Ordinance
117 - Domestic Violence
Section 1.1 Statement of Purpose
It is the
purpose of this Chapter to stop all family violence on the Tulalip Reservation
and to promote the healing of families where possible. Domestic violence
is a serious crime against society and this Ordinance seeks to guarantee
to the victim of domestic violence the maximum protection under the
law.
It is the
intent of the Tulalip Board of Directors that the official response
to cases of domestic violence shall be that the Tribe will not tolerate
or excuse violent behavior under any circumstances. The elders, adults,
and children of our Tribe, and of the entire community residing on the
Tulalip Reservation, are to be cherished and treated with respect.
Section 1.2 Definitions
As used
in this Chapter the following terms shall have the meanings given below:
A. "Abuse"
means the infliction of physical harm, bodily injury or sexual assault
or the infliction of the fear of imminent physical harm, and includes
but is not limited to assault and battery as defined in the Tulalip
Tribal Code.
B. "Court"
means the Tulalip Tribal Court.
C. "Domestic
Violence" means an act of abuse by a perpetrator on a family
member or household member of the perpetrator.
D. "Elder"
means a person 62 or more years old.
E. "Course
of Conduct" means repeatedly maintaining a visual or physical
proximity to a person or repeatedly conveying verbal or written threats,
or threats implied by conduct or a combination thereof directed at
or toward a person.
F. "Alarm"
means to cause apprehension or fear resulting from the perception
of danger.
G. "Coerce"
means to restrain, compel or dominate by force or threat.
H. "Contact"
includes but is not limited to:
1.
repeatedly coming into and / or remaining a visual or physical presence
of the other person;
2.
following the other person;
3.
waiting outside the home, property, place of work or school of the
other person or of a member of that person's family or household;
4.
sending or making written communications in any form to the other
person;
5.
speaking with the other person by any means;
6.
communicating with the other person through a third person;
7.
committing a crime against the other person;
8.
communicating with a third person who has some relationship to the
other person with the intent of affecting the third person's relationship
with the other person;
9.
communicating with business entities with the intent of affecting
some right or interest of the other person;
10.
damaging the other person's home, property, place of work or school;
or
11.
delivering directly or through a third person any object to the
home, property, place of work or school of the other person.
I. "Law
enforcement officer" means any person employed by the Tribe,
the State of Washington or any agency of the federal government as
a law enforcement officer; or any agency having jurisdiction within
the Tulalip Indian Reservation.
J. “Minor”
shall mean any person under the age of eighteen years of age.
K. "Repeated"
means two or more times.
L. “School"
means a public or private institution of learning or a child care
facility.
M. “Immediate
family" means a spouse, parent, child, sibling, live-in partner,
or any other person who regularly resides in the household or who
within the past six months regularly resided in the household.
N. "Family
member or household member" of a person means spouses, former
spouses, persons who have a child in common regardless of whether
they have been married or have lived together at any time, adult persons
related by blood or marriage, adult persons who are presently residing
together, or who have resided together in the past, persons 16 years
of age or older who are presently residing together or who have resided
together in the past and who have or have had a dating relationship,
persons 16 years of age or older with whom a respondent 16 years of
age or older has or has had a dating relationship, and persons who
have a biological or legal parent-child relationship, including stepparents
and stepchildren and grandparents and grandchildren.
O. "Mandatory
Arrest" means that the victim need not sign a complaint for
an arrest to occur. A police officer shall arrest if there is probable
cause to believe the person to be arrested has committed an offense
as defined by this chapter even though the arrest may be against the
expressed wishes of the victim.
P. “Order
of Protection" means a court order granted for the protection
of victims of domestic violence.
Q. "Perpetrator"
means the person who has committed an act of abuse on his or her family
member or household member.
R. "Probable
Cause" for arrest means that the police officer, acting as
a person of reasonable caution, has reasonable grounds to believe
that the person to be arrested has committed an offense as defined
by this Chapter, based on all the facts known to the officer, including
the officer's personal observations, statements made by parties involved
in the incident, statements made by witnesses, if any, and any other
reliable information.
S. “Injunction”
— an injunction is a request for a special proceeding in which
an order is issued by a judge, which restrains or enjoins a party
from doing an act, or which requires a party to do a particular act.
Such orders can be temporary or permanent and are usually issued for
a specific time period.
T. “Protection
Orders” include the following temporary or permanent orders:
No-contact (criminal), Protection (civil), Restraining (civil), or
Anti-harassment (civil).
U. “Treatment”
— there is a controversy surrounding the use of the word “treatment”.
