Criminal Penalties and Procedures

CHAPTER 7-2

CRIMINAL PENALTIES AND PROCEDURES

§ 7-2-1 Crime involving domestic violence.

Crimes involving domestic violence may be accompanied by other criminal acts. A crime of domestic violence occurs when a domestic household member commits one or more of the following crimes against another domestic household member:

(a) Arson;

(b) Assault Offenses (Simple Assault, Aggravated Assault);

(d) Burglary;

(e) Destruction, Damage, Malicious Injury to or Vandalism of Property;

(f) Disorderly Conduct;

(g) Family Offenses, Non-Violent (Harassment, Child Custodial Interference);

(h) Homicide Offenses (Murder, Manslaughter);

(i) Kidnapping, False Imprisonment;

(j) Sex Offenses, Forcible;

(k) Weapon Law Violations;

(l) Stalking Offenses (Stalking, Aggravated Stalking); and

(n) Tampering with a Witness

§ 7-2-2 Domestic Violence.

(a) Any domestic household member who commits an assault as defined in § 4-1-37 of the Nez Perce Tribal Code, upon any other domestic household member is guilty of the crime of domestic assault.

(b) Any domestic household member who commits an aggravated assault as defined in § 4-1-39 of the Nez Perce Tribal Code, upon any other domestic household member is guilty of the crime of aggravated domestic assault.

(c) Any domestic household member who commits a battery as defined in § 4-1-38 of the Nez Perce Tribal Code, upon any other domestic household member is guilty of the crime of domestic battery.

(d) Any domestic household member who commits an aggravated battery as defined in § 4-1-40 of the Nez Perce Tribal Code, upon any other domestic household member is guilty of the crime of aggravated domestic battery.

(e) Any domestic household member who commits a rape as defined in § 4-1-48 of the Nez Perce Tribal Code, upon any other domestic household member is guilty of the crime of domestic rape.

(f) A conviction for domestic violence is punishable by imprisonment for a term not to exceed One (1) year or by a fine not to exceed Five Thousand Dollars ($5,000) or by both a fine and imprisonment or any other sentence the Court may deem appropriate.

(1) Any person who pleads guilty or is found guilty of a violation of this section shall undergo, at the person’s own expense, an evaluation by a person, organization, or agency approved by the Court to determine whether the defendant should be required to obtain batterers treatment or other appropriate treatment. If the evaluation recommends counseling or other treatment, the evaluation shall recommend the type of counseling and/or treatment considered appropriate for the defendant, and shall recommend any other suitable alternative counseling or treatment programs.

(2) If the evaluation recommends counseling or other treatment, the Court shall order the person to complete the counseling or other treatment, at the person’s own expense, in addition to any other sentence which may be imposed. If the Court determines that counseling or treatment would be inappropriate or undesirable, the Court shall enter findings articulating the reasons for such determination on the record. The Court shall order the defendant to complete the preferred counseling or treatment program set forth in the evaluation within the time allowed by the Court, at the person’s own expense.

§ 7-2-3 Child abuse.

Anyone who commits a crime involving domestic violence in the presence of a child shall be guilty of the crime of child abuse as describe in § 4-1-90 of the Nez Perce Tribal Code. For the purpose of this section, "in the presence of a child" shall mean in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic violence.

§ 7-2-4 Violation of domestic protection orders is a crime.

Violation of one of the following orders issued in accordance with § 7-3-4 or § 7-3-5 of the Nez Perce Tribal Code, respectively, is a crime and punishable by imprisonment for a term not to exceed One (1) year or by a fine not to exceed Five Thousand Dollars ($5,000) or by both a fine and imprisonment or any other sentence the Court may deem appropriate:

(a) An order enjoining the respondent from threatening to commit or committing acts of domestic violence against the petitioner or other domestic household member.

(b) An order prohibiting the respondent from harassing, annoying, telephoning, contacting, or otherwise communicating with the petitioner or other domestic household member.

(d) An order requiring the respondent to stay away from the residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named domestic household member.

(e) An order prohibiting the respondent from using or possessing a firearm or other weapon specified by the Court.

(f) An order suspending or revoking the respondent’s privilege to hunt with a firearm while the domestic protection order is in effect. The authority to revoke or suspend privileges extends to the rights of tribal members to hunt pursuant to the provisions of the Treaty of June 11, 1855, 12 Stat. 957 and subsequent treaties and agreements.

