§ 14-40.1. Domestic violence

(a) Purpose. The purpose of the domestic violence criminal ordinance is to recognize that the crime of domestic violence is an extremely serious crime against society, the Tribe, and the family, and to provide the victim of domestic violence the maximum protection from further violence which the law can provide. Furthermore, the purpose of this section is to recognize that the strength of the Tribe is founded on healthy families, and that the safety of victims of domestic violence must be ensured by immediate intervention by law enforcement, prosecution, education, counseling, and other appropriate services.

It is the intent of the Eastern Band of Cherokee Indians Tribal Council that the official response to cases of domestic violence is that violent crime will not be excused or tolerated. Furthermore, it is the explicit intent of the Eastern Band of Cherokee Indians Tribal Council that domestic violence be prosecuted without requiring that the alleged victim and perpetrator be married, share a residence, or be presently involved in a relationship.

(b) Definition. The crime of domestic violence occurs when a person commits one of the following acts against an intimate partner or against a member of such intimate partner's family or household, or against an animal of such intimate partner:

(1) Attempting to cause or causing physical harm, bodily injury, or assault to an intimate partner or to a member of such intimate partner's family or household, or to an animal of such intimate partner;

(2) Placing an intimate partner or a member of the intimate partner's family or household in fear of the infliction of physical harm, bodily injury or assault;

(3) Willfully attempting to cause or causing emotional distress to an intimate partner or to a member of such intimate partner's family or household;

(4) Causing an intimate partner or a member of such intimate partner's family or household to engage involuntarily in sexual activity by force, threat of force, or duress; or

(5) Committing any willful violation of a court order intended to protect the intimate partner or a member of such person's family or household;

(6) Committing one of the following offenses, as defined by the Eastern Band of Cherokee Indians Criminal Code, against an intimate partner or against a family member, household member, or animal of such intimate partner:

a. Injuring real property (§ 14-10.11);

b. Injuring telephone, wires or other telephone equipment (§ 14-10.14);

c. Criminal trespass (§§ 14-10.15, 14-10.16, and/or 14-10.17);

d. Burglary (§ 14-10.40);

e. Breaking and entering (§ 14-10.14);

f. Criminal mischief (§ 14-10.9);

g. Arson (§§ 14-10.50, 14-10.51, and/or 14-10.52);

h. Assault (§§ 14-40.49, 14-40.50, 14-40.54, 14-40.55, 14-40.56, 14-40.57, 14-40.59, 14-40.60, 14-40.62);

i. Maiming (§ 14-40.14);

j. Discharging a firearm into an occupied building (§ 14-40.15);

k. Harassment; telephone harassment (§§ 14-25.13 and/or 14-5.3);

l. Kidnapping (§ 14-40.30);

m. False imprisonment (§ 14-40.31);

n. Custodial interference (§ 14-40.32);

o. Homicide (§§ 14-40.40 and/or 14-40.41);

p. Sex offenses - including aggravated sexual abuse, sexual abuse, sexual abuse of minor or ward, abusive sexual contact (§§ 14-20.2, 14-20.3, 14-20.4, 14-20.8);

q. Stalking (§ 14-5.5);

r. Communicating threats (§ 14-5.2);

s. Harassment (§§ 14-5.3 and/or 14-25.13);

t. Weapons law violations (§§ 14-34.10, 14-34.11, 14-34.12, 14-34.13, and/or 14-34.14);

u. Cruelty to animals (§ 14-5.20);

The commission of one of the above-referenced crimes against an intimate partner or against a member of such party's family or household, or against an animal of such party shall trigger the application of this ordinance.

(c) Intimate partner/family member.

(1) Intimate partner means:

a. A current or former spouse;

b. Persons who have a dating relationship or have been in a dating relationship. For purposes of this section, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

c. Persons who have engaged in an ongoing sexual relationship; or

d. Persons who have a child in common, or who are expecting a child together.

