Statutes | Jamestown S'Klallam Tribal Code Title 21 Chapter 21.3 ยง 21.3.68A.110 | 2020
(1) In a prosecution under section 3.2.68A.040, it is not a defense that the defendant was involved in activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses. Law enforcement and prosecution agencies shall not employ minors to aid in the investigation of a violation of sections 3.2.68A.090, 3.2.68A.100 through 3.2.68A.102, except for the purpose of facilitating an investigation where the minor is also the alleged victim and the:
(a) Investigation is authorized pursuant to federal intercept policy, procedure and law or
(b) Minors aid in the investigation involves only telephone or electronic communication with the defendant.
(2) In a prosecution under sections 3.2.68A.050, 3.2.68A.060, 3.2.68A.070, or 3.2.68A.080, it is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor.
(3) In a prosecution under sections 3.2.68A.040, 3.2.68A.090, 3.2.68A.100, 3.2.68A.101, or 3.2.68A.102, it is not a defense that the defendant did not know the alleged victims age. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a drivers license, marriage license, birth certificate, or other Tribal or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor.
(4) In a prosecution under sections 3.2.68A.050, 3.2.68A.060, 3.2.68A.070, or 3.2.68A.075, it shall be an affirmative defense that the defendant was a law enforcement officer or a person specifically authorized, in writing, to assist a law enforcement officer and acting at the direction of a law enforcement officer in the process of conducting an official investigation of a sexrelated crime against a minor, or that the defendant was providing individual case treatment as a recognized medical facility or as a psychiatrist or psychologist licensed under Tribal or other jurisdiction law. Nothing is intended to in any way affect or diminish the immunity afforded an electronic communication service provider, remote computing service provider, or domain name registrar acting in the performance of its reporting or preservation responsibilities under Title 18 U.S.C., Sections. 2258a, 2258b, or 2258c.
(5) In a prosecution under sections 3.2.68A.050, 3.2.68A.060, 3.2.68A.070, or 3.2.68A.075, the Tribe is not required to establish the identity of the alleged victim.
(6) In a prosecution under sections 3.2.68A.070, or 3.2.68A.075 it shall be an affirmative defense that:
(a) The defendant was employed at or conducting research in partnership or in cooperation with any institution of higher education, and:
(i) He or she was engaged in a research activity
(ii) The research activity was specifically approved prior to the possession or viewing activity being conducted in writing by a person, or other such entity vested with the authority to grant such approval by the institution of higher education and (iii) Viewing or possessing the visual or printed matter is an essential component of the authorized research or
(b) The defendant was an employee of the Jamestown S&rsquoKlallam Tribe engaged in research at the request of a member of the Tribe&rsquos Council, Boards, Commissions or Committees and:
(i) The request for research is made prior to the possession or viewing activity being conducted in writing by a member of the Tribe&rsquos Council, Boards, Commissions or Committees
(ii) The research is directly related to a Tribal Council, Boards, Commissions or Committees activity and
(iii) Viewing or possessing the visual or printed matter is an essential component of the requested research and Tribal Counsel, Boards, Commissions or Committees activity.
(7) Nothing in this section authorizes otherwise unlawful viewing or possession of visual or printed matter depicting a minor engaged in sexually explicit conduct.