ELDER ABUSE CODE
SECTION 1. DEFINITIONS.
As used in this ordinance, unless the context clearly indicates otherwise:
(a) the term "abuse" means the willful infliction of physical injury or pain, sexual abuse, mental anguish, unreasonable confinement, intimidation, financial exploitation, the willful deprivation by a caretaker of the basic necessities of life - such as but not limited to food, shelter, clothing, and medical and personal care -which are necessary to avoid physical harm, mental anguish, or mental illness, or any other type of maltreatment. However, no person shall be deemed to be abused for the sole reason they are being furnished nonmedical remedial treatment by spiritual means through prayer alone in accordance with a recognized religious method of healing in lieu of medical treatment;
(b) the term "elderly" means any person who has attained the age of fifty-five (55) years:
(c) the term "caretaker" means an individual who has the responsibility for the care of an elder, either voluntarily, by contract, receipt of payment for care as a result of a family relationship, or by an order of a court of competent jurisdiction;
(d) the term "exploitation" means the act or process of using an elder or their resources for another person's profit, advantage, gain, or for monetary or personal benefit without legal entitlement to do so;
(e) the term "physical injury" means bodily pain, harm, impairment, or disease;
(f) the term "mental anguish" means to subject an elder to fear, agitation, confusion, severe depression, or other forms of serious emotional distress, through threats, harassment, or other forms of intimidating behavior;
(g) the term "Oglala Sioux Elder Protection Team" (O.S.E.P.T) shall mean that group created by this Ordinance whose objective is to protect elders from themselves and from others as the need arises.
SECTION 2. Mandatory Arrest Provision.
(a) An officer shall arrest and take into custody persons whom the officer has probable cause to believe assaulted an elderly person with whom he/she is residing with or has formerly resided with. No warrant is required to make an arrest under this section.
NOTE: Probable cause is defined as follows: Based on the officer's observations and statements made by the parties involved and witnesses (if any) the officer using reasonable judgment believes an assault did occur and the person to be arrested committed the assault. This mandatory arrest provision means that the victim need not sign a complaint for an arrest to occur. Further, under the provisions of (a) above, an officer shall arrest under probable cause even though it may be against the expressed wishes of the victim.
(b) An officer shall arrest and take into custody a person whom the officer has probable cause to believe has violated an order for protection restraining the person or excluding the person from the residence if the existence of the order can be verified by the officer.
NOTE: Regardless whether or not the person violating the order was invited back into the home, an arrest shall be made. Thus, when the court issues such an order it should inform the excluded party that the court must formally change the order in order for him/her to return to the residence.
(c) An officer shall arrest if there was a threat with a dangerous weapon.
(d) An officer may arrest when responding to a call if the officer has probable cause to believe that the alleged assailant has within the past twenty-four hours placed the alleged victim in immediate fear of bodily harm.
(e) Whenever an officer investigates an allegation of an incident described in (a), (b), (c) or (d) above, whether or not an arrest is made, the officer shall make a written report of the alleged incident and submit that report to the Prosecutor. The Prosecutor shall forward copies of all written reports to the Oglala Sioux Elder Protection Team and/or to the Adult Services Worker in the Department of Social Services within 48 hours of receipt of reports of elderly abuse.
(f) The officer shall request that the jailer contact the Oglala Sioux Elder Protection Team and/or the Adult Services Worker in the Department of Social Services immediately following the booking procedure and inform them that an arrest has been made.
SECTION 3. Role of the Court in Regard to Mandatory Arrest Provision (Section 2 above).
(a) Anyone arrested under this ordinance shall be held until arraignment.
(b) Prior to the release of the defendant a community volunteer will talk with him/her and discuss the availability of domestic violence groups.
(c) The defendant is arraigned.
(d) If he/she enters a plea other than guilty, an advocate for the victim will assist him/her in the preparation of an order for protection temporarily excluding the other from the home and restraining the defendant from any contact with the victim. If he/she pleads guilty, a pre-sentence investigation is ordered and the victim, either personally or through the Adult Services Worker, communicates his/her concerns to the court.
(e) Sentences for a violation of this ordinance shall be a minimum of six (6) months in jail and a fine of not less than $500.00, plus court costs.
(f) If alcohol or drugs play a part in the abuse, a chemical dependency evaluation and complete cooperation with any recommendations for treatment made will be ordered.
