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Russell: Fighting violence with law is not always a safe bet

Texas elects judges, and at an election-year barbecue a man I did not know walked up to me and said, ''You're Judge Russell, aren't you?''

Not letting on I didn't recognize him, I stuck out my hand.

''You fined me for popping my old lady. I don't think I want to shake your hand.''

Things got quiet and everybody was watching us, or so it felt. ''Well,'' I ventured, ''obviously I didn't fine you enough.''

Looking back on the incident, I admit that I felt badly, even though I had no guilt about fining him for ''popping his old lady.'' Judges in those days were hampered by legal requirements that we promise nothing beyond showing up. So campaigns were a beauty contest, and I was not beautiful.

The U.S. Supreme Court has loosened the rules. We can now promise to show up sober, dressed and on time, and it's legal to say our opponent got his law license in a Cracker Jack box. But old habits die hard and most judge races remain beauty contests. I'm even less beautiful, so it's a good thing I don't run for office anymore. But one issue did mark my issueless judicial career.

Having grown up in rural Oklahoma, I knew family violence was a problem, but I have to admit I was ignorant of the size of the problem. It first hit me when I was the administrative judge on the municipal court and I noticed that more than half of the assault cases were dismissed - a waste of limited resources that set me to an investigation.

It turned out that stranger assaults were likely to go to trial. The statistics were caused by wholesale dismissal of wife-beating cases. I use this language, ''wife-beating,'' to avoid the error of gender neutrality in discussing family violence. Yes, women are just as likely as men to resort to force in an argument. However, the bodies in the morgues and emergency rooms are more than 90 percent female.

Men bite dogs, but that does not make dog bites a species-neutral problem.

Women hit men, but that does not make family violence a sex-neutral problem.

Speaking rationally, men are the perpetrators and women are the victims; and then there are a few special cases, like the fellow who took off his shirt in the courtroom and showed me the perfect outline of a steam iron branded into his chest and the guy who showed me a photo of the bite marks on his testicles so I would understand why he punched her.

I stack those two cases among the thousands I heard in my career. Then there was the guy who smashed his wife's fish tank, the guy who tossed her kitten out a fifth-floor window, the guy who shot her dog, or the guy who did something unspeakable to her horse. The family violence docket is plenty ugly, and you never know how close you are to homicide. It happened, in fact, that I once signed a protective order for a woman who was already dead; and I am acutely aware that paper cannot stop bullets.

My first family violence docket started when some of the folks from the battered women's shelter wrote a grant to fund a counselor. We put all the family violence cases on one night and reset the standard assault fine, $50, to $200 when the victim was a wife or girlfriend. If they did not wish to pay the fine and take the conviction, they could pay $50 for six weeks of group therapy and not hit her for six months in return for a dismissal of the criminal case. This largely solved the problem of victims asking for dismissal.

The hitch was that two of the judges did not think it fair to fine somebody more for wife-beating than for fighting a stranger. One of those judges was a woman (!) and the other later got arrested for threatening his wife with a gun. I was able to get around them because I was the administrative judge. I always assigned the family violence cases to myself or to the other judge who agreed with me. Anybody who pleaded not guilty and asked for a trial would get a judge at random, since this was about sentencing rather than guilt.

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My gender resulted in a lot of defendants on that docket explaining proudly why it was necessary to punish ''the little woman.'' For them, keeping order in the family by violence was a masculinity enhancer, and their assumption was that since I appeared masculine I would agree. A week seldom passed when I did not shock somebody by failing to join the keep-'em-in-line-with-a-belt club.

When I ran for a higher court, I pushed the campaign envelope by promising to set up another family violence docket to hear protective orders and, more important, to hear alleged violations of those orders within hours.

More hitches?

To even get the cases filed in the county courts, I had to threaten to put the county clerk in jail. This woman had held office since I was in grade school and she was determined to keep the wife-beating cases in the district courts, where it took forever to get a hearing but she did not have to shuffle the paper.

When I got past her, I found that I had more family violence cases than one judge could handle. I asked the other judges to help me make good on my campaign promise, and the only woman refused, saying she would not put up with an abusive spouse and she had no sympathy for any woman who did. She thought the cases were a waste of time and that these women just needed to get a divorce.

I take away from this experience that attitudes toward family violence don't have a lot to do with sex and the most important factor is not anything that happens in court. Lots of men think that every time they hit a woman, they become manlier. Cherokee women have a robust history of social equality, and I never have gotten used to the attitude that ''a real man'' beats his wife. It makes no sense to me.

On the subject of Indian women and family violence, I cite Melissa Tatum, who teaches law at the University of Tulsa. In the latest Cherokee Phoenix, she pointed out [what was then] a pending U.S. Supreme Court case, Plains Commerce Bank v. Long, challenging the rule that a non-Indian who enters into a relationship with an Indian can be sued in tribal court in a case arising out of the relationship. The case involved a bank and the relationship is a contract. Could it cover a situation where the relationship is marriage or shacking up and the case involves battering?

If so, a woman who is battered by a non-Indian on Indian land would have no recourse to a protective order in tribal court and the state courts have no jurisdiction.

As Tatum pointed out: ''U.S. government statistics show that Indian women are two and a half times more likely to be the victim of violent crime, one in three American Indian women will be raped in their lifetime; three of four will be physically assaulted; and Indian women are stalked at a rate more than double that of any other population. Well over 75 percent of the perpetrators of these crimes are non-Indian.''

At press time, the case went against the Cheyenne River Sioux, but it was - thank goodness -not as broad as Tatum feared, although it is another serious blow to the authority of tribal courts.

My life experience tells me that public opinion matters more than law anyway, and the most important thing we can do is teach our boys that they become less masculine - not more - when they hit women.

However, it's not true that courts can do nothing. It remains to be seen whether tribal courts will retain their authority over non-Indian men who batter Indian women on Indian land.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University - Bloomington. He is a columnist for Indian Country Today.