ENGROSSED
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 §15-12-1, §15-12-1a, §15-12-2,
§15-12-2a, §15-12-2b and §15-12-8
of the Code of West
Virginia, 1931, as amended; 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
§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;
to amend and reenact §62-12-2 of said code; to amend and
reenact §62-12-26 of said code; and to amend said code by adding thereto a new section, designated §62-12-26a, all
relating to establishing Logan's Law; setting forth certain
findings; increasing penalties for certain sex offenses
against minors; eliminating probation for certain sex
offenders; providing for a sentence of life in prison without
parole for certain offenses that result in the death of a
minor; prohibiting sex offenders from residing in certain
area; limiting access to minors by sex offenders; eliminating
the granting of "good time" by prison officials for persons
convicted of crimes against minors; including persons
convicted of a second violent sexual offense as a violent
sexual predator; requiring twice yearly registration and
reregistration by violent sexual predators, providing criminal
offenses for failing to reregister, failing to respond to
address verification, failing to report or providing false
information about a violent sexual predator and harboring or
concealing a sexual predator; providing penalties for
violations; providing for 25-year mandatory minimum term of
imprisonment for violent sexual predators; providing a
sentence for life for violent sexual predators who commit
certain sexual crimes against certain minors; providing for
split sentencing; requiring the court to impose a split
sentence in certain circumstances; requiring increased
supervision of violent sexual predators under certain
circumstances; requiring use of electronic monitoring device,
including "GPS" monitoring, before release of certain offenders; prohibiting the intentional altering, tampering,
damaging or destroying of any electronic monitoring equipment;
providing a penalty for violations 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 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 rules for legislative
approval; specifying additional conditions for certain violent
sexual offenders placed under community control; providing for
imprisonment for life for sexually violent predators and
imprisonment from twenty-five years to life for first degree sexual offenses against minors; providing for split
sentencing; providing for terms and conditions of supervised
release; extended supervision; electronic monitoring; and
penalty for destruction of monitoring device.
Be it enacted by the Legislature of West Virginia:
That §15-12-1, §15-12-1a, §15-12-2, §15-12-2a, §15-12-2b and
§15-12-8 of the Code of West Virginia, 1931, as amended, 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 be amended and reenacted; that §61-8C-2 and
§61-8C-3 be amended and reenacted; that §61-8D-5 and §61-8D-6 be
amended and reenacted; 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, §62-11D-14,
§62-11D-15, §62-11D-16, §62-11D-17, §62-11D-18, §62-11D-19 and
§62-11D-20; that §62-12-2 of said code be amended and reenacted;
that §62-12-26 of said code be amended and reenacted; and that said
code be amended by adding thereto a new section, designated
§62-12-26a, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 12. LOGAN GOOD ALL SEX OFFENDER REGISTRATION ACT.
§15-12-1. Short title.
This article may be cited as the
"Sex Offender Registration
Act." Logan's Law.
§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 exists 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.
In addition, the Legislature finds that current criminal
penalties do not provide sufficient deterrent for perpetrators of
criminal acts against children and that longer sentences and the
elimination of "good time" and probation is especially needed for
people convicted of sex offenses against minors and for the
protection of the public.
§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 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 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 owned or
regularly operated by a registrant; 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.
(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.
(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) A sexually violent predator must report in person each year
during the month of the sexually violent predator's birthday and during the sixth month following the sexually violent predator's
birth month to the nearest State Police office of the county in
which he or she resides or is otherwise located to reregister. The
State Police office may determine the appropriate times and days for
reporting by the sexually violent predator, which shall be
consistent with the reporting requirements of this paragraph.
(h) Reregistration shall include any changes to the following
information:
(1) Name; social security number; age; race; sex; date of
birth; height; weight; hair and eye color; address of any permanent
residence and address of any current temporary residence, within the
state or out-of-state, including a rural route address and a post
office box; date and place of any employment; vehicle make, model,
color and license tag number; fingerprints; and photograph. A post
office box may not be provided in lieu of a physical residential
address;
(2) If the sexually violent predator is enrolled, employed or
carrying on a vocation at an institution of higher education in this
state, the sexually violent predator shall also provide to the
department the name, address and county of each institution,
including each campus attended, and the sexually violent predator's
enrollment or employment status; and
(3) If the sexually violent predator's place of residence is
a motor vehicle, trailer, mobile home or manufactured home, the
sexually violent predator shall also provide the vehicle
identification number; the license tag number; the registration number; and a description, including color scheme, of the motor
vehicle, trailer, mobile home or manufactured home. If the sexually
violent predator's place of residence is a vessel, live-aboard
vessel or houseboat, the sexually violent predator shall also
provide the hull identification number; the manufacturer's serial
number; the name of the vessel, live-aboard vessel or houseboat; the
registration number; and a description, including color scheme, of
the vessel, live-aboard vessel or houseboat.