(2) Intimate partner's family includes: Any immediate family relationship that an intimate partner, as defined above, may have. Such relationship may include, a relationship between parent/child, siblings, grandparents/grandchild, step-parent/step-child, foster parent/foster child, or any relationship where circumstances have created a close family-type relationship, such as cousins raised as siblings.

(d) Causing physical harm or bodily injury means causing physical pain, serious illness, or an impairment of a physical condition.

(e) Causing apprehension of bodily injury means any physical act, including the utterance of verbal threats, which causes a person or animal to reasonably fear serious bodily injury or death.

(f) Causing emotional distress means engaging in conduct that would cause a reasonable person emotional distress and does in fact cause emotional distress to the person. Examples of conduct which may cause emotional distress include, but are not limited to, the following:

(1) Creating a disturbance at a person's place of employment or school;

(2) Repeatedly telephoning a person's place of employment or residence;

(3) Repeatedly following a person in a public place or places;

(4) Repeatedly keeping a person under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by the person or by peering in the person's windows;

(5) Improperly concealing a minor child from a person with sole or joint custody of the minor, repeatedly threatening to improperly remove the person's minor child from the jurisdiction or from his or her physical care, repeatedly threatening to conceal the person's minor child or making a threat following an actual or attempted improper removal or concealment, unless the removal or attempted removal was made while fleeing from an incident or pattern of domestic violence; or

(6) Threatening physical force, confinement or restraint.

(g) Willful violation of court order. For purposes of this section, willful violation of a court order is defined as any violation of any term contained in a lawful order issued by a properly constituted judicial authority pursuant to a criminal or civil case in tribal, federal, or state court where said order:

(1) Enjoins the perpetrator from threatening to commit or committing acts of domestic violence against a current or former intimate partner, or against a family or household member of a current or former intimate partner, or against an animal of a current or former intimate partner;

(2) Prohibits the perpetrator from intimidating, harassing, menacing, annoying, telephoning, contacting, or otherwise interfering or communicating with a current or former intimate partner, or against a family or household member of a current or former intimate partner, or against an animal of a current or former intimate partner;

(3) Removes and/or excludes the perpetrator from the residence of a current or former intimate partner or of a family or household member, and a reasonable area surrounding the residence;

(4) Requires the perpetrator to stay away from the residence, school, place of employment, or a specified place frequented regularly by a current or former intimate partner, or by a family or household member of a current or former intimate partner;

(5) Prohibits the perpetrator from using or possessing a firearm or other weapon specified by the Court; or

(6) Grants temporary custody of a minor child to the person protected by the order.

For purposes of this section, a lawful order is defined as any order of protection, no contact order, pretrial release condition, condition of probation or parole, consent order, injunction, or other similar order that is issued by an Indian tribe, the United States of America, or a state, as long as the issuing court has jurisdiction over the parties and the matter under the law of the tribe, the U.S. or the state and reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by tribal, federal, or state law, and in any event, within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.

The Tribe maintains criminal jurisdiction under this section for willful violations of a court order, even if the Cherokee Court lacked jurisdiction to issue the original order which was violated. The Tribe maintains criminal jurisdiction under this section for willful violations of orders issued by the Cherokee Court, even if the violation occurs outside of the territorial jurisdiction of the Eastern Band of Cherokee Indians.

(h) Any person with knowledge that the crime of domestic violence is occurring, or is imminent, may report such information to the Cherokee Police Department or the Office of the Tribal Prosecutor. Every report involving an allegation of Domestic Violence must be investigated by the Cherokee Police Department or the Office of the Prosecutor. Criminal process for a violation of this section may be issued only upon the request of the Police or the Tribal Prosecutor following an investigation by the Cherokee Police Department or the Office of the Tribal Prosecutor. Nothing in this section shall prohibit individual citizens from initiating charges against an intimate partner for the violation of other criminal statues.

