Nottawaseppi Huron Band of the Potawatomi, MI Article IX Criminal Actions and Remedies

§ 7.4-35 Domestic violence or family violence sentencing designation.

This section provides for the designation of a crime as domestic violence or family violence, which gives notice that the NHBP may seek additional conditions at sentencing.

A. Any crime as defined by Title VIII, Chapter 6, or within this chapter is considered domestic violence if committed against a current or former intimate partner, current or former spouse, an individual with whom the victim has a child in common, or an individual with whom the victim has or has had a dating relationship or family violence if against a family or household member, and is subject to the provisions of this chapter. Domestic violence or family violence is a Class A misdemeanor.

B. Aggravated domestic violence.

(1) A crime will be designated as aggravated domestic violence, which also involves one or more of the following elements:

(a) A dangerous weapon was used during the commission of the domestic violence;

(b) Strangulation of the victim occurred during the domestic violence;

(c) The domestic violence caused an injury which required medical treatment; or

(d) The victim suffered a traumatic brain injury.[1]

[1] Editor's Note: Former Subsection B(1)(e), regarding a defendant who has a prior conviction for domestic violence, and which immediately followed this subsection, was repealed 4-21-2016 by Res. No. 04-21-16-04.

(2) Aggravated domestic violence is a felony.

C. The designation of domestic violence or family violence should not be removed as part of a plea bargain.

§ 7.4-36 Habitual domestic violence or family violence offender.

[Added 4-21-2016 by Res. No. 04-21-16-04[1]]

Any person with two or more convictions for crimes of domestic violence or family violence shall be deemed a habitual domestic violence or family violence offender, and any subsequent violation shall be a felony, except where inconsistent with federal laws.

[1] Editor's Note: This resolution also renumbered former §§ 7.4-36 through 7.4-43 to §§ 7.4-37 through 7.4-44, respectively.

§ 7.4-37 Interfering with reporting of domestic violence or family violence.

Any person who prevents or attempts to prevent a victim or witness of domestic violence or family violence from calling 911, the NHBP Tribal Police, or other law enforcement agency, or from obtaining medical assistance or making a report to any Tribal, state or federal law enforcement official, has committed the crime of interfering with the reporting of domestic violence or family violence. Interfering with the reporting of domestic violence or family violence is a felony.

§ 7.4-38 Interfering with prosecution of domestic violence or family violence.

Any person who prevents or attempts to prevent a witness from testifying in a Court proceeding, or otherwise impedes the prosecution of a case involving domestic violence or family violence, has committed the crime of interfering with the prosecution of domestic violence or family violence. Interfering with the prosecution of domestic violence or family violence is a felony.

§ 7.4-39 Powers and duties of Prosecutor.

A. Communication with victim. In every case in which a person is arrested for or charged with a crime under this chapter, the Prosecutor shall endeavor to maintain contact with the victim throughout the criminal proceedings, with particular attention to the following:

(1) Hearing dates, continuances, sentencing. The Prosecutor shall assure that the victim is informed of all hearing dates and continuances and of the right to address the Court at any hearing, in person or in writing, regarding the various impacts of the criminal offense on the victim, the risk of further acts of domestic violence or family violence, and the conditions of sentence necessary to ensure the safety of the victim and the victim's family and household members.

(2) Prosecutorial decisions. The Prosecutor shall inform the victim of every major prosecutorial decision, including a decision to decline prosecution of the crime, to dismiss the charges, or to enter into a plea agreement, within five (5) calendar days of the decision and should include available resources for the victim.

(3) Restitution. The Prosecutor shall obtain information from the victim regarding costs and losses sustained as a result of the defendant's act(s) of domestic violence or family violence and seek restitution for the victim.

B. Dismissals disfavored. The NHBP does not favor dismissal of domestic violence or family violence charges, thus when the Prosecutor moves to dismiss a domestic violence or family violence charge against a defendant, the Prosecutor shall provide specific reasons for the dismissal to the Court.

§ 7.4-40 Violation of no-contact order; penalties.

A. 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 a no-contact order issued under § 7.4-29, Pretrial and release conditions.

B. All provisions of an order issued under § 7.4-29, Pretrial and release conditions, shall remain in full force and effect until the order terminates or is modified by the Court.

