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Poarch Band of Creek Indians Tribal Code

[Includes amendments and additions dated through 2004]

§8A DOMESTIC VIOLENCE CODE

INITIALS         
[Initials on original document.]
DATE 4-9-97

§8A-2-1 SHORT TITLE, PURPOSE AND DEFINITIONS

A. Short Title

Title 2 shall be entitled "The Domestic Violence Code" (Code).

B. Purpose

The purpose of this code is to protect all persons, especially women, children, the elderly, disabled persons, and other vulnerable persons, who are within the jurisdiction of the Poarch Band of Creek Indians Tribal Court, from all forms of domestic abuse as defined in this section. This code shall be liberally construed and interpreted in order to achieve its purpose. This code embodies the intent of the Tribe to promote the following goals:

1. To recognize the illegal nature of domestic abuse;

2. To provide victims of domestic abuse with the maximum protection from abuse that can be made available under law;

3. To establish an efficient and flexible remedy that discourages violence against and harassment of persons within a family setting, or others with whom the abuser has continuing contact;

4. To expand the ability of law enforcement officers to assist victims, to enforce existing laws, and to prevent subsequent incidents of abuse;

5. To facilitate the reporting of domestic abuse;

6. To develop a greater understanding of the incidence and causes of domestic abuse by encouraging data collection and evaluation; and

7. To reduce the incidence of domestic abuse, which has a detrimental and lasting effect on the individual, the family, culture, and society.

C. Definitions

These definitions shall be liberally construed so as to protect all persons who are subjected to domestic abuse. As used in this section:

1. Domestic Abuse - Domestic abuse means the infliction of any of the following acts upon a victim as defined in §8A-2-1 (C):

a. Assault - Purposely or knowing causing bodily injury to another, negligently causing bodily injury to another with a weapon, or purposely or knowingly causing reasonable apprehension of bodily injury to another.

b. Threatening - Words or conduct which place another in fear of bodily harm or property damage;

c. Coercion - Compelling an unwilling person, through force or threat of force, to:

(i) engage in conduct which the person has a right to abstain from; or

(ii) abstain from conduct which the person has a right to engage in;

d. Confinement - Compelling a person to go where the person does not wish to go or to remain where the person does not wish to remain;

e. Damage to property - Damaging the property of another;

f. Emotional Abuse - Using threats, intimidation, or extreme ridicule to inflict humiliation and emotional suffering upon another;

g. Harassment - Conduct which causes emotional alarm and distress to another by shaming, degrading, humiliating, placing in fear, or otherwise abusing personal dignity. Examples of harassing conduct include, but are not limited to the following:

(i) unwelcome visiting or following a person;

(ii) unwelcome sexual propositioning, references to body functions or attributes, or other comments of a sexual nature;

(iii) unwelcome communications, made by phone or by other methods, containing intimidating, taunting, insulting, berating, humiliating, offensive, threatening, or violent language; or

(iv) unwelcome lingering around the home, school, or work place of a person;

h. Sexual Abuse - Any physical contact of a sexual nature, or attempted physical contact of a sexual nature, with a person, made without that person's consent. Consent cannot be obtained through means such as force, intimidation, duress, fraud, or from a minor under any circumstance; and

i. Stalking - The intentionally and repeatedly following or harassing of another person, making credible threats, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm.

j. Other conduct - Any other conduct that constitutes an offense or a tort under the law of the Poarch Creek Indians.

Domestic Abuse does not mean a victim's act of self-defense made in reasonable response to an abuser's act of domestic abuse.

2. Victim - Means any of the following persons who have been directly affected by domestic abuse as defined in §8A-2-1 (C):

a. Any member or former member of the abuser's household or immediate residence area;

b. Any person involved in, or formerly involved in, an intimate relationship with the abuser;

c. Any person who interacts with the abuser in an employment, academic, recreational, religious, social or other setting;

d. Any offspring of the abuser;

e. Any relative of the abuser;

f. Any elderly person; or

g. Any vulnerable person. Examples of vulnerability which give rise to the protection of this code include, but are not limited to, emotional and physical disabilities and impairments.

3. Abuser - Means any person who engages in conduct defined as domestic abuse under §8A-2-1 (a) against any of the persons defined as victims under §8A-2-1 (b).

4. Protection Order - Means a court order that restrains the abuser from doing certain acts upon threat of penalty. Such an order may contain requirements to adjust the relationship of the parties and prevent further abuse. The term includes any emergency, temporary or domestic abuse protection orders issued by the court.

 

§8A-2-2 Written Policies and Procedures

A. Within ninety (90) days of approval of this code the Tribal Staff shall draft and present to Tribal Council for approval; written policies and procedures for the prosecution of the crime of domestic abuse which will advance effective prosecution of the crime and maximize the protection and safety of the victims of domestic abuse and their children.

B. within ninety (90) days of approval of this code the Chief of Police shall draft and present to Tribal Council for approval written protocol which each law enforcement officer is to follow in investigating the crime of domestic abuse, gathering and preserving evidence, making the arrest, and providing follow-up victim contact to maximize victim testimony at trial. In all aspects, the officer will assure the safety of the victim and children.

 

§8A-2-3 Criminal Domestic Abuse

A. A person commits the offense of Criminal Domestic Abuse by:

1. purposely or knowingly causing bodily injury to a family member or household member; or

2. purposely or knowingly causing reasonable apprehension of bodily injury in a family member or household member.

B. The term Domestic Abuse in this code shall mean any incident resulting in the abuse, assault, or the attempt or threats thereof, between family or household members. This does not include the reasonable discipline of a child by a person having that authority.

 

§8A-2-4 Penalties

A. The purpose of this code shall be to deter all family violence on the Poarch Creek Indian Reservation and to promote the healing of families whenever possible.

1. A person convicted of a first offense of domestic abuse shall be imprisoned for a term of not less than (10) day nor more than sixty (60) days, and may be fined an amount not to exceed $250.00 and shall be required to pay cost of incarceration. The Court shall require mandatory counseling as part of the sentence. Such counseling may include, but is not limited to: alcohol/drug abuse, anger control, and family counseling.

