H. B. 4280
(By Delegate Walters)
[Introduced January 31, 2006; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §15-13-1, §15-13-2,
§15-13-3, §15-13-4, §15-13-5, §15-13-6, §15-13-7, §15-13-8,
§15-13-9, §15-13-10, §15-13-11, §15-13-12, §15-13-13,
§15-13-14, §15-13-15, §15-13-16 and §15-13-17, all relating to
sexually violent predators; providing a short title; defining
certain terms; requiring notice to prosecuting attorney
institute and others of prospective release certain violent
sexual offenders; establishing a multidisciplinary team;
establishing a prosecutor's review committee; providing for
the determination of probable cause to petition for the
commitment of a sexually violent offender; providing for the
apprehension of the sexually violent offender; notice of
hearing rights to the sexually violent offender; providing for
a procedure for trial and commitment to a secure facility of certain sexually violent offenders; and required registration
of released sexually violent offenders.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §15-13-1, §15-13-2,
§15-13-3, §15-13-4, §15-13-5, §15-13-6, §15-13-7, §15-13-8,
§15-13-9, §15-13-10, §15-13-11, §15-13-12, §15-13-13, §15-13-14,
§15-13-15, §15-13-16 and §15-13-17, all to read as follows:
§15-13-1. Short Title.
This article is known and may be cited as the "Sexually
Violent Predator Act".
§15-13-2. Legislative findings.
The Legislature finds that a mentally abnormal
and extremely
dangerous group of sexually violent predators exists who require
involuntary civil commitment in a secure facility for long-term
control, care, and treatment. The Legislature further finds that
the likelihood these sexually violent predators will engage in
repeated acts of sexual violence if not treated for their mental
conditions is significant. Because the existing civil commitment
process is inadequate to address the special needs of sexually
violent predators and the risks that they present to society, the
Legislature has determined that a separate, involuntary civil
commitment process for the long-term control, care, and treatment
of sexually violent predators is necessary. The Legislature also determines that, because of the nature of the mental conditions
from which sexually violent predators suffer and the dangers they
present, it is necessary to house involuntarily-committed sexually
violent predators in secure facilities separate from persons
involuntarily committed under traditional civil commitment
statutes. The civil commitment of sexually violent predators is
not intended to stigmatize individuals on the basis of mental
illness.
§15-13-3. Definitions.
For purposes of this article:
(1) "Sexually violent predator" means a person who: Has been
convicted of a sexually violent offense; and suffers from a mental
abnormality or personality disorder that makes the person likely to
engage in acts of sexual violence if not confined in a secure
facility for long-term control, care, and treatment.
(2) "Sexually violent offense" means;
(a) Sexual assault in the first degree as provided in section
three, article eight-b, chapter sixty-one of this code;
(b) Sexual assault in the second degree as provided in section
four, article eight-b, chapter sixty-one of this code;
(c) Sexual assault in the third degree as provided in section
five, article eight-b, chapter sixty-one of this code;
(d) Use of minors in filming sexually explicit conduct, as
provided in section two, article eight, chapter sixty-one of this code;
(e) Distribution and exhibiting of material depicting minors
engaged in sexually explicit conduct, as provided in section three,
article eight-c, chapter sixty-one of this code;
(f) Sexual abuse by a parent, guardian or custodian; parent,
guardian or custodian allowing sexual abuse to be inflicted upon a
child; displaying of sex organs by a parent, guardian or custodian,
as provided in section five, article eight-d chapter sixty-one of
this code;
(g) Sending, distributing, exhibiting, possessing, displaying
or transporting material by a parent, guardian or custodian,
depicting child engaged in sexually explicit conduct, as provided
in section six, article eight-d, chapter sixty-one of this code;
or,
(h) Incest, as provided in section twelve, article eight
chapter sixty-one of this code;
(3) "Mental abnormality" means a mental condition affecting a
person's emotional or volitional capacity that predisposes the
person to commit sexually violent offenses.
(4) "Sexually motivated" means that one of the purposes for
which the person committed the crime was for the purpose of the
persons sexual gratification.
(5) "Agency with jurisdiction" means that agency which, upon
lawful order or authority, releases a person serving a sentence or term of confinement and includes the West Virginia Division of
Corrections, the Parole Board, the Division of Juvenile Services,
and the Department of Health and Human Resources.