§ 7-2-5 Duties of law enforcement officer to victim of domestic violence; required notice to victim.

(a) A law enforcement officer who responds to an allegation of domestic violence shall use all reasonable means to protect the victim and prevent further violence, including but not limited to:

(1) Taking the action necessary to provide for the safety of the victim and any family or household member.

(2) Confiscating any weapon involved in the alleged domestic violence.

(3) Transporting or obtaining transportation for the victim and any child to a shelter.

(4) Assisting the victim in removing essential personal effects.

(5) Assisting the victim and any child in obtaining medical treatment, including obtaining transportation to a medical facility.

(6) Giving the victim immediate and adequate notice of the rights of victims and of the remedies and services available to victims of domestic violence.

(b) As part of the notice required by paragraph "6" of subsection "a", the law enforcement officer shall give a written notice to the victim as follows:

"If you are the victim of domestic violence and you believe that law enforcement protection is needed for your physical safety, you have the right to request that the officer assist in providing for your safety. You have the right to request that the officer assist you in obtaining your essential personal effects and locating and taking you to a safe place, including but not limited to a designated meeting place for a shelter, a family member’s or friend’s home, or a similar place of safety. If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining medical treatment. You may request a copy of the report from the law enforcement department.

You may ask the prosecuting attorney to file a criminal complaint. You also have the right to file a petition in the Nez Perce Tribal Court requesting a domestic protection order which could include any of the following orders:

(1) An order enjoining your abuser from committing or threatening to commit further acts of domestic violence;

(2) An order prohibiting your abuser from harassing, annoying, telephoning, contacting or otherwise communicating with you, directly or indirectly;

(3) An order removing your abuser from your residence;

(4) An order directing your abuser to stay away from your residence, school, place of employment, or any other specified place frequented by you and another domestic household member;

(5) An order prohibiting your abuser from using or possessing any firearm or other weapon specified by the Court.

(6) An order suspending or revoking your abuser’s privilege to hunt with a firearm. The authority to revoke or suspend privileges extends tot he rights of tribal members to hunt pursuant to the provisions of the Treaty of June 11, 1855, 12 Stat. 957 and subsequent treaties and agreements.

(7) An order granting you possession and use of the automobile and other essential personal effects;

(8) An order granting you temporary custody of your children;

(9) An order denying your abuser visitation temporarily; and

(10) An order specifying arrangements for visitation, including requiring supervised visitation;

The forms you need to obtain a domestic protection order are available from the Tribal court clerk. The resources available in this community for information concerning domestic violence, treatment of injuries, and places of safety and shelters are:

Insert community resources here

You also have the right to seek reimbursement for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other expenses for injuries sustained and damage to your property. This can be done through small claims court or through the Victim’s Compensation Program."

(1) must not include the addresses of shelters; and

(2) must be provided in the native language of the victim, if practicable, when the native language of the victim is not English.

§ 7-2-6 Mandatory Arrest for crimes involving domestic violence; determination of primary aggressor; required report.

(a) A law enforcement officer shall, without a warrant, arrest and charge a person with the appropriate crime if the officer has probable cause to believe that the person has committed a crime involving domestic violence, whether the offense is committed in or outside the presence of the officer.

(b) If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer need not arrest the other person believed to have committed domestic violence. In determining whether a person is the primary aggressor the officer shall consider the following:

(1) Prior history of domestic violence between the parties;

(2) The relative severity of the injuries inflicted on each person;

(3) The likelihood of future injury to each person;

(4) Threats creating fear of serious injury;

(5) Whether one of the persons acted in self-defense; and

(6) Other relevant factors.

(c) A law enforcement officer shall not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by law enforcement by any party; nor shall the officer attempt to reconcile the parties or mediate.

(d) In addition to any other report required, a law enforcement officer who does not make an arrest after investigating a complaint of domestic violence or who arrests two or more persons for a crime involving domestic violence must submit a detailed, written report within one business day, setting forth the grounds for not arresting or for arresting both parties.

§ 7-2-7 Mandatory arrest for violations of domestic protection orders.

When a law enforcement officer has probable cause to believe that a respondent has violated one or more of the orders contained in an existing domestic protection order and verifies the existence of the order, the officer shall, without warrant, arrest the apparent violator whether or not the violation was committed in or outside the presence of the officer, if the orders are issued in accordance with § 7-3-2; § 7-3-4; and § 7-3-5 of the Nez Perce Tribal Code.

