Elder abuse criminal law strengthened in Cherokee
The new law will result in most elder abuse defendants being held for at least 72 hours after arrest. Holly Kays photo
In a unanimous vote, the Cherokee Tribal Council has approved an ordinance change aimed at protecting victims of elder abuse while their alleged abuser’s legal process plays out.
“The way that it was written from the beginning was there wasn’t a hold time on them or whatnot, so they could end up getting out and going back out and doing the same thing, which was something that was happening at that point in time,” said Cherokee Police Commission Chairman Gene “Tunney” Crowe during the commission’s Jan. 11 meeting. “We asked that they change that, and they did that, so now they have a little more stringent code to protect the elders.”
Under the new ordinance, which was submitted by the Police Commission, anybody charged with “abuse of an elderly or vulnerable adult” will be automatically jailed for 72 hours after their arrest unless a magistrate or Cherokee Court judge decides to release them after a formal release hearing, which will be held immediately upon the defendant’s first court appearance following arrest. This new process would align with that already used for alleged domestic abusers.
“The defendant can present evidence as to why he or she should not be held for the entirety of that 72 hours,” Tribal Prosecutor Shelley Buckner told the Police Commission during its Jan. 11 meeting, detailing how the process has played out in domestic violence cases. “It does happen from time to time, although for the overwhelming majority of those cases, defendants are held at least for those 72 hours, and there may be those that the hold and custody may continue beyond that.”
Under the new law, the court will assume — unless evidence is presented to the contrary — that the defendant poses a risk of violence or intimidation to the alleged victim. While the law does give the court discretion to release the defendant prior to the 72-hour hold should the evidence lead in that direction, it states that “in no case” shall a defendant be released earlier than 72 hours after the arrest “unless the Court has made all reasonable efforts to inform the alleged victim that the defendant’s release is imminent and has been given [sic] the alleged victim an opportunity to be heard at the formal release hearing.” Victims can offer a statement in person, in writing or via telephone.
During that hearing, the magistrate or judge will review the probable cause supporting the charges and determine whether the person poses “a credible threat of violence, repeated harassment or bodily injury to the alleged victim or to the victim’s family or household,” as well as whether the defendant is a threat to public safety and is “reasonably likely” to appear in court.
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Following the hearing, the court can order that the defendant be released immediately, be released after the 72-hour hold expires or remain in custody until trial.
“In making the determination … the court will consider whether the arrested person’s pattern of violent or threatening behavior towards a victim or victim’s family or household member is chronic, and whether the seriousness of the behavior has been escalating, indicating a heightened danger of severe or lethal injury to the alleged victim,” the new law says.
Abuse of an elder or vulnerable adult is a crime punishable in tribal court by a fine of up to $5,000, one year in prison and banishment for two to five years. However, the same crime perpetrated by someone in a caretaker role carries an even greater potential punishment — a fine of up to $15,000, three years in prison and banishment for two to 10 years.
Tribal Council passed the ordinance change unanimously with little discussion, and Principal Chief Michell Hicks has signed it into law.
