COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 205
(By Senators Tomblin, Mr. President and Sprouse,
By Request of the Executive)
____________
[Originating in the Committee on the Judiciary;
reported February 27, 2006.]
____________
A BILL to amend and reenact §15-12-2, §15-12-2a, §15-12-2b, §15-12-
3, §15-12-5, §15-12-8 and §15-12-10 of the Code of West
Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §18A-3-12; to amend said
code by adding thereto a new section, designated §61-8B-9a; to
amend said code by adding thereto a new article, designated
§62-11D-1, §62-11D-2 and §62-11D-3; and to amend and reenact
§62-12-26 of said code, all relating to the protection of the
citizenry from sex offenders; removing prohibition on
releasing aliases or screen names of registrants; exempting
telephone and pager device numbers from release; providing for
the submission of sex offender information to the central
abuse registry; providing a definition for certain terms;
requiring courts to ensure certain information regarding
offenders convicted of offenses causing registration;
providing for the release of sex offender information to the central abuse registry by the judiciary and agencies;
providing for penalties for failure to properly register with
the central abuse registry; creating new penalties for out-of-
state sex offenders that fail to register; providing for
verification of sex offender information by the central abuse
registry; providing for penalties for assisting sex offenders
in evading registration; increasing terms of incarceration for
existing crimes committed by pedophiles and sexually violent
predators; providing for supervised release requirements for
sexually violent offenders; authorizing polygraph testing for
sexually violent predators and pedophiles; providing for
electronic monitoring for sexually violent predators on
supervised release, probation and parole; and providing for
school service personnel, contractors and service providers to
be checked against the central abuse registry.
Be it enacted by the Legislature of West Virginia:
That §15-12-2 §15-12-2a, §15-12-2b, §15-12-3, §15-12-5, §15-
12-8 and §15-12-10 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §18A-3-12; that said code be
amended by adding thereto a new section, designated §61-8B-9a; that
said code be amended by adding thereto a new article, designated
§62-11D-1, §62-11D-2 and §62-11D-3; and that §62-12-26 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 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-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 two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense
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 at the West Virginia State Police detachment
in the county of his or her residence, place of employment,
occupation and school and/or training facility which he or she
attends 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:
Provided, That a post office
box shall 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;
(7) Information related to any motor vehicle,
trailer or motor
home owned or regularly operated by a registrant,
including vehicle
make, model, color, license plate number and vehicle identification number; and
(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 uses, including, but not limited
to, residential, work and mobile telephone numbers.
(e) On the date that any person convicted or found not guilty
by reason of mental illness, mental retardation or addiction of any
of the crimes listed 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 or sheriff operating
a jail or Secretary of the Department of Health and Human Resources
which releases the person, and any parole or probation officer who
releases the person or supervises the person following the release,
shall obtain all information required by subsection (d) of this
section prior to the release of the person, inform the person of
his or her duty to register and send written notice of the release
of the person to the State Police within three 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.
Notwithstanding any provision of this article to the contrary,
a court of this state shall, upon presiding over a criminal matter
resulting in conviction of an offense requiring registration
pursuant to the provisions of this article, cause, within seventy-
two hours of the final order of conviction being entered, the
transmittal for inclusion in the register all information required
for registration by a registrant as well as the following non-
identifying information regarding the victim or victims:
(1) His or her sex;
(2) His or her age;
(3) The relationship, if any, between the victim and the
perpetrator.
(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 internet
accounts, screen names, user names,
or aliases
or 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 two thousand 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 persons' 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.
§15-12-2a. Court determination of sexually violent predator or
pedophile.
(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 pedophile; or
(2) A person is not a sexually violent predator
or pedophile.
(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
or pedophile 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
or, in the case of determining whether a person is a
pedophile, an offense requiring registration pursuant to the
provisions of this article 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
or
pedophilia.
(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
or pedophile.
(f) At a hearing to determine whether a person is a sexually violent predator
or pedophile, 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
or pedophile.