Some advocates believe that the term signifies a mode of working with
abusers which does not hold them accountable for their actions nor
try to alter their belief system. As used in this Benchbook, the word
treatment means a program for abusers in which they are held accountable
for their abusive actions, and in which their belief systems are sought
to be changed.
Section 1.3 Crime of Domestic Violence
A. Any
person who shall knowingly commit an act of domestic violence as defined
by Section 1.2 of this Chapter shall be deemed guilty of the offense
of domestic violence and upon conviction thereof shall be sentenced
to confinement of up to, but shall not exceed twelve
(12) months and/or to a fine not to exceed Four Thousand Dollars ($4,000)
or to both such confinement and fine.
B. In
addition to or in lieu of the imposition of such confinement and/or
fine, the court shall order the person convicted of the offense of
domestic violence to participate in a certified domestic violence
treatment program at that person’s expense as
provided in Sec. 1.7 (D) of this Ordinance.
C. Prosecution
for the offense of domestic violence shall not preclude prosecution
for any other offense under the Tulalip Tribal Code arising from the
same circumstances.
Section 1.4 Crime of Stalking
A. A
person commits the crime of stalking if:
1.
the person knowingly alarms or coerces another person or a member
of that person's family or household by engaging in repeated and
unwanted contact with the other person;
2.
a reasonable person in the victim's situation would be alarmed or
coerced by the contact; and
3.
the repeated and unwanted contact causes the victim reasonable apprehension
regarding the personal safety of the victim or a member of the victim's
family or household.
B. Penalties
for Stalking:
1.
Any person who shall knowingly commit an act of stalking as defined
by this Section shall be deemed guilty of the offense of stalking
and upon conviction thereof shall be sentenced to confinement of
up to but shall not exceed twelve (12) months and/or to
a fine not to exceed Four Thousand Dollars ($4,000) or to both such
confinement and fine.
2.
In addition to or in lieu of the imposition of such confinement
and/or fine, the court shall order the person convicted of the offense
of stalking to participate in a certified domestic violence treatment
program at that person’s expense as defined in
Sec. 1.7 (D) of this Ordinance.
3.
All provisions, mandates, and definitions as stated in this
Ordinance including Sections 1.1 through 1.20 shall be equally
applied and enforced with regards to the crime of stalking as to
the crime of domestic violence.
Section 1.5 Mandatory Arrest
A. A
police officer shall arrest an alleged perpetrator of domestic violence
of any age, if an arrest warrant has been issued, or without a warrant
if the offense occurs in the presence of the officer or if the officer
has probable cause to believe that the person to be arrested has committed
domestic violence. If the conditions for arrest established by this
Section are present, the officer shall arrest the alleged perpetrator
of domestic violence whether or not the alleged victim signs a complaint
and whether or not the arrest is against the expressed wishes of the
alleged victim.
B. Whenever
a police officer investigates an allegation of domestic violence,
whether or not an arrest is made, the officer shall make a written
incident report of the alleged abuse and submit that report to the
Tulalip Tribes Domestic Violence Program and the Tulalip Tribes Perpetrator
Program within 48 hours for purposes of program coordination.
C. In
all domestic violence arrests, after notifying the alleged
perpetrator of his/her rights, if the alleged perpetrator consents,
a police officer or criminal investigator shall interview the alleged
perpetrator within 24 hours after the arrest.
D. Immediately
following a domestic violence arrest, the police officer shall advise
all known victims of the availability of Domestic Violence Services’
Programs and shall give the victims cards describing their legal rights
and other available services. Upon request of the victim, the police
officer shall provide or arrange for transportation of the victim
to a medical facility or a place of shelter.
E. Upon
an arrest of an alleged perpetrator under this section, the arresting
police officer shall immediately file with the court a criminal complaint
and an affidavit or a written report of the alleged abuse.
F. Whether
or not the alleged perpetrator has been arrested, the Clerk of Courts
or the Prosecutor shall assist the alleged victim or other appropriate
person in the preparation and filing of a criminal complaint under
this section and/or a petition under Section 1.8 of this Ordinance.
G. The
Tulalip Police Department shall develop and maintain a protocol for
implementation of its obligations under this Ordinance.
H. Any
alleged perpetrator arrested under this section shall be held in custody
for a period not less than twelve (12) hours, or such longer period
as is necessary to conduct a commitment hearing or as determined by
the Court, as a mandatory "cooling off” period. Prior to
the commitment hearing, the alleged perpetrator shall not be released
on bail or on his/her own recognizance.