2. A person convicted of a second offense of domestic abuse shall be imprisoned for a term of not less than twenty (20) days nor more than one hundred twenty (120) days and a may be fined an amount not to exceed $350.00 and shall be required to pay cost of incarceration. The mandatory counseling in number 1 also applies.

3. A person convicted of third and subsequent offenses of domestic abuse shall be imprisoned for a term of not less than ninety (90) days nor more than one hundred and eighty (180) days, and may be fined an amount not to exceed $500.00 and shall be required to pay cost of incarceration. The mandatory counseling in number 1 also applies.

 

§8A-2-5 Stalking

A. A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking.

B. The crime of stalking is a Class A Misdemeanor.

 

§8A-2-6 Investigating of Domestic Abuse Complaints

A. Complaints of Elderly Abuse - When investigating complaints of elder abuse the complaint shall be investigated and treated the same as any other domestic violence complaint. A custodial arrest should be made and all domestic violence response procedures should be followed. If the victim is a "vulnerable adult" a report to Social Services shall be required.

B. Complaints of Abuse Perpetrated by a Minor Child - When investigating complaints of abuse by a minor child the complaint shall be investigated and treated the same as any other domestic violence complaint. A custodial arrest should be made and procedures for lodging a minor shall be followed.

 

§8A-2-7 Mandatory Arrest

A. A law enforcement officer shall arrest a person, anywhere, with or without a warrant, including at the person's residence, if the officer has probable cause to believe:

1. that an assault has occurred;

2. an assault has occurred and has resulted in bodily injury to the victim whether the injury is visible to the officer or not;

3. that any physical action has caused another person reasonably in all probability serious bodily injury or death, and the victim is the person's family member, household member or former household member.

B. If the domestic violence incident is Non-Alcohol Related any person arrested under §8A-2-5 (A) of this code shall be held without bail, in custody of the Police Department for a period not to exceed twelve (12) hours, as a mandatory cooling down period.

C. If the domestic violence incident is Alcohol Related any person arrested under §8A-2-5 (A) of this code shall be held for a period not to exceed twenty-four (24) hours this will also be construed as a cooling down period.

 

§8A-2-8 Duties of Law Enforcement Officer

A. A law enforcement officer who responds to a domestic abuse call shall use all reasonable means to protect the victim and children and prevent further violence, including but not limited to:

1. Taking action necessary to assure the safety of the victims and children;

2. Confiscating any weapon involved in the alleged domestic abuse;

3. Transporting or obtaining transportation of the victim and children to a shelter;

4. Assisting the victim in removing essential personal effect;

5. Assisting the victim and children in obtaining medical treatment including transportation to a medical facility;

6. Giving the victim immediate and adequate notice of rights, remedies and services available.

B. If a law enforcement officer receives cross complaints of domestic abuse from two or more opposing persons, the officer shall arrest the primary aggressor. In determining whether a person was the primary aggressor, the officer shall consider:

1. The Poarch Creek Indian tribe's intent to protect victims of domestic abuse;

2. The history of domestic abuse between the persons involved;

3. The relative severity of the injuries inflicted or serious threats creating fear of bodily injury;

4. The likelihood of future injuries to each person;

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

6. The officer's experience in handling domestic abuse cases.

If the officer determines that one person was the primary aggressor, the officer is not required to arrest the other person believed to have caused physical harm or bodily injury.

C. A law enforcement officer shall not threaten the arrest of all parties to discourage requests by any party for intervention from any law enforcement.

 

§8A-2-9 Filing Complaints

A. The officer making the arrest under this code shall sign a complaint against the alleged abuser on behalf of the Poarch Creek Indian Tribe. He or she shall submit a detailed report of the circumstances of the arrest, along with statements from the victim and other witnesses.

B. The preliminary report shall be done in eight (8) hours.

C. The final and complete report shall be completed in forty-eight (48) hours.

D. The victim shall be subpoenaed as the primary witness for the prosecution.

E. If the abuser and victim are husband and wife, the Communication Privilege shall not apply in Domestic Abuse cases.

 

§8A-2-10 Liability of Law Enforcement Officers

A. A law enforcement officer shall not be held liable in any civil proceeding for an arrest based on probable cause, enforcement in good faith of a court order, or any other action or omission in good faith under this code arising from an alleged incident of domestic violence brought by any party to the incident.

 

§8A-2-11 Notice of Rights

A. The officer shall tell the victim of abuse whether a shelter for victims of abuse is available in the community and give the victim immediate notice of legal rights and remedies that are accessible to.

The notice should include the victims right to the following:

1. an order restraining the abuser from further acts of violence;

2. an order directing the abuser to leave the household;

3. an order preventing the abuser from entering the residence, school, workplace, or place of business;

4. an order awarding custody or visitation with any minor children;

5. an order directing the abuser to pay support to the victim and minor children when appropriate;

6. an order prohibiting the abuser from harassing, annoying, telephoning, contacting, or otherwise communicating with you, either directly or indirectly;

7. an order prohibiting the abuser from using or possessing a firearm or other weapon specified by the Court. The forms you need to obtain an order for protection can be obtained from the Poarch Creek Indian Tribal Court Clerk.

 

§8A-2-12 Reporting Statistics

A. A record of all reported cases of domestic abuse shall be kept by the police department. A semiannual report shall be made by the police department with the exact number of domestic abuse cases handled in this certain time frame. This will be public information and available to all agencies of the Tribe.

 

§8A-2-13 Reporting By Officer

A. When an officer is called to the scene of a domestic abuse report and does not make an arrest he or she shall file a written report as to the reasoning for not making an arrest. This report will be filed with the officer's supervisor.

 

§8A-2-14 Protection Orders

A. Who may file a petition

1. A person may seek a protection order:

a. for herself or himself;

b. on behalf of a minor child;

c. a minor child

d. on behalf of any person prevented by a physical or mental incapacity, or by hospitalization, from seeking a protection order;

e. on behalf of a client in the case of social service, housing, health, legal or law enforcement personnel; or

f. as a friend of the victim.

B. Standard of proof, defenses

1. A court shall grant a protection order when a preponderance of the evidence shows that it is more likely than not that an act of domestic abuse has occurred or is about to occur. The order's purpose shall be to prevent the occurrence or recurrence of abuse.

