COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 497
(By Senators Kessler, Mitchell, Snyder, Edgell, Hunter, Unger,
Plymale, Sharpe, Bowman, Ball, McKenzie and Sprouse)
____________
[Originating in the Committee on the Judiciary;
reported February 18, 2000.]
____________
A BILL 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, five, eight and nine,
article twelve of said chapter, all relating to the central
abuse and the sex offender registries; declaring reduced
expectation of privacy for sex offenders; including persons
convicted of certain attempted offenses and persons found
not guilty by reason of insanity within registration
requirements; adding required registration information from
sex offenders; requiring department of health and human
resources to obtain information; 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 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, 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 of sexual offenses,
following reports of child abuse or neglect, abuse or neglect of an incapacitated adult and misappropriation of property.
(b) The central abuse registry shall contain, at a minimum,
information relating to: (1) Convictions of a misdemeanor or a
felony constituting 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; (2) 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 (3) information relating to all
individuals required to register with the West Virginia state
police as sex offenders pursuant to the provisions of article
eight-f, chapter sixty-one article twelve, chapter fifteen of
this code. The central abuse registry shall contain the
following information with respect to an individual found to have
committed a sexual offense, an act of abuse, neglect or
misappropriation of property, or an individual convicted of a
felony offense:
(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 such 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
pursuant to this chapter article 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 act apply both retroactively and
prospectively.
(b) Any person who has been convicted of a violation of an
offense or an attempted offense or has been found not guilty by
reason of insanity 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 subsections subsection (c) and (d)
of this article, and according to the internal management rules
and regulations 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;
(5) Sections six, seven, twelve and thirteen, article
eight;
(6) A similar provision in another state, federal or
military jurisdiction for the offenses listed above.
(i) Any person who has been convicted of an attempt to
commit any of the offenses set forth in this section shall also
register as set forth in this article.
(ii) (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.
(c) (d) Persons required to register under the provisions
of this act shall provide or cooperate in providing, at a
minimum, the following information 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 shall 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.
(d) (e) On the date that any person convicted or found not
guilty by reason of insanity of any of the crimes listed herein,
including those persons who are continuing under some post
conviction supervisory status for crimes committed prior to the
date of this law, is are released, is granted probation, is
granted or a suspended sentence, is released on parole,
probation, home detention, work release, conditional release or
any other release from incarceration confinement, the
commissioner of corrections, regional jail administrator or city
or sheriff operating a jail, or secretary of the department of
health and human services which releases such the person, and any
parole or probation officer who releases such the person or
supervises such the person following the release, shall obtain
all information required by this subsection (d) of this section
prior to the release of the person, inform the person of his or
her duty to register, and shall 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.
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person
was convicted;
(6) Fingerprints; and
(7) (f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
shall also include:
(i) (1) Identifying factors, including physical
characteristics;
(ii) (2) History of the offense; and
(iii) (3) Documentation of any treatment received for the
mental abnormality or personality disorder.
(e) (g) At the time the person is convicted or found not
guilty by reason of insanity in a court of this state of the
crimes set forth in subsection (a) 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 such the provisions. Such 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 nonetheless 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 such person is subject to
such registration requirements.
(f) When a person required to register under this article
is released following incarceration, the commissioner of
corrections, the regional jail supervisor or the city or sheriff
or any other person supervising the operation of the place of
confinement shall, within three days, inform the state police of
such release and provide such further information as is required
by this article.
(g) (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.
(h) (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.
(i) (j) The term "sexually motivated" means that one of the
purposes for which a person committed the crime was for the
purpose of any person's sexual gratification.
(j) (k) The term "sexually violent predator" means a person
who has been convicted or found not guilty by reason of insanity 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.
(k) (l) 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.
(l) (m) 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
having committed 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 insanity 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
information pleading by the prosecuting attorney. The
information pleading shall describe the record of the judgment
of the court on the person's conviction or finding of not guilty
by reason of insanity 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 such
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 choice and testimony from such the
expert as a medical witness on his behalf. At the termination of
such 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, or 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 his or her new address 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.
§15-12-5. 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 person will reside registrant resides,
is employed or attends school or a training facility;
(2) The county superintendent of schools where the person
will reside 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 person will reside 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 person will reside registrant resides, is employed or attends
school or a training facility;
(5) Individuals and organizations which provide day care
services for youths or and day care, residential or respite care,
or other supportive services for mentally or physically
incapacitated infirm or mentally incapacitated or infirm persons
in the county where the registered person will reside 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
on the list of 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 intends to reside resides, is
employed or attends a school or training facility. The
prosecuting attorney shall in cooperation cooperate with the
state police in conducting conduct 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 and 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 pre-
employment 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 outlined provided below, any person required
to register under this article who knowingly provides false
identity or address information or who refuses to provide such
accurate information when so required by terms of this article,
or who knowingly fails to register or knowingly fails to provide
a change of address 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 jail not
more than one year, or both fined and imprisoned: Provided, That
each time such the person changes residence has a change in any
of the registration information as required by this article and
fails to register the change or changes, each such 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 of address in any information as
required by this article, or any person who has one or more prior
convictions for any conviction for a sexually violent offense 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 penal
correctional facility for not less than one year nor more than
five years.
(c) Any person required to register as a sexual predator as
defined by section two of this article, who fails to register or
provide a change of address in information as required by this
article is guilty of a felony and, upon conviction thereof,
shall, for a first offense, be imprisoned confined in a state
correctional facility not less than two years nor more than ten
years, and for a second or subsequent offense, is be guilty of a
felony and imprisoned 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 of address
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, such 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 identical information
required of persons convicted in this state under subsection (b), 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, or 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 under provisions of the
law of that state that are similar to the provisions of this
article, 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.
______
(NOTE:
This bill substitutes the correct statute citation
for the state's "sex offender registration act" in the state's
"central abuse registry" statute. The bill expands the statement
of intent and findings, the number of people who would be
required to register as sex offenders, the amount of information
registrants must provide, the jurisdictions in which registerable
convictions occurred, and the types of law enforcement entities
entitled to receive sex offender information. The bill clarifies
that sex offenders not presently incarcerated or under post-
conviction supervisory status are required to register. The bill
also expands the type of changes in information that registrants
are obligated to report to state police. The bill also provides
that lifetime registrants who fail to register are guilty of a
felony.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)