Section 1.6 Violations by Minors
A. Whenever
a police officer has grounds under Section 1.5 or Section 1.15 of
this Ordinance to arrest a person who is a minor, the officer shall
arrest the minor as provided in this Ordinance, and the provisions
of this Ordinance shall govern the arrest and all subsequent proceedings.
B. A
minor held in custody under this Ordinance shall be held in any of
the following places:
1.
Juvenile Halfway Home.
2.
Any foster home approved by beda? chelh..
3.
Any other suitable place.
C. All
civil and criminal proceedings against a minor under this Ordinance
shall be within the jurisdiction of the Tribal Court rather than the
Juvenile Court.
D. The
arrest and prosecution of a minor under this Ordinance does not bar
proceedings in an appropriate Juvenile Court.
E. A
civil petition for an order of protection under Section 1.8 of this
Ordinance may be filed against a minor who is alleged to have committed
an act of domestic violence, and the provisions of this Ordinance
shall govern all subsequent proceedings in the action.
Section 1.7 Special Court Rules
In addition
to the rules of the court generally applicable to criminal proceedings,
the Court is authorized to take the following actions in a proceeding
involving alleged domestic violence offenses.
A. At
the commitment hearing, if the alleged perpetrator is to be released
from custody, the Court, in its discretion and as a condition of release,
may issue an order for protection temporarily excluding the alleged
perpetrator from the home of the alleged victim and restraining the
alleged perpetrator from any contact with the alleged victim.
B. If
the alleged perpetrator pleads guilty, a pre-sentence report may be
ordered at the discretion of the court prior to sentencing.
C. If
it appears to the Court that alcohol or drugs played a part in the
abuse, a chemical dependency evaluation with a treatment plan may
be ordered, at the discretion of the court, prior to sentencing.
D. Upon
a guilty plea or conviction, the perpetrator shall be ordered to participate
in a certified domestic violence program at the expense of the
perpetrator consisting of at least the following:
1.
The perpetrator shall attend and cooperate in an intake session
for evaluation.
4.
The evaluation shall be completed by the domestic violence program
not later than 10 calendar days after entry of the order requiring
evaluation, unless the Court extends that time period.
5.
A copy of the evaluation and recommended treatment plan shall be
provided to the Court.
6.
In the discretion of the Court, the perpetrator's participation
in treatment sessions based on the domestic violence program's treatment
plan may be in lieu of confinement and/or fine, or the execution
of any such penalty may be suspended pending completion of the treatment
ordered by the Court.
7.
The domestic violence program or other service provider shall submit
progress reports to the Court at least every six (6) calendar weeks.
E. Willful
failure or refusal to comply with a Court order requiring a perpetrator
to attend and cooperate in evaluation and/or to undergo treatment
as described in a treatment plan shall constitute contempt of court
punishable as provided in the Tulalip Tribal Code. If the Court has
suspended execution of any penalty imposed under Section 1.3 of this
Ordinance on the condition that the perpetrator undergo court-ordered
evaluation and/or treatment, the Court may also order execution of
any such suspended sentence.
F. Any
written statement made by the alleged victim under oath and signed
by the victim which describes the alleged acts of domestic violence
shall not be considered inadmissible hearsay evidence, but shall be
admissible in any proceeding related to a prosecution under Section
1.3 of this Ordinance.
G. Any
assault upon a person acting in an official capacity in the protection
of victims of domestic violence, i.e., women’s advocacy, adult
case manager, therapist, and other associates staff, shall be considered
of the most serious nature and punishable by twelve (12) months of
jail and fined Five Thousand Dollar ($5,000).
Section 1.8 Civil Remedy -- Order of Protection
A. Availability
of Petition.
1.
A petition to obtain an order of protection under this Section may
be filed by:
a.
Any person claiming to be the victim of domestic violence,
b.
Any family member or household member of a person claimed to be
the victim of domestic violence, on behalf of the alleged victim,
or
c.
The Tribal Prosecutor.
d.
Any person acting in an official capacity in the protection of
domestic violence survivors including but not limited to i.e.,
women’s advocacy, adult case manager, therapist, and other
associates staff, claiming to be victims of assault by a domestic
violence perpetrators.
2.
A petition shall allege the existence of domestic violence, and
shall be verified or supported by an affidavit made under oath stating
the specific facts and circumstances justifying the requested order.
3.
A petition may be filed regardless of the pendency of any other
civil or criminal proceeding related to the allegations in the petition.
4.