(1) Duties of Cherokee Law Enforcement Officers. Cherokee law enforcement officers who respond to calls involving action which could constitute the crime of domestic violence under this section shall use all reasonable means to protect the alleged victim(s) and prevent further violence. All calls regarding domestic violence shall be responded to immediately. Cherokee law enforcement officers shall also adhere to the requirements set forth in chapter 50B of this Code. Any law enforcement officer shall have immunity from any liability, civil or criminal, in making arrests or exercising any other authorized authority if the law enforcement officer acts in good faith so as to provide protection for victims of domestic violence. Law enforcement officers shall have the same immunity with respect to participation in any court proceedings resulting from arrests made for domestic violence or any crimes involving domestic violence.

(2) Mandatory arrest.

a. Violation of order. A law enforcement officer must arrest within 24 hours and charge a person with the appropriate crime if the officer has probable cause to believe that person has willfully violated a court order, as defined in this section.

b. Commission of domestic violence crime. A law enforcement officer must arrest within 24 hours and charge a person with the appropriate crime if the officer has probable cause to believe that the person has committed or is committing the offense of domestic violence, even if a warrant has not been issued and the offense was committed outside the presence of the officer. If the conditions for arrest are present, the officer shall arrest the alleged perpetrator of domestic violence regardless of whether the alleged victim signs a complaint and whether the arrest is against the expressed wishes of the alleged victim. If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer must evaluate each complaint separately to determine who was the predominant aggressor. If the officer determines that one person was the predominant aggressor, the officer need not arrest the other person believed to have committed an offense. The law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by law enforcement by any party. In addition, the law enforcement officer shall not consider the use or abuse of alcohol or controlled substance by either party in making a determination as to whether the crime of domestic violence has been committed. Further, the law enforcement officer shall not make an arrest based on who hit who first, but shall consider the dynamics of domestic violence. In determining whether a person is the predominant aggressor, the office must consider:

1. The history of domestic violence, both documented prior complaints and convictions and the law enforcement officer's own prior knowledge of the family;

2. The relative severity of the injuries inflicted on each person, or serious threats creating reasonable fear of bodily injury;

3. The degree to which one of the persons has acted with deliberate intent to control, isolate, intimidate, emotionally demean, cause injury or pain or fear of harm to the person or to a member of the person's family or household;

4. The likelihood of future injury to each person;

5. Whether one of the persons acted in self-defense.

(3) Familial relationships of law enforcement. In instances where law enforcement officers respond to a call involving a relative by blood or marriage, the officer shall note the relationship on the case report. The supervisor reviewing the report shall review the report for accuracy and will ensure that the appropriate action has been taken.

(4) Authority to seize weapons.Incident to an arrest for a crime of domestic violence, as defined herein, a law enforcement officer:

a. Must seize all weapons that are alleged to have been involved or threatened to be used in the commission of the crime;

b. Must seize any weapon that is in plain view of the officer or was discovered pursuant to a consensual search if an existing order or condition of release prohibits the use or possession of a firearm or other weapon;

c. Must seize any weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons.

(5) Report to domestic violence program. Whenever a police officer or the Office of the Tribal Prosecutor completes the investigation of an alleged act of domestic violence, regardless of whether an arrest is made, the investigating party shall make a written incident report of the alleged abuse and submit that report to the Eastern Band of Cherokee Indians' Domestic Violence Program within 48 hours for purposes of program coordination. When the investigating party does not bring charges, make a warrantless arrest, or arrests two or more persons for a crime involving domestic violence, the written report must set forth the grounds for not bringing charges, for not arresting, or for arresting both parties. In addition, all reports, regardless of who is arrested or not arrested, must contain:

a. A description of the circumstances surrounding any action which could constitute the crime of domestic violence under this section, such as a description of all parties, any witnesses, and surrounding environment;

b. A description of the injuries or harm inflicted upon either or both parties; and

c. Summaries of all statements from the parties and witnesses describing the circumstances surrounding any action which could constitute the crime of domestic violence under this section.

