SB497 SUB1 ENR

ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 497
(Senators Kessler, Mitchell, Snyder, Edgell, Hunter, Unger, Plymale, Sharpe, Bowman, Ball, McKenzie and Sprouse, original sponsors)
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[Passed March 11, 2000; in effect ninety days from passage.]
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AN ACT to amend and reenact section two, article two-c, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections one-a, two, two-a, three, four, five, eight and nine, article twelve of said chapter, all relating to the central abuse and the sex offender registries; declaring a reduced expectation of privacy for sex offenders; including persons convicted of certain attempted offenses and persons found not guilty by reason of mental illness, mental retardation or addiction within registration requirements; adding required registration information from sex offenders; requiring the department of health and human resources to obtain information; adding persons found not guilty by reason of mental illness, mental retardation or addiction in duration determination; adding entities that receive information on sex offenders; providing that failure to provide notice of changes in registration information constitutes a criminal offense; requiring notice to certain offenders; increasing penalties for certain offenders who fail to provide information; requiring registration of out- of-state persons who visit this state and who have been convicted of an offense similar to an offense requiring registration in this state or in the state of residence; and requiring registration of certain offenders moving to this state.

Be it enacted by the Legislature of West Virginia:

That section two, article two-c, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections one-a, two, two-a, three, four, five, eight and nine, article twelve of said chapter be amended and reenacted, all to read as follows:
ARTICLE 2C. CENTRAL ABUSE REGISTRY.

§15-2C-2. Central abuse registry; required information; procedures.

(a) The criminal identification bureau of the West Virginia state police shall establish a central abuse registry, to contain information relating to criminal convictions involving child abuse or neglect, abuse or neglect of an incapacitated adult and misappropriation of property by individuals specified in subsection (b) of this section and information relating to individuals required to be registered as a sex offender.

(b) The central abuse registry shall contain, at a minimum, information relating to: convictions of a misdemeanor or a felony involving abuse, neglect or misappropriation of property, by an individual performing services for compensation, within the scope of the individual's employment or contract to provide services, in a residential care facility, in a licensed day care center, or in connection with the provision of home care services; information relating to individuals convicted of specific offenses enumerated in subsection (a), section three of this article with respect to a child or an incapacitated adult; and information relating to all individuals required to register with the West Virginia state police as sex offenders pursuant to the provisions of article twelve, chapter fifteen of this code. The central abuse registry shall contain the following information:

(1) The individual's full name;

(2) Sufficient information to identify the individual, including date of birth, social security number and fingerprints if available;

(3) Identification of the criminal offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult;

(4) For cases involving abuse, neglect or misappropriation of property of a child or an incapacitated adult in a residential care facility or a day care center, or of a child or an incapacitated adult receiving home care services, sufficient information to identify the location where the documentation of any investigation by the department of health and human resources is on file and the location of pertinent court files; and

(5) Any statement by the individual disputing the conviction, if he or she chooses to make and file one.

(c) Upon conviction in the criminal courts of this state of a misdemeanor or a felony offense constituting child abuse or neglect or abuse or neglect of an incapacitated adult, the individual so convicted shall be placed on the central abuse registry. ARTICLE 12. SEX OFFENDER REGISTRATION ACT. §15-12-1a. Intent and findings.
(a) It is the intent of this article to assist law-enforcement agencies' efforts to protect the public from sex offenders by requiring sex offenders to register with the state police detachment in the county where he or she shall reside and by making certain information about sex offenders available to the public as provided in this article. It is not the intent of the Legislature that the information be used to inflict retribution or additional punishment on any person convicted of any offense requiring registration under this article. This article is intended to be regulatory in nature and not penal.

(b) The Legislature finds and declares that there is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses in order to allow members of the public to adequately protect themselves and their children from these persons.

(c) The Legislature also finds and declares that persons required to register as sex offenders pursuant to this article have a reduced expectation of privacy because of the state's interest in public safety.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.

(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a similar provision in another state, federal or military jurisdiction shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two, chapter fifteen of this code:

(1) Article eight-b;

(2) Article eight-c;

(3) Sections five and six, article eight-d;

(4) Section fourteen, article two; or

(5) Sections six, seven, twelve and thirteen, article eight.

(c) Any person who has been convicted of a criminal offense, which at the time of sentencing was found by the sentencing judge to have been sexually motivated, shall also register as set forth in this article.

