Chapter 4.80
TRIAL AND SENTENCING
Sections:
4.80.010 Domestic violence or family violence sentencing designation.
4.80.030 Reasons for dismissal required in Court file.
4.80.045 Judgments and convictions.
4.80.050 Mandatory relational life skills (RLS).
4.80.010 Domestic violence or family violence sentencing designation.
This section provides for the designation of a crime as domestic violence (DV) or family violence (FV), which gives notice that the Tribes may seek additional conditions at sentencing. Any crime as defined by this title or within this division is considered domestic violence (DV) if committed against a current or former intimate partner, or family violence (FV) if against a family or household member, and is subject to the provisions of this division. The designation of domestic violence or family violence should not be removed as part of a plea bargain.
Duties of the Court in Domestic and Family Violence Cases. Because of the serious nature of domestic and family violence, the Court:
A. Shall not dismiss any charge or delay disposition because of concurrent dissolution or other civil proceedings;
B. Shall not require proof that either party is seeking a dissolution of marriage prior to instigation of criminal proceedings;
C. Shall waive any requirement that the alleged victim’s location be disclosed to any person upon a showing that there is a possibility of further violence. When the victim’s location is not disclosed, any communication with the victim by the attorney of the criminal defendant, or any other person, shall be conducted through the victim’s advocate or the Court. [Res. 2018-83; Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.8.010.]
4.80.020 Rules of evidence.
A. Spousal Privileges Not Applicable. In any proceeding under this division where a spouse is the alleged victim of domestic violence, the privilege of confidential communications between spouses and the testimonial privilege of spouses shall not apply to protect the defendant or respondent.
B. Victim/Advocate Privilege. In any proceeding under this division, a victim of domestic or family violence may refuse to disclose, and may prevent an advocate from disclosing, confidential communications between the victim and advocate, and written records and reports concerning the victim. The victim advocate privilege shall not, however, relieve the advocate of the mandatory duty to report child abuse or neglect, and shall not apply when the advocate is required to give evidence in child welfare proceedings.
C. Evidence Concerning Domestic or Family Violence. In any proceeding under this division, the Court may admit into evidence, without regard to any hearsay rule, expert testimony, learned treatises, articles, videos, or other relevant and reliable evidence concerning the “battered woman syndrome” or “battered child syndrome” or otherwise examining the impact of domestic and family violence on its victims.
D. Witness Testimony. Upon the request of a prosecutor or the defense, the Court may issue a material witness warrant compelling a witness to appear before the Court. In making the request, the party must certify that:
1. The witness is material to the party’s case;
2. The witness has failed or refused to appear before the Court; and
3. Other means of securing the witness’s presence at trial have proved futile.
E. The Chehalis Tribes declares that protection of domestic violence and family violence victim-witnesses is a substantial and compelling interest of the Chehalis Tribes. When abuse is prosecuted, a domestic violence or a family violence victim-witness may suffer serious emotional and mental trauma from exposure to the abuser or from testifying in open court. The creation of procedural devices designed to enhance the truth-seeking process and to shield domestic violence or family violence victim-witnesses from the trauma of exposure to the abuser and the courtroom is a compelling Tribal interest and will be established upon approval of this code.
F. Prior Statement. A prior statement is admissible as substantive evidence at trial if the victim appears and testifies inconsistently with the statement. In determining the admissibility of the statement, the Court shall consider whether the statement was made subject to the following provisions:
1. The witness voluntarily made the statement;
2. When the statement was made, there were minimal guaranties of truthfulness, such as a sworn declaration, certified statement, or affidavit signed before a notary. The statement should include the following:
I have read the attached statement or it has been read to me and I know the contents of the statement. I understand that my written statement is made under penalty of perjury by signing below.
The statement should include a signature and date;
3. The statement was taken pursuant to standard procedure; and
4. The witness whose statement is being offered is subject to cross-examination when giving the subsequent statement. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.8.020.]
