42.01.060 Definitions

When the criminality of conduct depends on a child being below the age of fourteen (14), it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than age of fourteen (14).

(a) "ABDUCTION" means to knowingly take away a person by persuasion, by fraud, or by open force or violence.

(b) "ABUSIVE SEXUAL CONTACT" means to knowingly engage in sexual contact with another person without that person's permission or is with an individual who has not attained the age of (14) fourteen years.

(c) "ADJUDICATION" means the formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a judgment by a court in regard to the parties in a case, and it implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. It indicates that the claims of all the parties thereto have been considered and put to rest.

(d) "ABSCONDED" means any sex offender who cannot be located after making reasonable attempts.

(e) "AGGRAVATED SEXUAL ABUSE" means to knowingly cause another person to engage in a sexual act by using force against that person or by threatening or placing that person in fear that any person will be subjected to death, serious bodily injury or kidnapping or attempts to do so.

(f) "AT RISK" means in danger, endangered, in jeopardy, threatened, vulnerable, susceptible, exposed, helpless, and defenseless; any person may be exposed to a risk of being victimized by a sex offender.

(g) "ATTEMPT AND CONSPIRACY" means any person who attempts or conspires to commit any offense under this code shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(h) "BESTIALITY" means a person who performs sex with an animal.

(i) "BIGAMY" means when a husband has (2) two or more wives or when a wife has (2) two or more husbands.

(j) "BREACH OF AUTHORITY" means an employer, youth leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian, baby sitter, or a substantially similar position, police officer and/or a probation officer whom abuses their position or authority for sexual relations (of trust).

(k) "CAUSING A CHILD TO VIEW OR LISTEN TO SEXUAL ACTIVITY" means to intentionally cause a child to view or listen to sexually explicit conduct if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or of humiliating or degrading the child.

(l) "CHILD PORNOGRAPHY" means any visual image including any photograph, film, video, picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct. Also knowingly producing, distributing, receiving, or possessing with the intent to distribute, a visual image of any kind, including a drawing, cartoon, sculpture or painting. Sexually explicit acts defined as real or simulated sexual intercourse containing genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

(m) "COERCING A MINOR TO ENGAGE IN PROSTITUTION" to engage in any sexual activity for which a person can be charged with a criminal offense.

(n) "COERCION" means to exploit fear or anxiety through intimidation, compulsion, domination, or control with the intent to compel conduct or compliance.

(o) "CONTROL OR CUSTODY" means temporary supervision over or responsibility for a minor whether legally or illegally obtained.

(p) "CONVICTION" means that the sex offender has been subject to penal consequences based upon an order from a criminal or delinquency court. This shall include but not be limited to convictions in any tribal, federal, state and foreign courts. A juvenile offender is "convicted" for purposes of this code when prosecuted as an adult. This includes convictions of juveniles who are prosecuted as adults and those adjudicated delinquent if the offender is 14 years of age or older at the time of the offense and the offense was comparable to or more severe than aggravated sexual abuse (18 USC 2241) or was an attempt or conspiracy to commit such an offense.

(q) "DEVIATE SEXUAL ACT" means any form of sexual contact with an animal or dead person.

(r) "DISTRIBUTE" means administer or bestow, spread, make available, give to several people or circulate.

(s) "DOMAIN NAME" means a name which locates an organization or other entity on the internet.

(t) "DRU SJODIN NATIONAL SEX OFFENDER PUBLIC WEBSITE [NSOPW]". The public website maintained by the Attorney General of the United States pursuant to [U.S.C. 42 §16920].

(u) "EMANCIPATE" means when a minor has achieved independence from his or her parents such as getting married before the minor reaches the age of 18 or by becoming fully self-supporting. A minor who has petitioned a court to free themselves from the control of parents and allow the minor to live on his/her own.

(v) "EMPLOYEE" the term "employee" means as used in this code includes, but is not limited to, an individual who is self-employed or works for any other entity, regardless of compensation including but not limited to volunteers, interns, externs, and apprentices. Also includes all employees of the federal, state, and tribal government and any tribally owned properties, businesses and organizations included within the definition of employee for registration purposes.