2. A petitioner shall not be denied relief under this section because:

a. the petitioner used reasonable force in self defense against the respondent;

b. the petitioner has previously filed for a protection order and subsequently reconciled with the respondent;

c. the petitioner has not filed for a divorce; or

d. the petitioner or the respondent is a minor.

3. The following shall not be considered a defense in a proceeding for the issuance or enforcement of a protection order under this Code:

a. intoxication

b. spousal immunity; or

c. provocation.

C. Temporary protection orders, ex parte

1. Petition, Motion and Order

a. Upon the filing of a Petition for Domestic Abuse Protection Order and Motion for Temporary Protection order the court shall immediately grant or deny the petitioner's Motion for Temporary Protection Order without a hearing or notice to the respondent. The Court shall grant the motion if it determines that an emergency exists.

I. A petitioner shall demonstrate an emergency by showing that:

(i) The respondent recently committed acts of domestic abuse resulting in physical or emotional injury to the petitioner or another victim, or damage to property; or

(ii) The petitioner or another victim is likely to suffer harm if the respondent is given notice before the issuance of a protection order.

II. Evidence proving an emergency situation may be based on the petition and motion, police reports, affidavits, medical records, other written submissions, or the victim's statement.

III. The Temporary Protection Order may include any relief permitted by §8A-2-10 (C-2) of this Code and any other relief necessary to prevent further domestic abuse.

IV. The Temporary Protection Order shall direct the respondent to appear at a hearing to show cause why the Court should not issue a Domestic Abuse Protection Order.

V. Upon issuing the Temporary Protection Order, the court shall immediately provide for notice to the respondent and notify law enforcement of the order.

b. If the court finds that an emergency does not exist, the court shall deny the petitioner's Motion for a Temporary Protection Order and schedule a hearing on the Petition for Domestic Abuse Protection Order.

I. The court shall schedule the hearing within fifteen (15) days (excluding holiday and weekends) of the petition filing.

II. The court shall provide for notice to the Respondent according to §13-1-8 of the Poarch Creek Indian Tribal Code.

c. The Court shall give a Motion for Temporary Protection Order priority over all other docketed matters and shall issue an order granting or denying the motion within 72 hours.

2. Domestic Abuse Protection Order Relief

1. Respondent shall not abuse, harass, or threaten the Petitioner, or commit any other domestic abuse;

2. Respondent shall immediately leave Petitioner's residence;

3. Respondent shall stay at least 100 yards away from the Petitioners residence, place of employment, school, or any other places as ordered to do so;

4. Respondent shall not contact Petitioner, in person, in writing, or by telephone;

5. Petitioner shall have custody of the minor children;

6. Respondent shall be permitted to visit with the children as scheduled and supervised by the Poarch Creek Indians Social Services Department;

7. Respondent shall pay to Petitioner the amount order by the Court for support of their minor children;

8. Respondent shall return to Petitioner any items order by the Court;

9. Respondent shall not sell, remove, hide, destroy or damage any property owned by Petitioner or by both parties jointly;

10. An Officer of the Poarch Creek Indians Public Safety Department shall accompany Petitioner to a residence occupied by the Respondent to:

a. obtain physical custody of the child(ren) listed on the Domestic Abuse Protection Order;

b. collect personal belongings listed on the Domestic Abuse Protection Order;

c. ensure that Respondent leaves the parties residence.

11. Respondent shall pay to Petitioner the amount ordered by Court for the following:

a. lost earnings

b. property taken or damaged

c. travel expenses

d. other expenses

12. Respondent shall participate in domestic abuse counseling;

13. Petitioner shall participate in domestic abuse counseling;

14. Respondent shall participate in alcohol counseling;

15. Respondent shall pay to this Court the costs of this proceeding, in cash or a money order made out to Poarch Creek Indians Tribal Court;

16. Other relief as ordered by the Court.

3. Hearing, Domestic Abuse Protection Order

a. The court shall schedule a full hearing within fifteen (15) days (excluding holidays and - weekends) after granting or denying a Temporary Protection Order.

I. The respondent may move the court to dissolve or modify any Temporary Protection Order within those fifteen (15) days.

II. The respondent must give at least five (5) days notice of the motion to the petitioner. The court shall give priority to such motions.

b. If the petitioner fails to appear at the hearing, the court may continue the hearing for up to fifteen (15) days, or dismiss the petition without prejudice. Any Temporary Protection Order shall remain in effect during the continuance.

c. If the respondent fails to appear after receiving notice, the hearing shall go forward.

d. If, after a hearing, the court finds by a preponderance of the evidence that the alleged domestic abuse occurred, the court shall issue a Domestic Abuse Protection Order. The Order may include the relief granted in any Temporary Protection Order and any additional relief that the court deems necessary.

 

 


 

POARCH CREEK INDIANS TRIBAL COURT

                   &nbsp
PETITIONER,

V.

                   &nbsp
RESPONDENT,

CASE NUMBER:           &nbsp
PETITION FOR DOMESTIC ABUSE PROTECTION ORDER AND MOTION FOR TEMPORARY PROTECTION ORDER

PETITION FOR DOMESTIC ABUSE PROTECTION ORDER

I,                   &nbsp, am an enrolled member of the Poarch Creek Indians residing within the territorial jurisdiction of the Poarch Creek Indians Reservation. I request that the Court grant a Domestic Abuse Protection Order based on the following:

1. The respondent is (__________) my spouse, ( ___________) my ex-spouse, (__________) my boyfriend/girlfriend, (______________) a family member, (__________) other (describe): ______________________________________

2. Respondent has committed domestic abuse against me.

a. Approximate date most recent abuse occurred: ________________________________________________

b. Description of most recent abuse and, any destruction of property _________________________________

c. Description of threats that caused me to fear that I was going to be hurt. ___________________________

d. Respondent may been abusing me for (Write in length of time). _____________________________________

e. In the past the respondent has committed the following acts of physical and mental abuse against me (list approximate dates and describe): ______________________________________________________________________________

f. I have suffered emotional and physical injuries as a result of Respondent's violence (Describe injuries):
___________________________________________________________________________________________

3. Respondent and I have been involved in the following court cases (Check all that apply, list date(s) any resulting court order, and explain):

( ) Criminal Prosecution: _________________________________________________________________________
( ) Divorce: ____________________________________________________________________________________
( ) Other petition (s) for protection from abuse: ______________________________________________________
( ) Custody: ___________________________________________________________________________________
( ) Other: _____________________________________________________________________________________

4. Respondent and I are the parents of the following children (list names, dates of birth, and tribal affiliation):
_____________________________________________________________________________________________

The children are currently in ( ) my ( ) Respondents' physical custody.