(g) The assailant shall be ordered to participate in the appropriate domestic violence program and must:
(1) Attend an intake session for evaluation and placement in a group for domestic violence. This will be accomplished by the Adult Services Worker of the Department of Social Services or by a member of the Oglala Sioux Elder Protection Team or by a member of another domestic violence program not later than 10 calendar days after sentencing.
(2) Attend a minimum of 12 re-education sessions out of 14 consecutive sessions and attend a minimum of 12 counseling sessions out of 14 consecutive sessions. These sessions will begin immediately following the intake session (see (1) above). The counselor shall submit a record of attendance to the Clerk of Courts. The Clerk of Courts shall maintain a record of attendance.
(h) In cases of failure to comply the assailant may be found in contempt of court, given a jail sentence, and given a choice of completing the program or going to jail again. Failure to attend counseling, violation of an order for protection, or commission of a crime of violence during the order for protection period, will result in immediate review of the case by the court.
(i) Upon any second or subsequent offense offenders shall be sentenced to at least six months in jail not to exceed the maximum penalty the OST can apply. After serving their sentence they must complete the domestic violence counseling as described in (g) 2 above.
SECTION 4. Order for Protection.
There will exist an order for protection in cases of elder abuse.
(a) A petition for relief under this section may be made by any family or household member on behalf of himself/herself or on behalf of minor family or household members.
(b) A petition for relief shall allege the existence of elder abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.
(c) A petition for relief may be made regardless of whether or not there is a pending lawsuit, complaint, petition or other action between the parties.
(d) The court shall provide simplified forms and clerical assistance to help with the writing and filing of a petition under this section.
(e) The court shall advise a petitioner of the right to file a motion and affidavit and to sue without cost and shall assist with the writing and filing of the motion and affidavit.
SECTION 5. Hearing on Application, Notice.
(a) Upon receipt of the petition, the court shall order a hearing, which shall be held not later than 14 days from the date of the order. Personal services shall be made upon the respondent not less than five (5) days prior to the hearing. In the event that personal services cannot be completed in time to give the respondent the minimum notice required under this paragraph, the court may set a new hearing date.
(b) Notwithstanding the provisions of paragraph (a) above, service may be made by one week published notice provided the petitioner files with the court an affidavit stating that an attempt at personal service made by a law enforcement official was unsuccessful and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent's residence or that the residence is not known to the petitioner. Service under this paragraph is complete seven (7) days after publication. The court shall set a new hearing date if necessary to allow the respondent the five (5) day minimum notice required under paragraph (a) above.
SECTION 6. Relief by the Court.
Upon notice and hearing, the court may provide relief as follows:
(a) Restrain the abusing party from committing acts of elder abuse.
(b) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner.
(c) Order the abusing party to participate in treatment or counseling services.
(d) Award temporary use and possession of property and restrain one or both parties from transferring, encumbering, concealing, or disposing of property except in the usual course of business or for the necessities of life, and to account to the court for all such transfers, encumbrances, dispositions, and expenditures made after the order is served or communicated to the party restrained in open court.
(e) Order, at its discretion, other relief as it deems necessary for the protection of a family or household member, including order or directives to the Public Safety Division, the Oglala Sioux Tribe. Any relief granted by the order for protection shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate.
SECTION 7. Standing Order for Protection.
(a) Where an application under this section alleges an immediate and present danger of domestic abuse, the court may grant a standing order for protection, pending a full hearing, and granting relief as the court deems proper, including an order:
(1) restraining the abusing party from committing acts of domestic abuse;
(2) excluding any party from the dwelling they share or from the residence of the other, and from any contact with the victim except by further order of the court.
(b) A standing order for protection shall be effective for a fixed period not to exceed 14 days, except for good cause as provided under paragraph (c) below. A full hearing, as provided by this section, shall be set for not later than seven (7) days from the issuance of the temporary order. The respondent shall be served forthwith a copy of the standing order along with a copy of the petition and notice of the date set for the hearing.
(c) When services is made by published notice, as provided under Section 6 (b) above, the petitioner may apply for an extension of the period of the standing order at the same time the petitioner files the affidavit required under that section, the court may extend the standing order for an additional period not to exceed 14 days. The respondent shall be served forthwith a copy of the modified standing order along with a copy of the notice of the new date set for the hearing.
SECTION 8. Service of Order for Protection.
