Senate Bill No. 276
(By Senators Barnes, Yoder, Guills, Lanham, McKenzie, Minear,
Harrison, Deem, Weeks, Caruth, Sprouse, Facemyer, Dempsey,
Minard, White and Love)
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[Introduced January 25, 2006; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §15-12-1a, §15-12-2a, §15-12-2b,
§15-12-5 and §15-12-8
of the Code of West Virginia, 1931, as
amended; to amend and reenact §17B-2-3
of said code; to amend
and reenact §61-2-14 of said code; to amend and reenact
§61-8-6,
§61-8-7
and §61-8-12 of said code; to amend and
reenact §61-8B-3, §61-8B-4
, §61-8B-5,
§61-8B-7
, §61-8B-8
,
§61-8B-9
and §61-8B-10 of said code; to amend and reenact
§61-8C-2 and §61-8C-3
of said code;
to amend and reenact
§61-8D-5
and
§61-8D-6
of said code;
to amend said code by
adding thereto a new article, designated §61-8G-1, §61-8G-2,
§61-8G-3 and §61-8G-4
; and to amend said code
by adding
thereto a new article, designated §62-11D-1, §62-11D-2,
§62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6, §62-11D-7,
§62-11D-8, §62-11D-9, §62-11D-10, §62-11D-11, §62-11D-12, §62-11D-13, §62-11D-14, §62-11D-15, §62-11D-16, §62-11D-17,
§62-11D-18, §62-11D-19 and §62-11D-20, all relating to
registration of sex offenders generally; listing certain
legislative findings; requiring notice to certain residents;
identifying sexually violent predators; increasing prison
terms of persons found guilty of violating sex offender
registration requirements;
providing for supervised electronic
monitoring upon release; providing for special operator's
license for convicted sex offender; increasing certain fines
and penalties for perpetrators of sex offenses; requiring the
issuance of a special motor vehicle operator's license to
convicted sex offenders; establishing the "Protect Our
Children Act"; establishing a rebuttable presumption that
release on bond of certain sex offenders would not protect the
community; providing for mandatory supervised probation;
establishing a procedure for committing sexually violent
predators; setting forth certain findings; requiring notice to
prosecuting attorney of proposed release of sexually violent
predator; providing for the filing of a commitment petition
for a sexually violent predator; providing for a probable
cause hearing on the petition; setting forth certain rights of
the parties; requiring the filing of a petition for
conditional release; setting forth procedures for determining
unconditional discharge of sexually violent predator; providing for hearing on least restrictive alternative;
conditional release to a less restrictive setting; providing
for a global positioning system monitoring requirement for
release to less restrictive community setting; providing for
the apprehension of persons placed in less restrictive
alternatives; hearing and revocation of placement; setting
forth certain responsibilities of the Department of Health and
Human Resources; approval of community service personnel by
Department of Health and Human Resources; providing for the
release of certain information; establishing a procedure on
escape or disappearance of violent sexual offenders; notice of
escape and recapture; and providing for the proposing of rules
for legislative approval.
Be it enacted by the Legislature of West Virginia:
That §15-12-1a, §15-12-2a, §15-12-2b, §15-12-5 and
§15-12-8
of
the Code of West Virginia, 1931, as amended, be amended and
reenacted; that §17B-2-3
of said code be amended and reenacted;
that §61-2-14 of said code be amended and reenacted; that §61-8-6,
§61-8-7 and
§61-8-12 of said code be amended and reenacted; that
§61-8B-3, §61-8B-4,
§61-8B-5,
§61-8B-7,
§61-8B-8,
§61-8B-9
and
§61-8B-10 of said code be amended and reenacted; that §61-8C-2 and
§61-8C-3
of said code be amended and reenacted; that §61-8D-5 and
§61-8D-6
of said code be amended and reenacted;
that said code be
amended by adding thereto a new article, designated §61-8G-1, §61-8G-2, §61-8G-3 and §61-8G-4
; and that said code be amended by
adding thereto a new article, designated §62-11D-1, §62-11D-2,
§62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6, §62-11D-7, §62-11D-8,
§62-11D-9, §62-11D-10, §62-11D-11, §62-11D-12, §62-11D-13,
§2-11D-14, 62-11D-15, §62-11D-16, §62-11D-17, §62-11D-18,
§62-11D-19 and §62-11D-20,
all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
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.
(d) The Legislature finds that a small but extremely dangerous
group of sexually violent predators exist who do not have a mental
disease or defect that renders them appropriate for the existing
involuntary treatment provisions of this code, which is intended to
be a short-term civil commitment system that is primarily designed
to provide short-term treatment to individuals with serious mental
disorders and then return them to the community. In contrast to
persons appropriate for civil commitment, sexually violent
predators generally have personality disorders and mental
abnormalities which are not amenable to existing mental illness
treatment modalities and those conditions render them likely to
engage in sexually violent behavior. The Legislature further finds
that sex offenders' likelihood of engaging in repeat acts of
predatory sexual violence is high. The existing involuntary
commitment procedure, is inadequate to address the risk to reoffend
because during confinement these offenders do not have access to
potential victims and therefore they will not engage in an overt
act during confinement as required by the involuntary treatment act
for continued confinement. The Legislature further finds that the
prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the
treatment modalities for this population are very different than
the traditional treatment modalities for people appropriate for
commitment under the involuntary treatment act.
§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 not a sexually violent predator.
(b) A hearing to make a determination as provided 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 upon conviction or finding of not guilty
by reason of mental illness, mental retardation or addiction 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) 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.
(e) 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.
(f) 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.
(g) 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.
(h) Notwithstanding any other provision of this code to the
contrary, no person determined to be a sexually violent predator
under the provisions of this section may be released from
confinement until a commitment hearing is held under the provisions
of article eleven-d, chapter sixty-two of this code.
§15-12-2b. Creation of sex offender registration advisory board.
(a) There is hereby created within the Department of Military
Affairs and Public Safety a sex offender registration advisory
board consisting of a minimum of five members appointed by the
Secretary of the Department of Military Affairs and Public Safety.
At least two of the members shall be experts in the field of the
behavior and treatment of sexual offenders, and each shall be a
physician, psychologist or social worker in the employ of this
state appointed by the secretary in consultation with the Director
of the Division of Health. The remaining members shall be victims
rights advocates and representatives of law-enforcement agencies.
Members of the board shall be reimbursed their reasonable expenses pursuant to the rules promulgated by the Department of
Administration for the reimbursement of expenses of state officials
and employees and shall receive no other compensation for their
services. The board shall utilize the staff of the Division or
office within the Department of Military Affairs and public safety
designated by the secretary thereof in carrying out its duties and
responsibilities as set forth in this article.
(b) The board shall assist the circuit courts of this state in
determining whether persons convicted of sexually violent offenses
are sexually violent predators at sentencing: Provided, That the
provisions of article eleven-d, chapter sixty-two shall govern the
procedure for determining, prior to release to the community,
whether an incarcerated or committed person is a sexually violent
predator for the purposes of committing that person under the
provisions of article eleven-d, chapter sixty-two.
§15-12-5. Distribution and disclosure of information; community
information programs by prosecuting attorney and State Police;
petition to circuit court.
(a) Within five business 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); and
(7) An abbreviated version of the notification statement to
every person residing within five hundred feet of the registrant's
residence. The abbreviated version must provide sufficient
information to place each resident on notice that a registered sex
offender is residing withing five hundred feet of his or her
residence.