(w) "ENGAGING IN ILLICIT CONDUCT IN FOREIGN PLACES" means any U.S. citizen or alien admitted for permanent residence that travels in foreign commerce, and engages in any illicit sexual conduct with another person.

(x) "EXCLUSION AND REMOVAL" means any Tribal member or Non-member may be temporarily or permanently excluded and/or removed from any or all portions of Indian Country under the jurisdiction of the Turtle Mountain Band of Chippewa Indians on all land on the Turtle Mountain Indian Reservation in the State of North Dakota and to such other lands as may be acquired by or in behalf of said Tribe and be added thereto under the laws of the United States.

(y) "EXPOSING GENITALS OR PUBIC AREA" means exposing genitals or pubic area if he or she, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals or pubic area or exposes his or her genital or pubic area to a child.

(z) "FALSE IMPRISONMENT" means to intentionally restrain another person without having the legal right to do so. This can literally mean physical restraint, such as locking someone in a car or tying the person to a chair. However, it is not necessary that physical force be used; threats or a show of apparent authority are sufficient.

(aa) "FAILURE TO APPEAR" means in the event a sex offender fails to register with the Tribe as required by this Code.

(bb) "FAILURE TO FILE FACTUAL STATEMENT ABOUT AN ALIEN INDIVIDUAL" means whoever keeps, maintains, controls, supports, or harbors in any house or place for the purpose of prostitution, or for any other immoral service any individual, knowing or in reckless disregard of the fact that the individual is an alien, shall file with the local law enforcement a statement in writing setting forth the name of such individual, the place at which that individual is kept, and all facts as to the date of that individual's entry into the United States.

(cc) "FAILURE TO PROVIDE INFORMATION" means any person who is required to provide information under this title, the Sex Offender Registration Code, based on any conviction.

(dd) "FAILURE TO REGISTER" means any sex offender who fails to register within 24 hours of entering the Turtle Mountain Band of Chippewa Indian Reservation.

(ee) "FOREIGN CONVICTIONS" means the conviction is obtained from outside of the United States.

(ff) "HARBORING" means to secretly provide shelter, lodging, protection to conceal or who knowingly, attempts, or assists by providing false information, shelter or residence to a person who is trying to elude the law or who is harboring a runaway.

(gg) "HIV" means Human Immunodeficiency Virus and/or AIDS means Acquired Immune Deficiency Syndrome that is transmitted through direct contact of a mucous membrane or the bloodstream with a bodily fluid containing HIV that can involve anal, vaginal, or oral sex, blood transfusions, contaminated hypodermic needles.

(hh) "IMMEDIATE OR IMMEDIATELY" means within 3 business days of transferring of information to all jurisdictions where the sex offender resides, is an employee, or is a student and each jurisdiction from or to which a change of residence, employment, or student status occurs. This includes notification to any relevant SORNA-registration, jurisdiction, including all 50 States, territories, tribes and the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and all federally recognized Indian tribes.

(ii) "IMPRISONMENT" refers to incarceration pursuant to a conviction, regardless of the nature of the institution in which the offender serves the sentence. The term is to be interpreted broadly to include, for example, confinement in a state "prison" as well as in a federal, military, foreign, BIA, private or contract facility, or a local or tribal "jail". Persons under "house arrest" following conviction of a covered sex offense are required to register pursuant to the provision of this code during their period of "house arrest".

(jj) "INCEST" means a person who intermarries, cohabits, or engages in a sexual act with another person related to him/her within a degree of consanguinity within which marriages are declared incestuous, knowing such other person to be within said degree of relationship.

(kk) "INDECENT EXPOSURE" means the display of a person's genitalia to one or more other persons in public view which might be harmless but studies have shown those who commit the crime are at risk of committing more serious crimes.

(ll) "INTERNET" means to be used broadly to include any sort of online activity.