(i) Duties of Tribal Prosecutor.

(1) Within 120 days following enactment of this section, the Tribal Prosecutor will develop and implement written policies and procedures for the prosecution of the crime of domestic violence which will advance effective prosecution of the crime and maximize the protection and safety of the victims of domestic violence and their families. These policies and procedures will include the following:

a. A prosecutorial policy that the employment, economic, educational, physical and/or mental health and political status of the alleged perpetrator and victim will not factor into determinations regarding domestic violence crimes;

b. A "no drop" policy that prohibits victims from withdrawing charges;

c. A process describing the utilization of advocates during every phase of criminal justice proceedings;

d. The prosecutor will not dismiss a domestic violence case without prior consultation and review with the arresting officer and advocate;

e. The prosecutor will expedite proceedings with a minimum of continuances and shall consider the present residency of the victim as it relates to continuances, especially if the victim has relocated off the reservation for safety;

f. The victim may, but shall not be required to act as the primary witness. In instances requiring "victimless" prosecution, the prosecution is required to enlist any and all evidentiary avenues, including photographs, other witness, medical records, testimony from law enforcement, history of past abuse, excited utterances, etc.

(2) The Prosecutor shall notify the alleged victim of the following rights:

a. The right to be informed of all hearing dates and continuances;

b. The right to provide the court with a victim-impact statement and an assessment of the likelihood of future harm;

c. The right to be present at sentencing and to address the court at such time;

d. If the alleged perpetrator is eligible for probation, the right to advise the court of conditions of probation required to assure the safety of the alleged victim; and

e. If the domestic violence resulted in damage to or loss of property, the ability to ask the court to order restitution for those losses.

(3) The prosecutor shall notify the alleged victim of domestic violence when the prosecutor declines to prosecute a case, or when the prosecutor dismisses the criminal charges, or when the prosecutor enters into a plea agreement.

(4) The prosecutor shall be educated in the psycho-social aspects of domestic violence, including the fear and self-doubt that could lead an alleged victim to find it difficult to testify against the defendant. Alleged victims shall be treated with dignity, respect and sensitivity.

(5) The prosecutor shall inform an alleged victim of the victim's right to petition for a civil Order for Protection under chapter 50B of the Cherokee Code, and shall assist in the preparation of this petition, regardless of whether or not criminal charges are brought against an alleged perpetrator.

(j) Bond and pretrial release.

(1) No person arrested for a crime of domestic violence or violation of an order for protection shall be released from detention until after the expiration of 72 hours from arrest, notwithstanding the ability to post a cash or surety bond, unless released by a judge of the Cherokee Court after a formal release hearing. During the 72 hours, it shall be a rebuttable presumption that the defendant poses a risk of violence and/or intimidation to the victim. In no case shall any person arrested for domestic violence be released prior to the expiration of 72 hours from arrest unless the victim has been informed that the defendant's release is imminent and has been given an opportunity to be heard at a formal release hearing. At the release hearing, a judge must review the facts of the act of domestic violence under this section and determine whether:

a. The person poses a credible threat of violence, repeated harassment or bodily injury to the alleged victim or to the victim's family or household;

b. Is a threat to public safety; and

c. Is reasonably likely to appear in court.

(2) In making the determination required by subsection (j)(1), the court will consider whether the arrested person's pattern of violent or threatening behavior towards a victim or victim's family or household member is chronic, and whether the seriousness of the behavior has been escalating, indicating a heightened danger of severe or lethal injury to the victim.

