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By
Christine Hansen, Executive Director, The Miles Foundation, Inc.
Intimate partner violence
in the U.S. Armed Forces attracts significant public attention
following tragic events, such as the series of homicides at Fort
Campbell, Kentucky in 1998, and at Fort Bragg, North Carolina in 2002.
The tragedies fostered the development
of policy initiatives to address the safety of victims, offender
accountability, and system accountability. The homicides at Fort
Campbell precipitated the establishment of the Defense Task Force on
Domestic Violence (P.L. 106-65, Section 591). The slayings at
Fort Bragg resulted in the enactment of the Armed Forces Domestic
Security Act (P.L. 107-311).
The Armed Forces Domestic Security Act
requires the enforcement of civilian protective orders (CPOs) on
military installations. Specifically, the Act requires military
installations to give the same force and effect to a civilian order of
protection as it has within the jurisdiction that issued the order.
The Act utilizes the definition of civil protection orders within the Violence Against Women Act
of 1994 (18 U.S.C. §2266(5)). However, military installations are not
included among states, territories, and tribal lands relative to the
applicability of Full Faith and Credit (18 U.S.C. §2266).
The issuance and enforcement of
protective orders are integral to the safety of a victim. The
applicability and enforcement of protective orders associated with the
military is complicated by jurisdictional issues. Jurisdiction
correlates to on or off post incidence and residence, as well as the
active duty status of victim and/or alleged offender.
The traditional concept of a military
installation as an area under complete Federal control has many
exceptions. Four types of jurisdiction relevant to civilian
enforcement of domestic violence statutes on military installations
exist:
- Exclusive Federal Jurisdiction –
The federal government holds all authority in cases of exclusive
jurisdiction (18 USC 13). Offenses are handled only by the
military or other elements of the federal justice system.
Civilian authorities can only enter upon invitation of the
installation commander in order to serve process, such as Travis
Air Force Base, California. The extent to which victims of
domestic violence residing on Federal enclaves can import state
law relief onto these islands of Federal jurisdiction is not
clear.
-
Concurrent
Jurisdiction – State and Federal governments share authority
over the area under concurrent jurisdiction, either may be first
responders or prosecute offenders. States reserve authority
beyond the service of process.
-
Partial
Jurisdiction – States may give the Federal government authority
in some areas of law and reserve authority in others under partial
jurisdiction.
-
Proprietary-Interest
Jurisdiction – Proprietary interest jurisdiction maintains the
right of ownership and use of the land with the Federal
government, however, all legal authority is assigned to the state,
such as the housing unit at the Subase, Groton, Connecticut.
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Military installations may also be
composed of several forms of jurisdiction, such as Fort Monroe,
Virginia.
The service of protective orders may be
encumbered by heightened security at military posts. Until
recently, civilian law enforcement has proceeded with limited
notification onto military installations for service and warrants.
Legal offices at numerous installations have adopted a policy that
requires notification and service of active duty members by military
legal authorities. The policy may preclude application of
statutes delineating service of process and warrant. For
example, Virginia statutes require service by a law enforcement
officer. The military policy may interfere with equal protection
and due process provisions for petitioners and respondents.
The relief for residents of military
installations is not clear and consistent. The "Federal
interest" may be determined at the discretion of military
commanders. Military commanders may shield active duty personnel
from state regulation or court order that interferes with the
performance of duty, including restraining or protection orders.
Military authorities may also request that civilian officials turn
over the case of a military service member in order to administer
disciplinary actions under the Uniform Code of Military Justice (10
U.S.C. §934).
The Soldiers and Sailors Civil Relief
Act (SSCRA) provides that service members involved in civil litigation
can request a delay in proceedings, if military responsibilities
preclude proper representation in court. The proceedings may be
delayed due to extended training, deployments, duty stations in
another state, or duty overseas. Reservists called to active
duty may also invoke SSCRA. The civil proceedings in
which SSCRA may be invoked are foreclosure, eviction, bankruptcy,
divorce, and civilian protective orders.
Military service affidavits are
routinely imprinted on petitions for foreclosure, eviction, small
claims, and divorce petitions. However, such affidavits are not
included on petitions for restraining or protective orders. The
inclusion of military service affidavits on such petitions would
address safety issues for victims, such as continuances,
postponements, show cause hearings and temporary or emergency orders.
The Armed Forces Domestic Security Act may
require the development of memorandums of understanding or agreement (MOU/MOA)
in order to serve, enforce, and protect respondents and petitioners. The Department of Defense and
the services are
engaging local and state authorities, such as law enforcement,
child protective services, legal services, judges, and shelters in the development of memorandums.
The rights of all parties, including equal protection and
due process, will require attention during the development of
cooperative agreements.
For more information, contact Christine
Hansen, Executive Director of the Miles Foundation, at 203-270-7861 or
milesfdn@aol.com
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