§ 7-2-8 Pre-arraignment release.

Not withstanding Nez Perce Tribal Code Rules of Criminal Procedure, Rule 21, any person arrested for a crime involving domestic violence or a violation of a domestic protection order shall not be released on bond or on his/her own recognizance prior to being arraigned. Such arraignment shall not occur less than 2 business days or more than 3 business days following arrest.

§ 7-2-9 Conditions of release.

(a) In making a decision concerning pretrial release of a person who is arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the Court shall review the facts of the arrest and detention of the person and determine whether the person:

(1) is a threat to the alleged victim;

(2) is a threat to public safety; and

(3) is reasonably likely to appear in court.

(b) Before releasing a person arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the Court shall make findings on the record if possible concerning the determination made in accordance with subsection (a) and may impose conditions of release on bail on the person to protect the alleged victim of domestic violence and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include:

(1) An order enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim;

(2) An order prohibiting the person from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, whether directly or indirectly;

(3) An order directing the person to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;

(4) An order prohibiting the person from using or possessing a firearm or other weapon as specified by the Court;

(5) An order prohibiting the person from possession or consumption of alcohol or controlled substances.

(6) Any other order required to protect the safety of the alleged victim and to assure the appearance of the person in court.

(c) The Court shall provide a copy of the conditions to the arrested or charged person upon his or her release. Failure to provide the person with a copy of the conditions of release does not invalidate the conditions if the arrested or charged person has notice of the conditions.

(d) If conditions of release are imposed without a hearing, the arrested or charged person may request a prompt hearing before the Court to review the conditions. Upon such a request, the Court shall hold a prompt hearing to review the conditions.

§ 7-2-10 Mandatory arrest for violation of conditions of release.

If a law enforcement officer has probable cause to believe that a person has violated a condition of release imposed in accordance with § 7-2-9 of the Nez Perce Tribal Code, and verifies that the alleged violator has notice of the conditions, the officer shall, without warrant, arrest the alleged violator whether the violation was committed in or outside the presence of the officer.

§ 7-2-11 Written procedures for prosecution of domestic violence; purpose.

The Nez Perce Tribal prosecuting attorney shall develop or adopt and put into effect written procedures for attorneys who prosecute domestic violence concerning:

(a) Effective prosecution of such crimes; and

(b) The protection and safety of victims of domestic violence.

§ 7-2-12 Duty of prosecutor to notify victim.

(a) The prosecutor shall make reasonable efforts to notify a victim of an alleged crime involving domestic violence when the prosecutor has decided to:

(1) decline the prosecution of the crime;

(2) withdraw the criminal charges filed against the defendant; or

(3) enter into a plea agreement.

(b) Release of a defendant from custody must not be delayed because of the requirements of subsection "a".

§ 7-2-13 Record of dismissal required in court file.

When a court dismisses criminal charges or a prosecutor moves to dismiss charges against a defendant accused of a crime involving domestic violence, the specific reasons for the dismissal must be recorded in the court file. The prosecutor shall indicate the specific reason why the case cannot or will not be prosecuted.

§ 7-2-14 Dismissal of criminal case prohibited because civil compromise reached.

A court shall not dismiss a criminal case involving domestic violence for the sole reason that a civil compromise or settlement is reached.

§ 7-2-15 Rights of victims of domestic violence; duty of prosecutor to inform victim of rights.

(a) A victim of domestic violence is entitled to all rights granted to victims of crime including but not limited to the right to:

(1) Be informed of all hearing dates and continuances;

(2) Provide the Court with a victim impact statement, victim opinion statement, and an assessment of the risk of further harm;

(3) Be present at sentencing and address the Court;

(4) Advise the Court of conditions of probation required to ensure the safety of the victim;

(5) Restitution for losses sustained as a direct consequence of any criminal conduct;

(6) Apply for victims’ compensation and to be informed of procedures for applying; and

(7) Receive notice from the prosecutor in accordance with § 7-2-12 of the Nez Perce Tribal Code.

(b) The prosecuting attorney shall notify the victim of domestic violence of that victim’s rights as set forth in this section.

§ 7-2-16 Advocate-victim privilege applicable in cases involving domestic violence.