(i) The State Police office shall, within two business days,
electronically submit all information provided by the sexually
violent predator to the department in a manner prescribed by the
department.
(g) (j) 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.
A sexually violent predator must maintain registration with the
State Police for the duration of his or her life, unless the
sexually violent predator has received a full pardon or has had a
conviction set aside in a post-conviction proceeding for any offense
that met the criteria for the sexually violent predator designation.
(h) (k) 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 a registrant has or uses may be
released through the internet.
(i) (l) 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) (m) 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) (n) 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) (o) 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) (p) 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) (q) 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.
(r) Notwithstanding any other provision of this code to the
contrary, a person required to register under the provisions of this
section may not reside within one thousand feet of a school,
childcare facility be in the presence of a minor unless the parent,
guardian or other adult is present. Any person, violating the
provisions of this subsection, is guilty of a felony and, upon
conviction thereof, shall be confined in the penitentiary for not
less than two years nor more than ten years.
§15-12-2a. Court determination of sexually violent predator and
recidivist sexually violent predator.
(a) The circuit court
that has sentenced sentencing a person
for the commission of a
first sexually violent offense or
that has
entered entering a judgment of acquittal of a charge of committing
a
first 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 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
allowing a circuit court to find an offender to be
a sexually violent predator, 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) A person convicted of a second or subsequent sexually
violent offense or receives a judgment of acquittal of a charge of
committing a second sexually violent offense in which the defendant
has been found not guilty by reason of mental illness, mental
retardation or addiction is a sexually violent predator.
(i) In order to be counted as a second or subsequent sexually
violent offense for purposes of this section, the offense must have
resulted in a conviction and sentenced separately, or a separate
offense in which the defendant has been found not guilty by reason
of mental illness, mental retardation or addiction or an
adjudication of delinquency entered separately, prior to the current
offense and sentenced or adjudicated separately from any other sexually violent offense that is to be counted as a second or
subsequent sexually violent offense.
(j Notwithstanding any other provision of this code to the
contrary, no person determined to be a sexually violent predator
under the provisions of this article 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 a person convicted of
a first sexually
violent
offenses are offense is a sexually violent
predators
predator.
§15-12-8. Failure to register or provide notice of registration
changes; penalty; penalty for aiding and abetting.
(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 nor more than five
years.
(c) Any person required to register as a sexually violent
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.
(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.
(e) Any person who has reason to believe that a violent sexual predator on probation or under community control is not complying,
or has not complied, with the requirements of this section and who,
with the intent to assist the violent sexual predator in eluding a
law-enforcement agency that is seeking to find the violent sexual
predator to question the violent sexual predator about, or to arrest
the violent sexual predator for, his or her noncompliance with the
requirements of this section:
(1) Withholds information from, or does not notify, the
law-enforcement agency about the violent sexual predator's
noncompliance with the requirements of this section and, if known,
the whereabouts of the violent sexual predator; or
(2) Harbors, or attempts to harbor, or assists another person
in harboring or attempting to harbor, the violent sexual predator;
or
(3) Conceals or attempts to conceal, or assists another person
in concealing or attempting to conceal, the violent sexual predator;
or
(4) Provides information to the law-enforcement agency
regarding the violent sexual predator which the person knows to be
false information is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for
not less than one nor more than five years.
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 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 is guilty of a
felony and, upon conviction thereof, shall be confined in the
penitentiary not less than
one nor more than ten years.
Any person violating the provisions of subsections (a) and (b)
of this section, and the violation causes the death of a minor under
the age of sixteen, is guilty of a felony and, upon conviction
thereof, shall be confined in the penitentiary for life without the
possibility of parole.
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 is 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 penitentiary 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 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 is guilty of a felony and, upon conviction
thereof, shall be
confined in the penitentiary not less than
two ten years nor more
than
five twenty years or fined not more than
five ten thousand
dollars, or both.
Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen, is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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 felony 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 punished by imprisonment in the penitentiary
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 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 not less than
two years ten nor more than
five twenty
years or fined not more than
five ten thousand dollars, or both.
Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen, is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
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 is 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 is 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 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.
Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen, is
guilty of a felony and upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
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 twelve 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 years life, 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 years nor more than
thirty-five years life. No person
convicted under the provisions of this subsection may be released
from confinement until a commitment hearing is held under the
provisions of article eleven-d, chapter sixty-two of this code.
Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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 is guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary 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 not less than
ten twenty nor more
than
twenty-five forty years.
(c) Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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.
(c) Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree
when:
(1)
Such The person subjects another person to sexual contact
without their consent, and the lack of consent results from forcible
compulsion; or
(2)
Such The 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 twelve years old or
less.