(b) Information concerning persons whose names are contained
in the sexual offender registry is not subject to the requirements
of the West Virginia Freedom of Information Act, as set forth in
chapter twenty-nine-b of this code, and may be disclosed and
disseminated only as otherwise provided in this article and as
follows:
(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 is to include publication of the offender's name, photograph,
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. Information relating to the victim
of an offense requiring registration may not be released to the
public except to the extent the prosecuting attorney and the State
Police consider it necessary to best educate the public as to the
nature of sexual offenses: Provided, That no victim's name may be
released in any public notification pursuant to this subsection.
No information relating to internet accounts, screen names, user
names or aliases a registrant has or uses may be released to the
public with this notification program. 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. No information
concerning the identity of a victim of an offense requiring
registration or information relating to internet accounts, screen
names, user names or aliases a registrant has or uses may be
released with this list. The method of publication and access to
this list are to 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 is relevant to public safety and
whether its relevance outweighs the importance of confidentiality.
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 may information concerning
the identity of a victim of an offense requiring registration or
information relating to internet accounts, screen names, user names
or aliases a registrant has or uses 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 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 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 five years nor
more than five fifteen years and upon release from incarceration
shall be placed on supervised electronic monitoring pursuant to
section four, article eleven-b, chapter sixty-two of this code for not less than ten years.
(c) Any person required to register as a sexual predator 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 felony and, upon conviction thereof, shall, for a first offense,
be confined in a state correctional facility not less than two five
years nor more than ten fifteen years and upon release from
incarceration shall be placed on supervised electronic monitoring
pursuant to section four, article eleven-b, chapter sixty-two of
this code for not less 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 twenty-five years and upon release from
incarceration shall be placed on supervised electronic monitoring
pursuant to section four, article eleven-b, chapter sixty-two of
this code for not less than ten 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.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-3. What persons may not be licensed; exceptions.
(a) The division may not issue any license hereunder:
(1) To any person who is under the age of eighteen years:
Provided, That the division may issue a junior driver's license or
on or after the first day of January, two thousand and one, a
graduated driver's license, to a person under the age of eighteen
years in accordance with the provisions of section three-a of this
article;
(2) To any person, as a Class A, B, C or D driver, who is
under the age of eighteen years;
(3) To any person, whose license has been suspended or
revoked, during the suspension or revocation;
(4) To any person who is an habitual drunkard or is addicted
to the use of narcotic drugs;
(5) To any person, who has previously been adjudged to be
afflicted with or suffering from any mental disability or disease
and who has not at the time of application been restored to
competency by judicial decree or released from a hospital for the mentally incompetent upon the certificate of the superintendent of
the institution that the person is competent, and not then unless
the Commissioner is satisfied that the person is competent to
operate a motor vehicle with a sufficient degree of care for the
safety of persons or property;
(6) To any person who is required by this chapter to take an
examination, unless the person has successfully passed the
examination;
(7) To any person when the commissioner has good cause to
believe that the operation of a motor vehicle on the highways by
the person would be inimical to public safety or welfare.
(b) The division may not issue a license or nondriver
identification card to any person required to be registered as a
sex offender under the provisions of article twelve, chapter
fifteen for the period he or she is required to be registered,
unless he or she obtains a driver's license or nondriver
identification card coded by the commissioner to denote the
licensee is a convicted sex offender as follows:
(1) At sentencing. -- If an applicant is required to register
as a sex offender after the effective date of this section, the
sentencing court shall take possession of his or her driver's
license or nondriver identification card and shall direct the
person to report to the division for a replacement driver's license
or nondriver identification card coded by the commissioner to denote the licensee is a convicted sex offender. The sentencing
court shall forward to the division all licenses or nondriver
identification cards that it receives, along with a copy of the
sentencing order.
(2) Current convicted sex offenders. -- If a holder or an
applicant is required to register as a sex offender prior to the
effective date of this section, he or she shall surrender his or
her driver's license or nondriver identification card to the
division for a replacement driver's license or nondriver
identification card coded by the commissioner to denote the
licensee is a convicted sex offender.
The division may charge a fee of five dollars for a
replacement license or nondriver identification card. Upon showing
proof that a person is no longer required to register as a sex
offender, the division shall issue a driver's license or nondriver
identification card without the sex offender code printed upon the
license at no charge. No person issued a special operator's
license or nondriver identification card under the provisions of
this section may alter or deface the license to obscure the special
marking identifying the owner as a registered sex offender.
Any person failing to comply with the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than fifty dollars nor more than five
hundred dollars or confined in jail not more than one year, or both fined and imprisoned.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14. Abduction of person; kidnapping or concealing child;
penalties.
(a) Any person who takes away another person, or detains
another person against such the person's will, with intent to marry
or defile the person, or to cause the person to be married or
defiled by another person; or takes away a child under the age of
sixteen years from any person having lawful charge of such the
child, for the purpose of prostitution or concubinage, shall be
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary a state correctional facility not less than
three nor more than ten years.
(b) Any person, other than the father or mother, who
illegally, or for any unlawful, improper or immoral purpose other
than the purposes stated in subsection (a) of this section or
section fourteen-a or fourteen-c of this article, seizes, take or
secretes a child under sixteen years of age, from the person or
persons having lawful charge of such the child, shall be guilty of
a felony and, upon conviction thereof, shall be confined in the
penitentiary a state correctional facility not less than one nor
more than ten years.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-6. Detention of person in place of prostitution; penalty.
Whoever shall by any means keep, hold, detain or restrain any
person in a house of prostitution or other place where prostitution
is practiced or allowed; or whoever shall, directly or indirectly,
keep, hold, detain or restrain, or attempt to keep, hold, detain or
restrain, in any house of prostitution or other place where
prostitution is practiced or allowed, any person by any means, for
the purpose of compelling such the person, directly or indirectly,
to pay, liquidate or cancel any debt, dues or obligations incurred
or said to have been incurred by such the person shall be guilty of
a felony and, upon conviction for the first offense under this
section, be punished by imprisonment in the county jail for a
period of not less than six months nor more than one year, and by
a fine of not less than one hundred nor more than five hundred
dollars, shall be punished by imprisonment in the a correctional
facility for not less than two nor more than six years and upon
conviction for any subsequent offense under this section shall be
punished by imprisonment in the penitentiary a state correctional
facility for not less than one four nor more than three eight
years: Provided, That in any offense under this section where the
person so kept, held, detained or restrained is a minor, any person
violating the provisions of this section shall be guilty of a
felony, and, upon conviction thereof, shall be confined in the penitentiary a state correctional facility not less than two five
years nor more than five ten years or fined not more than five ten
thousand dollars, or both.
§61-8-7. Procuring for house of prostitution; penalty; venue;
competency as witness; marriage no defense.
