WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary then Finance.
A BILL to amend and
reenact §15-12-2 of the Code of West Virginia, 1931, as amended; and to amend
and reenact §62-11D-3 of said code, all relating to sex offenders; prohibiting
sexual offenders from residing within one thousand feet of a school or
childcare facility; requiring persons, as a condition of probation, parole or
supervised release, convicted of sexual crimes against a minor be subject to
global positional system monitoring for life; and providing for a felony
penalty.
Be it enacted by the
Legislature of West Virginia:
That §15-12-2 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §62-11D-3 of said code be amended and reenacted, all to
read as follows:
CHAPTER 15. PUBLIC
SAFETY.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of This article apply applies
both retroactively and prospectively.
(b) Any person who has been convicted
of an offense or an attempted offense or has been found not guilty by reason of
mental illness, mental retardation or addiction of an offense under any of the
following provisions of chapter sixty-one of this code or under a statutory
provision of another state, the United States Code or the Uniform Code of
Military Justice which requires proof of the same essential elements shall register
as set forth in subsection (d) of this section and according to the internal
management rules promulgated by the superintendent under authority of section
twenty-five, article two of this chapter:
(1) Article eight-a;
(2) Article eight-b, including the
provisions of former section six of said article, relating to the offense
of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year 2000 legislative
session;
(3) Article eight-c;
(4) Sections five and six, article eight-d;
(5) Section fourteen, article two;
(6) Sections six, seven, twelve and thirteen, article eight;
or
(7) Section fourteen-b, article three-c, as it relates to
violations of those provisions of chapter sixty-one listed in this
subsection.
(c) Any person who has been convicted
of a criminal offense and the sentencing judge made a written finding that the
offense was sexually motivated shall also register as set forth in this
article.
(d) Persons required to register under the provisions of
this article shall register in person at the West Virginia State Police
detachment responsible for covering the county of his or her residence, and in
doing so, provide or cooperate in providing, at a minimum, the following when
registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration, the address of any habitable real property
owned or leased by the registrant that he or she regularly visits: Provided,
That a post office box may not be provided in lieu of a physical residential
address, the name and address of the registrant's employer or place of
occupation at the time of registration, the names and addresses of any
anticipated future employers or places of occupation, the name and address of
any school or training facility the registrant is attending at the time of
registration and the names and addresses of any schools or training facilities
the registrant expects to attend;
(3) The registrant's Social Security number;
(4) A full-face photograph of the
registrant at the time of registration;
(5) A brief description of the crime or
crimes for which the registrant was convicted;
(6) Fingerprints and palm prints;
(7) Information related to any motor vehicle, trailer or
motor home owned or regularly operated by a registrant, including vehicle make,
model, color and license plate number. Provided, That For
the purposes of this article, the term "trailer" shall mean means travel trailer, fold-down
camping trailer and house trailer as those terms are defined in section one,
article one, chapter seventeen-a of this code;
(8) Information relating to any Internet accounts the
registrant has and the screen names, user names or aliases the registrant uses
on the Internet; and
(9) Information related to any telephone or electronic paging
device numbers that the registrant has or uses, including, but not limited to,
residential, work and mobile telephone numbers.
(e) (1) On the date that any person convicted or found not
guilty by reason of mental illness, mental retardation or addiction of any of
the crimes listed in subsection (b) of this section, hereinafter referred to as
a "qualifying offense", including those persons who are continuing
under some post-conviction supervisory status, are released, granted probation
or a suspended sentence, released on parole, probation, home detention, work
release, conditional release or any other release from confinement, the
Commissioner of Corrections, regional jail administrator, city official or
sheriff operating a jail or Secretary of the Department of Health and Human
Resources who releases the person and any parole or probation officer who
releases the person or supervises the person following the release, shall
obtain all information required by subsection (d) of this section prior to the
release of the person, inform the person of his or her duty to register and
send written notice of the release of the person to the State Police within
three business days of receiving the information. The notice must include the information
required by said subsection. Any person having a duty to register for a qualifying offense
shall register upon conviction, unless that person is confined or incarcerated,
in which case he or she shall register within three business days of release,
transfer or other change in disposition status. Any person currently
registered who is incarcerated for any offense shall reregister within three
business days of his or her release.
(2) Notwithstanding any provision of this article to the
contrary, a court of this state shall, upon presiding over a criminal matter
resulting in conviction or a finding of not guilty by reason of mental illness,
mental retardation or addiction of a qualifying offense, cause, within seventy-two
hours of entry of the commitment or sentencing order, the transmittal to the
sex offender registry for inclusion in the registry all information required
for registration by a registrant as well as the following nonidentifying
information regarding the victim or victims:
(A) His or her sex;
(B) His or her age at the time of the offense; and
(C) The relationship between the victim and the perpetrator.
The provisions of This paragraph do
does not relieve a person required to register pursuant to this section
from complying with any provision of this article.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section must also
include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted
or found not guilty by reason of mental illness, mental retardation or
addiction in a court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement acknowledging
that he or she understands the requirements imposed by this article. The court shall inform the person so
convicted of the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or her counsel
that the defendant has received notice of the provisions of this article and
that the defendant understands the provisions.