(6) "Convicted of a sexually violent offense" means a person
has:
(a) Pled guilty to, pled nolo contendere to, or been convicted
of a sexually violent offense;
(b) Been adjudicated delinquent as a result of the commission
of a sexually violent offense;
(c) Been charged but determined to be incompetent to stand
trial for a sexually violent offense; or
(d) Been found not guilty by reason of mental illness of a
sexually violent offense.
(7) "Court" means the circuit court with jurisdiction.
(8) "Total confinement" means incarceration in a correctional
facility and does not mean any type of community supervision.
(9) "Likely to engage in acts of sexual violence" means the
person's propensity to commit acts of sexual violence is of an
intensity as to pose a menace to the health and safety of others.
(10) "Person" means an individual who is a potential or actual
subject of proceedings under this act and includes a child under
eighteen years of age.
(11) "Victim" means an individual registered with the agency
of jurisdiction as a victim or as an intervener.
(12) "Intervener" means an individual, other than a
law-enforcement officer performing his or her ordinary duties, who
provides aid to another individual who is not acting recklessly, in
order to prevent the commission of a crime or to lawfully apprehend
an individual reasonably suspected of having committed a crime.
(13) "Executive Director" means the executive director of the
prosecuting attorneys' institute established by section six,
article four, chapter seven of this code.
§15-13-4. Notification to team, victim and prosecuting attorneys'
institute regarding release, hearing or parole;
effective date of parole or release; immunity.
(a) When a person has been convicted of a sexually violent
offense, the agency with jurisdiction must give written notice to
the multidisciplinary team established in section five of this
article, to the victim and the executive director of the West
Virginia prosecuting attorneys institute at least one hundred
eighty days before:
(1) The person's anticipated release from total confinement,
except that in the case of a person who is returned to prison for
no more than one hundred eighty days as a result of a revocation of
any type of community supervision program, written notice must be
given as soon as practicable following the person's readmission to
prison;
(2) The anticipated hearing on fitness to stand trial following notice of a person who has been charged with a sexually
violent offense but who was found unfit to stand trial for the
reasons set forth in article six-a, chapter twenty-seven, of this
code following a hearing held pursuant to section two, article
six-a, chapter twenty-seven of this code.
(3) The anticipated hearing pursuant to article six-a, chapter
twenty-seven of this code of a person who has been found not guilty
by reason of mental illness of a sexually violent offense; or
(4) When a person has been convicted of a sexually violent
offense and the parole board intends to grant the person a parole,
the parole must be granted to be effective ninety days after the
date of the order of parole. The parole board must immediately
send notice of the parole of the person to the multidisciplinary
team provided in this article, the victim, and the executive
director. If the person is determined to be a sexually violent
predator pursuant to this chapter, the person is subject to the
provisions of this article even though the person has been released
on parole.
(c) The agency with jurisdiction must inform the
multidisciplinary team, the victim, and the executive director of:
(1) The person's name, identifying factors, anticipated future
residence, and offense history; and
(2) Documentation of institutional adjustment and any
treatment received.
(d) The agency with jurisdiction, its employees, officials,
individuals contracting, appointed, or volunteering to perform
services under this chapter, the multidisciplinary team, and the
prosecutor's review committee established in section six of this
article are immune from civil or criminal liability for any
good-faith conduct under this act.
§15-13-5. Multidisciplinary team; appointments; review of
records; membership.
The Director of the Division of Corrections must appoint a
multidisciplinary team to review the records of each person
referred to the team pursuant to section four of this article.
These records may include, but are not limited to, the person's
criminal offense record, any relevant medical and psychological
records, treatment records, victims impact statement, and any
disciplinary or other records formulated during confinement or
supervision. The multidisciplinary team, within thirty days of
receiving notice as provided in section four of this article, must
assess whether or not the person satisfies the definition of a
sexually violent predator. If it is determined that the person
satisfies the definition of a sexually violent predator, the
multidisciplinary team must forward a report of the assessment to
the prosecutor's review committee and notify the victim. The
assessment must be accompanied by all records relevant to the
assessment. The membership of the team must include a or an:
(1) Representative from the Division of Corrections;
(2) Representative from the parole board;
(3) Representative from the Department of Health and Human
Resources who is a trained, qualified mental health clinician with
expertise in treating sexually violent offenders;
(4) Retired judge appointed by the Chief Justice who is
eligible for continued judicial service pursuant to section ten,
article nine, chapter fifty-one of this code; and
(5) Attorney with substantial experience in the practice of
criminal defense law to be appointed by the Chief Justice of the
Supreme Court of Appeals to serve a term of one year.