(mm) "JURISDICTIONS" means all trust and fee simple land within the boundaries of the Turtle Mountain Indian Reservation and extend to all trust land located in the State of North Dakota, such other lands as may be acquired by or on behalf of said Tribe and be added thereto under the laws of the United States, and shall include the following jurisdictions: all 50 States, territories, tribes and the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands.

(nn) "LACK OF CONSENT" means the acts must be committed either by threat, force and intimidation or through the use of the victim's mental or physical inabilities which can include when the victim is physically or mentally incapacitated by alcohol or drugs.

(oo) "LEWD CONDUCT" means any person who intentionally performs any lewd act in a public place knowing that such conduct is likely to cause reasonable affront and alarm.

(pp) "MINOR" means an individual who has not attained the age of 18 years of age; who is not legally emancipated; a minor has achieved independence from his or her parents such as getting married before reaching the age of 18 or by becoming fully self-supporting.

(qq) "MISLEADING DOMAIN NAMES ON THE INTERNET" means to knowingly use a misleading domain name on the internet, embed a source with the intent to deceive a minor into viewing material that is harmful to minors on the internet consisting of nudity, sex, or excretion, that, taken as a whole and predominantly appeals to a prurient interest of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for a minor and lacks serious literary, artistic, political or scientific value for minors.

(rr) "NATIONAL SEX OFFENDER REGISTRY [NSOR]". The national database maintained by the Attorney General of the United States pursuant to [42 U.S.C. § 16919].

(ss) "OBJECT" means anything used in the commission of a sexual act other than the person of the actor.

(tt) "OBSCENE" means an object, item, article, gadget must be prurient in nature, must be completely devoid of scientific, political, educational or social value, and must violate the local community standards.

(uu) "OFFENSES INVOLVING CONSENSUAL SEXUAL CONDUCT" means offenses involving sexual conduct are not a sex offense for the purpose of this Code if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least (14) years old and the offender was not more than four (4) years older than the victim.

(vv) "ONLINE CHILD PORNOGRAPHY" means by use of the internet whether business, government, personal home computers, or any telecommunication device to send or receive any visual image including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct. Also knowingly producing, distributing, receiving, or possessing with the intent to distribute, a visual image of any kind, including a drawing, cartoon, sculpture or painting. Sexually explicit conduct is defined as real or simulated sexual intercourse containing genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

(ww) "ORGANIZATION" means a person other than one individual.

(xx) "PANDERING" means:

(1) The act or crime of recruiting prostitutes or of arranging a situation for another to practice prostitution (pimp); or

(2) The act or crime of selling or distributing visual or print media (as magazines) designed to appeal to the recipient's sexual interest.

(yy) "PUBLIC" means any agency, interest, property or activity which is under the authority of the government or which belongs to the people.

(zz) "PUBLIC DISPLAY" means easily visible from a public road from property of others in any portion of any public facility, park or in any other public place in a manner so obtrusive as to make it difficult for an unwilling person to avoid exposure.

(aaa) "POSSESSION" means to own or able to control.

(bbb) "POSSESSION OF CHILD PORNOGRAPHY" means in the privacy of your home is not a protected activity. Accessing child pornography on the internet through peer-to-peer allows individuals to download the material directly from other people's computers by downloading, emailing, storing and sharing even at a first time status to any person faces charges not only for possession or distribution but also for sexual exploitation of a child.

(ccc) "PROCURING" means to obtain a sexual partner(s) for others.

(ddd) "PRODUCTION" means to make originate or yield, produce, direct, manufacture, issue, publish or advertise.

(eee) "PRURIENT" means characterized by shameful or inordinate sexual arousal or extraordinary sexual urges.

(fff) "RECKLESS ENDANGERMENT" means any person who creates a physical circumstance or situation that creates a substantial risk of neglect where sexual abuse occurs, serious bodily injury or death to any other person. Also included under Reckless Endangerment are Child Endangerment, Elderly Endangerment and Disabled/Handicap Endangerment.

(ggg) "RESIDENT"/"RESIDES" means, with respect to an individual, the location of the individual's home or other place where the individual habitually lives or sleeps. This includes sex offenders who visit the reservation for a period of 24 hours or more.