The statement, when signed and witnessed, constitutes prima facie
evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court
shall provide a copy to the registry.
Persons who have not signed a statement under the provisions of
this subsection and who are subject to the registration requirements of this
article must be informed of the requirement by the State Police whenever the State
Police obtain information that the person is subject to registration
requirements.
(h) The State Police shall maintain a central registry of all
persons who register under this article and shall release information only as
provided in this article. The
information required to be made public by the State Police by subdivision (2),
subsection (b), section five of this article is to be accessible through the
Internet. No information relating to telephone or electronic paging device
numbers a registrant has or uses may be released through the Internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in
section three, article eight-b, chapter sixty-one of this code or of a similar
provision in another state, federal or military jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or of a similar
provision in another state, federal or military jurisdiction;
(3) Sexual assault of a spouse as set forth in the former provisions
of section six, article eight-b, chapter sixty-one of this code, which was
repealed by an Act of the Legislature during the
2000 legislative session, or of a similar provision in another state, federal
or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a similar
provision in another state, federal or military jurisdiction.
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person committed the
crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent predator" means a person who has been convicted
or found not guilty by reason of mental illness, mental retardation or
addiction of a sexually violent offense and who suffers from a mental
abnormality or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
(l) For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a person, that
affects the emotional or volitional capacity of the person in a manner that
predisposes that person to the commission of criminal sexual acts to a degree
that makes the person a menace to the health and safety of other persons.
(m) For purposes of this article, the term "predatory
act" means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary purpose of
victimization.
(n) For the purposes of this article, the term "business
days" means days exclusive of Saturdays, Sundays and legal holidays as
defined in section one, article two, chapter two of this code.
(o) Notwithstanding any other provision of this code to the
contrary, a person required to register under this section may not reside
within one thousand feet of a school or childcare facility. Any person violating this subsection is
guilty of a felony and, upon conviction thereof, shall be confined in a state
correctional facility for not less than two years nor more than ten years.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11D. HEIGHTENED EXAMINATION AND SUPERVISION FOR
CERTAIN SEX OFFENDERS.
§62-11D-3. Electronic monitoring of certain sex
offenders under supervision; tampering with devices; offenses and penalties.
(a) Notwithstanding any provisions of this code to the
contrary, any person convicted of committing a sexual crime against a minor
pursuant to article eight-b, chapter sixty-one of this code, who is on
probation, parole or supervised release, is subject to global positioning
system monitoring as a condition of probation, parole or supervised release for
the duration of his or her life. Any
person designated as a sexually violent predator pursuant to the provisions
of section two-a, article twelve, chapter fifteen who is on probation,
parole or supervised release, shall be is subject to electronic
monitoring as a condition of probation, parole or supervised release. A person required to register as a sex
offender pursuant to the provisions of article twelve, chapter fifteen
of this code may, as a condition of probation, parole or supervised release, be
subject to electronic monitoring.
(b) Upon being placed on supervision, a person required to
undergo electronic monitoring pursuant to the provisions of this
section, other than persons convicted of sexual crimes against a minor
subjected to global positioning system monitoring in accordance with this
section, shall be placed at a minimum on radio frequency monitoring with
curfews enforced. Following an assessment designed to determine the level and
type of electronic monitoring necessary to effectuate the protection of the
public, a supervised person, other than persons convicted of sexual crimes
against a minor in accordance with this section, may be placed on a system
providing a greater or lesser degree of monitoring.
(c) A person subject to the provisions of this section
shall be is responsible for the cost of the global positioning
system or electronic monitoring. In
the event a person required to submit to global positioning system or
electronic monitoring as required by the provisions of this section is
unable to pay for the global positioning system or electronic
monitoring, that person may present an affidavit reflecting the inability to
pay for such the monitoring to the circuit court of the county of
supervision. If it appears to the
satisfaction of the court that such the person is in fact
financially unable to pay for such the monitoring, the court
shall issue an order reflecting such its findings and forward said
the order to the supervising entity.
Upon receipt of such the order, the supervising entity shall
then be is responsible for paying for each testing the
monitoring.
(d) The assessment required by the provisions of
subsection (b) of this section shall be completed not later than thirty days
after the supervised person begins serving probation or parole or supervised
release. Under no circumstances may a
person of whom electronic monitoring has been mandated as a condition of
supervision be on a type of monitoring less effective than voice verification
with a curfew.
(e) Any person who intentionally alters, tampers with,
damages or destroys any global positioning system or electronic
monitoring equipment, with the intent to remove the device or impair its
effectiveness, is guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for not less than one year nor more
than ten years.
NOTE: The purpose of this bill is
to prohibit sexual offenders from residing within one thousand feet of a school
or childcare facility. The bill requires persons, as a condition of probation,
parole or supervised release, convicted of sexual crimes against a minor be
subject to global positional system monitoring for life. The bill also provides
for a felony penalty.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.