No filing fee shall be required for the filing of a petition under
this section. If an alleged perpetrator has been arrested for the
offense of domestic violence, the Court or the arresting police
officer shall advise the alleged victim of the right to file a petition
under this section without cost.
5.
The petitioner, or the victim on whose behalf a petition has been
filed, is not required to file for annulment, separation, or divorce
as a prerequisite to obtaining an order of protection; but the petition
shall state whether any other action is pending between the petitioner
or victim and the respondent.
6.
Standard, simplified petition forms with instructions for completion
shall be available to persons not represented by counsel. The Tulalip
Police Department and the Tribal Court shall keep such forms and
make them available upon request to victims of domestic violence.
B. Procedure
for Issuance of an Order of Protection. Upon the filing of a petition
for order of protection, the Court shall:
1.
immediately grant an ex-parte order of protection without bond if,
based on the specific facts stated in the affidavit or the verified
petition, the Court has probable cause to believe that the petitioner
or the person on whose behalf the petition has been filed is the
victim of an act of domestic violence committed by the respondent,
and issuance of the ex-parte order is necessary to protect the victim
from further abuse.
2.
cause an ex-parte order of protection, together with notice of hearing,
to be served immediately on the respondent. Service must be made
by posted notice if personal service cannot be completed within
twenty-four (24) hours.
3.
hold a hearing within fifteen (15) days after the granting of the
ex-parte order of protection to determine whether the order should
be vacated, extended for an additional fifteen (15) days, or modified
in any respect.
4.
If an ex-parte order is not granted, serve notice upon both parties
to appear in Tribal Court and hold a hearing on the
petition for order of protection within seventy-two (72) hours after
the filing of the petition; if notice of hearing cannot be personally
served within twenty four (24) hours, the parties shall be served
by posted notice, and the Court shall hold a hearing on the petition
within fifteen (15) days after the filing of the petition.
C. Contents
of an Order of Protection. An ex-parte order of protection or
an order of protection entered after notice and hearing shall, when
deemed appropriate by the Court, include provisions:
1.
Restraining the respondent from committing any acts of domestic
violence.
4.
Excluding the respondent from the residence of the victim, whether
or not the respondent and the victim share that residence.
2.
Restraining the respondent from any contact with the victim.
5.
Awarding temporary custody or establishing temporary visitation
rights with regard to minor children of the respondent on a basis
which gives primary consideration to the safety of the claimed victim
of domestic violence and the minor children.
a.
In every proceeding where there is at issue a dispute as to the
custody of a minor child, a determination by the Court that domestic
or family violence has occurred raises a rebuttable presumption
that it is detrimental to the child and not in the best interest
of the child to be placed in sole custody, joint legal custody,
or joint physical custody with the perpetrator of domestic or
family violence.
b.
In every proceeding where there is at issue a dispute as to the
custody of a minor child, a determination by the Court that domestic
or family violence has occurred raises a rebuttable presumption
that it is in the best interest of the child to reside with the
parent who is not a perpetrator of domestic or family violence
in the location of that parent's choice.
c.
In every proceeding where there is at issue the modification of
an order for custody or visitation of a minor child, the finding
that domestic or family violence has occurred since the last custody
determination constitutes a finding of a change in circumstances.
d.
If the Court finds that the safety of the claimed victim or the
minor children will be jeopardized by unsupervised or unrestricted
visitation, the Court shall set forth conditions or restrict visitation
as to the time, place, duration, or supervision, or deny visitation
entirely, as needed, to guard the safety of the claimed victim
and the minor children.
e.
In determining custody and/or visitation, the Court must consider
the perpetrator's history of causing physical harm, bodily injury,
assault, or causing reasonable fear of physical harm, bodily injury,
or assault to another person.
f.
If a parent is absent or relocated because of an act of domestic
or family violence by the other parent, the absence or relocation
is not a factor that weighs against the parent in determining
custody or visitation.
g.
Any temporary custody order shall provide for child support and
temporary support for the person having custody of the children,
in amounts deemed proper by the Court.
h.
In a visitation order, the Court may:
1.
order an exchange of a minor child to occur in a protected setting;
2.
order that visitation be supervised by another person or agency;
3.
order the perpetrator of domestic or family violence to attend
and complete, to the satisfaction of the Court, a program of
intervention for perpetrators or other designated counseling
as a condition of the visitation;
4.
order the perpetrator of domestic or family violence to abstain
from possession or consumption of alcohol or controlled substances
during the visitation and for 24 hours preceding the visitation;
5.
order the perpetrator of domestic or family violence to pay
a fee to defray the cost of supervised visitation;
6.
prohibit overnight visitation;
7.
require a bond from the perpetrator of domestic or family violence
for the return and safety of the minor child; and
8.
impose any other condition that is deemed necessary to provide
for the safety of the minor child, the victim of domestic or
family violence, or other family or household member.
i.