(hhh) "RESIDES" means with request to an individual, the location of the individual's home or other place where the individual habitually lives or sleeps.

(iii) "RESTRICTIONS" means any registered sex offenders, who had been convicted of any sex related crime against child/children, shall not watch, babysit or work with any child/children under the age of 18; providing it is not their own biological child/children. Exception: Unless the crime was committed against their biological child/children than the offender, shall not be permitted to watch, babysit or work with any biological child/children under the age of 18.

(jjj) "REASONABLE EXPECTATION OF PRIVACY" means the person would not be visible to the public, regardless of whether that person is in a public or private place.

(kkk) "RE-ENTERING" means re-entering the justice system as a result of a new conviction for a sex offense or any other crime.

(lll) "RECAPTURE" means the Turtle Mountain Band of Chippewa will recapture sex offenders and those sex offenders who previously have not been required to register, but will now be required to register under the Turtle Mountain Band of Chippewa Sex Offender Registry. To capture again a sex offender shall be taken back into custody due to a conviction for any crime a sex offender who is reentering the justice system due to a conviction for any crime.

(mmm) "RETROACTIVE" means the SORNA requirements apply to all sex offenders defined in the Act, including all convictions that predate the enactment of SORNA. Substantial compliance will require registration of offenders who previously have been convicted of a qualifying sex offense.

(nnn) "SADOMASOCHISTIC ABUSE" means the infliction of force, pain or violence upon a person for the purpose of sexual gratification.

(ooo) "SEX" means acts of masturbation, sexual intercourse, or physical contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(ppp) "SEX OFFENDER" means any person convicted of a sex offense, and includes but not limited to any person who has pled guilty, been found guilty of, or who has been found not guilty by reason of insanity of any sex offense under any tribal, federal, state, or foreign laws. This includes sexual offenders, or abusers as persons who committed a sex crime.

(qqq) "SEX OFFENSE" means offenses contained in section 111(5) of SORNA, including all tribal, federal, military, and state offenses. "Sex Offense" shall include but not be limited to rape, assault with intent to commit rape, child molestation, sexual assault, sodomy, child abuse resulting from a sexual act, sexual contact, oral copulation and other sex related crimes as set forth in existing tribal, federal, or state law and shall include:

(rrr) "SEX SLAVERY" means the organized coercion of unwilling people into different sexual practices. Sexual slavery may include single-owner sexual slavery, ritual slavery sometimes associated with traditional religious practices, slavery for primarily non-sexual purposes where sex is common or forced prostitution.

(sss) "SEXTING" means combination of sex and texting; it's the act of sending sexually explicit materials through mobile phones.

(ttt) "Sex Trafficking" means the practice of people being tricked, lured, coerced or otherwise removed from their home and then compelled to work with no or low payment or on terms which are highly exploitative.

(uuu) "SEXUAL ABUSE" means to knowingly cause another person to engage in a sexual act by threatening or placing that person in fear or engages in a sexual act if that person is incapable of appraising the nature of the conduct or physically incapable of declining participation in or communicating unwillingness to engage in that sexual act.

(vvv) "SEXUAL ACT" means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body; or the use of an object which comes in contact with the victim's anus, vulva, or penis. Emission is not required.

(www) "SEXUAL ABUSE OF A CHILD" means a person is guilty of sexual abuse of a child if he or she willfully

(1) Engages in any sexual contact with a child; or

(2) Persuades, entices, counsels, or procures a child to engage in sexual contact, actual or simulated.

(xxx) "SEXUAL BATTERY" means the act of making unwanted and sexually offensive contact with an intimate body part of another person or which causes an immediate apprehension in the other person that such an act will occur. Intimate body parts include sexual organs, the anus, the groin or buttocks of any person and the breasts of a female. Sexual Battery includes situations in which the interactions defined are with a person who is incapable of giving consent or resisting due to alcohol or drugs.