(g) If a person is determined by the circuit court to be a
sexually violent predator
or pedophile, 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) As used in this article "pedophile" means a person who
meets the diagnostic criteria for pedophilia as set forth in the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition or its successors.
§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
and whether persons requiring
registration pursuant to this article are pedophiles.
§15-12-3. Change in registry information.
When any person required to register under this article
changes his or her residence, address, place of employment or
occupation,
vehicle information required by section two of this
article, or school or training facility which he or she is
attending,
or motor vehicle, trailer or motor home information
required by section two of this article, or when any of the other
information required by this article changes, he or she shall,
within ten business days, inform the West Virginia State Police of
the changes in the manner prescribed by the Superintendent of State Police in procedural rules promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
§15-12-5. 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.
(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 telephone or electronic paging device numbers 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 telephone or electronic paging device
numbers 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 telephone or electronic paging device 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 Each time
the a person has a change in any of the
registration information as required by this article and
knowingly
fails to register the change or changes, each failure to register
each separate item of information changed shall constitute a
separate offense
under this section.
(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 nor more than five
years. Except as provided in this section, any person required to
register for ten years or less pursuant to subdivision (1),
subsection (a), section four of 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 required 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
confined in jail not more than one year, or both. Any person
convicted of a second offense under this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years. Any person convicted of a third or subsequent offense under
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than five years nor more than twenty-five 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
years nor more than ten years and for a second or subsequent
offense, is guilty of a felony and shall be confined in a state
correctional facility not less than five years nor more than twenty
years. Any person required to register for life pursuant to 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 required information as required by this article, is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than
one year nor more than five years. Any person convicted of a
second or subsequent offense under this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than ten years nor more than
twenty-five 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. Any person required to register as a sexually violent
predator pursuant to this article who knowingly provides materially
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 required
information as required by this article is guilty of a felony and,
upon conviction thereof, shall, for a first offense, be confined in
a state correctional facility not less than two years nor more than
ten years and for a second or subsequent offense, is guilty of a
felony and shall be confined in a state correctional facility not
less than fifteen years nor more than thirty-five years.
(e) Any person required to register pursuant to section nine
of this article who knowingly avoids registration or who knowingly
fails to register as required by this article is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years. Any person required to register pursuant to section nine of
this article who is convicted of second or subsequent offense of
failing to register as required by this article and who knowingly
fails to register 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 ten years nor more than
twenty-five years.
§15-12-10. Address verification.
The State Police shall verify addresses of those persons
registered as sexually violent predators every ninety days and all
other registered persons once a year. The State Police may require
registrants to periodically submit to new fingerprints and
photographs as part of the verification process. The method of
verification shall be in accordance with internal management rules
pertaining thereto promulgated by the superintendent under
authority of section twenty-five, article two of this chapter. All
registrants, including those for whom there has been no change in
registration information since their initial registration or
previous address verification, must respond to all verification
inquiries or requests made by the State Police pursuant to this
section.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-12. Mandatory central abuse registry checks of school
service personnel, contractors and service
providers.
(a) Prior to permitting school service personnel, contractors
or service providers direct contact with students or access to
school grounds when students are present, the county school board
shall check against the sex offender registry, established pursuant
to article twelve, chapter fifteen of this code, and the United
States Department of Justice National Sex Offender Public Registry,
or its successor, the name and address of such school service
personnel, contractors or service providers. For the purposes of
this section, contractor and service provider shall include any
vendor, individual or entity under contract with a county board.
(b) As of the effective date of this section, school service
personnel, contractors or service providers already permitted
direct contact with students or access to school grounds when
students are present shall have their names and addresses checked
against the central abuse registry within a reasonable time from
the effective date of this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-9a. Enhanced penalties for those determined to be sexually
violent predators and pedophiles.
Notwithstanding any provision of this article to the contrary,
any person who has been designated a sexually violent predator
pursuant to the provisions of section two-a, article twelve,
chapter fifteen of this code and thereafter commits and thereafter
is convicted of a sexually violent offense as such is defined in
section two of said article shall be subject to the following
penalties:
(1) For a violation of section three of this article, the
penalty shall be imprisonment in a state correctional facility for
not less than twenty-five years nor more than one hundred years.