(b) Any person who violates the provisions of this section
shall be is guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary 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 not less than
one year two years nor more than
five ten years:
Provided, That any
person violating the provisions of this section and the victim is
a minor under the age of twelve is guilty of a felony and upon
conviction thereof, shall be confined in the penitentiary for not
less than ten nor more than fifteen years.
(c) Any person violating the provisions of this section and the violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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 is 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.
(c) Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree when
he subjects another person to sexual contact without the latter's
consent, when
such the 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 is 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.
(d) Notwithstanding the provisions of subsection (b) of this
section, any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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 the Division 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.
(c) Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
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 is guilty of a felony when such person has knowledge that
any such the act is being photographed or filmed. Upon conviction
thereof,
such the person shall be fined not more than
ten twenty
thousand dollars, or imprisoned in the penitentiary 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 is guilty of a felony,
and, upon conviction thereof, shall be fined not more than
ten
twenty thousand dollars, or imprisoned in the penitentiary 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 the minor in any
sexually explicit conduct or causes or knowingly permits, uses,
persuades, induces, entices or coerces
such the minor child to
engage in or assist in any sexually explicit act
shall be is guilty
of a felony when
such the person has knowledge that
any such the act
may be photographed or filmed. Upon conviction thereof,
such the
person shall be fined not
more less than ten thousand dollars, or
imprisoned in the penitentiary 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 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 the conduct or
the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of
such the
conduct, then
such the parent, guardian, custodian or person in a
position of trust
shall be is 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 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 the
parent, guardian, custodian or person in a position of trust when
such the child is less than sixteen years of age, notwithstanding
the fact that the child may have willingly participated in
such the
conduct or the fact that the child may have suffered no apparent
physical injury or mental or emotional injury as a result of
such
the conduct,
such the parent, guardian, custodian or person in a
position of trust
shall be is 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
one two thousand nor more than
ten twenty thousand dollars
and imprisoned in the penitentiary 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 the
parent, guardian, custodian or person in a position of trust when
such the child is sixteen years of age or older, notwithstanding the
fact that the child may have consented to
such the conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of
such the conduct, then
such the parent, guardian, custodian or person in a position of
trust
shall be is guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary 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.
(e) Any person violating the provisions of this section and the
violation causes the death of a minor under the age of sixteen is
guilty of a felony and, upon conviction thereof, shall be confined
in the penitentiary for life without the possibility of parole.
§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 not
more less than two years, and
fined not less than
four eight hundred dollars nor more than
four
eight thousand dollars.
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 the first day of July, one thousand nine hundred
ninety, 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
subdivisions (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 the Department 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 department of corrections relating to the person, and any
out-of-state department 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 and Correctional Facility 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 six; (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 six; 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 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 Resources 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 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 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 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. Rulemaking.
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.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any
felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm
shall be is ineligible for probation
and any person who
commits an offense against a minor under the age of sixteen in
violation of article eight-b, article eight-c, sections five and
six, article eight-d, section fourteen, article two, or sections
six, seven, twelve and thirteen, article eight, chapter sixty-one of
this code is ineligible for probation and is ineligible for the
granting of "good time" credit for any portion of his or her
sentence.
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.
Nothing in The provisions of this section
relating to the use of a
firearm shall does not apply to an accessory before the fact or a
principal in the second degree who has been convicted as if he or
she were a principal in the first degree if, in the commission of or
in the attempted commission of the felony, only the principal in the
first degree used, presented or brandished a firearm.
(c) (1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be
applicable unless such fact is clearly stated and included in the
indictment or presentment by which such person is charged and is
either: (i) Found by the court upon a plea of guilty or nolo
contendere; or (ii) found by the jury, if the matter be tried before
a jury, upon submitting to such jury a special interrogatory for
such purpose; or (iii) found by the court, if the matter be tried by
the court, without a jury.
(2) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment
or presentment returned on or after the first day of August of that
year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to such jury on or after the first day of August of
that year or to the requisite findings of the court upon a plea of
guilty or in any case tried without a jury:
Provided, That the
state shall give notice in writing of its intent to seek such
finding by the jury or court, as the case may be, which notice shall
state with particularity the grounds upon which such finding shall
be sought as fully as such grounds are otherwise required to be
stated in an indictment, unless the grounds therefor are alleged in the indictment or presentment upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by
such
the amendment and in
such those cases, the prior provisions of this
section shall apply and be construed without reference to
such the
amendment; and
Insofar as
such the amendments relate to mandatory sentences
without probation, all
such matters requiring
such the sentence
shall be proved beyond a reasonable doubt in all cases tried by the
jury or the court.
(d) For the purpose of this section, the term "firearm"
shall
mean means any instrument which will, or is designed to, or may
readily be converted to, expel a projectile by the action of an
explosive, gunpowder or any other similar means.