5. I am the parent of the following children, who are not Respondent's children:____________________________

6. Respondent ( ) has ( ) has not abused the above children (Describe any child abuse):_____________________
_______________________________________________________________________________________________

7. I have suffered emotional and physical injuries as a result of Respondent's abuse. Unless Respondent is restrained, such abuse will continue.

 


 

MOTION FOR TEMPORARY PROTECTION ORDER

( ) I also need a Temporary Protection Order to protect me until a hearing can be held on my petition. I fear that if Respondent finds out about this court case, Respondent will get angry and further injure me before the court can issue a Domestic Abuse Protection Order.

( ) I do not need a Temporary Protection Order.

REQUESTED RELIEF

( ) 1. Order Respondent not to abuse, harass, or threaten me, or commit any other domestic abuse.

( ) 2. Order Respondent to immediately leave my residence.

( ) 3. Order Respondent to stay at least 100 yards from the following places (DO NOT LIST ANY ADDRESS IF REVEALING IT WOULD FURTHER ENDANGER YOU):

( ) My resident: ______________________________________________________________________

( ) My place of employment:____________________________________________________________

( ) School attended by me or my children_________________________________________________

( ) Other place(s):____________________________________________________________________

( ) 4. Order Respondent not to contact me in person, in writing, or by telephone.

( ) 5. Award me temporary custody of our children and order Respondent not to have contact, with them until a court hearing.

( ) 6. After a hearing, allow Respondent to visit with the children only on the following day(s) of the week: __________________________________ at the following place(s): ______________ and time(s) ______________________ under the supervision of the following person(s):____________________________________________________________________.

( ) 7. Order Respondent to pay $ _________________ per month/pay period (circle one) for the support of our minor children.

( ) 8. Order Respondent to compensate me for the following expenses, incurred as a result of the abuse:

Lost earnings: $_____________________

Property taken or damaged: $____________________

Travel expense $____________________

Other __________________

( ) 9. Order Respondent to return to me the following items of my property (example: vehicle, clothing, identification documents): _____________________________________________________

( ) 10. Order Respondent not to sell, remove, hide, destroy or damage any property owned by me or by the two of us jointly.

( ) 11. Direct a police officer to accompany me to a residence occupied by the Respondent to:

( ) obtain physical custody of the children;

( ) collect my personal belongings;

( ) require Respondent to leave the residence.

( ) 12. Order Respondent to attend alcohol/domestic abuse (circle one or both) counseling.

( ) 13. Other relief, as follows: _______________________________

 

Date: _____________

_________________
Petitioner, Pro, se

_________________
Witness

 


 


POARCH CREEK INDIANS TRIBAL COURT



                  &nbsp
PETITIONER

V.

                  &nbsp
RESPONDENT,

CASE NUMBER                 &nbsp
TEMPORARY
PROTECTION ORDER
AND ORDER TO
SHOW CAUSE


THIS COURT has reviewed the Petition for Domestic Abuse Protection Order and Motion for Temporary Protection Order in this case. The Court finds that there is good cause to believe that Petitioner and/or others are in imminent danger of harm from Respondent. To prevent further harm a Temporary Protection order should be issued without notice to Respondent.

THEREFORE, THIS COURT ORDERS AS FOLLOWS:

( ) 1. Respondent shall not abuse, harass, or threaten the Petitioner, or commit any other domestic abuse;

( ) 2. Respondent shall immediately leave Petitioner's residence;

( ) 3. Respondent shall stay at least 100 yards away from the following places (DO NOT LIST ANY ADDRESS WHICH WOULD FURTHER ENDANGER THE PETITIONER):

( ) Residence:                 &nbsp

( ) Place of employment:                 &nbsp

( ) School attended by Petitioner or Petitioner's Children:                  &nbsp

( ) Other place(s):                 &nbsp

( ) 4. Respondent shall not contact Petitioner, in person, in writing, or by telephone.

( ) 5. Until a hearing is held in this matter, Petitioner shall have temporary custody of the following minor children:

                &nbsp                &nbsp                 &nbsp   

( ) 6. Respondent shall return to Petitioner the following items:         &nbsp               &nbsp                 &nbsp   &nbsp

( ) 7. Respondent shall not sell, remove, hide, destroy or damage any property owned by Petitioner or by both parties jointly.

( ) 8. An Officer of the Poarch Creek Indians Public Safety Department shall accompany Petitioner to a residence occupied
by the Respondent to:

( ) obtain physical custody of the children listed in paragraph 5 above;
( ) collect personal belongings listed in paragraph 6 above;
( ) ensure that Respondent leaves the parties residence located at:           
   &nbsp               &nbsp

( ) 9. Other relief, as follows:               &nbsp                    
   &nbsp                


WARNING

THIS IS AN OFFICIAL COURT ORDER. IF YOU VIOLATE THIS ORDER THE COURT MAY FIND YOU IN CONTEMPT OF COURT. YOU MAY ALSO BE ARRESTED AND PROSECUTED FOR THE CRIME OF INTERFERING WITH JUDICIAL PROCEEDINGS AND ANY OTHER CRIME YOU MAY HAVE COMMITTED IN DISOBEYING THIS ORDER.

IT IS FURTHER ORDERED that Respondent,               &nbsp                 must appear before this Court on the     &nbspday of      &nbsp, 19       &nbsp , at      &nbsp:      &nbsp. M., to show cause why this protection order should not continue in full force.

SO ORDERED THIS      &nbspday of       &nbsp, 19       &nbsp.