(2) For a violation of section four of this article, the
penalty shall be imprisonment in a state correctional facility for
not less than twenty years nor more than one hundred years.
(3) For a violation of section seven of this article, the
penalty shall be imprisonment in a state correctional facility for
not less than five years nor more than twenty-five years.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11D. HEIGHTENED SUPERVISION FOR CERTAIN SEX OFFENDERS.
§62-11D-1. Definitions.
As used in this article:
(1) "Certified polygraph analyst" means a person licensed to
engage in polygraphy pursuant to the provisions of section five-c,
article five, chapter twenty-one of this code and who:
(A) Is certified in post conviction sex offender testing as
prescribed by the American Polygraph Association;
(B) Has completed not less than twenty hours of American Polygraph Association-approved sex offender testing training every
other calendar year; and
(C) Uses standards approved by the American Polygraph
Association for sex offender testing.
(2) "Full-disclosure polygraph" or "sexual history polygraph"
means a polygraph examination administered to determine the entire
sexual history of the probationer or parolee.
(3) "Maintenance test" means polygraph examination
administered to determine the probationer's or parolee's compliance
with the terms of supervision and treatment.
(4) "Pedophile" means any person determined to by a circuit
court of this state or another jurisdiction to be a pedophile
pursuant to the provisions of section two-a, article twelve,
chapter fifteen of this code.
(5) "Sexually violent predator" means any person determined by
a circuit court of this state to be a sexually violent predator
pursuant to the provisions of section two-a, article twelve,
chapter fifteen of this code.
§62-11D-2. Polygraph examinations as a condition of supervision
for certain probationers, parolees or those on supervised
release.
(a) Notwithstanding any provision of this code to the
contrary, any person:
(1) Who has been designated a sexually violent predator
pursuant to the provisions of section two-a, article twelve,
chapter fifteen of this code; or
(2) Who has been convicted of an offense which requires
registration as a sex offender pursuant to the provisions of
article twelve, chapter fifteen of this code who has been
determined pursuant to the provisions of section two-a of said
article a pedophile shall, as a condition of probation, parole
participation in a community correction program or supervised
release, submit to polygraph examinations as prescribed in this
section.
(b) Any person required to undergo polygraph examination
pursuant to subsection (a) of this section shall, at his or her
expense, submit to at least one polygraph examination per year to
answer questions relating to his or her compliance with conditions
of supervision, including conditions related to treatment.
Additional examinations may be required, not to exceed a total of
five tests. The results of any examination are not admissible in
evidence and are to be used solely as a risk assessment and
treatment tool. Examination results shall be made available to the
person under supervision, upon request.
(c) In the event a person required to submit to polygraph
examinations as required by the provisions of this section is
unable to pay for the polygraph examination or examinations, that
person may present an affidavit reflecting the inability to pay for
such testing to the circuit court of the county of supervision. If
it appears to the satisfaction of the court that such person is in
fact financially unable to pay for such testing, the court shall
issue an order reflecting such findings. Said order shall be forwarded to the Division of Corrections and said testing shall be
paid for by a fund established by the Division of Corrections.
(d) Any polygraph examination conducted pursuant to the
provisions of this section shall be conducted by a certified
polygraph analyst.
(e) In the conduct of polygraph examinations of sex offenders
performed pursuant to the provisions of this section, no certified
polygraph analyst may:
(1) Conduct more that two full disclosure or sexual history
polygraph examinations in a 24-hour period; or
(2) Disclose any information gained during any full disclosure
or sexual history polygraph examination to any law-enforcement
agency or other party without the supervised person's consent, nor
shall any information or disclosure be admissible in any court of
this state, unless such information disclosed indicates the
intention or plan to commit a criminal violation of the laws of
this or another state or of the United States in which case such
information may be released only to such persons as might be
necessary solely to prevent the commission of such crime.