Any person who shall procure procures an inmate for a house of
prostitution, or who, by promises, threats, violence, or by any
device or scheme, shall cause, induce, persuade or encourage
causes, induces, persuades or encourages a person to become an
inmate of a house of prostitution, or shall procure a place as
inmate in a house of prostitution for a person; or any person who,
shall, by promises, threats, violence, or by any device or scheme
cause, induce, persuade or encourage causes, induces, persuades or
encourages an inmate of a house of prostitution to remain therein
as such inmate; or any person who shall, by fraud or artifice, or
by duress of person or goods, or by abuse of any position of
confidence or authority, procure procures any person to become an
inmate of a house of ill fame, or to enter any place in which
prostitution is encouraged or allowed within this state, or to come
into or leave this state for the purpose of prostitution, or who
shall procure procures any person to become an inmate of a house of
ill fame within this state or to come into or leave this state for
the purpose of prostitution; or shall receive or give or agree
receives or gives or agrees to receive or give any money or thing of value for procuring or attempting to procure any person to
become an inmate of a house of ill fame within this state, or to
come into or leave this state for the purpose of prostitution,
shall be is guilty of pandering, a felon offense, and, upon a first
conviction for an offense under this section, shall be punished by
imprisonment in the county jail for a period of not less than six
months nor more than one year, and by a fine of not less than one
hundred nor more than five hundred dollars be punished by
imprisonment in a state correctional facility for a period of not
less than one nor more than five years, and upon conviction for any
subsequent offense under this section shall be punished by
imprisonment in the penitentiary a state correctional facility for
a period of not less than one two nor more than five ten years:
Provided, That where the inmate referred to in this section is a
minor, any person violating the provisions of this section shall be
is guilty of a felony and, upon conviction thereof, shall be
confined in the penitentiary a state correctional facility
not less
than two years five nor more than five ten years or fined not more
than five ten thousand dollars, or both.
It shall not be is not a defense to prosecution for any of the
acts prohibited in this section that any part of such the act or
acts shall have been were committed outside of this state, and the
offense shall in such case be deemed and alleged to have been
committed and the offender tried and punished in any county in which the prostitution was intended to be practiced, or in which
the offense was consummated, or any overt act in furtherance of the
offense was committed.
Any such person shall be a competent witness in any
prosecution under this section to testify for or against the
accused as to any transaction, or as to conversation with the
accused, or by the accused with another person or persons in his or
her presence, notwithstanding his or her having married the accused
before or after the violation of any of the provisions of this
section, whether called as a witness during the existence of the
marriage or after its dissolution. The act or state of marriage
shall not be is not a defense to any violation of this section.
§61-8-12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive
daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive father
or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or
daughter;
(6) "Grandfather" means the father of a person's father or
mother;
(7) "Grandmother" means the mother of a person's father or
mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive mother
or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or
sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons
involving penetration, however slight, of the female sex organ by
the male sex organ or involving contact between the sex organs of
one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between persons
involving penetration, however slight, of the female sex organ or
of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the
sexual desire of either party;
(14) "Sister" means the daughter of a person's father or
mother;
(15) "Son" means a person's natural son, adoptive son or the
son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or mother.
(b) A person is guilty of incest when such person engages in
sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother,
grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than five ten years nor
more than fifteen thirty years, or fined not less than five hundred
one thousand dollars nor more than five ten thousand dollars and
imprisoned in the penitentiary a state correctional facility
not
less than five ten years nor more than fifteen thirty years.
(d) In addition to any penalty provided under this section and
any restitution which may be ordered by the court under article
eleven-a of this chapter, the court may order any person convicted
under the provisions of this section where the victim is a minor to
pay all or any portion of the cost of medical, psychological or
psychiatric treatment of the victim, the need for which results
from the act or acts for which the person is convicted, whether or
not the victim is considered to have sustained bodily injury.
(e) In any case where a person is convicted of an offense
described herein against a child and further has or may have
custodial, visitation or other parental rights to the child, the
court shall find that the person is an abusing parent within the
meaning of article six, chapter forty-nine of this code, and shall
take such further action in accord with the provisions of said that
article.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than fifteen
twenty-five nor more than thirty-five fifty years, or fined not
less than one two thousand dollars nor more than ten twenty
thousand dollars and imprisoned in a state correctional facility
not less than fifteen twenty-five nor more than thirty-five fifty
years.
§61-8B-4. Sexual assault in the second degree.
(a) A person is guilty of sexual assault in the second degree
when the:
(1) Such Person engages in sexual intercourse or sexual
intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such Person engages in sexual intercourse or sexual
intrusion with another person who is physically helpless.
(b) Any person who violates the provisions of this section
shall be guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility
not
less than ten twenty nor more than twenty-five forty years, or
fined not less than one two thousand dollars nor more than ten
twenty thousand dollars and imprisoned in the penitentiary a state
correctional facility
not less than ten twenty nor more than
twenty-five forty years.
§61-8B-5. Sexual assault in the third degree.
(a) A person is guilty of sexual assault in the third degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person who is mentally defective or mentally
incapacitated; or
(2) The person, being sixteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
less than sixteen years old and who is at least four years younger
than the defendant and is not married to the defendant.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than one year two years nor more than five ten years , or fined not more than ten
twenty thousand dollars and imprisoned in a state correctional
facility not less than one year two years nor more than five ten
years.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree
when:
(1) Such person subjects another person to sexual contact
without their consent, and the lack of consent results from
forcible compulsion; or
(2) Such person subjects another person to sexual contact who
is physically helpless; or
(3) Such person, being fourteen years old or more, subjects
another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility
not
less than one year two years nor more than five ten years, or fined
not more than ten twenty thousand dollars and imprisoned in the
penitentiary a state correctional facility
not less than one year
two years nor more than five ten years.
§61-8B-8. Sexual abuse in the second degree.
(a) A person is guilty of sexual abuse in the second degree
when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.
(b) Any person who violates the provisions of this section
shall be guilty of a misdemeanor and, upon conviction thereof, shall
be confined in the county jail not more than for twelve months, or
fined not more than five hundred one thousand dollars and confined
in the county jail not more than for twelve months.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree when
he or she subjects another person to sexual contact without the
latter's consent, when such lack of consent is due to the victim's
incapacity to consent by reason of being less than sixteen years
old.
(b) In any prosecution under this section it is a defense that:
(1) The defendant was less than sixteen years old; or
(2) The defendant was less than four years older than the
victim.
(c) Any person who violates the provisions of this section
shall be guilty of a misdemeanor and, upon conviction thereof, shall
be confined in the county jail not more less than ninety days nor
more than six months, or fined not more than five hundred one
thousand dollars and confined in the county jail not more less than
ninety days nor more than six months.
§61-8B-10. Imposition of sexual intercourse or sexual intrusion on
incarcerated persons; penalties.
(a) Any person employed by the Division of Corrections, any
person working at a correctional facility managed by the
Commissioner of Corrections pursuant to contract or as an employee
of a state agency, any person working at a correctional facility
managed by the Division of Juvenile Services pursuant to contract
or as an employee of a state agency, any person employed by a county
jail or by the Regional Jail and Correctional Facility Authority or
any person working at a facility managed by the Regional Jail and
Correctional Facility authority or a county jail who engages in
sexual intercourse or sexual intrusion with a person who is
incarcerated in this state is guilty of a felony and, upon
conviction thereof, shall be confined in a state correctional
facility under the control of the Commissioner of Corrections for
not less than one two nor more than five ten years or fined not more
than five ten thousand dollars.
(b) Any person employed by the Division of Corrections as a
parole officer or by the West Virginia Supreme Court of Appeals as
an adult or juvenile probation officer who engages in sexual
intercourse or sexual intrusion with a person said parole officer
or probation officer is charged as part of his or her employment
with supervising, is guilty of a felony and, upon conviction
thereof, shall be confined in a state correctional facility under
the control of the Commissioner of Corrections for not less than one
two nor more than five ten years or fined not more than five ten thousand dollars, or both.
ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.
§61-8C-2. Use of minors in filming sexually explicit conduct
prohibited; penalty.
(a) Any person who causes or knowingly permits, uses,
persuades, induces, entices or coerces such minor to engage in or
uses such minor to do or assist in any sexually explicit conduct
shall be guilty of a felony when such person has knowledge that any
such act is being photographed or filmed. Upon conviction thereof,
such person shall be fined not more than ten twenty thousand
dollars, or imprisoned in the penitentiary a state correctional
facility
not more less than ten years, or both fined and imprisoned.