Whether or not visitation is allowed, the Court may order the
address of the minor child and the victim to be kept confidential.
j.
The Court may refer but must not order an adult who is a victim
of domestic or family violence to attend counseling relating to
the victim's status or behavior as a victim, individually or with
the perpetrator of domestic or family violence, as a condition
of receiving custody of a minor child or as a condition of visitation.
k.
If the Court allows a family or household member to supervise
visitation, the Court must establish conditions to be followed
during visitation.
5.
Ordering temporary guardianship with regard to an elderly or handicapped
victim of domestic violence if necessary for the safety of the elderly
or handicapped person.
6.
Awarding temporary use and possession of property of the respondent.
7.
Restraining one or both parties from transferring, encumbering,
concealing, or disposing of property except as authorized by the
Court and requiring that an accounting shall be made to the Court
for all such transfers, encumbrances, dispositions, and expenditures.
8.
Ordering the respondent to timely pay any existing debts of the
respondent, including mortgage or rental payments, necessary to
maintain the claimed victim in his/her residence.
9.
Describing any prior orders of the Court relating to domestic matters
which are superseded or altered by the order of protection.
10.
Notifying the parties that the willful violation of any provision
of the order constitutes contempt of court punishable by a fine
or imprisonment or both and constitutes a violation of this Ordinance
for which civil penalties may be assessed.
11.
Ordering, in the Court's discretion, any other lawful relief as
it deems necessary for the protection of any claimed or potential
victim of domestic violence, including orders or directives to the
Tulalip Police Department.
D. Duration
and Modification of Order of Protection.
1.
The provisions of the order shall remain in effect for the period
of time stated in the order, not to exceed 6 months to a year unless
extended by the Court at the request of any party or at the request
of the Domestic Violence Program.
2.
The Court in its discretion may upon request of either party or
the Domestic Violence Program modify an order of protection.
Section 1.9 Service of Order of Protection
Orders
of protection are to be served personally upon the respondent by a police
officer. If the respondent cannot be located, the order will be mailed
by certified mail to the respondent's last known address and upon application
with the Court, notice will be posted.
Section 1.10 Assistance of the Police Department in Service or Execution
of Order of Protection
When an
order of protection is issued, upon request of the petitioner, the Court
shall order the police to accompany and assist any claimed victim of
domestic violence in taking possession of the claimed victim's residence
or otherwise to assist in execution of the order.
Section 1.11 Firearms Disqualification
It shall
be the purpose of this section to prohibit any person who has been convicted
of a felony or misdemeanor offense of domestic violence/abuse, as defined
under this Domestic Violence Ordinance, under tribal, state or federal
law, or any person who is subject to an order of protection based upon
a finding that the person represents a credible threat of violence to
the victim, from possessing a firearm.
A. It
shall be unlawful for any person to possess a firearm who:
1.
Is subject to any court order from a court of competent jurisdiction
that restrains such person from harassing, stalking or threatening
a family or household member as defined in Section 1.2 or engaging
in any other conduct that would place a family or household member
in reasonable fear of bodily injury to the household or family member,
except that this paragraph shall apply only to those orders that:
a.
were issued after a hearing of which such person received actual
notice and had the opportunity to participate; and,
b.
includes a finding that such person represents a credible threat
to the physical safety of such household or family member; or
c.
by its terms explicitly prohibits the use, attempted use or threatened
use of physical force against such household or family member.
2.
Has been convicted in state, federal or tribal court of any crime
involving domestic violence/abuse, as defined in Section 1.2 of
this code, which involved the use or attempted use of physical force,
or the threatened use of physical force, or the threatened use of
a deadly weapon against a household or family member as defined
at Section 1.2.
Violation
of this Ordinance shall result in a maximum sentence. Any related domestic
violence sentences for a violation of this section and any other section
of the Tribal Domestic Violence Code shall be served consecutively.
Section 1.12 Right to Apply for Relief
A person's
right to apply for relief under Section 1.7 of this Ordinance or to
file a criminal complaint under Section 1.3 of this Ordinance shall
not be affected by his/her leaving the residence or household to avoid
abuse.