The Director of the Division of Corrections or his or her
designee shall be the chairman of the team.
§15-13-6. Prosecutor's review committee; scope of review;
membership requirements.
The prosecuting attorneys institute must appoint a
prosecutor's review committee to review the report and records of
each person referred to the committee by the multidisciplinary
team. The prosecutor's review committee must determine whether or
not probable cause exists to believe the person is a sexually
violent predator. The prosecutor's review committee must make the
probable cause determination within thirty days of receiving the
report and records from the multidisciplinary team. The
prosecutor's review committee must include, but is not limited to, a member of the staff of the prosecuting attorneys institute, an
elected county prosecuting attorney, and a victim's representative.
The executive director of the prosecuting attorney's institute or
his or her designee shall be the chairman of the committee. In
addition to the records and reports considered pursuant to section
five of this article, the committee must also consider information
provided by the county prosecuting attorney who prosecuted the
person.
§15-13-7. Petition for probable cause determination.
When the prosecutor's review committee has determined that
probable cause exists to support the allegation that the person is
a sexually violent predator, the executive director must file a
petition with the court in the jurisdiction where the person
committed the offense and must notify the victim that the committee
found that probable cause exists. The executive director must also
notify the victim of the time, date, and location of the probable
cause hearing before the court. The petition, which must be filed
within thirty days of the probable cause determination by the
prosecutor's review committee, must request that the court make a
probable cause determination as to whether the person is a sexually
violent predator. The petition must allege that the person is a
sexually violent predator and must state sufficient facts that
would support a probable cause allegation.
§15-13-8. Determination of probable cause; taking person into custody; hearing; evaluation.
(a) Upon the filing of a petition, the court must determine
whether probable cause exists to believe that the person named in
the petition is a sexually violent predator. If the court
determines that probable cause exists to believe that the person is
a sexually violent predator, the person must be taken into custody
if he or she is not already confined in a secure facility.
(b)
Immediately upon being taken into custody the person must
be provided with notice of the opportunity to appear in person at
a hearing to contest probable cause as to whether the detained
person is a sexually violent predator. This hearing must be held
within seventy-two hours after a person is taken into custody.
At the hearing the court must:
(1) Verify the detainee's identity;
(2) Receive evidence and hear arguments from the person and
the executive director; and
(3) Determine whether probable cause exists to believe that
the person is a sexually violent predator.
The state may rely upon the petition and supplement the
petition with additional documentary evidence or live testimony.
(c) At the probable cause hearing as provided in subsection
(b), the detained person has the following rights in addition to
any rights previously specified, including the right to:
(1) Be represented by counsel;
(2) Present evidence on the person's behalf;
(3) Cross-examine witnesses who testify against the person;
and
(4) To view and copy all petitions and reports in the court
file.
(d) If the probable cause determination is made, the court
must direct that the person be transferred to an appropriate secure
facility including, but not limited to, a local or regional
detention facility for an evaluation as to whether the person is a
sexually violent predator. The evaluation must be conducted by a
qualified expert approved by the court at the probable cause
hearing.
§15-13-9. Trial; trier of fact; continuation; assistance of
counsel; access to examiners; expenses.