(d) Persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the following when registering:

(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;

(2) The address where the registrant intends to reside or resides at the time of registration, the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend;

(3) The registrant's social security number;

(4) A full face photograph of the registrant at the time of registration;

(5) A brief description of the crime(s) for which the registrant was convicted; and

(6) Fingerprints.

(e) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed herein, including those persons who are continuing under some post conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the commissioner of corrections, regional jail administrator, city or sheriff operating a jail, or secretary of the department of health and human services which releases the person, and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register, and send written notice of the release of the person to the state police within three days of receiving the information. The notice shall include the information required by subsection (d) of this section.

(f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section shall also include:

(1) Identifying factors, including physical characteristics;

(2) History of the offense; and

(3) Documentation of any treatment received for the mental abnormality or personality disorder.

(g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court, a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, shall constitute prima facie evidence that the person had knowledge of the requirements of this article. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article shall be informed of such requirement by the state police whenever the state police obtain information that the person is subject to registration requirements.

(h) The state police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the state police by subdivision (2), subsection (b), section five of this article shall be accessible through the internet.

(i) For the purpose of this article, "sexually violent offense" means:

(1) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;

(2) Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;

(3) Sexual assault of a spouse as set forth in section six, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;

(4) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction.

(j) For purposes of this article, the term "sexually motivated" means that one of the purposes for which a person committed the crime was for any person's sexual gratification.

(k) For purposes of this article, the term "sexually violent predator" means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(l) For purposes of this article, the term "mental abnormality" means a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

(m) For purposes of this article, the term "predatory act" means an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.
§15-12-2a. Court determination of sexually violent predator.
(a) The circuit court that has sentenced a person for the commission of a sexually violent offense or that has entered a judgment of acquittal of a charge of committing a sexually violent offense in which the defendant has been found not guilty by reason of mental illness, mental retardation or addiction shall make a determination whether:

(1) A person is a sexually violent predator; or

(2) A person is no longer a sexually violent predator.

(b) A hearing to make a determination as provided for in subsection (a) of this section is a summary proceeding, triable before the court without a jury.

(c) A proceeding seeking to establish that a person is a sexually violent predator is initiated by the filing of a written pleading by the prosecuting attorney. The pleading shall describe the record of the judgment of the court on the person's conviction or finding of not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and shall set forth a short and plain statement of the prosecutor's claim that the person suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(d) A proceeding seeking to establish that a person is no longer a sexually violent predator is initiated by the filing of a petition by the person who has been determined to be a sexually violent predator.

(e) Prior to making a determination pursuant to the provisions of this section, the sentencing court may order a psychiatric or other clinical examination and, after examination, may further order a period of observation in an appropriate facility within this state designated by the court after consultation with the director of the division of health.

(f) Prior to making a determination pursuant to the provisions of this section, the sentencing court shall request and receive a report by the board established pursuant to section two-b of this article. The report shall set forth the findings and recommendation of the board on the issue of whether the person is a sexually violent predator.

(g) At a hearing to determine whether a person is a sexually violent predator, the person shall be present and shall have the right to be represented by counsel, introduce evidence and cross-examine witnesses. The offender shall have access to a summary of the medical evidence to be presented by the state. The offender shall have the right to an examination by an independent expert of his or her choice and testimony from the expert as a medical witness on his or her behalf. At the termination of the hearing the court shall make a finding of fact upon a preponderance of the evidence as to whether the person is a sexually violent predator.

(h) If a person is determined by the circuit court to be a sexually violent predator, the clerk of the court shall forward a copy of the order to the state police in the manner promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§15-12-3. Change in registry information.
When any person required to register under this article changes his or her residence, address, place of employment or occupation, or school or training facility which he or she is attending, or when any of the other information required by this article changes, he or she shall, within ten days, inform the West Virginia state police of the changes in the manner prescribed by the superintendent of state police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§15-12-4. Duration.

(a) A person required to register under the terms of this article shall continue to comply with this section, except during ensuing periods of incarceration or confinement, until:

(1) Ten years have elapsed since the person was released from prison, jail or a mental health facility or ten years have elapsed since the person was placed on probation, parole or supervised or conditional release. The ten year registration period shall not be reduced by the sex offender's release from probation, parole or supervised or conditional release; or

(2) For the life of that person if that person: (A) Has one or more prior convictions or has previously been found not guilty by reason of mental illness, mental retardation or addiction for any qualifying offense referred to in this article; or (B) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, and upon motion of the prosecuting attorney, the court finds by clear and convincing evidence, that the qualifying offense involved multiple victims or multiple violations of the qualifying offense; or (C) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense; or (D) has been determined pursuant to section two-a of this article to be a sexually violent predator; or (E) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, involving a minor.