4.80.030 Reasons for dismissal required in Court file.
A. When a prosecutor moves to dismiss charges against a defendant accused of domestic or family violence, or when the Court dismisses such charges, the specific reasons for the dismissal must be recorded in the Court file.
B. If the dismissal is based on the unavailability of the alleged victim or any witness, the prosecutor shall indicate the specific reason why such person is unavailable and why the case cannot be prosecuted. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.8.030.]
4.80.040 Criminal penalties.
Criminal penalties should be guided by the seriousness of the offense. The following factors may be considered:
Special Court provisions for domestic violence or family violence crimes.
Sentencing – Factors – Defendant’s criminal history.
A. In sentencing for a crime of domestic or family violence as defined in this division, the court shall consider, among other factors, whether:
1. The defendant suffered a continuing pattern of coercion, control, or abuse by the victim of the offense and the offense is a response to that coercion, control, or abuse;
2. The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time; and
3. The offense occurred within sight or sound of the victim’s or the offender’s minor children under the age of 18 years.
B. In sentencing for a crime of domestic or family violence as defined in this division, the prosecutor shall provide for the court’s review the defendant’s criminal history, if any, which occurred in any Tribal, State or Federal jurisdiction.
In addition to the rules of court generally applicable to criminal proceedings, the Court is authorized to take the following actions in proceedings of alleged domestic or family violence:
1. If the alleged perpetrator pleads or is found guilty, the Court, in its discretion, may order the Chehalis Probation Department to prepare a pre-sentence report prior to sentencing.
2. If it appears to the Court that alcohol or drugs played a part in the crime, a chemical dependency evaluation with a treatment plan may be ordered prior to sentencing at the discretion of the Court.
3. Upon a guilty plea, conviction, or other disposition, the Court may issue a no contact order prohibiting the defendant from having any contact with the victim irrespective of whether the victim consents.
4. Upon a guilty plea, conviction, or other disposition, the perpetrator shall be ordered to participate in the Chehalis Tribes Behavioral Health Mandatory Relational Life Skills (RLS). If the Chehalis Tribes Behavioral Health Program is unavailable at the time of sentencing, the Court may approve a certified domestic violence perpetrator treatment program that the Court finds consists of at least the following:
a. The perpetrator shall attend and cooperate in an intake session for a domestic or family violence perpetrator’s treatment program.
b. The intake shall be completed by the perpetrator treatment program, Tribal or non-Tribal, not later than 10 calendar days after entry of the order requiring treatment, unless the Court extends that time period for good cause shown.
c. A copy of the recommended treatment plan shall be provided to the Court.
d. In the discretion of the Court, the perpetrator’s participation in treatment sessions based on the domestic or family 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. However, once this service is ordered it must be completed prior to dismissal unless probation is revoked.
e. The domestic or family violence program or other services provider shall submit written progress reports to the Court and Probation Department at least every six calendar weeks. [Res. 2018-83; Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.010.]
4.80.045 Judgments and convictions.
When entering a judgment upon conviction for a crime involving domestic violence, family violence, or stalking, the Court shall:
A. Consider the entry of orders for the protection of the victim, including those set out within this division;
B. Order restitution as warranted; and
C. Order RLS or an appropriate domestic or family violence perpetrator’s treatment:
1. For the purposes of this subsection a RLS or a domestic or family violence perpetrators’ treatment intake assessment should include the following considerations: an official copy of current and past criminal history; all violence history whether or not it resulted in a conviction; family and cultural issues; substance abuse issues; and a treatment plan that adequately and appropriately addresses the treatment needs of the individual. The intake may not be based solely on the defendant’s self-report.