Within sixty days after the completion of a hearing held
pursuant to section eight of this article, the court must conduct
a trial to determine whether the person is a sexually violent
predator. Within thirty days after the determination of probable
cause by the court pursuant to section eight of this article, the
person or the executive director may, request, in writing, that the
trial be before a jury. If a request is made, the court must
schedule a trial before a jury at the next available date in the
circuit court in the county where the offense was committed. If no
request is made, the trial must be before a judge in the county when the offense was committed. 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
only if, the respondent will not be substantially prejudiced. The
executive director must notify the victim, in a timely manner, of
the time, date, and location of the trial. At all stages of the
proceedings under this article, a person subject to this article
entitled to the assistance of counsel, and the person is indigent,
the court must appoint counsel to assist the person. If a person
is subjected to an examination under this article, the person may
retain a qualified expert of his or her own choosing to perform the
examinations. All examiners are permitted to have reasonable
access to the person for the purpose of the examination, as well as
access to all relevant, medical, psychological, criminal offense
and disciplinary records and reports. In the case of an indigent
person who requests an expert of his or her own choosing, the court
must determine whether the services are necessary. If the court
determines that the services are necessary and the expert's
requested compensation for the services is reasonable, the court
must assist the person in obtaining the expert to perform an
examination or participate in the trial on the person's behalf.
The court must approve payment for the services upon the
filing of a certified claim for compensation supported by a written
statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the
case or for the same services from any other source.
§15-13-10. Standard for determining predator status; control care
and treatment of person; release; mistrial
procedures; persons competent to stand trial.
(a) The court or jury must determine whether, beyond a
reasonable doubt, the person, is a sexually violent predator. If
a jury determines that the person is a sexually violent predator,
the determination must be by unanimous verdict. If the court or
jury determines that the person is a sexually violent predator, the
person must be committed to the custody of the Department of Health
and Human Resources for control, care, and treatment until the
person's mental abnormality or personality disorder has so changed
that the person is safe to be at large and has been released
pursuant to this chapter. The control, care, and treatment must be
provided at a facility operated by the Department of Health and
Human Resources. At all times, a person committed for control,
care, and treatment by the Department of Health and Human Resources
pursuant to this article must be kept in a secure facility, and the
person must be segregated at all times from other patients under
the supervision of the Department of Health and Human Resources.
The Department of Health and Human Resources may enter into an
interagency agreement with the Division of Corrections for the
control, care, and treatment of these persons. A person who is in the confinement of the Division of Corrections pursuant to an
interagency agreement authorized by this article must be kept in a
secure facility and must, if practical and to the degree possible,
be housed and managed separately from offenders in the custody of
the Division of Corrections. If the court or jury is not satisfied
beyond a reasonable doubt that the person is a sexually violent
predator, the court must direct the person's release. Upon a
mistrial, the court must direct that the person be held at an
appropriate secure facility including, but not limited to, a state
correctional facility until another trial is conducted. A
subsequent trial following a mistrial must be held within ninety
days of the previous trial, unless the subsequent trial is
continued. The court or jury's determination that a person is a
sexually violent predator may be appealed. The person must be
committed to the custody of the Department of Health and Human
Resources pending his or her appeal.
(b) If the person charged with a sexually violent offense has
been found incompetent to stand trial and is about to be released
and the person's commitment is sought pursuant to subsection (a),
the court first shall hear evidence and determine whether the
person committed the act or acts with which he or she is charged.
The hearing on this issue must comply with all the procedures
specified in this section. In addition, the rules of evidence
applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right
not to be tried while incompetent, apply. After hearing evidence
on this issue, the court must make specific findings on whether the
person committed the act or acts with which he or her is charged;
the extent to which the person's incompetence or developmental
disability affected the outcome of the hearing, including its
effect on the person's ability to consult with and assist counsel
and to testify on the person's own behalf; the extent to which the
evidence could be reconstructed without the assistance of the
person; and the strength of the prosecution's case. If, after the
conclusion of the hearing on this issue, the court finds beyond a
reasonable doubt that the person committed the act or acts with
which, he or she is charged, the court must enter a final order,
appealable by the person on that issue, and may proceed to consider
whether the person should be committed pursuant to this article.
§15-13-11. Periodic mental examination of committed persons;
report; petition for release; hearing; trial to
consider release.