(b) A person whose conviction is overturned for the offense which required them to register under this article shall, upon petition to the court, have their name removed from the registry.
§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and state police; petition to circuit court.

(a) Within five working days after receiving any notification as described in this article, the state police shall distribute a copy of the notification statement to:

(1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and county where the registrant resides, is employed or attends school or a training facility;

(2) The county superintendent of schools where the registrant resides, is employed or attends school or a training facility;

(3) The child protective services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, is employed or attends school or a training facility;

(4) All community organizations or religious organizations which regularly provide services to youths in the county where the registrant resides, is employed or attends school or a training facility;

(5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides, is employed or attends school or a training facility; and

(6) The federal bureau of investigation (FBI).

(b) Information concerning persons whose names are contained in the sexual offender registry and who are not required to register for life shall be disseminated only in the following manner and shall not be subject to the requirements of the West Virginia freedom of information act, as set forth in chapter twenty-nine-b of this code:

(1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article, the state police shall notify the prosecuting attorney of the county in which the person resides, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the state police in conducting a community notification program which shall include publication of the offender's name, photograph, and place of residence, employment and education or training, as well as information concerning the legal rights and obligations of both the offender and the community. The prosecuting attorney and state police may conduct a community notification program in the county of residence, employment or where a person is attending school or a training facility of any person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article. Community notification may be repeated when determined to be appropriate by the prosecuting attorney;

(2) The state police shall maintain and make available to the public at least quarterly the list of all persons who are required to register for life according to the terms of subdivision (2), subsection (a), section four of this article. The method of publication and access to this list shall be determined by the superintendent; and

(3) A resident of a county may petition the circuit court for an order requiring the state police to release information about persons residing in that county who are required to register under section two of this article. The court shall determine whether information contained on the list and relevant to public safety outweighs the importance of confidentiality, and if the court orders information to be released, it may further order limitations upon secondary dissemination by the resident seeking the information. In no event shall information concerning the identity of a victim of an offense requiring registration be released.

(c) The state police may furnish information and documentation required in connection with the registration to authorized law-enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the state of West Virginia upon proper request stating that the records will be used solely for law enforcement-related purposes. The state police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting preemployment checks.

(d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith.
§15-12-8. Failure to register or provide notice of registration changes; penalty.

(a) Except as provided in this section, any person required to register under this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars, or imprisoned in the county or regional jail not more than one year, or both: Provided, That each time the person has a change in any of the registration information as required by this article and fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense.

(b) Any person required to register under this article who is convicted of a second or subsequent offense of failing to register or provide a change in any information as required by this article, or any person who is required to register for life pursuant to subsection (2), subdivision (a), section four of this article and who fails to register or provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years.

(c) Any person required to register as a sexual predator who fails to register or provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall, for a first offense, be confined in a state correctional facility not less than two years nor more than ten years, and for a second or subsequent offense, is guilty of a felony and shall be confined in a state correctional facility not less than five years nor more than twenty years.

(d) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison, who knowingly refuses to register, or who knowingly fails to provide a change in information as required by this article, shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence.
§15-12-9. Registration of out-of-state offenders.
(a) When any probation or parole officer accepts supervision of and has legal authority over any person required to register under this article from another state under the terms and conditions of the uniform act for out-of-state parolee supervision established under article six, chapter twenty-eight of this code, the officer shall give the person written notice of the registration requirements of this section and obtain a signed statement from the person required to register acknowledging the receipt of the notice. The officer shall obtain and submit to the state police the information required in subsection (d), section two of this article.

(b) Any person:

(1) Who resides in another state or federal or military jurisdiction;

(2) Who is employed, carries on a vocation, is a student in this state or is a visitor to this state for a period of more than fifteen continuous days; and

(3) Who is required by the state, federal or military jurisdiction in which he or she resides to register in that state, federal or military jurisdiction as a sex offender, or has been convicted of a violation in that state, federal or military jurisdiction that is similar to a violation in this article requiring registration as a sex offender in this state, shall register in this state and otherwise comply with the provisions of this article.

(c) Any person changing residence to this state from another state or federal or military jurisdiction who is required to register as a sex offender under the laws of that state or federal or military jurisdiction shall register as a sex offender in this state.