Section 1.13 Domestic Violence Leave Act
Victims
of domestic violence are oftentimes forced to flee from a perpetrator
in order to avoid future danger and violence. In so fleeing victims
who are employed frequently miss days of employment and employers respond
by terminating or disciplining such employees. It is the purpose of
this Ordinance to preclude all reservation employers from terminating
any employee who can timely document an instance of domestic abuse which
contributed to his/her absence from employment. Employers have the option
of granting such employees leave with pay or leave without pay because
of domestic violence related absences. Absences not to exceed twelve
(12) weeks.
A. Discharges
for Absence of Employment Due to Domestic Violence Prohibited.
It shall be a violation of this ordinance for any employer located
within the exterior boundaries of the Tulalip reservation to terminate
or otherwise discipline any employee who has missed work or is tardy
to work when such employee demonstrates, either through the filing
of criminal or civil proceedings in a court of law or by such other
method satisfactory to the employer, that he/she has been the victim
of domestic violence and that such violence contributed to his/her
absence(s) from work or tardiness to work. In lieu of disciplinary
action, the employer shall grant the employee leave with or without
pay, dependent upon the policies of the employer, for such absences.
B. Penalty
for Violation. Any employer who willfully violates this section
shall be subject to a civil penalty of $500.00 payable to the Tribe
in addition to any other remedies the wrongfully discharged employee
may have against the employer. Nothing in this section shall preclude
a private party from commencing a wrongful termination action against
an employer for violation of this section.
Section 1.14 Copy to Law Enforcement Agency
Each order
of protection granted pursuant to Section 1.6 of this Ordinance and
each order issued under Section 1.6(A) of this Ordinance shall be forwarded
by the Clerk of Courts immediately to the Tulalip Police Department.
The Police Department shall make available to each officer information
as to the existence and status of any such orders.
Section 1.15 Violation of Court Orders -- Mandatory Arrest
A. Willful
violation of an order issued under Section 1.8 of this Ordinance shall
constitute contempt of court punishable as provided in the Tulalip
Tribal Code.
B. A
police officer shall arrest without a warrant and take into custody
any person who the police officer has probable cause to believe has
willfully violated an order issued under Section 1.8 of this Ordinance.
C. All
provisions of an order issued under Section 1.8 of this Ordinance
shall remain in full force and effect until the order terminates or
is modified by the Court. Violation of the order, including any prohibition
against entering a residence, is not excused by the consent or permission
of the alleged victim or any other person.
D. Any
person who knowingly violates an order issued under Section 1.8 of
this Ordinance may, after notice and hearing, be assessed a civil
penalty in an amount not to exceed $500.
Section 1.16 Reporting Domestic Violence
A. Any
physician, nurse, school teacher, psychologist, social worker, probation
officer, community health representative, or any other person knowing
or suspecting that domestic violence is occurring and believes the
victim is at imminent risk shall report the matter orally and immediately
by telephone or otherwise to the Tulalip Police Department Dispatcher.
B. Any
person, including individuals, corporations, governmental entities
and their agents, who in good faith makes or participates in the making
of a report pursuant to this section shall have immunity from any
liability, civil or criminal, which might otherwise arise from making
that report, and shall have the same immunity with respect to participation
in any court proceeding resulting from such a report.
C. Any
person who shall make a report of domestic violence knowing that the
facts reported are false or misleading, and the report causes the
arrest of the person identified in the report, shall be deemed guilty
of an offense, and upon conviction thereof shall be sentenced to confinement
not to exceed six months and/or to a fine not to exceed $500 or to
both such confinement and fine.
D. Any
person who shall make a report of domestic violence knowing that the
facts reported are false or misleading may, after notice and hearing,
be assessed a civil penalty in an amount not to exceed $500.
E. Mandatory
reporter who fails, neglects, or refuses to report acts of domestic
violence against a vulnerable victim known to him/her may, after notice
and hearing, be assessed a civil penalty in an amount not to exceed
$500.
Section 1.17 Duties of Indian Child Welfare Department
A. In
performing its duty to investigate pursuant to the Tulalip Juvenile
Code, the Indian Child Welfare Program, beda?chelh shall develop written
procedures for screening each referral for abuse or neglect of a child
to assess whether abuse of another family or household member is also
occurring. The assessment must include, but is not limited to:
1.
inquiry concerning the criminal record of the parents, and the alleged
abusive or neglectful person and the alleged perpetrator of domestic
or family violence, if not a parent of the child; and
2.
inquiry concerning the existence of orders for protection issued
to either parent.
a.