     &nbsp      &nbsp     &nbsp      &nbsp     &nbsp     &nbsp     &nbsp
JUDGE, POARCH CREEK INDIANS TRIBAL COURT



I hereby certify that I personally served a true copy of the foregoing on the Respondent this    &nbsp  &nbspday of       &nbsp, 19      .

________________________________________________
Name

 


 

EMERGENCY PROTECTION ORDER



1. This EMERGENCY PROTECTION ORDER will expire at 5:00 p.m. on (insert date of next court day)                            .

2. A more permanent protection order must be requested at the Poarch Creek Indians Tribal Court.

3. Reasonable grounds appear that an immediate danger of domestic abuse exists and that this order should be issued against: (Name):                                                      &nbsp

a. ( ) who must not abuse, harass, threaten, or commit any other acts of domestic abuse against (Person to be protected):          

b. ( ) who must move out immediately from (residence):                                          

c. ( ) who must stay 100 yards away from the above person and place.


4. ( ) ( Person to be protected)                                           is given temporary custody of the following minor children (names, dates of birth):                                                          

I hereby certify that ( Name of Judge):                            transmitted the above Emergency Protection Order to me by telephone/facsimile (circle one) this the           day of           &nbsp, 19          &nbsp, at          &nbsp:          &nbsp           &nbsp .M.

          &nbsp          &nbsp
(Print name of Officer)

          &nbsp          &nbsp
(Signature of Officer)


WARNING

THIS IS AN OFFICIAL COURT ORDER. IF YOU VIOLATE THIS ORDER THE COURT MAY FIND YOU IN CONTEMPT OF COURT. YOU MAY ALSO BE ARRESTED AND PROSECUTED FOR THE CRIME OF INTERFERING WITH JUDICIAL PROCEEDINGS AND ANY OTHER CRIME YOU MAY HAVE COMMITTED IN DISOBEYING THIS ORDER.

 


APPLICATION FOR EMERGENCY PROTECTION ORDER


1. (Name):                  &nbsp                  &nbsp has provided the following information:


a. PERSON (S) TO BE PROTECTED                 &nbsp                  &nbsp

b. PERSON TO BE RESTRAINED                 &nbsp                  &nbsp

Sex: M  &nbsp   F   &nbsp   &nbspHt:        &nbspWT:       &nbspHair Color:       &nbsp

Eye Color:       &nbspAge:       &nbsp Scars/Marks        &nbsp

c. The person to be restrained is related to the person to be protected as a ( ) spouse/ex-spouse, ( ) boy/girlfriend, ( ) family member, ( ) other:               &nbsp

d. The events that caused the protection person to fear immediate and present danger of domestic abuse are (Give facts and dates. Specify any threats):                                                                                
                                                                                                 


e. ( ) The person to be protected lives with the person to be restrained and requests an order that the restrained person move out immediately from the following resident:                                                                  &nbsp
                                                                                              &nbsp 


f. ( ) The person to be protected has minor children in common with the person to be restrained and requests that she/he be granted temporary custody over those children because of the facts alleged in item 1 (d). No custody order currently exists.


2. ( ) The person to be restrained will be arrested and taken into custody.

3. A phone call was made to (name of Judge):                             , on (date):                            at (time)                           

( ) The above judge granted the Emergency Protection Order that follows.



BY:                           
     ( Print name of Officer)

                           
(Signature of Officer)

Agency:                            Telephone No.                             ID. No.         &nbsp

 


APPLICATION FOR SERVICE OF PROCESS


PETITIONER

Your name:                   __________ 

Mailing address:                  ______  

Residence location:               ___     

Phone:     Home          Work &nbsp         

Any other information needed for the Court to reach you:                
          &nbsp                   &nbsp                   &nbsp      &nbsp

 

RESPONDENT

Description and address of Respondent (the abuser):

Name:                  &nbsp          

Mailing address:                  &nbsp          

Residence location (draw map and attach, if necessary):                  
                    &nbsp                             &nbsp         


Describe the Respondent's appearance: Height                   &nbsp,Weight         &nbsp,
Any identifying marks                  &nbsp                       
                         &nbsp                            &nbsp &nbsp
                &nbsp                            &nbsp          

 

 


 

POARCH CREEK INDIANS TRIBAL COURT

Petitioner ____________________

V.

Respondent ___________________

Case Number __________

Domestic Abuse
Protection Order

 

This court, having read the Petition for Domestic Abuse Protection Order, and having determined that Respondent received proper and timely notice of the hearing, heard this matter on the ________day of ____________, 19 _____. This Court finds that Petitioner has proven that allegations of domestic abuse by a preponderance of the evidence.

Therefore, This Court orders as follows:

( ) 1. Respondent shall not abuse, harass, or threaten the Petitioner, or commit any other domestic abuse;

( ) 2. Respondent shall immediately leave Petitioner's residence;

( ) 3. Respondent shall stay at least 100 yards away from the following places (Do Not List any Address which would further endanger the Petitioner):

( ) Residence: _____________________________________________

( ) Place of employment: _____________________________________

( ) School attended by Petitioner or Petitioner's Children: ____________________________

( ) Other places: ____________________________________

( ) 4. Respondent shall not contact Petitioner, in person, in writing, or by telephone.

( ) 5. Petitioner shall have custody of the following minor children: ______________________.

( ) 6. Respondent shall be permitted to visit with the children only on the following day(s):          ________   at the following places (s) _________________________________ and time(s) _________________________________ under the supervision of the following person (s) ______________________________________________________

( ) 7. Respondent shall pay to Petitioner the following amount for the support of their minor children: $ ______________________ per _____________________ ; these payments shall be made as follows: _____________________ .

( ) 8. Respondent shall return to Petitioner the following items : _________________________________________________________

( ) 9. Respondent shall not sell, remove, hide, destroy or damage any property owned by Petitioner or by both parties jointly.

( ) 10. An Officer of the Poarch Creek Indians Public Safety Department shall accompany Petitioner to a residence occupied by the Respondent to:

( ) obtain physical custody of the children listed in paragraph 5 above,

( ) collect personal belongings listed in paragraph 8 above;

( ) ensure that Respondent leaves the parties residence located at : _______________________________

( ) 11. Respondent shall pay to Petitioner the following amounts, as compensation for expenses incurred as a result of the abuse:

Lost earnings:                $_______________________

Property taken or damaged $____________________

Travel expenses:         $________________________

Other                          $________________________

( ) 12. Respondent shall participate in domestic abuse counseling at ________________for___________________weeks/months.