2. Satisfactory completion of RLS or domestic or family violence treatment required under this section must be based on meeting treatment goals, not merely the completion of a certain period of time or certain number of sessions. The treatment must focus on ending the violence and holding the defendant accountable for his or her behavior. The treatment must include education about the individual, family, and cultural dynamics of domestic and family violence. Treatment must include education about the effects of domestic and family violence on children. The defendant must sign privacy releases for the treatment provider to obtain any confidential information that is necessary to the treatment. The defendant must also sign a release for the treatment provider to provide information to the Prosecutor or probation officer in order to monitor compliance with the court order.
3. In the Court’s discretion, order any other lawful relief as it deems necessary for the protection of any claimed, alleged or potential victim of domestic violence or family violence, including orders or directives to the Chehalis Tribal Police Department. [Res. 2018-83.]
4.80.050 Mandatory relational life skills (RLS).
A. A person convicted of domestic or family violence shall be ordered to participate in RLS and to complete an intake. As set out in CTC 4.80.045, the defendant must sign all necessary privacy releases of information for the evaluation and distribution to the relevant parties and the Court.
B. At the time of sentencing the Court shall order the defendant to follow the recommendations made in the assessment and complete all recommended treatment programs. The recommendations may include, but are not limited to: completion of a program for RLS or perpetrators of domestic or family violence; alcohol and drug evaluation and treatment; psychological and psychiatric evaluation and treatment; violence prevention; parenting classes; and mental health counseling.
C. If the RLS intake states that the defendant is not amenable to treatment, the judge shall not order treatment as a part of the defendant’s penalty and shall take into consideration that the defendant is not actively participating in treatment when imposing jail time.
D. The Court shall order the defendant to execute all forms and releases that are necessary for the Court to be kept apprised of the defendant’s compliance with the Court’s order regarding treatment and counseling. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.020.]
4.80.060 Restitution.
The Court shall order a person convicted of domestic or family violence to compensate the victim for losses suffered as a direct result of the defendant’s act of domestic violence. Restitution may include but not be limited to: medical and counseling costs, loss of earnings or other income, cost of repair or replacement of real or personal property, cost of temporary shelter, and moving or travel expenses. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.030.]
4.80.070 Other restraints.
When sentencing a person for the crime of domestic or family violence, the Court may impose any or all of the following restraints, as appropriate:
A. An order to commit no further acts of domestic or family violence.
B. An order not to contact, harass, annoy, telephone, or otherwise communicate, directly or indirectly, with the alleged victim, the alleged victim’s family or household members, or any witness to the alleged act of domestic or family violence, except that essential contact may be made through application to the Court.
C. An order to vacate or stay away from the victim’s residence, even if it is a shared residence or principally owned by the alleged perpetrator.
D. An order to stay away from any well-defined geographic area, including, but not limited to, a residence, workplace, school or daycare of the alleged victim, the alleged victim’s family or household members, or any witness to the alleged act of domestic or family violence.
E. An order prohibiting the possession or use of any firearm or other weapon specified by the Court, and to turn such weapon over to Chehalis Tribal Police for safekeeping.
F. An order prohibiting the person from possessing or consuming alcohol or controlled substances and from frequenting bars or other places where alcoholic beverages are the main product sold or served. The Court may order physical, mechanical, chemical or electronic testing to assure compliance.
G. Any other order the Court believes is reasonably necessary to protect and ensure the safety of the alleged victim or a family or household member. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.040.]
4.80.080 Exclusion.
Any person convicted of a domestic or family violence crime may be excluded from the Tribe’s jurisdiction in accordance with the provisions of the Chehalis Exclusion Code. [Res. 2018-83; Res. 2016-17; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.050.]
4.80.090 Stay pending appeal.
The Court shall not have authority to stay the execution of a sentence pending appeal from a conviction of a criminal offense under this division. The Court of Appeals may stay the execution of a sentence upon a finding that the defendant’s notice of appeal presents a credible legal issue for review. [Res. 2018-83; Res. 2011-020; Res. 2006-63; Res. 2006-41. Prior code § 8.2.9.060.]