Orders are to be served personally upon the respondent by a police officer. If the respondent cannot be located the order for protection will be mailed by certified mail to the respondent's last known address.
SECTION 9. Assistance of Public Safety in Service or Execution.
When an order for protection is issued, upon request of the petitioner, the court shall order the police to accompany the petitioner and to assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in execution or service of the order for protection.
SECTION 10. Right to Apply for Relief.
A person's right to apply for relief shall not be affected by his/her leaving the residence or household to avoid abuse.
SECTION 11. Modification of Order for Protection.
Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.
Nothing in this ordinance shall affect the title to real estate.
SECTION 12. Copy to Law Enforcement Agency.
An order for protection granted pursuant to this ordinance shall be forwarded by the clerk of courts within 24 hours to the tribal police with jurisdiction over the residence of the applicant. The Public Safety Commission shall make available to each officer information as to the existence and status of any order for protection issued under this section.
SECTION 13. Violation of an Order for Protection.
(a) Violation of an order by a respondent who has had notice of the order for protection is an offense.
(b) A police officer shall arrest without a warrant and take into custody a person whom the police officer has probable cause to believe has violated an order for protection, if the existence of the order can be verified by the officer.
(c) A violation of an order for protection shall also constitute contempt of court and be subject to attendant penalties.
(d) In the event of violation of a protection order the mandatory arrest provision, Section 3 (b) et al. above, applies.
SECTION 14. Reporting Abuse of Elder; Penalty for Failure to Report.
Any person or caretaker who has reasonable cause to suspect or who witnesses abuse of an elder shall report the abuse or suspected abuse to the O.S.E.P.T. or to a prosecutor of the Oglala Sioux Tribe immediately. Any person or caretaker who without good cause fails to report abuse or suspected abuse of elders shall be guilty of an offense and upon conviction for a violation of this section shall be sentenced to imprisonment for a minimum of 30 days in jail and to a fine of not less than $150.00, plus court costs.
SECTION 15. Report to Oglala Sioux Elder Protection Term or Oglala Sioux Tribal Prosecutor, and Investigation.
Any report required to be made under this ordinance shall be made in person and orally to a member of the O.S.E.P.T. or the O.S.T. Prosecutor who shall reduce the report to writing. Once the report is reduced to a written form, the report shall be forwarded to the O.S.E.P.T. members, who shall, together with the Oglala Sioux Tribe's Public Safety Department officers, investigate the allegations made in the report. If the allegations are found to be true the O.S.E.P.T. shall forward a copy of their report to the Oglala Sioux Tribal Prosecutor who shall take the appropriate court action. If the allegations in the report are without merit the O.S.E.P.T. shall recommend that the case be closed.
SECTION 16. Oglala Sioux Elder Protection Team (OSEPT).
The Oglala Sioux Tribal Council hereby creates an Oglala Sioux Elder Protection Team (O.S.E.P.T.) upon the Pine Ridge Indian Reservation which shall serve the entire Pine Ridge Indian Reservation. O.S.E.P.T. 's objective is to protect all elders from themselves if necessary and from others if need be. The services O.S.E.P.T. shall provide shall consist of evaluating the need for services and mobilization on the elder's behalf of the appropriate existing services and shall include, but shall not be limited to, arrangement for appropriate living quarters, obtaining financial benefits to which a person is entitled, securing medical services and supplies and legal services in those situations where exploitation, prevention of injury, protection of the person and their property and providing the basic necessities of life is at issue. The O.S.E.P.T. shall consist of eight (8) members: two (2) of which shall be appointed by the Oglala Sioux Tribal Council; one (1) of which shall be the Adult Services Worker from the State Department of Social Services; one (1) of which shall be a representative of the Pine Ridge Public Health Service Hospital's Human Services Program; one (1) of which shall be a representative of the Pine Ridge Bureau of Indian Affairs' Social Services Department, one (1) of which shall be a member of the Grey Eagle's Society, one (1) of which shall be member of the Foster Grandparent's Program, one (1) of which shall be another community member, who must be a lakota speaker. The representatives from the agencies other than the appointees of the Oglala Sioux Tribal Council shall be appointed by the respective agencies and programs. A quorum of the O.S.E.P.T. to conduct a meeting shall consist of three (3) members who are present and voting. All actions of the Board of Directors shall be considered official if the action is approved by a majority of the members present and voting. The O.S.E.P.T. shall have the authority to solicit and accept grants of funds from the Federal Government and for other public and any private sources for any of the purposes of this ordinance.