(b) Any person who photographs or films such a minor engaging
in any sexually explicit conduct shall be guilty of a felony and,
upon conviction thereof, shall be fined not more than ten twenty
thousand dollars, or imprisoned in the penitentiary a state
correctional facility
not more less than ten years, or both fined
and imprisoned.
(c) Any parent, legal guardian or person having custody and
control of a minor, who photographs or films such minor in any
sexually explicit conduct or causes or knowingly permits, uses,
persuades, induces, entices or coerces such minor child to engage
in or assist in any sexually explicit act shall be guilty of a
felony when such person has knowledge that any such act may be photographed or filmed. Upon conviction thereof, such person shall
be fined not more less than ten thousand dollars, or imprisoned in
the penitentiary a state correctional facility
not more less than
ten years, or both fined and imprisoned.
§61-8C-3. Distribution and exhibiting of material depicting minors
engaged in sexually explicit conduct prohibited;
penalty.
Any person who, with knowledge, sends or causes to be sent, or
distributes, exhibits, possesses or displays or transports any
material visually portraying a minor engaged in any sexually
explicit conduct is guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary a state correctional
facility
not more less than two years, and fined not more less than
two thousand dollars.
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person
in a position of trust to a child; parent, guardian,
custodian or person in a position of trust allowing
sexual abuse to be inflicted upon a child; displaying
of sex organs by a parent, guardian, or custodian;
penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such the conduct, or
the fact that the child may have consented to such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than ten twenty nor more
than twenty forty years, or fined not less than five hundred one
thousand nor more than five ten thousand dollars and imprisoned in
the penitentiary a state correctional facility
not less than ten
twenty years nor more than twenty forty years.
(b) If any parent, guardian, custodian or other person in a
position of trust in relation to the child shall knowingly procure
another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, custodian or person in a position of trust when
such child is less than sixteen years of age, notwithstanding the fact that the child may have willingly participated in such conduct
or the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct,
such parent, guardian, custodian or person in a position of trust
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility
not
less than five ten years nor more than fifteen thirty years, or
fined not less than one two thousand nor more than ten twenty
thousand dollars and imprisoned in the penitentiary a state
correctional facility
not less than five ten years nor more than
fifteen thirty years.
(c) If any parent, guardian, custodian or other person in a
position of trust in relation to the child shall knowingly procure
another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, custodian or person in a position of trust when
such child is sixteen years of age or older, notwithstanding the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a state correctional facility
not less than one year two years nor more than five ten years.
(d) The provisions of this section shall not apply to a
custodian or person in a position of trust whose age exceeds the age
of the child by less than four two years.
§61-8D-6. Sending, distributing, exhibiting, possessing,
displaying or transporting material by a parent,
guardian or custodian, depicting a child engaged in
sexually explicit conduct; penalty.
Any parent, guardian or custodian who, with knowledge, sends
or causes to be sent, or distributes, exhibits, possesses, displays
or transports, any material visually portraying a child under his
or her care, custody or control engaged in any sexually explicit
conduct, is guilty of a felony, and, upon conviction thereof, shall
be imprisoned in the penitentiary a state correctional facility
not
more less than two years, and fined not less than four eight hundred
dollars nor more than four eight thousand dollars.
ARTICLE 8G. SPECIAL SEXUAL OFFENSE PROVISIONS.
§61-8G-1. Short title.
This article may be cited as the "Protect Our Children Act."
§61-8G-2. Bail for repeat sexual offenders.
(a) Notwithstanding the provisions of section one, article one-
c, chapter sixty-two of this code or any provisions of this code to
the contrary, in determining bond and other conditions of release, a rebuttable presumption that no conditions of release on bond would
assure the safety of the community or any person therein shall arise
if the state shows by a preponderance of the evidence that both:
(1) The individual is charged with an offense in violation of
section twelve of article eight; article eight-a; article eight-b;
article eight-c; or section three-a, five or six of article eight-d
of this chapter, or an offense upon a child determined by the court
to be sexually motivated in nature; and either:
(i) The person is currently registered as a sexual offender as
provided in section two, article twelve, chapter fifteen of this
code;
(ii) The person has previously been convicted of an offense in
violation of section twelve of article eight; article eight-a;
article eight-b; article eight-c; or sections three-a, five or six
of article eight-d of this chapter, or has been so convicted under
any law of the United States or any other state for an offense which
has the same elements as any offense described in this section; or
(iii) The person has previously been declared a sexually
violent predator as provided in section two-a, article twelve,
chapter fifteen of this code or has been similarly found to be under
any law of the United States or any other state.
(b) Notwithstanding any provisions of this code to the
contrary, any person charged with an offense in violation of section
twelve of article eight; article eight-a; article eight-b; article eight-c; or section three-a, five or six of article eight-d of this
chapter shall be subject to supervised electronic monitoring as
provided in section four, article eleven-b, chapter sixty-two as
a condition for release on bond.
§61-8G-3. Requirement for supervised probation following
release.
(a) In addition to any conditions of probation or release
imposed by a court, any person convicted for an offense in violation
of section twelve of article eight; article eight-a; article eight-
b; article eight-c; or section three-a, five or six of article
eight-d of this chapter shall be subject to a mandatory five-year
supervised probation upon release from incarceration or parole, the
terms of which shall include the following:
(1) Mandatory participation in a sexual offender treatment and
counseling program approved by the Chief probation officer of the
county in which the individual resides and/or is being supervised;
(2) Quarterly certification to the individual's probation
officer of successful attendance and participation in the sexual
offender program;
(3) Mandatory supervised electronic monitoring if the
individual has been found to be a sexually violent predator as
provided in section two-a, article twelve, chapter fifteen of this
code; and
(4) Prohibition from employment or voluntary work in which the function of the employment or voluntary work places the individual
in a position of trust with a child under the age of eighteen years.
§61-8G-4. Penalties for subsequent sexual offenses.
Notwithstanding the provisions of section eighteen, article
eleven of this chapter or any other provisions of this code to the
contrary, when any person is convicted of an offense in violation
of section twelve of article eight; article eight-a; article eight-
b; article eight-c; or section three-a, five or six of article
eight-d of this chapter, or an offense upon a child determined by
the court to be sexually motivated in nature, and it is determined,
as provided in section nineteen of this article, that such person
had been before convicted in the state of an offense in violation
of section twelve of article eight; article eight-a; article eight-
b; article eight-c; or section three-a, five or six of article
eight-d of this chapter or has been so convicted under any law of
the United States or any other state for an offense which has the
same elements as any offense described in this section, the person
shall be punished by confinement in a state correctional facility
for life and is not eligible for parole.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11D. SEXUALLY VIOLENT PREDATOR COMMITMENT ACT.
§62-11D-1. Definitions.
Unless the context clearly requires otherwise, the definitions in this section apply throughout this article.
(1) "Department" means the Department of Health and Human
Resources.
(2) "Health care facility" means any hospital, hospice care
center, licensed or certified health care facility or health
maintenance organization or other licensed facility designated by
the secretary for the purposes of this article as a health care
facility.
(3) "Health care practitioner" means an individual or firm
licensed or certified to engage actively in a regulated health
profession.
(4) "Health care services" means those services provided by
licensed health care professionals.
(5) "Health profession" means those health professions licensed
under the provisions of this code to provide health care services.
(6) "Less restrictive alternative" means court-ordered
treatment in a setting less restrictive than total confinement.