( ) 13. Petitioner shall participate in domestic abuse counseling at ___________________________for ________________weeks/months.

( ) 14. Respondent shall participate in alcohol counseling at ____________________for_____________________weeks/months.

( ) 15. Respondent shall pay to this Court the costs of this proceeding, $ ___________, in cash or a money order made out to: ______________________.

( ) 16. Other relief, as follows: _______________________________________________________________________.

This order shall be effective for ________years _______months from the date of its entry.

IT IS SO ORDERED, ADJUDGED AND DECREED THIS ____________________DAY OF ___________, 19_______.


________________________________________
JUDGE, POARCH CREEK INDIANS TRIBAL COURT

I hereby certify thai I personally served a true copy of the foregoing on the Respondent this ___________ day of ____________, 19 ____.

 

________________________________________
Name

 


 

 

POARCH CREEK INDIANS TRIBAL COURT

 

 

                  &nbsp
PETITIONER

V.
                &nbsp

RESPONDENT,

CASE NUMBER                 &nbsp
MOTION FOR ORDER TO
SHOW CAUSE


COMES NOW PETITIONER,                   , and moves the Court for an Order requiring Respondent                  , to show cause why he/she should not be held in contempt for violating the Protection Order entered on the    , day of       &nbsp, 19       &nbsp. As grounds for this motion, Petitioner states that Respondent violated the Protection Order in the following manner (describe how Respondent violated the order. Refer to specific paragraph numbers in the order, and then state what Respondent did to violate that part of the order, and the date(s) and time(s) of the violation(s):                                                          &nbsp

Respondent may be served at (describe where he or she may be found and attach a map if necessary):                                &nbsp
             &nbsp                                                &nbsp


WHEREFORE Petitioner,                         &nbsp, asks this Court for an Order requiring Respondent,                        &nbsp, to show cause why this Court should not hold him or her in contempt.

                        &nbsp
WITNESS

                        &nbsp
WITNESS

Respectfully submitted,

                        &nbsp
(PETITIONER)

 


 

POARCH CREEK INDIANS TRIBAL COURT



                  &nbsp
&nbsp
                &nbsp
                  &nbsp
PETITIONER

V.

                  &nbsp
                  &nbsp
                &nbsp

RESPONDENT,

CASE NUMBER                 &nbsp
ORDER TO
SHOW CAUSE

To:                 &nbsp
                 &nbsp
                &nbsp

YOU ARE ORDERED TO APPEAR before this Court on the        day of        &nbsp, 19       &nbsp, at       &nbsp:       &nbsp        &nbsp.M. to show cause why you should not be held in contempt for violating the Protection Order entered on the day of       &nbsp, 19       &nbsp. Petitioner has set forth the alleged violation(s) in the Motion to Show Cause served upon you with this order.

DATED this the         &nbsp day of         &nbsp, 19        &nbsp.

 

         &nbsp         &nbsp         &nbsp    &nbsp
JUDGE, POARCH CREEK INDIANS TRIBAL COURT

I hereby certify that I personally served a true copy of the foregoing on the Respondent this  &nbsp      &nbsp day of          &nbsp, 19         &nbsp.

       &nbsp___________________  &nbsp        
Name                                                         

 


POARCH CREEK INDIANS TRIBAL COURT

 

 

                  &nbsp

PETITIONER

V.
                &nbsp

RESPONDENT,

CASE NUMBER                 &nbsp
MOTION TO VACATE
PROTECTION ORDER

 

COMES NOW PETITIONER,                  &nbsp, and moves the Court to vacate the protection order entered on the        day of       , 19         . AS grounds for this Motion, Petitioner states that the circumstances that caused her or him to request a protection order have changed in the following manner (describe why you no longer need the order):

( ) Respondent completed domestic abuse counseling at                   on. (list dates)
( ) Respondent completed substance abuse counseling at                   on. (List dates)
( ) Other                                                     &nbsp                              

THEREFORE, I no longer feel that I need protection from Respondent and request that the Courts vacate the Protection Order entered against Respondent.

                        &nbsp
WITNESS

                        &nbsp
WITNESS

Respectfully submitted,

                        &nbsp
PETITIONER

 


 

POARCH CREEK INDIANS TRIBAL COURT

 

                  &nbsp
&nbsp
                &nbsp
                  &nbsp
PETITIONER

V.

                  &nbsp
                  &nbsp
                &nbsp

RESPONDENT,

CASE NUMBER                 &nbsp

ORDER


THIS COURT, having considered Petitioner's Motion to Vacate Protection Order entered by this Court on the          day of         &nbsp, 19  &nbsp, and having heard the parties' arguments as to why the Court should vacate the order, hereby ORDERS that the Petitioner's Motion is   &nbsp      &nbsp Granted /          &nbsp Denied.

       

    &nbsp_     &nbsp         &nbsp         &nbsp        &nbsp         &nbsp   &nbsp
JUDGE, POARCH CREEK INDIANS TRIBAL COURT

 



DATE OF ISSUE
JUNE 1, 1997  
SECTION CODE
T-1
           

GENERAL ORDER
NO . 97-1

 

SUBJECT                                            OFFICER PROTOCOL FOR DOMESTIC VIOLENCE SITUATIONS&nbsp
EFFECTIVE DATE
UPON PUBLICATION


OFFICER RESPONSE

The responding officer(s) shall have the dispatcher request "back up" assistance.

Responding officer(s) shall approach the scene as a criminal investigation. Officers should use appropriate precautionary procedures when approaching and entering the scene.

Upon arrival, officer(s) shall separate all parties involved. Identify and secure weapons if any.

Officers should determine the need for medical care.

Officer(s) should attempt to provide for the safety and care of children when necessary. Determine if the Victims Advocacy Specialist and/or social services is needed at the scene. The Victims Advocacy Specialist shall be notified whenever an officer responds to a domestic violence situation.