SECTION 17. Immunity.
Anyone participating in good faith in making of a report pursuant to this ordinance shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed, and shall have the same immunity with respect to participation in any court proceedings resulting from such report.
SECTION 18. Contents of Report.
Any report required to be completed by this Ordinance shall consist of at a minimum:
(a) name, age and address of elder alleged to be abused.
(b) name and address of person with legal responsibility for the elder that is the subject of the report if it is other than the said elder;
(c) name and address of the alleged perpetrator;
(d) nature and extent of the abuse;
(e) persons who might have been aware of the abuse;
(f) date(s) and location(s) of when and where the alleged abuse occurred;
(g) findings and recommendations if report is from O.S.E.P.T. to O.S.T. Prosecutor; and
(h) any other pertinent information known to the person making the report.
SECTION 19. Central Registry Confidential.
The O.S.E.P.T. shall establish a central registry for reports of and convictions of abuse of the elder. The information in the central registry shall be confidential and may be released only to the members of the O.S.E.P.T. A court order is required before information gathered under this section shall be released to anyone except O.S.E.P.T. members. The information shall be released by the Oglala Sioux Tribal Court only after the court determines the information is necessary to prevent elderly abuse or to treat those convicted of elderly abuse. Any unauthorized release of confidential information is an offense and upon conviction the offender shall be imprisoned for no less than 90 days in jail and fined no less than $500.00, plus court costs.
SECTION 20. Reimbursement.
Any person who is convicted of financial exploitation of an elder, shall be ordered by the Oglala Sioux Tribal Court to reimburse the elder in full as a part of any plea bargain, guilty plea, finding of guilty by a judge or jury or nolo contendere plea. If the person has exploited resources other than money from the elder, then the court shall order the exploiter to return the resources immediately or to sign the necessary documents returning the resources to the elder.
SECTION 21. Non-Disclosure.
The name of any person who reports suspected abuse as defined in this Ordinance shall not be disclosed to any person unless the person who reported the abuse specifically requests such disclosure or a judicial proceeding results from such report.
SECTION 22. Responsibilities of Public Safety.
(a) Written reports shall be filed on every elder abuse report received (see Section 2 (d) above.).
(b) Copies of all written reports of elder abuse shall be forwarded to the Oglala Sioux Elder Protection Team and to the Adult Services Worker of the Department of Social Services within 48 hours of initial reports of elder abuse.
SECTION 23. Follow-up Assessment.
(a) Follow-up will be done at the end of the mandated 14 week sessions, six (6) months after initial sentencing, and one year after initial sentencing.
(b) PHS Mental Health shall do the assessment and shall forward a written copy of findings to the Clerk of Courts, to the Adult Services Worker of the Department of Social Services, and to the Oglala Sioux Elder Protection Team. The Clerk of Courts shall place the assessment in the case file.
SECTION 24. Appellate Review.
Appellate Court shall not stay the execution of sentences under this ordinance but may review legal issues under its review powers. EXCEPTION: If the Appellate Court determines that legal grounds exist for review then and only then may it stay the execution of sentence, pending its review. The Appellate Court shall limit its review to questions of law, leaving factual questions to the court of original jurisdiction.
Any person or caretaker who abuses or knowingly allows to abuse any elder is guilty of an offense. Any person or caretaker who is convicted for a violation of this section shall be sentenced to imprisonment for a minimum of six (6) months in jail and to a fine of not less than five hundred ($500.00) dollars plus court costs.
Hist: Ordinance 85-16; Amended by 89-05.
The Oglala Sioux Trial Court approves of the training schedules be offered by within the next thirty (30) days concerning the ELDER ABUSE CODE by Project Medicine Wheel and the Oglala Sioux Tribal Council requires that Oglala Sioux Tribal Court Judges, Prosecutor, Assistant Prosecutor; IHS Mental Health, OST Chief of Police, OST Police Lieutenants and police officers attend said training schedules during the next thirty day period so that proper implementation of Section 99.2 ELDER ABUSE CODE can be affected. That all elderly, who are victims of physical abuse shall be examined and treated by IHS doctor, as soon as possible, after physical abuse is reported or discovered. That any and all current ordinances that are in conflict with this amended ordinance are hereby rescinded.
Amended by Ordinance No. 95-07.