(7) "Likely to engage in predatory acts of sexual violence if
not confined in a secure facility" means that the person more
probably than not will engage in sexual predatory acts if released
unconditionally from detention. The likely to engage in predatory
acts of sexual violence finding must be shown by evidence of a
recent overt act if the person is not confined at the time the
petition is filed.
(8) "Mental abnormality" means a congenital or acquired
condition affecting the emotional or volitional capacity which
predisposes the person to the commission of criminal sexual acts
which make the person a menace to the health and safety of others.
(9) "Predatory" means an act or series of actions directed
toward others for the primary purpose of making them victims of
sexual violence.
(10) "Recent overt act" means any act or threat that has either
caused harm of a sexually violent nature or creates a reasonable
apprehension of harm in the mind of an objective person with
knowledge of the history and mental condition of the person engaging
in the act.
(11) "Risk potential activity" or "risk potential facility"
means an activity or facility that provides a higher incidence of
risk to the public from persons conditionally released from the
special commitment center. Risk potential activities and facilities
include: Public and private schools, school bus stops, licensed day
care and licensed preschool facilities, public parks, publicly
dedicated trails, sports fields, playgrounds, recreational and
community centers, churches, synagogues, temples, mosques, public
libraries, public and private youth camps, and others identified by
the department. For purposes of this article, "school bus stops"
do not include bus stops established primarily for public transit.
(12) "Secretary" means the Secretary of Health and Human Resources or the secretary's designee.
(13) "Secure facility" means a residential facility for persons
civilly confined under the provisions of this chapter that includes
security measures sufficient to protect the community. These
facilities include total confinement facilities, secure community
transition facilities, and any secured residence used as a
court-ordered placement.
(14) "Secure community transition facility" means a residential
facility for persons civilly committed and conditionally released
to a less restrictive alternative under this article. A secure
community transition facility has supervision and security, and
either provides or ensures the provision of sex offender treatment
services. Secure community transition facilities include but are
not limited to a facility established pursuant to this article and
any community-based facility established under this article and
operated by the secretary or under contract with the secretary.
(15) "Sexually violent offense" means an act committed on,
before, or after July 1, 1990, that is: (a) An act defined in
section two, article twelve, chapter fifteen of this code, or any
federal or out-of-state conviction for a felony offense that under
the laws of this state would be a sexually violent offense as
defined in this subsection; (b) an act of murder in the first or
second degree, assault in the first or second degree, assault of a
child in the first or second degree, kidnapping in the first or second degree, burglary in the first degree, residential burglary,
or unlawful imprisonment, which act, either at the time of
sentencing for the offense or subsequently during civil commitment
proceedings pursuant to this chapter, has been determined beyond a
reasonable doubt to have been sexually motivated, as that term is
defined; or (c) an act as described that is an attempt to commit a
crime set forth in subsection (a) or (b) of this section.
(16) "Sexually violent predator" means any person who has been
convicted of or charged with a crime of sexual violence and who
suffers from a mental abnormality or personality disorder which
makes the person likely to engage in predatory acts of sexual
violence if not confined in a secure facility.
(17) "Total confinement facility" means a secure facility that
provides supervision and sex offender treatment services in a total
confinement setting. Total confinement facilities include the
special commitment center and any similar facility designated as a
total confinement facility by the Secretary of Health and Human
Resources.
§62-11D-2. Notice to prosecuting attorney prior to release.
When it appears that a person may meet the criteria of a
sexually violent predator, the agency with jurisdiction shall refer
the person in writing to the prosecuting attorney of the county
where that person was charged, three months prior to:
(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense;
(2) The anticipated release from total confinement of a person
found to have committed a sexually violent offense as a juvenile;
(3) Release of a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to
stand trial; or
(4) Release of a person who has been found not guilty by
reason of insanity of a sexually violent offense.
The agency with jurisdiction shall provide the prosecuting
attorney with all relevant information including but not limited to
the following information:
(i) A complete copy of the institutional records compiled by
the Division of Corrections relating to the person, and any
out-of-state Division of Corrections' records, if available;
(ii) A complete copy, if applicable, of any file compiled by
the parole board relating to the person;
(iii) All records relating to the psychological or psychiatric
evaluation and treatment of the person;
(iv) A current record of all prior arrests and convictions, and
full police case reports relating to those arrests and convictions;
and
(v) A current mental health evaluation or mental health records
review.
(2) This section applies to acts committed before, on, or after the first day of July, one thousand nine hundred ninety.
(3) The agency with jurisdiction, their employees, and
officials are immune from liability for any good-faith conduct under
this section.
(4) As used in this section, "agency with jurisdiction" means
that agency with the authority to direct the release of a person
serving a sentence or term of confinement and includes the Division
of Corrections, the Regional Jail Authority, the parole board, and
the Department of Health and Human Resources.
§62-11D-3. Sexually violent predator petition.
When it appears that: (1) A person who, at any time previously,
has been convicted of a sexually violent offense and is about to be
released from total confinement on, before, or after the first day
of July two thousand five; (2) a person found to have committed a
sexually violent offense as a juvenile is about to be released from
total confinement on, before, or after the first day of July two
thousand five; (3) a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to
stand trial is about to be released, or has been released on,
before, or after the first day of July, two thousand five; (4) a
person who has been found not guilty by reason of insanity of a
sexually violent offense is about to be released, or has been
released on, before, or after the first day of July, two thousand
five; or (5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total
confinement and has committed a recent overt act; and it appears
that the person may be a sexually violent predator, the prosecuting
attorney of the county where the person was convicted or charged may
file a petition alleging that the person is a "sexually violent
predator" and stating sufficient facts to support such the
allegation.
§62-11D-4. Sexually violent predator petition; probable cause
hearing; judicial determination; transfer for
evaluation.
(1) Upon the filing of a petition, the judge shall determine
whether probable cause exists to believe that the person named in
the petition is a sexually violent predator. If the determination
is made, the judge shall direct that the person be taken into
custody.
(2) Within seventy-two hours after a person is taken into
custody pursuant to subsection (1) of this section, the court shall
provide the person with notice of, and an opportunity to appear in
person at, a hearing to contest probable cause as to whether the
person is a sexually violent predator. At this hearing, the court
shall (a) verify the person's identity, and (b) determine whether
probable cause exists to believe that the person is a sexually
violent predator. At the probable cause hearing, the state may rely
upon the petition and certification for determination of probable cause. The state may supplement this with additional documentary
evidence or live testimony.
(3) At the probable cause hearing, the person shall have the
following rights in addition to the rights previously specified: (a)
To be represented by counsel; (b) to present evidence on his or her
behalf; (c) to cross-examine witnesses who testify against him or
her; (d) to view and copy all petitions and reports in the court
file.
(4) If the probable cause determination is made, the judge
shall direct that the person be transferred to an appropriate
facility for an evaluation as to whether the person is a sexually
violent predator. The evaluation shall be conducted by a person
deemed to be professionally qualified to conduct an examination
pursuant to rules proposed by the Secretary of the Department of
Health and Human Resources. The Secretary of the Department of
Health and Human Resources is hereby directed to propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, to implement the
provisions of this section. In adopting rules, the secretary shall
consult with the Division of Corrections, the Supreme Court of
Appeals and the parole board. In no event may the person be released
from confinement prior to trial. A witness called by either party
may testify by telephone.
§62-11D-5. Trial; Rights of parties.