(3) Before releasing a person arrested for or charged with a crime involving domestic violence, the court must make findings on the record, concerning the determination made in accordance with subsection (j)(1) and may impose conditions of release or bail on the defendant to protect the alleged victim of domestic or family violence and to ensure the defendant's appearance at a subsequent court hearing. The conditions may include, but are not limited to, an order:

a. That the defendant stay away from the home, school, business or place of employment of the alleged victim and/or other members of the victim's household or family;

b. That the defendant refrain from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, household members of the victim, family members of the victim, either directly or indirectly;

c. That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim, as well as household members, family, and animals of the alleged victim;

d. That the defendant refrain from removing, damaging property belonging to the victim, household members of the victim, and the victim's family;

e. That the defendant be prohibited from using or possessing a firearm or other weapon specified by the court;

f. That the defendant report within ninety-six (96) hours to a tribal health program for a domestic violence evaluation and comply with all treatment recommendations. If alcohol and/or drugs is indicated, the defendant shall also be prohibited from possessing or consuming alcohol or controlled substances and will be required to complete a chemical dependency evaluation conducted by a tribal chemical dependency program and comply with treatment recommendations. A copy of the order will be faxed to the appropriate tribal program to ensure compliance with this provision.

g. To remain within the jurisdiction of the Cherokee Tribal Court at all times;

h. Any other conditions required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.

(4) Once these conditions of release are imposed, the court shall:

a. Issue a written order for conditional release;

b. Immediately distribute a copy of the order to the tribal Prosecutor's office and to the Cherokee Police Department;

c. Provide the Cherokee Police Department with any available information concerning the location of the defendant to ensure that the safety of the victim, as well as members of the victim's household and family are protected;

d. Use all reasonable means to immediately notify the victim of the alleged crime of the defendant's release from custody and furnish the victim with an official copy of all conditions of release. The location of the victim is confidential and law enforcement, the prosecutor, and court are prohibited from divulging it, except in accordance with subsection (n) below .

(k) Court-ordered and court-referred mediation prohibited. The court shall not order defendants and victims of the crime of domestic violence into mediation or any other type of couples counseling, alternative justice, restorative justice, peace-making, circle sentencing, or any other mediation type of situation that would put the victim in the position of dealing directly with the defendant, even if the victim has the right to refuse to participate.

(l) Privileges.

(1) The following evidentiary privileges do not apply in any criminal proceeding in which a spouse or other family or household member is the victim of an alleged crime involving domestic violence perpetrated by the other spouse:

a. The privilege of confidential communications between spouses;

b. The testimonial privilege of spouses.

(2) The victim/advocate privilege. A victim of domestic violence may refuse to disclose and may prevent any volunteer or employee of a program for victims of domestic violence from disclosing the content of oral communications and written records and reports concerning the victim.

(m) Diversion prohibited; deferred sentencing permitted.

(1) The court shall not approve diversion of a perpetrator of domestic violence. The court may defer sentencing of a perpetrator of domestic violence if:

a. Consent of the prosecutor is obtained after consultation with the victim;

b. A hearing is held in which the perpetrator enters a plea or judicial admission to the crime; and

c. The victim is notified and given the opportunity to be heard; and

d. The court orders conditions of the deferred sentence that are necessary to protect the victim, prevent future violence, and rehabilitate the perpetrator.

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

(n) Location of victim. The court shall waive any requirement that the victim's location be disclosed to any person, other than the attorney of a criminal defendant, upon a showing that there is a possibility of further violence. Provided, that the court shall order a criminal defense attorney not to disclose to his client the victim's location.

(o) Penalties. Any person subject to the criminal jurisdiction of the Cherokee Court who shall be convicted of the crime of domestic violence shall be subject to punishment by imprisonment for up to 12 months, by a fine of up to $5,000.00, or any combination of these penalties. A court may not sentence a person convicted of the crime of domestic violence to community service in lieu of jail. Further, the court may not order residential confinement in the home of the victim. The use of alcohol or any controlled substance in the committing of domestic violence or any crime related to domestic violence shall not diminish the seriousness of domestic violence. The fact that the perpetrator was under the influence at the time of the offense shall not be used by law enforcement, the prosecution, or the court to mitigate the severity of the violence.

(p) Conditions of probation or parole.

(1) In determining whether a defendant convicted of domestic violence should be placed on probation or parole, the court must consider the safety and protection of the victim and any member of the victim's family or household.