C. Violation of a no-contact order subjects the defendant to criminal penalties under this chapter. Any defendant who is found guilty of violating the terms of a no-contact order may also, subject to the Court's discretion, be held in contempt of court, and the Court may impose such sanctions as it deems appropriate.

(1) Violation of a no-contact order is a Class B misdemeanor.

(2) A second or subsequent violation of a no-contact order is a Class A misdemeanor.

(3) Consent by the victim is not a defense to a violation of a domestic violence no-contact order.

§ 7.4-41 Violation of domestic violence protection order; penalties.

A. 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 this chapter and specifically, § 7.4-49, Civil protection order; purpose.

B. All provisions of an order issued under § 7.4-49, Civil protection order; purpose, shall remain in full force and effect until the order terminates or is modified by the Court.

C. Violation of any domestic violence protection order subjects the respondent to criminal penalties under this chapter. Any respondent who is found guilty of violating the terms of a domestic violence protection order may also, subject to the Court's discretion, be held in contempt of court, and the Court may impose such sanctions as it deems appropriate.

(1) Violation of a domestic violence protection order is a Class B misdemeanor.

(2) A second or subsequent violation of a domestic violence protection order is a Class A misdemeanor.

(3) Consent by the victim is not a defense to a violation of a domestic violence protection order.

§ 7.4-42 Crime of stalking.

A. A person commits the crime of stalking if, without lawful authority:

(1) He or she intentionally and repeatedly harasses or repeatedly follows another person; and

(2) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The fear must be one that a reasonable person would experience under the same circumstances; and

(3) The stalker either:

(a) Intends to frighten, intimidate, or harass the person; or

(b) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.

B. It is not a defense to the crime of stalking:

(1) Under Subsection A(3)(a) of this section, that the stalker was not given actual notice that the person did not want the stalker to contact or follow the person; or

(2) Under Subsection A(3)(b) of this section, that the stalker did not intend to frighten, intimidate, or harass the person.

C. Attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitute prima facie evidence that the stalker intends to intimidate or harass the person.

D. A person who stalks another person is guilty of a Class A misdemeanor except that the person is guilty of a felony if any of the following applies:

(1) The stalker has previously been convicted in the Tribal Court under Title VIII, Chapter 6, Part 3, Section 304; convicted in the State of Michigan or any other state of any crime of harassment or under similar statute of another jurisdiction;

(2) The stalking violates any protective order protecting the person being stalked;

(3) The stalker has previously been convicted of an offense under this section or of a gross misdemeanor or felony stalking offense under federal or Michigan state law;

(4) The stalker was armed with a dangerous weapon while stalking the person;

(5) The stalker's victim is or was a law enforcement officer, judge, juror, attorney, victim advocate or children's advocate, legislator, or community corrections officer, probation officer or staff, and the stalker stalked the victim to retaliate against the victim for an act the victim performed during the course of official duties or to influence the victim's performance of official duties; or

(6) The stalker's victim is a current, former, or prospective witness in an adjudicative proceeding, and the stalker stalked the victim to retaliate against the victim as a result of the victim's testimony or potential testimony.

E. As used in this section, the following terms shall have the meanings indicated:

FOLLOWS

Deliberately maintaining visual or physical proximity to a specific person over a period of time. A finding that the alleged stalker repeatedly and deliberately appears at the person's home, school, place of employment, business, or any other location to maintain visual or physical proximity to the person is sufficient to find that the alleged stalker follows the person. It is not necessary to establish that the alleged stalker follows the person while in transit from one location to another.

HARASSES

For the purpose of this section means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or is detrimental to such person, and that serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the victim, or, when the course of conduct is contact of a minor child by a person over age 18, that would cause a reasonable parent to fear for the well-being of that child.

PROTECTIVE ORDER

Any temporary or permanent Court order prohibiting or limiting violence against, harassment of, contact or communication with, or physical proximity to another person, including but not limited to a domestic violence civil protection order issued pursuant to § 7.4-49; no-contact order issued pursuant to § 7.4-29B, sexual assault protection order pursuant to §§ 7.4-79 through 7.4-87, or any successor articles to these sections.