(1) Within forty-five days after the completion of any hearing
held, the court shall conduct a trial to determine whether the
person is a sexually violent predator. The trial may be continued
upon the request of either party and a showing of good cause, or by
the court on its own motion in the due administration of justice,
and when the respondent will not be substantially prejudiced. At
all stages of the proceedings under this article, any person subject
to being determined a violent sexual predator prior to release under
this article shall be entitled to the assistance of counsel, and if
the person is indigent, the court shall appoint counsel to assist
him or her. The person shall be confined in a secure facility for
the duration of the trial.
(2) Any person subjected to an examination for determination
as a violent sexual predator prior to release under this article,
may retain experts or professional persons to perform an examination
on their behalf. When the person wishes to be examined by a
qualified expert or professional person of his or her own choice,
the examiner shall be permitted to have reasonable access to the
person for the purpose of examination, as well as to all relevant
medical and psychological records and reports. In the case of a
person who is indigent, the court shall, upon the person's request,
assist the person in obtaining an expert or professional person to
perform an examination or participate in the trial on the person's
behalf.
(3) The person, the prosecuting attorney or the judge have the
right to demand that the trial be before a twelve-person jury. If
no demand is made, the trial shall be before the court.
§62-11D-6. Trial; Determination; Commitment Procedures.
The court or jury shall determine whether, beyond a reasonable
doubt, the person is a sexually violent predator. In determining
whether or not the person would be likely to engage in predatory
acts of sexual violence if not confined in a secure facility, the
fact finder may consider only placement conditions and voluntary
treatment options that would exist for the person if unconditionally
released from detention on the sexually violent predator petition.
When the determination is made by a jury, the verdict must be
unanimous.
If, on the date that the petition is filed, the person is
living in the community after release from custody, the state must
also prove beyond a reasonable doubt that the person committed a
recent overt act. If the state alleges that the prior sexually
violent offense that forms the basis for the petition for commitment
was an act that was sexually motivated, the state must prove beyond
a reasonable doubt that the alleged sexually violent act was
sexually motivated.
If the court or jury determines that the person is a sexually
violent predator, the person shall be committed to the custody of
the Department of Health and Human Resources for placement in a secure facility operated by the department for control, care, and
treatment until such time as: (a) The person's condition has so
changed that the person no longer meets the definition of a sexually
violent predator; or (b) conditional release to a less restrictive
alternative is in the best interest of the person and conditions can
be imposed that would adequately protect the community.
§62-11D-7. Annual examinations of persons committed under chapter.
Each person committed under the provisions of this article
shall have a current examination of his or her mental condition made
by the Department of Health and Human Resources at least once every
year. The annual report shall include consideration of whether the
committed person currently meets the definition of a sexually
violent predator and whether conditional release to a less
restrictive alternative is in the best interest of the person and
conditions can be imposed that would adequately protect the
community. The Department of Health and Human Resources shall file
this periodic report on the status of each person committed under
this article with the court committing the person. The report shall
be certified and shall be prepared by a professionally qualified
person as defined by rules proposed by the secretary. A copy of the
report shall be served on the prosecuting attorney involved in the
initial commitment and upon the committed person and his or her
counsel. The committed person may retain, or if he or she is
indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
§62-11D-8. Rights of persons committed.
(1) Any person subjected to restricted liberty as a sexually
violent predator pursuant to this article shall not forfeit any
legal right or suffer any legal disability as a consequence of any
actions taken or orders made, other than as specifically provided in
this article.
(2) Any person committed has the right to adequate care and
individualized treatment. The Department of Health and Human
Resources shall maintain records detailing all medical, expert, and
professional care and treatment received by a committed person and
shall keep copies of all reports of periodic examinations of the
person. All records and reports shall be made available upon
request only to: The committed person; his or her attorney; the
prosecuting attorney; the court; or, another expert or professional
person who, upon proper showing, demonstrates a need for access to
the records.
(3) At the time a person is taken into custody or transferred
into a facility pursuant to a petition, the professional person in
charge of the facility or his or her designee shall take reasonable
precautions to inventory and safeguard the personal property of the
person detained or transferred. A copy of the inventory, signed by the staff member making it, shall be given to the person detained
and shall, in addition, be open to inspection to any responsible
relative or representative, subject to limitations, if any,
specifically imposed by the detained person. For purposes of this
subsection, "responsible relative or representative" includes the
guardian, conservator, attorney, spouse, parent, adult child, or
adult brother or sister of the person. The facility shall not
disclose the contents of the inventory to any other person without
the consent of the committed person or by order of the court.
(4) Nothing in this article prohibits a person presently
committed from exercising a right available to him or her for the
purpose of obtaining release from confinement, including the right
to petition for a writ of habeas corpus.
(5) No indigent person may be conditionally released or
unconditionally discharged under this article without suitable
clothing, and the secretary shall furnish the person with money as
may be required for persons without funds who are released from
correctional institutions. As funds are available, the secretary
may provide payment to an indigent person conditionally released.
§62-11D-9. Petition for conditional release to less restrictive
alternative or unconditional discharge; Procedures.
(1) If the secretary determines that the person's condition has
so changed that either: (a) The person no longer meets the
definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of
the person and conditions can be imposed that adequately protect the
community, the secretary shall authorize the person to petition the
court for conditional release to a less restrictive alternative or
unconditional discharge. The petition shall be filed with the court
and served upon the prosecuting agency responsible for the initial
commitment. The court, upon receipt of the petition for conditional
release to a less restrictive alternative or unconditional
discharge, shall within forty-five days order a hearing.
(2)(a) Nothing contained in this article shall prohibit the
person from otherwise petitioning the court for conditional release
to a less restrictive alternative or unconditional discharge without
the secretary's approval. The secretary shall provide the committed
person with an annual written notice of the person's right to
petition the court for conditional release to a less restrictive
alternative or unconditional discharge over the secretary's
objection. The notice shall contain a waiver of rights. The
secretary shall file the notice and waiver form and the annual
report with the court. If the person does not affirmatively waive
the right to petition, the court shall set a show cause hearing to
determine whether probable cause exists to warrant a hearing on
whether the person's condition has so changed that: (i) He or she no
longer meets the definition of a sexually violent predator; or (ii)
conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed
that would adequately protect the community.
(b) The committed person shall have a right to have an attorney
represent him or her at the show cause hearing, which may be
conducted solely on the basis of affidavits or declarations, but the
person is not entitled to be present at the show cause hearing. At
the show cause hearing, the prosecuting attorney shall present prima
facie evidence establishing that the committed person continues to
meet the definition of a sexually violent predator and that a less
restrictive alternative is not in the best interest of the person
and conditions cannot be imposed that adequately protect the
community. In making this showing, the state may rely exclusively
upon the annual report. The committed person may present responsive
affidavits or declarations to which the state may reply.
(c) If the court at the show cause hearing determines that
either: (i) The state has failed to present prima facie evidence
that the committed person continues to meet the definition of a
sexually violent predator and that no proposed less restrictive
alternative is in the best interest of the person and conditions
cannot be imposed that would adequately protect the community; or
(ii) probable cause exists to believe that the person's condition
has so changed that: (A) The person no longer meets the definition
of a sexually violent predator; or (B) release to a proposed less
restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the
community, then the court shall set a hearing on either or both
issues.
(d) If the court has not previously considered the issue of
release to a less restrictive alternative, either through a trial on
the merits or through the procedures set forth in this article, the
court shall consider whether release to a less restrictive
alternative would be in the best interests of the person and
conditions can be imposed that would adequately protect the
community, without considering whether the person's condition has
changed.