A person committed pursuant to this article must have an
examination of his or her mental condition performed once every
year. The person may retain or, if the person is indigent and so
requests, the court may appoint a qualified expert to examine the
person, and the expert must have access to all medical,
psychological, criminal offense, and disciplinary records and reports concerning the person. The annual report must be provided
to the court which committed the person pursuant to this article,
the executive director, the prosecuting attorney who prosecuted the
person, and the multidisciplinary team. The court must conduct an
annual hearing to review the status of the committed person. The
committed person is not prohibited from petitioning the court for
release at this hearing. The Director of the Department of Health
and Human Resources must provide the committed person with an
actual written notice of the person's right to petition the court
for release over the director's objection. The notice must contain
a waiver of rights. The director must forward the notice and
waiver form to the court with the annual report. The committed
person has a right to have an attorney represent him or her at the
hearing, but the committed person is not entitled to be present at
the hearing. If the court determines that probable cause exists to
believe that the person's mental abnormality or personality
disorder has so changed that the person is safe to be at large and,
if released, is not likely to commit acts of sexual violence, the
court must schedule a trial on the issue. At the trial, the
committed person is entitled to be present and is entitled to the
benefit of all constitutional protections that were afforded the
person at the initial commitment proceeding. The executive
director must notify the victim of all proceedings. The executive
director must represent the state and has the right to have the committed person evaluated by qualified experts chosen by the
state. The trial must be before a jury if requested by either the
person, the executive director, or the prosecuting attorney. The
committed person also has the right to have qualified experts
evaluate the person on the person's behalf, and the court must
appoint an expert if the person is indigent and requests the
appointment. The burden of proof at the trial is upon the state to
prove beyond a reasonable doubt that the committed person's mental
abnormality or personality disorder remains such that the person is
not safe to be at large and, if released, is likely to engage in
acts of sexual violence.
§15-13-12. Petition of release; hearing ordered by the court.
If the Director of the Department of Health and Human
Resources determines that the person's mental abnormality or
personality disorder has so changed that the person is safe to be
at large and, if released, is not likely to commit acts of sexual
violence, the director must authorize the person to petition the
court for release. The petition must be served upon the court and
the executive director. The executive director must notify the
victim of the proceeding.
The court, upon receipt of the petition for release, must
order a hearing within thirty days. The executive director must
represent the state and has the right to have the petitioner
examined by experts chosen by the state. The hearing must be before a jury if requested by either the petitioner or the
executive director. The burden of proof is upon the executive
director to show beyond a reasonable doubt that the petitioner's
mental abnormality or personality disorder retrains such that the
petitioner is not safe to be at large and, that if released, is
likely to commit acts of sensual violence.
§15-13-13. Grounds for denial of petition for release.
Nothing in this article prohibits a person from filing a
petition for release pursuant to this article. However, if a
person has previously filed a petition for release without the
approval of the Director of the Department of Health and Human
Resources, and the court determined either upon review of the
petition or following a hearing that the petitioner's petition was
frivolous or that the petitioner's condition had not changed so
that the petitioner continued to be a threat and, if released,
would commit acts of sexual violence, the court must deny the
subsequent petition unless the petition contains facts upon, which
a court could find the condition of the petitioner had so changed
that a hearing was warranted. Upon receipt of a first or
subsequent petition from a committed person without the director's
approval, the court must, whenever possible, review the petition
and determine if the petition is based upon frivolous grounds and,
if so, must deny the petition without a hearing.
§15-13-14.
Restricted release of confidential information and records to agencies and executive director.
In order to protect the public, relevant information and
records which otherwise are confidential or privileged must be
released to the agency with jurisdiction and the executive director
for the purpose of meeting the notice requirements of section four
of this article and determining whether a person is or continues to
be a sexually violent predator.
§15-13-15. Evidentiary records; court order to open sealed
records.
Psychological reports, drug and alcohol reports, treatment
records, reports of the diagnostic center, medical records, or
victim impact statements which have been submitted to the court or
admitted into evidence under this chapter must be part of the
record, but must be sealed and opened only on order of the court.
§15-13-16. Registration of persons released from commitment.
A person released from commitment pursuant to this chapter
must register pursuant to and comply with the requirements of
article fifteen of this chapter.
§15-13-17.
Involuntary detention or commitment; constitutional
requirements.
The involuntary detention or commitment of a person pursuant
to this article must conform to constitutional requirements for
care and treatment of persons detained.
NOTE: The purpose of this bill is to provide a procedure for
committing violent sex offenders after they have served prison
terms or when they have been found unfit to stand trial.
This article is new; therefore, strike-throughs and
underscoring have been omitted.