REPEATEDLY

Two or more times.

F. Provisions of Title VIII, Judiciary; Law and Order Code, Section 304, Stalking, shall apply if applicable.

§ 7.4-43 Advocates present during prosecution or defense interviews.

If requested by the victim, and if the presence of the advocate does not cause any unnecessary delay in the investigation or prosecution of the case, an advocate of the victim's choosing shall be present at any interview with the victim and at any judicial proceeding related to criminal acts committed against the victim.

§ 7.4-44 Victim rights.

Notwithstanding other provisions of the Domestic Violence Code, a victim of a crime under this chapter shall have the following rights:

A. The right to be reasonably protected from the accused;

B. The right to reasonable, accurate, and timely notice of any public Court proceeding, or any probation proceeding, involving the crime or of any release or escape of the accused;

C. The right not to be excluded from any such public Court proceeding, unless the Court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding;

D. The right to be reasonably heard at any public proceeding in Court involving release, plea, sentencing, or any parole proceeding;

E. The reasonable right to confer with the Prosecutor in the case;

F. The right to full and timely restitution as provided in law;

G. The right to proceedings free from unreasonable delay;

H. The right to be treated with fairness and with respect for the victim's dignity and privacy;

I. The victim has the right to provide a victim impact statement. A victim impact statement is a written or oral statement given to the sentencing judge by the victim. Such statements may include the impact of the crime on the victim, and how the crime affected the victim psychologically, financially, and physically. The Prosecutor may assist the victim to provide this statement, or the victim's advocate may also assist. The Court shall make all reasonable efforts to accommodate the participation of the victim at the sentencing hearing, being mindful of the unique emotional and psychological barriers victims may experience when facing a perpetrator in Court.

§ 7.4-45 Assaulting NHBP staff or safe house staff.

Any written or verbal threat or any assault upon a person acting in an official or professional capacity in the protection of victims of domestic violence or family violence, sexual assault, stalking or dating violence shall be considered to be an assault of the most serious nature and a felony.

§ 7.4-46 Probation; modifications of conditions.

Upon violation of a judgment and sentencing order, the Court may modify, reduce, or enlarge the conditions of probation at any time prior to the expiration or termination of the term of probation and the provisions applicable to the initial setting of the conditions of probation. However, the Court may not set aside or modify the requirement to complete domestic violence perpetrator's treatment without notice to the Prosecutor and a hearing.

§ 7.4-47 Written statement of conditions.

The Court shall direct the probation officer to provide the defendant with a sufficiently clear and specific written statement that sets forth all of the conditions to which the sentence is subject, which is to serve as a guide for the defendant's conduct and for such supervision as is required. This statement shall be signed and dated by the defendant when received.

§ 7.4-48 Violations by juveniles; arrest.

A. Whenever a police officer has grounds under § 7.4-19, Arrest, or § 7.4-24, Arrest without warrant for violations of civil protection orders or criminal no-contact orders, to arrest a person who is a juvenile, the officer shall arrest the juvenile as provided in this section, and the provisions of this chapter shall govern the arrest and all subsequent proceedings.

B. A juvenile held in custody under this chapter shall be held in any of the following places:

(1) Juvenile detention facility;

(2) Juvenile halfway home; or

(3) Any other suitable place approved by the Court.

C. All civil and criminal proceedings against a juvenile under this chapter shall be within the jurisdiction of the Tribal Court rather than the Juvenile Court.

D. The arrest and prosecution of a juvenile under this chapter does not bar proceedings in an appropriate Juvenile Court.

E. A petition for a protection order under § 7.4-49, Civil protection order; purpose, may be filed against a juvenile who is alleged to have committed an act of domestic violence, and the provisions of this chapter shall govern all subsequent proceedings in the action.

F. If the juvenile is alleged to have committed a violent crime of domestic violence, the Prosecutor maintains the discretion to evaluate the case on an individual basis and whether the juvenile is to be tried in the same manner as an adult. For purposes of this § 7.4-48, a juvenile is one who has attained the age of sixteen (16) years but who is under the age of eighteen (18). Provisions of NHBP Title VIII, Chapter 6, Section 2002, shall apply, if applicable.