(2) After reviewing the facts and determining that the defendant poses a credible threat of violence, repeated harassment or bodily injury to the alleged victim or family or household of the victim, the court will make findings of fact and will condition any probation or parole upon compliance upon certain conditions, including but not limited to the following:

a. That the defendant stay away from the home, school, business or place of employment of the victim and/or other members of the victim's household or family;

b. That the defendant refrain from harassing, annoying, telephoning, contacting or otherwise communicating with the victim, household members of the victim, or family members of the victim;

c. That the defendant refrain from assaulting, beating, molesting, or wounding the victim, as well as household members, family, and animals of the alleged victim;

d. That the defendant refrain from removing or damaging property belonging to the victim, household member(s) and family of the victim;

e. That the defendant be prohibited from using or possessing a firearm or other weapon specified by the Court and surrender any weapons owned or possessed;

f. That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge or magistrate;

g. That the defendant begin a batterer's treatment program and/or continue with any treatment recommendations of an approved batterer's treatment program as ordered as a condition of pretrial release. If alcohol and/or drugs is indicated, the defendant shall also be prohibited from possessing or consuming alcohol or controlled substances and will be required to complete a chemical dependency evaluation conducted by an approved chemical dependency program and comply with treatment recommendations. A copy of the order will be transmitted to the appropriate program to ensure compliance with this provision.

h. That the defendant pay restitution to the victim, to the victim's family or household member, or to a program or agency which has provided services to the victim as a result of the defendant's present domestic violence case.

i. Any other conditions required to protect the safety of the victim and/or the victim's family or household.

(3) The court shall establish policies and procedures for responding to reports of nonattendance or noncompliance by a defendant with the conditions of probation imposed pursuant to subsection (2).

(q) Revocation of bond, probation, parole. The court, together with the Tribal Prosecutor, will establish policies and procedures for responding to reports of noncompliance with any conditions of a bond, probation or parole imposed pursuant to subsections (g), (j), and (p).

(r) Child discipline. Nothing within this section shall be construed to prohibit the reasonable, lawful actions of a parent to discipline a child in their custody.

(s) Protections of this section. The provisions of subsections (h), (i), (j), (k) and (l) of this section will be extended to the victim of any crime which would qualify as domestic violence under this section, regardless of whether the defendant was charged with domestic violence or another crime under this chapter.

(t) Exclusion. All persons who are subject to the civil jurisdiction of the Cherokee Court who are guilty of committing domestic violence shall be subject to exclusion from Tribal territory pursuant to chapter 2 of the Cherokee Court.

(u) Willful violation of the prohibition on possessing a firearm. No person convicted of the crime of domestic violence in any state or tribal jurisdiction may ever possess a firearm once they have been convicted, irrespective of the sentence received. Willful violation of this prohibition will subject the defendant to a period of confinement not less than 30 days and not to exceed one year and a fine of not less than $1,000.00, but not more than $5,000.00, plus costs.

(v) Order of protection, chapter 50B. No provision or penalty enumerated in this section is meant to infringe upon the right of an alleged victim to file an Order of Protection against the perpetrator under the provisions of chapter 50B of the Cherokee Code.

(w) Ethics; familial relationships of law enforcement, prosecution and judges. All public servants shall be expected to perform their duties and proceed in accordance with this code no matter what the employment, education, social and political status of the alleged perpetrator and/or victim. Public servants shall be held to the highest professional standards in response to the crime of domestic violence.

(x) Severability. In the event of a court finding of invalidity of any clause or section of this article, such invalid clause or section shall be severed from the remaining body of the article, and the remainder of this article shall remain in full force and effect.

(y) Prior inconsistent laws repealed. Any existing laws which are inconsistent with his ordinance are specifically repealed.

(Ord. No. 117, 3-3-2000; Ord. No. 870, 8-9-2001; Ord. No. 817, 9-23-2003; Ord. No. 361, 1-31-13 )