders are available and to discuss whether the victim believes that the protection order will enhance or diminish safety.
Know the basics of the legal system. Farmworker victims may have had little or no experience with the U.S. legal system and therefore may have many questions about the legal process, timeline, the roles of various actors and what type of results can be expected. Have a working knowledge of the differences between the criminal and civil legal systems and be able to explain, in layperson’s terms, the types of relief that can be sought within each. You may also refer victims to an attorney or victim advocate for more information.
Answer questions about reporting to law enforcement. Sexual violence victims often have a broad range of questions about what will happen if they report the crime to law enforcement. It is possible that a farmworker victim will have little or no experience with the U.S. criminal justice system. 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.17 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. Additionally, farmworker victims must take into account a number of issues affecting them and their family—safety, shame, economic stability, ability to take time away from work to help the investigation and/or prosecution, and migration that impacts whether they are present for depositions and court appearances—when deciding whether or not to report. While some victims find these hurdles to be insurmountable and choose not to report, others are empowered through the criminal justice process. Victims should be referred to a civil attorney, rape crisis center advocate or other knowledgeable social service provider if the following assistance or information is required related to the criminal justice system:
- Help deciding whether to report the sexual assault to law enforcement;
- Logistical support such as locating a police station, communicating with a police officer or arranging transportation to the police station;
- Understanding the potential implications of reporting the assault to law enforcement, especially if you are located in a jurisdiction that has a 287(g) agreement;
- Determining whether the local police department allows victims to file an incident report and not press criminal charges and when this option is available;
- Help navigating the criminal justice system;
- Help protecting privacy in a criminal case;
- Information about a Sexual Assault Forensic Examination (SAFE); and
- Information about immigration remedies available to victims of sexual assault and other enumerated crimes.
It may also be helpful to inform victims that unlike civil cases where the parties are the victim versus the defendant (e.g. perpetrator, employer, landlord), in a criminal case the parties are the state versus the perpetrator. In criminal cases, the victim is considered to be a witness, which means the state’s interests are represented, not the victim’s interests. Additionally, help to set realistic expectations about the outcome. Only 2% of reporting rape victims ever see their assailant apprehended, convicted and incarcerated.18 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.
Educate law enforcement, fact-finders and attorneys 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 postassault. 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. Your role is critically important. You can help debunk these myths—and acknowledge the enormous power imbalance in the rural workplace—with law enforcement, prosecutors, judges and juries, attorneys and other social service providers. 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.
Be creative when building the timeline. Memory loss due to trauma is common for many sexual violence victims. Additionally, due to high illiteracy rates, some farmworkers may not be accustomed to keeping track of the month, date and hour or creating a written record of events. Therefore, it is possible that a farmworker victim will have difficulty remembering the timeline and sequence of events surrounding the assault; this may cause credibility issues in a criminal prosecution or when pursuing civil remedies. You can work with a victim to overcome these challenges by using markers such as type of harvest or holidays, rather than month of the year, to specify timed events. Educate criminal justice professionals about these issues and strategies to overcome them.
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, particularly if the victim speaks an indigenous language. Allow ample time to make certain that farmworker victims understand legal terms and work closely with qualified and culturally sensitive interpreters.
- 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?
- What relationships does my organization have with legal services organizations and other private attorneys who help victims of sexual violence?
- What information and training can my organization provide to local law enforcement about working with farmworker victims of sexual violence?
- 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?
Distinguishing Between the Different Roles of Advocates, Civil Attorneys, Law Enforcement and Prosecutors
- Community-based advocates are individuals that work for community-based, non-governmental agencies. Their role is to support victims post-assault by connecting victims with resources and services. They can answer questions about the civil and criminal justice processes and make referrals to private attorneys. Generally, community-based advocates are not required to provide exculpatory material in their control to the defense; however, if no privilege exists between the provider and victim, the provider could be subpoenaed in a criminal or civil case.
- Prosecution or law-enforcement-based advocates are generally under the jurisdiction of the prosecutor’s office or a law enforcement agency. They provide victim assistance such as referrals for services, but their primary purpose is to aid and further successful prosecutions of alleged offenders. Prosecution or law-enforcementbased advocates may be required to turn over information abut the victim to the defense; exculpatory evidence must be provided to the defense.
- Prosecutors and law enforcement officials can provide victims with information about the criminal justice system. Prosecutors represent the government’s interests—not the victim’s interests—in a criminal case. In many circumstances, law enforcement officials and prosecutors are obligated to turn over information about the victim to the defense, which may be in conflict with victims’ privacy interests.
- Civil attorneys can answer questions about the victim’s rights in the criminal and civil justice system and (with very rare exceptions) cannot be required to turn privileged information about the victim over to the defense. Civil attorneys can represent victims’ interests related to privacy, employment, housing, financial, immigration, school-related and physical safety-related issues.