(3) Conduct more than two maintenance tests in a 24-hour
period;
(4) Conduct more than one full disclosure or sexual history
polygraph examination and more than two maintenance tests in a 24-
hour period; or
(5) Test the same parolee or probationer more than five times
in a year, to be calculated from the first test of the parolee or probationer.
(f) No polygraph examination performed pursuant to the
provisions this section may be conducted by a person who is a sworn
peace officer, within the boundaries of that officer's
jurisdiction.
§62-11D-3. Electronic monitoring of certain sex offenders under
supervision.
(a) Notwithstanding any provisions of this code to the
contrary, any person who has been designated a sexually violent
predator pursuant to the provisions of section two-a, article
twelve, chapter fifteen of this code or who is required to register
as a sex offender pursuant to the provisions of said article who
has been professionally diagnosed as a pedophile pursuant to the
provisions of section two-a of said article who is on probation,
parole or supervised release, shall be subject to electronic
monitoring as a condition of probation, parole or supervised
release.
(b) Upon being placed on supervision, a person required to
undergo electronic monitoring pursuant to the provisions of 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 may be
placed on a system providing a greater or lesser degree of
monitoring.
(c) 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
election monitoring has been mandated as a condition of supervision
be on the type of monitoring less effective than voice verification
with a curfew.
(d) Any person who intentionally alters, tampers with, damages
or destroys any electronic monitoring equipment, or 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.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-26. Extended supervision for certain sex offenders;
sentencing; conditions; supervision provisions;
supervision fee.
(a) Notwithstanding any provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter may, as part of
the sentence imposed at final disposition, be required to serve, in
addition to any other penalty or condition imposed by the court, a
period of supervised release of up to fifty years:
Provided, That
a defendant designated after the effective date of the amendments
to this section enacted during the two thousand six session of the West Virginia Legislature as a sexually violent predator or as a
pedophile pursuant to section two-a, article twelve, chapter
fifteen of this code shall be subject, in addition to any other
penalty or condition imposed by the law, to supervised release for
life. The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required
of the person so convicted, whichever expires later.
(b) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
the probation office of the sentencing court or by the community
corrections program established in said circuit unless jurisdiction
is transferred elsewhere by order of the sentencing court.
(c) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine, article twelve, chapter sixty-one of this code:
Provided,
That any defendant sentenced to a period of supervised release
pursuant to this section shall be required to participate in
appropriate offender treatment programs or counseling during the
period of supervised release unless the court deems such to no
longer be appropriate or necessary and makes express findings in
support thereof.
(d) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed fifty dollars per month. Said fee may be
modified periodically based upon the defendant's ability to pay.
(e)
Modification of conditions or revocation. -- The court
may:
(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more than the period of supervised release:
Provided, That no person
may serve a period of incarceration for a violation of supervised
release which exceeds the maximum statutory period of confinement
for the offense of conviction underlying the period of supervised
release;
(4) Order the defendant to remain at his place of residence
during nonworking hours and, if the court so directs, to have
compliance monitored by telephone or electronic signaling devices,
except that an order under this paragraph may be imposed only as an
alternative to incarceration.
(f)
Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the term of
supervised release is subject and that it is sufficiently clear and
specific to serve as a guide for the defendant's conduct and for
such supervision as is required.
(g)
Supervised release following revocation. -- When a term of
supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
imprisonment authorized under subsection (a) of this section, the
court may include a requirement that the defendant be placed on a
term of supervised release after imprisonment. The length of such
term of supervised release shall not exceed the term of supervised
release authorized by this section less any term of imprisonment
that was imposed upon revocation of supervised release.
(h)
Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection (f) of
this section, a further term of supervised release extends beyond
the expiration of the term of adjudication of matters arising
before its expiration if, before its expiration, a warrant or
summons has been issued on the basis of an allegation of such a
violation.
__________
(NOTE: The purpose of this bill is to protect the citizenry
from sex offenders.
Strike-throughs indicated language that would be stricken from
present law, and underscoring indicates new language that would be
added.
§62-11D-1, §62-11D-2 and §62-11D-3 are new; therefore,
underscoring and strike-throughs have been omitted.)
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