(yyy) "SEXUAL CONTACT" means any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires, and shall include any sexual touching of or contact with an individual's intimate very private, personal body parts either directly or through the clothing of the individual.

(zzz) "SEXUAL GRATIFICATION" means a behavior or act committed to stimulate the sexual interest or desire of the actor or actors.

(aaaa) "SEXUAL HARASSMENT" means any unwanted sexual advances, a request for sexual favors, verbal or physical conduct of a sexual nature that alarms or annoys you, interferes with your privacy and creates an intimidating, hostile, or offensive environment. Making unwanted and offensive sexual advances or of sexually offensive remarks or acts, by a person.

(bbbb) "SEXUAL INTERCOURSE" means genital stimulation of one person with or by another and includes genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between person of the same or opposite sex.

(cccc) "SEXUAL MISCONDUCT" means sexual contact without consent by an acquaintance or a stranger and includes sexual touching without consent, either of the victim or when the victim is forced to touch, directly or through clothing another person's genitals, breast, groin, thighs or buttocks.

(dddd) "SEXUAL PREDATOR" means the term most often used to describe severe or repeat sex offenders.

(eeee) "SEXUALLY EXPLICIT CONDUCT" includes sexual conduct, bestiality, masturbation, sadomasochistic abuse including but not limited to flagellation, torture or bondage, or lewd exhibition of the genitals or pubic area.

(ffff) "SEXUALLY VIOLENT OFFENSE" means for purposes of classifying a sex offense as a sexually violent offense shall include any nonconsensual sexual assault crimes involving penetration, rape or sodomy or similar acts. These offenses shall also include any sexual act perpetrated by violence, threat of serious violence or by rendering unconscious or involuntarily drugging a victim.

(gggg) "SIMULATED" means any depictions of the genitals or rectal area or actions that give the appearance of sexual conduct or any means of foreplay.

(hhhh) "SMART OFFICE" means the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, which was established within the United States Department of Justice under the general authority of the United States pursuant to [42 U.S.C. § 16945].

(iiii) "SOLICITATION" means the criminal offense of urging someone to commit an unlawful act and includes any direction, request, enticement, persuasion, or encouragement, of a minor to engage in sexual conduct.

(jjjj) "STUDENT" means a person who enrolls in or attends a Private, Federal, Tribal or Public education institution, including a secondary school, trade or professional school, or an institution of higher education.

(kkkk) "SORNA" means the Sex Offender Registration and Notification Act [Title I of the Adam Walsh Child Protection and Safety Act of 2006 P.L. 109-248, 42 U.S.C. § 16911] etc. seq., as amended.

(llll) "SEX OFFENDER REGISTRY" means the registry of sex offenders, and a notification program, maintained by the Turtle Mountain Sex Offender Registration and Notification department.

(mmmm) "TERMINOLOGY" means determining substantial implementation.

(nnnn) "TIER OFFENSES" is defined as:

(1) "Tier 1 Sex Offender" means one that has been convicted of a "tier 1" sex offense as required in Section 42.03.010.

(2) "Tier 2 Sex Offender" means one that has been either convicted of a "tier 2" sex offense as required in Section 42.03.020.

(3) "Tier 3 Sex Offender" means one that has been either convicted of a "tier 3" sex offense as required in Section 42.03.030.

(oooo) "TRANSMITTING INFORMATION ABOUT A MINOR TO FURTHER CRIMINAL SEXUAL CONDUCT" means using the mail or any facility of interstate or foreign commerce knowing other individuals, or solicit any person to engage in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.

(pppp) "TRAVEL WITH THE INTENT TO ENGAGE IN ILLICIT CONDUCT" means a person who travels in interstate commerce or travels for the purpose of engaging in any illicit sexual conduct with another person.

(qqqq) "VEHICLE" shall mean any vehicle registered or not registered to the individual offender that is used for transportation.

(rrrr) "VIDEO VOYEURISM" means the voyeur has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy.

(ssss) "Visual Depiction" includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and date which is capable of conversion into a visual image that has been transmitted by any means, whether stored in a permanent format.