If it is determined in an investigation of abuse or neglect of
a child that the child or another family or household member is
in danger of domestic or family violence and that removal of one
of the parties is necessary to prevent the abuse or neglect of
the child, Indian Child Welfare must seek the removal of the alleged
perpetrator of domestic or family violence whenever possible.
b.
If it is determined in an investigation of abuse or neglect of
a child that a parent of the child is a victim of domestic or
family violence, services must be offered to the victimized parent
and the provision of such services must not be contingent upon
a finding that either parent is at fault or has failed to protect
the child.
Section 1.18 Prevention and Intervention
A. The
Tulalip Domestic Violence Program serving domestic violence survivors
shall create a committee to create a public health plan for reducing
domestic violence which will:
1.
Assess the impact of domestic violence on the public's health; and
2.
Write a public health plan for reducing the incidence of domestic
violence within the tribal community.
B. The
public health plan:
1.
Must include but is not limited to public education, including use
of the various communication media to set forth the public health
perspective on domestic violence.
2.
Must be developed in consolation with public and private agencies
that provide programs for victims of domestic violence, advocates
for victims, and persons who have demonstrated expertise and experience
in providing health care to victims of domestic violence and their
children.
3.
Must be completed within 120 days of the enactment of the Domestic
Violence Code.
C. The
Committee shall:
1.
Transmit a copy of the public health plan to the Tulalip Board of
Directors; and
2.
Annually review and update the plan.
Section 1.19 Liability
No police
officer shall be held criminally or civilly liable for making an arrest
authorized by this Ordinance, provided he/she acted in good faith and
without malice.
Section 1.20 Severability
If any
part or parts, or the application of any part, of this Ordinance is
held invalid, such holding shall not affect the validity of the remaining
parts of this Ordinance. The Tulalip Board of Directors hereby declares
that it would have passed the remaining parts of this Ordinance even
if it had known that such part or parts of application of any part thereof
would be declared invalid.
Section 1.21 Full Faith and Credit Clause
A foreign
protection order is valid if the issuing court had jurisdiction over
the parties and matter under the law of the state, territory, possession,
tribe, or United States military tribunal. There is a presumption in
favor of validity where an order appears authentic on its face.
A person
under restraint must be given reasonable notice and the opportunity
to be heard before the order of the foreign state, territory, possession,
tribe, or United States military tribunal was issued, provided, in the
case of ex parte orders, notice and opportunity to be heard was given
as soon as possible after the order was issued, consistent with due
process.
A. A
person entitled to protection who has a valid foreign protection order
may file that order by presenting a certified, authenticated, or exemplified
copy of the foreign protection order to a clerk of the Tulalip Tribal
Court. Any out-of-state department, agency, or court responsible for
maintaining protection order records, may by facsimile or electronic
transmission send a reproduction of the foreign protection order to
the clerk of the Court as long as it contains a facsimile or digital
signature by any person authorized to make such transmission.
B. Filing
of a foreign protection order with a court and entry of the foreign
protection order into any computer-based criminal intelligence information
system available in this state used by law enforcement agencies to
list outstanding warrants are not prerequisites for enforcement of
the foreign protection order.
C. The
court shall accept the filing of a foreign protection order without
a fee or cost.
D. The
clerk of the court shall provide information to a person entitled
to protection of the availability of domestic violence, sexual abuse,
and other services to victims in the community.
E. The
clerk of the court shall assist the person entitled to protection
in completing an information form that must include, but need not
be limited to, the following:
a.
The name of the person entitled to protection and any other protected
parties;
b.
The name and address of the person who is subject to the restraint
provisions of the foreign protection order;
c.
The date the foreign protection order was entered;
d.
The date the foreign protection order expires;
e.
The relief granted under......... (specify the relief awarded and
citations thereto, and designate which of the violations are arrestable
offenses);
f.
The judicial district and contact information for court administration
for the court in which the foreign protection order was entered;
g.
The social security number, date of birth, and description of the
person subject to the restrain provisions of the foreign protection
order;
h.
Whether the person who is subject to the restraint provisions of
the foreign protection order is believed to be armed and dangerous;
i.
Whether the person who is subject to the restraint provisions of
the foreign protection order was served with the order, and if so,
the method used to serve the order;
j.
The type and location of any other legal proceedings between the
person who is subject to the restraint provisions and the person
entitled to protection.
k.
An inability to answer any of the above questions does not preclude
the filing or enforcement of a foreign protection order.
6. The
clerk of the court shall provide the person entitled to protection
with a copy bearing proof of filing with the court.