(3)(a) At the hearing resulting from subsection (1) or (2) of
this section, the committed person shall be entitled to be present
and to the benefit of all constitutional protections that were
afforded to the person at the initial commitment proceeding. The
prosecuting attorney shall represent the state and shall have a
right to a jury trial and to have the committed person evaluated by
experts chosen by the state. The committed person shall also have
the right to a jury trial and the right to have experts evaluate him
or her on his or her behalf and the court shall appoint an expert if
the person is indigent and requests an appointment.
(b) If the issue at the hearing is whether the person should be
unconditionally discharged, the burden of proof shall be upon the
state to prove beyond a reasonable doubt that the committed person's condition continues to meet the definition of a sexually violent
predator. Evidence of the prior commitment trial and disposition is
admissible.
(c) If the issue at the hearing is whether the person should be
conditionally released to a less restrictive alternative, the burden
of proof at the hearing shall be upon the state to prove beyond a
reasonable doubt that conditional release to any proposed less
restrictive alternative either: (i) Is not in the best interest of
the committed person; or (ii) does not include conditions that would
adequately protect the community. Evidence of the prior commitment
trial and disposition is admissible.
(4)(a) Probable cause exists to believe that a person's
condition has "so changed," under subsection (2) of this section,
only when evidence exists, since the person's last commitment trial
proceeding, of a substantial change in the person's physical or
mental condition which the person either no longer meets the
definition of a sexually violent predator or that a conditional
release to a less restrictive alternative is in the person's best
interest and conditions can be imposed to adequately protect the
community.
(b) A new trial proceeding under subsection (3) of this section
may be ordered, or held, only when there is current evidence from a
licensed professional of one of the following and the evidence
presents a change in condition since the person's last commitment trial proceeding:
(i) An identified physiological change to the person, including
paralysis, stroke, or dementia, that renders the committed person
unable to commit a sexually violent act and this change is
permanent; or
(ii) A change in the person's mental condition brought about
through positive response to continuing participation in treatment
which indicates that the person meets the standard for conditional
release to a less restrictive alternative or that the person would
be safe to be at large if unconditionally released from commitment.
(c) For purposes of this section, a change in a single
demographic factor, without more, does not establish probable cause
for a new trial proceeding under subsection (3) of this section. As
used in this section, a single demographic factor includes, but is
not limited to, a change in the chronological age, marital status,
or gender of the committed person.
(5) The jurisdiction of the court over a person civilly
committed pursuant to this article continues until the person is
unconditionally discharged.
§62-11D-10. Conditional release to less restrictive alternative;
findings.
Before the court may enter an order directing conditional
release to a less restrictive alternative, it must find the
following: (1) The person will be treated by a treatment provider who is qualified to provide the treatment in this state; (2) the
treatment provider has presented a specific course of treatment and
has agreed to assume responsibility for the treatment and will
report progress to the court on a regular basis, and will report
violations immediately to the court, the prosecutor, the probation
officer, and the director of a special commitment center; (3)
housing exists that is sufficiently secure to protect the community,
and the person or agency providing housing to the conditionally
released person has agreed in writing to accept the person, to
provide the level of security required by the court, and immediately
to report to the court, the prosecutor, the probation officer, and
the director of a special commitment center if the person leaves the
housing to which he or she has been assigned without authorization;
(4) the person is willing to comply with the treatment provider and
all requirements imposed by the treatment provider and by the court;
and (5) the person is willing to comply with supervision
requirements imposed by the Division of Corrections, the Department
of Health and Human Resources and the parole board.
§62-11D-11. Conditional release to less restrictive alternative;
verdict.
(1) Upon the conclusion of the evidence in a hearing held
pursuant to section nine of this article or through summary judgment
proceedings prior to the hearing, if the court finds that there is
no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in section ten of this article
have been met, the court shall grant a motion by the state for a
judgment as a matter of law on the issue of conditional release to
a less restrictive alternative.
(2) Whenever the issue of conditional release to a less
restrictive alternative is submitted to the jury, the court shall
instruct the jury to return a verdict in substantially the following
form: Has the state proved beyond a reasonable doubt that either:
(a) The proposed less restrictive alternative is not in the best
interests of respondent; or (b) does not include conditions that
would adequately protect the community? Answer: Yes or No.
§62-11D-12. Conditional release to less restrictive alternative;
judgment; conditions; annual review.
(1) If the court or jury determines that conditional release to
a less restrictive alternative is in the best interest of the person
and includes conditions that would adequately protect the community,
and the court determines that the minimum conditions set forth in
section ten of this article and in this section are met, the court
shall enter judgment and direct a conditional release.
(2) The court shall impose any additional conditions necessary
to ensure compliance with treatment and to protect the community. If
the court finds that conditions do not exist that will both ensure
the person's compliance with treatment and protect the community,
then the person shall be remanded to the custody of the Department of Health and Human Resources for control, care, and treatment in a
secure facility.
(3) If the service provider designated by the court to provide
inpatient or outpatient treatment or to monitor or supervise any
other terms and conditions of a person's placement in a less
restrictive alternative is other than the Department of Health and
Human Resources or the Division of Corrections, then the service
provider so designated must agree in writing to provide treatment,
monitoring, or supervision in accord with this section. Any person
providing or agreeing to provide treatment, monitoring, or
supervision services pursuant to this article may be compelled to
testify and any privilege with regard to the person's testimony is
deemed waived.
(4) Prior to authorizing any release to a less restrictive
alternative, the court shall impose conditions upon the person as
are necessary to ensure the safety of the community. One condition
that shall always be ordered by the court is that the person be
required to wear a monitoring device as designated by the State
Police to allow the State Police to monitor the movement of the
person twenty four hours a day through a global positioning system
device. If the person refuses to wear the monitoring device, or
agrees to wear it and then removes it or disables the device, he or
she shall be subject to the provisions of section thirteen of this
article regarding arrest, revocation and modification of conditional release. The court shall order the Division of Corrections and the
Department of Health and Human Resources to investigate the less
restrictive alternative and recommend any additional conditions to
the court. These conditions shall include, but are not limited to
the following: Specification of residence, prohibition of contact
with potential or past victims, prohibition of alcohol and other
drug use, participation in a specific course of inpatient or
outpatient treatment that may include monitoring by the use of
polygraph and plethysmograph, supervision by a Division of
Corrections community corrections officer, a requirement that the
person remain within the state unless the person receives prior
authorization by the court, and any other conditions that the court
determines are in the best interest of the person or others. A copy
of the conditions of release shall be given to the person and to any
designated service providers.
(5) Any service provider designated to provide inpatient or
outpatient treatment shall monthly, or as otherwise directed by the
court, submit to the court, to the Department of Health and Human
Resources facility from which the person was released, to the
prosecutor of the county in which the person was found to be a
sexually violent predator, and to the probation officer, a report
stating whether the person is complying with the terms and
conditions of the conditional release to a less restrictive
alternative.
(6) Each person released to a less restrictive alternative
shall have his or her case reviewed by the court that released him
or her no later than one year after release and annually thereafter
until the person is unconditionally discharged. Review may occur in
a shorter time or more frequently, if the court, in its discretion
on its own motion, or on motion of the person, the secretary, or the
prosecuting attorney so determines. The sole question to be
determined by the court is whether the person shall continue to be
conditionally released to a less restrictive alternative. The court
in making its determination shall be aided by the periodic reports
filed pursuant to subsection (5) of this section and the opinions of
the secretary and other experts or professional persons.
§62-11D-13. Conditional release to less restrictive alternative;
hearing on revocation or modification; authority to
apprehend conditionally released person.