ON-SCENE INVESTIGATION

The officer(s) shall conduct a thorough criminal investigation.

The officer(s) shall interview the victim, suspect and other witnesses, including children as fully as circumstances allow. Children and other witnesses should be interviewed separately from the suspect, and victim.

In order to respond effectively, the officer should ask the victim questions such as the following:

How often has this happened?
What was the worst incident?
What weapons were used?
Has the suspect ever been arrested?
When was the last time you were treated by a doctor for injuries inflicted by the suspect?
Has the suspect been following, calling, or threatening you?



Approved 8-24-97
Initials
         
[Initials on original document.]

IDENTIFICATION AND COLLECTION OF EVIDENCE

Document spontaneous or excited utterances.
Gather statements from the parties and witnesses.
Document injuries - both visible and complained of.
Note the victims general /appearance.
Photograph any injuries.
Photograph the scene and weapons and objects used as weapons.
Complete a "body map" showing all marks, bruises, injuries, etc.
Weapons should be tagged and preserved for evidence.
Officer shall request the tape recording of the initial call (if available) be held and tagged for evidence.
Officer(s) shall determine what crimes they have probable cause to believe were committed and who committed them.
Officer(s) shall arrest the assailant whenever probable cause exists that the suspect committed a crime of domestic violence or other criminal offense.
Officer(s) should avoid making a physical arrest of the assailant in the presence of the victim.
Officer(s) should emphasize to the victim and the assailant that the criminal action is being initiated by the officers not the victim.
If the suspect has left the scene and cannot be located within a reasonable time, a warrant shall be obtained based on information and belief.

NOTICE OF VICTIMS RIGHTS

After conducting a thorough criminal investigation at a domestic violence scene officer(s) shall provide a written notice of rights to the victim.


IF NO ARREST CAN BE MADE

Officer(s) should encourage one party to leave and provide protection while essential property is collected in preparation for leaving and provide assistance with transportation whenever possible.

REPORT WRITING

When documenting a domestic violence response:

The victim does not have to sign the report.
The victim does not have to write a statement.
The victim should not be asked if prosecution is desired.

The domestic violence report shall include but is not limited to the following:

Address, date and time of incident.
Victims name, address, telephone number, sex, race, date of birth.

 

Approved 8-24-97
Initials
         
[Initials on original document.]

 

Suspects name, address, telephone number, sex, race, date of birth.
Witness name, address, telephone number, sex, race, date of birth.
Name of person who called in the complaint.
Relationship of victim and suspect.
Alcohol or drug use.
Narrative of incident.
Description of injuries of victim.
Description of weapon(s).
Medical attention sought, where.
Property damage.
Offices name, date, was arrest made.


EFFECTIVE DATE AND DISTRIBUTION

This order is effective           &nbsp, 19          &nbsp.

 

         &nbsp         &nbsp         &nbsp
Stanley O. Stuart, Chief of Police


Distribution:

All Personnel
All Functional Units

I have read the above order and fully understand it.

         &nbsp         &nbsp         &nbsp
SIGNATURE

         &nbsp         &nbsp         &nbsp
DATE

Approved 8-24-97
Initials
         
[Initials on original document.]



 

POARCH CREEK INDIAN PROSECUTION PROCEDURES FOR DOMESTIC VIOLENCE CASES


Approved 8-24-97
Initials
         
[Initials on original document.]

 

I. POLICY

Like all other crimes, domestic violence is a violation of Tribal criminal laws and a crime against the Tribe itself. As with all crimes, it is the duty of the prosecutor to decide whether a case will be prosecuted, and to what extent. It is often the case in many jurisdictions, that informal procedures are characteristic of domestic violence prosecutions, and frequently the outcome is controlled by the victims themselves. However, such practice often results in non-prosecution and the effect is that the pattern of domestic violence is only temporarily abated and is soon resumed by the aggressor. Victims are often intimidated or pressured by the defendant to drop the charges, only to see the abuse return soon after. Therefore, the cooperation and willingness of the victim in the prosecution of the offense is only one factor to be considered and will not be determinative of the prosecution of the case. However, understanding, respect, compassion and the victims privacy will all be considered in each case.

It will be the policy of the Tribal Prosecutor to work closely with the Tribal Police Department, Social Services Department and the Victims Advocacy Specialist in addressing domestic violence issues. The prosecution of all domestic violence crimes shall be conducted within the framework and as mandated by Section 8 of the Poarch Creek Tribal Code and other applicable tribal laws.

 

II. PROCEDURE

A. INITIAL CASE REVIEW

The Tribal Prosecutor is only one of several offices that will be involved in domestic violence cases. Normally, initial contact and involvement with these situations shall be through the Tribal Police Department, Social Services, and the Victims Advocacy Specialist. Those cases that are referred by these agencies for criminal prosecution shall be coordinated by the Tribal Prosecutor.

In all cases that are referred for prosecution, the respective agency should provide all available information regarding the situation. The prosecutor, with the assistance of the respective agencies, shall compile all police reports, accusatory instruments, medical reports, incident reports, photographs, victim and witness statements, Protective Orders, past criminal histories and all relevant evidence and information that may assist in the assessment and prosecution of the crime.

Early contact with the victims shall be scheduled through the Victims Advocacy Specialist or caseworker in order to establish an atmosphere of trust and cooperation. In addition to reviewing the incident, and obtaining statements and other evidence, the prosecutor shall provide the victim with information about the court process and try to answer any questions that the victim may have. It shall be made clear to the victim that it is the tribe's case against the defendant and that while each case is different and has its own particular circumstances, decisions as to the ultimate prosecution of the case, plea bargaining, dismissal or withdrawal of charges are not decisions made by the victim. The victim will be informed of what shall be expected of him/her during the proceedings. The victim will be apprised of additional criminal and civil relief that may be available.

Following initial review of the case, and throughout the pendency of the proceedings as new information is learned, the prosecutor shall assess the possibility of need to amend the charges. In addition, past incidents of uncharged conduct shall be reviewed, occurring within the jurisdiction of the Court and within applicable statue of limitations, to determine if said offense could be provable as separate and new cases.