7. Any
assistance provided by the clerk under this section does not constitute
the practice of law. The clerk is not liable for any incomplete or
incorrect information that he or she is provided.
Section 1.22 Transmittal of Filed Foreign Protection Orders to Law
Enforcement Agency
A. The
clerk of the court shall forward a coy of a foreign protection order
that is filed under this Ordinance on or before the next judicial
day to the Tulalip Tribes’ Chief of Police and county sheriff
along with the completed information form. The clerk may forward the
foreign protection order to the County Sheriff by facsimile or electronic
transmission. Upon receipt of a filed foreign protection order, the
Chief of Police shall immediately enter the foreign protection order
into any computer-based criminal intelligence information system available
listing outstanding warrants. The foreign protection order must remain
in the computer for the period stated in the order. The Chief of Police
shall only expunge from the computer-based criminal intelligence information
system foreign protection orders that are expired, vacated, or superseded.
Entry into the law enforcement information system constitutes notice
to all law enforcement agencies of the existence of the foreign protection
order. The foreign protection order is fully enforceable in any county
in the state.
B. The
information entered in other computer-based criminal intelligence
information system must include, if available, notice to law enforcement
whether the foreign protection order was served and the method of
service.
Section 1.23 Peace Officer Immunity
A peace
officer or a peace officer’s legal advisor may not be held criminally
or civilly liable for making an arrest under this chapter if the peace
officer or the peace officer’s legal advisor acted in good faith
and without malice.
Section 1.24 Fees Not Permitted
A public
agency may not charge a fee for filing or preparation of certified,
authenticated, or exemplified copies to a person entitled to protection
who seeks relief under this chapter or to a foreign prosecutor or a
foreign law enforcement agency seeking to enforce a protection order.
A person entitled to protection and foreign prosecutors or law enforcement
agencies must be provided the necessary number of certified, authenticated,
or exemplified copies at no cost.
Section 1.25 Violation of Foreign Orders
A. Whenever
a foreign protection order is granted to a person entitled to protection
and the person under restraint knows of the foreign protection order,
a violation of a provision prohibiting the person under restraint
from contacting or communicating with another person, or of a provision
excluding the person under restraint from a residence, workplace,
school, or day care, or a violation of any provision for which the
foreign protection order specifically indicates, that violation will
be a crime. Upon conviction, and in addition to any other penalties
provided by law, the Court may require the person under restraint
to submit to electronic monitoring. The court shall specify who will
provide the electronic monitoring services, and the terms under which
the monitoring will be performed. The order also may include a requirement
that the person under restraint pay the costs of the monitoring. The
court shall consider the ability of the convicted person to pay for
electronic monitoring.
B. A
peace officer shall arrest without a warrant and take into custody
a person when the peace officer has probable cause to believe that
a foreign protection order has been issued of which the person under
restraint has knowledge and the person under restraint has violated
a provision of the foreign protection order that prohibits the person
under restraint from contacting or communicating with another person,
or a provision that excludes the person under restraint from a residence,
workplace, school, or day care, or a violation of any provision for
which the foreign protection order specifically indicates that a violation
will be a crime. Presence of the order in the law enforcement computer
based criminal intelligence information system is not the only means
of establishing knowledge of the order.
Section 1.26 Child Custody Disputes
A. Any
disputes regarding provisions in foreign protection orders dealing
with custody of children, residential placement of children, or visitation
with children shall be resolved judicially. The proper venue and jurisdiction
for such judicial proceedings shall be determined in accordance with
chapter 26.27 RCW and in accordance with the Parental Kidnapping Prevention
Act, 28 U.S.C. 1738A.
B. A
peace officer shall not remove a child from his or her current placement
unless:
1.
A writ of habeas corpus to produce the child has been issued by
a superior court of this state; or
2.
There is probable cause to believe that the child is abused or neglected
and the child would be injured or could not be taken into custody
if it were necessary to first obtain a court order pursuant to RCW
13.34.050.
Section 1.27 Sovereign Immunity
Nothing
in this Charter shall be deemed a waiver of the sovereign immunity of
the Tulalip Tribes for any purpose whatsoever.
Section 1.28 Amendments
This Ordinance
may be recommended for amendment by a majority of the Health Commission
present at any regular or special meeting, provided that at least ten
(10) days written notice is given of the intention to consider amendment
to the Ordinance. If passed, a recommendation for amendment shall be
forwarded to the Board of Directors for approval and adoption as set
forth below.
Back
to Top