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APPENDIX

STATEMENT OF THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC. ON H.R. 596 SUBMITTED BY DR. IDRIAN N. RESNICK, EXECUTIVE DIRECTOR, AND JACK F. TROPE, STAFF ATTORNEY, TO THE CRIMINAL JUSTICE SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE ON APRIL 29, 1986

At the request of Congressman Hoyer's staff we are submitting the following information for the benefit of the Criminal Justice Subcommittee of the House Judiciary Committee. We trust that it will be made part of the April · 29 hearing record.

The Association on American Indian Affairs is a national citizens' organization, headquartered in New York City. It is dedicated to the preservation and expansion of American Indian and Alaska Native rights.

In the course of our work in the northern Great Plains and elsewhere, AAIA has been informed by a number of tribal leaders that some cases involving serious sexual offenses by Indians against Indians committed on the reservation have not been prosecuted in federal court -- despite tribal requests

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-- because of perceived inadequacies in the current federal statute. U. S. Attorneys in some states have interpreted the current statute as not covering certain types of serious sexual abuse which do not involve the act of intercourse. In these cases, the only remedy available to tribes and affected individuals has been utilization of tribal courts, which are limited by the Indian Civil Rights Act to imposing penalties of 6 months in jail and. a $500 fine.

H.R.

We support legislation that would give tribes and affected individuals the option to invoke the federal system in serious sexual abuse cases where the tribal court is unable or unwilling to adequately respond to the crime. 596 partially accomplishes this goal as drafted and is capable of more fully accomplishing this goal if an amendment is made to its definitional section. Its general approach is to provide that the most serious cases of child sexual abuse will be punishable in federal court. Less serious sexual contact cases would remain under exclusive tribal jurisdiction. We believe that this is a satisfactory shortterm solution one that is preferable to utilizing state law definitions as provided for in H. R. 3826, a bill recently reported by this committee which attempts to address this problem by making felonious molestation of a minor, as defined by state law, a major crime. This state law approach leads to multiple definitions of sexual crimes on those reservations which overlap more than one state and may present some definitional problems. H. R. 596 does not

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suffer from these defects.

However, there is one loophole in current law that is not covered by H. R. 596 as currently drafted. As noted, one

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type of child abuse offense which some U. S. Attorneys have not prosecuted involves non-penetration offenses. For example, we are informed of one instance where a 8 year old girl was infected with gonorrhea after contact with the assailant's penis, even though no penetration occurred. the bill is currently drafted, this would constitute abusive sexual contact which is not included in the Major Crimes Act, 18 U.S.C. 1153. We agree with the decision not to include sexual contact crimes under the Major Crimes Act as for the most part these are not "major crimes" in terms of the intended scope of that Act and should remain subject to exclusive tribal jurisdiction; at the same time we believe that a case such as that described above is a serious offense and should be subject to the greater penalties provided for by the federal code in appropriate circumstances where desired by Indian people. Thus, we suggest that section (A) of the definition of sexual act in section 2245 be amended to read as follows: "contact between the penis and vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight, except in the case of an offense against a minor less than 16 years of age, penetration shall not be required. (addition underlined) H. R. 596 better closes existing loopholes with this change (and, we believe, the change can be viewed as consistent with the overall approach of the legislation).

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Even with this change, however, a few caveats are in order. First, we believe that it must be made clear that this bill does not deprive tribes of concurrent jurisdiction to deal with the crimes which it covers. Although the legislative history of the Major Crimes Act supports the notion that tribes have concurrent jurisdiction over crimes covered by the Major Crimes Act, there has never been a definitive Supreme Court decision on this jurisdictional issue. Thus, it is important to be clear in the Committee Report that the passage of this Act would not deprive tribes of any authority which they currently possess.

This is important not only from an "Indian sovereignty" perspective, but also from a practical standpoint. Federal authorities often do not deal with these types of cases for other than jurisdictional reasons. Particularly in the case of the less serious varieties of sexual abuse, prosecution of these crimes may not be a high priority for federal authorities and the authorities might be reluctant to commit substantial investigative and legal resources to ensure that such crimes are prosecuted. Also, there may be evidential problems in some sexual abuse cases that will make it difficult for U. S. Attorneys to prosecute. In such cases, a tribal court may be better able to overcome jurisdictional and evidential hurdles and penalize the offender. In addition, in some intrafamilial cases, a local tribal-based solution emphasizing treatment may be preferable to federal

prosecution.

preserved.

Thus, it is important that the tribal option be

Moreover, we would note also that the long-term solution to the problem of prosecuting sexual crimes is to empower a strengthened tribal court system with increased authority to deal with these cases where they happen -- at the local level. Along these lines, we are interested in draft legislation that Congressman Conyers is currently considering for introduction which would strengthen tribal courts and provide for tribal definitions of major crimes. This approach has the greatest potential in terms of a long-term resolution of the jurisdictional problems that have contributed to the failure of the system in many cases to adequately deal with the prosecution of child abuse cases, as well as other offenses not the subject of this bill.

However, as legislation action along those lines is not yet before this Committee and still requires refinement, we support the approach in H. R. 596 as the next best way to address the prosecution problem in the area of sexual abuse on reservations. In so doing, we should make clear that we are not commenting on many of the details of the bill, such as the penalty structure and the like we are merely endorsing the approach of the bill in terms of Major Crimes (both in terms of a federal definition, rather than state, and the careful way in which it has defined what will and will not be included in the Major Crimes Act).

We are pleased to have been invited to submit this testimony. Thank you for the opportunity.

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MAY 9, 1986.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. CONYERS, from the Committee on the Judiciary,
submitted the following

REPORT

[To accompany H.R. 4745]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bil (H.R. 4745) to amend title 18, United States Code, with respect t sexual abuse, having considered the same, report favorably thereo with an amendment and recommend that the bill as amended d pass.

The amendment is as follows:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Sexual Abuse Act of 1986".

SEC. 2. DEFINITION OF SEXUAL ABUSE OFFENSES.

Title 18, United States Code, is amended by inserting after chapter 109 the following new chapter:

"Sec.

"CHAPTER 109A-SEXUAL ABUSE

"2241. Aggravated sexual abuse.

"2242. Sexual abuse.

"2243. Sexual abuse of a minor or ward.

"2244. Abusive sexual contact.

"2245. Definitions for chapter.

"§ 2241. Aggravated sexual abuse

"(a) BY FORCE OR THREAT.-Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act

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