(e) In the case of any person who has been found guilty of, or
pleaded guilty to, a felony or misdemeanor under the provisions of
section twelve or twenty-four, article eight, chapter sixty-one of
this code, or under the provisions of article eight-c or eight-b of
said chapter,
such the person
shall only be eligible for probation
after undergoing shall also undergo a physical, mental and
psychiatric study and diagnosis which shall include an on-going
treatment plan requiring active participation in sexual abuse
counseling at a mental health facility or through some other approved
program
after release from prison: Provided, That nothing disclosed
by the person during
such a study or diagnosis
shall be may be made
available to any law-enforcement agency, or other party without that
person's consent, or admissible in any court of this state, unless
such the information disclosed shall indicate the intention or plans
of the probationer to do harm to any person, animal, institution or
property, in which case
such the information may be released only to
such those persons as might be necessary for protection of the
said
person, animal, institution or property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two or of sections twelve and thirteen, article
eight, chapter sixty-one of this code, or of a felony violation
involving a minor of section six or seven, article eight, chapter
sixty-one of this code, or of a similar provision in another
jurisdiction shall be required to be registered upon release
on
probation from incarceration.
Any person who has been convicted of
an attempt to commit any of the offenses set forth in this subsection
shall also be registered upon release on probation.
(g)
The probation officer The Division of Corrections shall,
within three days of release of the
sexual offender, send written
notice to the state police of the release of the offender. The
notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was
convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator
as defined in section two-a, article twelve, chapter fifteen of this
code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
§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,
except section three of article eight-b, eight-c or eight-d of
said
chapter
may shall, 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
not less than ten nor more than up to fifty years. 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 it 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 the 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 ten 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 the 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,
including "GPS" monitoring, 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.
§62-12-26a. Imprisonment for life for sexually violent predators
and imprisonment from twenty five years to life for
first degree sexual offenses against minors; split
sentencing; terms and conditions of supervised
release; extended supervision
;
electronic monitoring; penalty for destruction of monitor.
(a) Any defendant determined to be a sexually violent predator
or who is convicted of a second violent sexual offense as set forth
in section two-a, article twelve, chapter fifteen of this code after
the effective date of this section shall be sentenced to a term of
life in prison or a split sentence that is a term of not less than
twenty-five years and not more than life imprisonment followed
community control for the remainder of the person's natural life.
The period of community control imposed by the provisions of this
section shall begin upon the expiration of any sentence of
incarceration.
A person sentenced to a term of imprisonment for a term of
twenty five years to life under the provisions of section three,
article eight-b, chapter sixty one of this code who has served the
term of confinement may be released from confinement only to
community control for the remainder of his or her life as provided
in this section.
(b) Any person sentenced and released from prison for 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 released sentenced to a period of supervised
release under the provisions of this section 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 released or
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 it no longer appropriate or necessary and makes
express findings in support thereof. In addition to any other
provision of this subsection, the court must impose the following
conditions of community control:
(1) As part of a treatment program, participation at least
annually in polygraph examinations to obtain information necessary
for risk management and treatment and to reduce the sex offender's
denial mechanisms. A polygraph examination must be conducted by a
polygraph operator trained specifically in the use of the polygraph
for the monitoring of sex offenders, where available, and shall be
paid for by the sex offender. The results of the polygraph
examination shall not be used as evidence in court to prove that a
violation of community supervision has occurred.
(2) Maintenance of a driving log and a prohibition against
driving a motor vehicle alone without the prior approval of the
supervising probation officer.
(3) A prohibition against obtaining or using a post-office box
without the prior approval of the supervising officer.
(4) If there was sexual contact, a submission to, at the
community controllee's expense, an HIV test with the results to be
released to the victim or the victim's parent or guardian.
The court must order, in addition to any other provision of this
section, mandatory electronic monitoring, including as necessary
"GPS" device monitoring of a community controllee designated a sexual
predator as set out in the provisions of section two-a, article
twelve, chapter fifteen of this code if the unlawful sexual activity
involved a victim sixteen years of age or younger or the person was
convicted under the provisions of section three, article eight-b,
chapter sixty one of this code.
In carrying out a court order to electronically monitor an
offender, the probation officer or other designee must use a system
that actively monitors and identifies the offender's location and
timely reports or records the offender's presence near or within a
crime scene or in a prohibited area or the offender's departure from
specified geographic limitations. A person who intentionally alters,
tampers with, damages or destroys any electronic monitoring equipment
pursuant to court or commission order, unless the person is the owner
of the equipment, or an agent of the owner, performing ordinary
maintenance and repairs is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for not
less than one nor more than five years.
(d) The sentencing court shall, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
The fee may not exceed one hundred dollars per month.
(e) The court may 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.
(f) The court shall direct that the probation officer or
designee to 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 supervision as is
required.