The appearance of the victim at all stages of the prosecution shall be secured by subpoena.


B. PRE-TRIAL PROCEDURE AND ARRAIGNMENT

Pretrial release of all defendants shall be governed by the procedures as set forth by the Tribal Code. However, it is hereby the stated recommendation of the Tribal Prosecutor that no defendant should be released on simply his/her own recognizance and that as a condition of said release, that no further contact be had with the victim. In the event following pretrial release, should there by any further incidents between the parties, the defendant should be immediately arrested and held for appearance before the Tribal Judge within the time proscribed by law. At such time, the Court will be apprised of the situation as well as all intervening factors and the recommendation of the prosecutor regarding release.

Orders of Protection shall be routinely sought from the Court if not already initiated prior to arraignment. The prosecutor will request that the Court explain to the victim and the defendant that the terms of the order are not amendable by either party.

The prosecutor shall determine if the victim will be participating and cooperating in the case. The remaining evidence shall be evaluated to determine the strength of the case. Either the Prosecutor or the Victims Advocacy Specialist will discuss with the victim any reluctance to cooperate.

All victims not appearing for arraignment shall be contacted within five business days by the Prosecutor or the Victims Advocacy Specialist to address any special problems or concerns of the victim.

If both parties were arrested, the evidence will be reviewed and evaluated to determine if one was the primary aggressor, whether violence was of a defensive nature, or whether one party has been routinely victimized by the other. If it so appears, the prosecutor will take whatever steps that justice requires, including amending the charges to reflect new evidence and recommending that the victimized party be referred to a victim's support group or other similar program in lieu of or in addition to other penalties.


C. PLEA BARGAINING

Above all else, it is the duty of the Tribal Prosecutor to see that justice is achieved in any type of case. The enforcement of tribal laws, prevention of future crimes, punishment of offenders, protection of victims and the public and restitution for victims is always paramount. However, it is recognized that those ends may be achieved by several different methods. Each and every case is unique. Prosecution to the full extent of the law may not always result in justice being served. Therefore prosecution of a particular case must be tailored to those specific facts to see that justice is achieved.

Plea bargaining is a discretionary tool available to the prosecutor in the prosecution of crimes. Many factors must be considered including, but not limited to, the strength of the case, the sufficiency of evidence, and the impact on the victim in determining whether or not a plea bargain is justified under the circumstances. As stated, each and every case is unique. Depending on the situation, plea bargaining may be completely out of the question, it may allow for pleading only to the most severe crime charged, it may allow for pleading to a lessor offense charged, or pleading to a lessor included offense. Plea bargaining also gives the prosecutor great latitude in tailoring sentences, punishments, treatment, conditions and other factors to a particular situation.

While the victim may be consulted, his/her desire for, or opposition to, plea bargain is not determinative.

Factors to consider in all stages of the prosecution are:

1. The continued safety and welfare of the victim;

2. Whether there have been other incidents not resulting in prosecution or other cases where the victim has dismissed charges;

3. The severity and frequency of past incidents;

4. Whether are not former spouses or partners have been subjected to similar abuse;

5. The presence or use of weapons;

6. Substance abuse;

7. Forcible sexual acts, stalking, harassment, homicidal threats, assault, intimidation, violent jealously, or menacing;

8. The control by the defendant over the victim's life and daily routine;

9. The victim's mental state;

10. The defendant's mental state;

11. Violence or threats towards other family members, police officers or bystanders;

12. Bizarre or anti-social behavior;

13. Prior domestic violence convictions;

14. Violation of any protective orders.

 

D. CASE DISMISSAL

If the victim absolutely refuses to cooperate and insists that the case be dismissed, the prosecutor shall request that a trained advocate from the Victims Advocacy Specialist's office or other agency counsel the victim, whereas such feelings are often the result of threats, intimidation, coercion, promises to change, apologies, etc. Therefore, cases shall not be readily dismissed without the presence of compelling reasons.

Following careful evaluation of all evidence, the prosecutor will determine all charges for which sufficient basis exists to pursue prosecution. Only in those cases where the victim's testimony is absolutely essential and there is no other sufficient evidence available to support a prosecution should a case be dismissed.

 

E. TRIAL PREPARATION

Trial preparation shall be conducted in light of the possibility that the victim may later refuse to cooperate. The prosecutor will therefore determine the availability and usefulness of police photographs of injuries, medical injuries, children or other relatives in the home, neighbors, 911 tapes, defendant statements to police at the scene or at booking, damage to the premises, police testimony of observations made at the scene and of the victims emotional state, "excited utterances" and "present sense impression" statements made at the scene, communications from the defendant to the victim after the commencement of the incident, torn clothing, etc.

 

F. SENTENCING RECOMMENDATIONS

One of the primary goals of sentencing is to insure that the defendant participates in an approved long term treatment program for batterers. This is to be sought whether or not incarceration is involved.

Fines should rarely be sought in domestic violence cases in that such cases usually involve an ongoing relationship or support order. A fine levied on the defendant may therefore adversely affect the victim.

Incarceration should be sentenced to meet the needs of each particular case:

1. In those cases where the defendant provides the support for the victim/family, weekends in jail or work release should be considered.

2. Split sentences and probation allow for increased supervision and monitoring of the defendant.

3. Incarceration should be considered in light of the victim's request, the seriousness of the crime and past criminal history of the defendant.

Unsupervised conditional releases should be opposed. This situation places primary responsibility for monitoring on the victim. If continued monitoring is needed, supervised probation should be sought.

The victim should not be required to attend any joint counseling sessions. The victim did not commit a crime and such conditions minimize the seriousness of the crime and improperly penalize and blame the victim for the crime.

All sentences should include at a minimum:

1. Mandatory completion of a batterer's program;

2. Protection Order;

3. Completion of substance abuse treatment program, if evaluation indicates that it is needed.

4. Restitution for medical bills, damage to property and other expenses.

 

G. VIOLATIONS OF PROTECTIVE ORDERS AND/OR PROBATION

All violations of a Protective Order shall be prosecuted as criminal contempt. In addition, further charges may be in order depending on the circumstance of the violation.

APPROVED 8-24-97
Initials
         &nbsp
[Initials on original document.]

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