(a) Except as otherwise provided in subsection "b", a victim of domestic violence may refuse to disclose, and may prevent an advocate from disclosing, confidential oral communication between the victim and the advocate and written records and reports concerning the victim if the privilege is claimed by:

(1) The victim; or

(2) The person who was the advocate at the time of the confidential communication, except that the advocate may not claim privilege if there is no victim in existence or if the privilege has been waived by the victim.

(b) The privilege does not relieve a person from any duty imposed pursuant to § 5-1-9 of the Nez Perce Tribal Code. Person may not claim the privilege when providing evidence in proceedings concerning child violence.

(c) As used in this subsection, "advocate’ means an employee of or volunteer for a program for victims of domestic violence who:

(1) Has a primary function of rendering advice, counseling, or assistance to victims of domestic violence; supervising the employees or volunteers of the program; or administering the program;

(2) Has undergone 30 hours of training; and

(3) Works under the direction of a supervisor of the program, supervises employees or volunteers, or administers the program.

§ 7-2-17 Diversion prohibited; deferred sentencing permitted.

(a) A court shall not approve diversion for a perpetrator of domestic violence.

(b) The Court may defer sentencing of a perpetrator of domestic violence if:

(1) The perpetrator meets the eligibility criteria which may include any of the following:

a. the perpetrator’s history and pattern of violence,

b. the severity of injuries to the victim,

c. the criminal history of the perpetrator,

d. the nature of the crime (simple or aggravated),

e. prior participation in deferred sentencing; and

(2) Consent of the prosecutor is obtained after consultation with the victim, when the victim is available; and

(3) A hearing is held in which the perpetrator enters a plea or judicial admission to the crime; and

(4) The Court orders conditions of the deferred sentence that are necessary to protect the victim, prevent future violence, and rehabilitate the perpetrator.

(1) Criteria for determination of a perpetrator’s successful completion of the conditions imposed by the Court; and

(2) Penalties for violation of the conditions imposed by the Court.

(d) The case against a perpetrator of domestic violence may be dismissed if the perpetrator successfully completes all conditions imposed by the Court.

§ 7-2-18 Conditions of probation for perpetrator convicted of a crime involving domestic violence; required reports by probation department.

(a) Before placing a perpetrator who is convicted of a crime involving domestic violence on probation, the Court shall consider the safety and protection of the victim of domestic violence and any member of the victim’s family or household.

(b) The Court may condition the suspension of sentence or granting of probation to a perpetrator on compliance with one or more orders of the Court, including but not limited to:

(1) Enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim and/or other domestic partner;

(2) Prohibiting the perpetrator from harassing, annoying, telephoning, contacting, or otherwise communicating with the victim, either directly or indirectly;

(3) Requiring the perpetrator to stay away from the residence, school, place of employment, or specified place frequented regularly by the victim and any designated family member;

(4) Prohibiting the perpetrator from possessing and/or consuming alcohol or controlled substances;

(5) Prohibiting the perpetrator from using or possessing a firearm or other specified weapon;

(6) Suspending or revoking the perpetrator’s privilege to hunt with a firearm for the term of the probation. The authority to revoke or suspend privileges extends to the rights of tribal members to hunt pursuant to the provisions of the Treaty of June 11, 1855, 12 Stat. 957 and subsequent treaties and agreements;

(7) Directing the perpetrator to surrender any firearms and/or other specified weapons owned or possessed by the perpetrator;

(8) Directing the perpetrator to participate in and complete, to the satisfaction of the Court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or psychiatric or psychological treatment;

(9) Directing the perpetrator to pay restitution and or fines as ordered by the Court;

(10) Directing the perpetrator to participate in any electronic or satellite monitoring; and/or

(11) Imposing any other condition necessary to protect the victim of domestic violence and any other designated domestic partner or to rehabilitate the perpetrator.

(d) The Court shall establish policies and procedures for responding to reports of nonattendance or noncompliance by a perpetrator with the conditions of probation imposed pursuant to subsection "b".

(e) The probation department shall immediately report to the Court any assault by the perpetrator, the perpetrator’s failure to comply with any condition imposed by the Court or probation department, and any threat of harm made by the perpetrator.

§ 7-2-19 Required written policies and procedures.

The Nez Perce Tribal Law Enforcement shall develop or adopt and put into effect written policies and procedures concerning:

(a) The effective response of the agency to cases involving domestic violence;

(b) Enforcement of the Nez Perce Tribal Code concerning domestic violence;

(d) Coordination with hospitals and programs for victims of domestic violence.

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