(1) Any service provider submitting reports pursuant to this
article, the probation officer, the parole officer, or the
prosecuting attorney may petition the court, or the court on its own
motion may schedule an immediate hearing, for the purpose of
revoking or modifying the terms of the person's conditional release
to a less restrictive alternative if the petitioner or the court
believes the released person is not complying with the terms and
conditions of his or her release or is in need of additional care,
monitoring, supervision or treatment.
(2) If the prosecuting attorney, the probation officer, parole
officer, or the court, based upon information received by them,
reasonably believes that a conditionally released person is not
complying with the terms and conditions of his or her conditional
release to a less restrictive alternative, the court, prosecuting
attorney, probation officer or parole officer may order that the
conditionally released person be apprehended and taken into custody
until a hearing can be scheduled to determine the facts and whether
or not the person's conditional release should be revoked or
modified. The court shall be notified before the close of the next
judicial day of the person's apprehension. Both the prosecuting
attorney and the conditionally released person shall have the right
to request an immediate mental examination of the conditionally
released person. If the conditionally released person is indigent,
the court shall, upon request, assist him or her in obtaining a
qualified expert or professional person to conduct the examination.
(3) The court, upon receiving notification of the person's
apprehension, shall promptly schedule a hearing. The issue to be
determined is whether the state has proven by a preponderance of the
evidence that the conditionally released person did not comply with
the terms and conditions of his or her release. Hearsay evidence is
admissible if the court finds it otherwise reliable. At the
hearing, the court shall determine whether the person shall continue
to be conditionally released on the same or modified conditions or whether his or her conditional release shall be revoked and he or
she shall be committed to total confinement, subject to release only
in accordance with provisions of this article.
§62-11D-14. Department of Health and Human Resources; duties;
reimbursement.
The Department of Health and Human Resources shall be
responsible for all costs relating to the evaluation and treatment
of persons committed to their custody whether in a secure facility
or under a less restrictive alternative under any provision of this
article.
§62-11D-15. Department of Health and Human Resources; jurisdiction
continues after criminal conviction; exception.
A person subject to court order under the provisions of this
article who is thereafter convicted of a criminal offense remains
under the jurisdiction of the department following: (1) Completion
of the criminal sentence; or (2) release from confinement in a state
or local correctional facility, and shall be returned to the custody
of the department.
This section does not apply to persons subject to a court order
under the provisions of this article who are thereafter sentenced to
life without the possibility of release.
§62-11D-16. Secretary of Health and Human Services to approve
personnel and facilities.
Notwithstanding any other provision of this code to the
contrary, the Secretary of the Department of Health and Human
Resources shall determine the qualifications, character,
suitability, and competency requirements for employment or
engagement at a community facility provided for in this article.
Information submitted to the department by the facility shall
include a criminal history records check for all employees of the
facility.
§62-11D-17. Release of information authorized.
In addition to any other information required to be released
under article twelve, chapter fifteen of this code, the department
is authorized, pursuant to release relevant information that is
necessary to protect the public, concerning a specific sexually
violent predator committed under this article.
§62-11D-18. Notice of escape or disappearance.
In the event of an escape by a person committed under this
article from a state institution or the disappearance of a person
while on conditional release, the superintendent or probation or
parole officer shall notify the following as appropriate: Local law-
enforcement officers, other governmental agencies, the person's
relatives, and any other appropriate persons about information
necessary for the public safety or to assist in the apprehension of
the person.
§62-11D-19. Notice of conditional release or unconditional discharge; notice of escape and recapture.
(1) At the earliest possible date, and in no event later than
thirty days before conditional release or unconditional discharge,
except in the event of escape, the Department of Health and Human
Resources shall send written notice of conditional release,
unconditional discharge, or escape, to the following:
(a) The chief of police of the city, if any, in which the
person will reside or in which placement will be made under a less
restrictive alternative;
(b) The sheriff of the county in which the person will reside
or in which placement will be made under a less restrictive
alternative; and
(c) The sheriff of the county where the person was last
convicted of a sexually violent offense, if the department does not
know where the person will reside.
The department shall notify the State Police of the release of
all sexually violent predators and that information shall be placed
in the West Virginia crime information center for dissemination to
all law enforcement.
(2) The same notice as required by subsection (1) of this
section shall be sent to the following if the notice has been
requested in writing about a specific person found to be a sexually
violent predator under this chapter:
(a) The victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of
kin if the crime was a homicide. "Next of kin" as used in this
section means a person's spouse, parents, siblings, and children;
(b) Any witnesses who testified against the person in his or
her commitment trial; and
(c) Any person specified in writing by the prosecuting
attorney.
Information regarding victims, next of kin, or witnesses
requesting the notice, information regarding any other person
specified in writing by the prosecuting attorney to receive the
notice, and the notice are confidential and shall not be available
to the committed person.
(3) If a person committed as a sexually violent predator under
this article escapes from a Department of Health and Human
Resources designated facility, the department shall immediately
notify, by the most reasonable and expedient means available, the
chief of police of the city and the sheriff of the county in which
the committed person resided immediately before his or her
commitment as a sexually violent predator, or immediately before his
or her incarceration for his or her most recent offense. If
previously requested, the department shall also notify the witnesses
and the victims of the sexually violent offenses for which the
person was convicted in the past or the victim's next of kin if the
crime was a homicide. If the person is recaptured, the department shall send notice to the persons designated in this subsection as
soon as possible but in no event later than two working days after
the department learns of the recapture.
(4) If the victim or victims of any sexually violent offenses
for which the person was convicted in the past or the victim's next
of kin, or any witness is under the age of sixteen, the notice
required by this section shall be sent to the parents or legal
guardian of the child.
(5) The Department of Health and Human Resources shall send
the notices required by this chapter to the last address provided to
the department by the requesting party. The requesting party shall
furnish the department with a current address.
(6) Nothing in this section shall impose any liability upon a
chief of police of a city or sheriff of a county for failing to
request in writing a notice as provided in subsection (1) of this
section.
§62-11D-20. Rule making.
The Secretary of the Department of Health and Human Resources
is hereby directed to propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article relating to the citing of facilities, required community
involvement, public hearings, restrictions on facilities and staff,
protection of the public and compliance with federal laws, state and federal court decisions relating to the treatment and confinement of
civilly committed violent sexual offenders.
NOTE: The purpose of this bill is to increase penalties for sex
offenses; provide notice to residents within five hundred feet of
the residence of a convicted sex offender; establish "The Protect
Our Children Act"; establish a rebuttable presumption that release
on bond of certain sex offenders would not protect the community;
provide for mandatory supervised probation;
and to require special
motor vehicle operators licenses for convicted sex offenders. The
bill also provides for a procedure for involuntary civil commitment
of sexually violent predators. Under the bill, before a sexually
violent predator is released from confinement, the prosecuting
attorney for the county in which the sexually violent predator was
sentenced must be notified. The prosecuting attorney may then
petition the court for a commitment of the sexually violent person
to a secure facility. The bill sets up safeguards to protect the
rights of persons accused of being a sexually violent predator and
provides for the placement of the sexually violent predator
determined to be less dangerous in less restrictive community
settings. The bill provides that no sexually violent predator may
be released to the community unless he or she agrees to wear a
device that is monitored by a GPS system within the State Police.
The Department of Health and Human Resources is responsible for
providing secure facilities for persons committed as sexually
violent predators. Under the bill, a sexually violent predator may
be committed for his or her life if he or she does not show
improvement as determined by a court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Articles §61-8G and §62-11D are new, therefore strike-throughs
and underscoring are omitted.