Senate Bill No. 579
(By Senators Kessler, Fanning, Hunter, Jenkins, Minard, Oliverio,
Ross, Rowe, Snyder, White, Deem, Harrison, McKenzie and Weeks)
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[Originating in the Committee on the Judiciary;
reported February 19, 2004.]
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A BILL to amend and reenact §15-12-2, §15-12-2a, §15-12-3,
§15-12-5, §15-12-6 and §15-12-8 of the code of West Virginia,
1931, as amended, all relating to sex offender registration;
adding information related to motor vehicles owned or operated
by a registrant to the registry; requiring registration upon
conviction or release from custody; providing that sexually
violent predators may petition for removal from the registry
only if an underlying conviction is reversed, vacated or set
aside; clarifying permissible disclosure of information on the
registry; clarifying duties of institution officials and
persons required to register and provide information of
changes; and providing penalties.
Be it enacted by the Legislature of West Virginia:
That §15-12-2, §15-12-2a, §15-12-3, §15-12-5, §15-12-6 and
§15-12-8 of the code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
§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assault of a spouse, which was repealed by an act of the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;
and
(7)
Information related to any motor vehicle owned or operated
by a registrant; and
(7) (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 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 and prior to
release on probation, transfer to another jurisdiction or any other
disposition of the person.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by
reason of mental illness, mental retardation or addiction in a
court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted of
the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or
her counsel that the defendant has received notice of the
provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed, constitutes
prima facie evidence that the person had knowledge of the
requirements of this article. Persons who have not signed a
statement under the provisions of this subsection and who are
subject to the registration requirements of this article must be
informed of the requirement by the state police whenever the state
police obtain information that the person is subject to
registration requirements.
(h) The state police shall maintain a central registry of all persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the state police by subdivision (2),
subsection (b), section five of this article is to be accessible
through the internet. No information relating to internet accounts,
screen names, user names or aliases a registrant has or uses may be
released through the internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in section
three, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or of
a similar provision in another state, federal or military
jurisdiction;
(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code, which was repealed by an act of the Legislature during
the two thousand legislative session, or of a similar provision in
another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military
jurisdiction.
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person
committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent
predator" means a person who has been convicted or found not guilty
by reason of mental illness, mental retardation or addiction of a
sexually violent offense and who suffers from a mental abnormality
or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
(l) For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a person
that affects the emotional or volitional capacity of the person in
a manner that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the
health and safety of other persons.
(m) For purposes of this article, the term "predatory act"
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
§15-12-2a. Court determination of sexually violent predator.
(a) The circuit court that has sentenced a person for the
commission of a sexually violent offense or that has entered a judgment of acquittal of a charge of committing a sexually violent
offense in which the defendant has been found not guilty by reason
of mental illness, mental retardation or addiction shall make a
determination whether:
(1) A person is a sexually violent predator; or
(2) A person is
no longer not a sexually violent predator.
(b) A hearing to make a determination as provided for 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) A proceeding seeking to establish that a person is
no
longer not a sexually violent predator is initiated by the filing
of a petition by the person who has
previously been determined to
be a sexually violent predator.
The petition shall set forth that
an underlying conviction has been reversed, vacated or set aside and that the person is not a sexually violent predator.
(e) Prior to making a determination pursuant to the provisions
of this section, the sentencing court may order a psychiatric or
other clinical examination and, after examination, may further
order a period of observation in an appropriate facility within
this state designated by the court after consultation with the
director of the division of health.
(f) 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.
(g) 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.
(h) 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.
§15-12-3. Change in registry information.
When any person required to register under this article
changes his or her residence, address, place of employment or
occupation,
vehicle information or school or training facility
which he or she is attending, or when any of the other information
required by this article changes, he or she shall, within ten days,
inform the West Virginia state police of the changes in the manner
prescribed by the superintendent of state police in procedural
rules promulgated in accordance with the provisions of article
three, chapter twenty-nine-a of this code.
§15-12-5. Distribution and disclosure of information; community
information programs by prosecuting attorney and
state police; petition to circuit court.
(a) Within five working days after receiving any notification
as described in this article, the state police shall distribute a
copy of the notification statement to:
(1) The supervisor of each county and municipal
law-enforcement office and any campus police department in the city
and county where the registrant resides, is employed or attends school or a training facility;
(2) The county superintendent of schools where the registrant
resides, is employed or attends school or a training facility;
(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the registrant resides, is employed or attends school or a
training facility;
(4) All community organizations or religious organizations
which regularly provide services to youths in the county where the
registrant resides, is employed or attends school or a training
facility;
(5) Individuals and organizations which provide day care
services for youths or day care, residential or respite care, or
other supportive services for mentally or physically incapacitated
or infirm persons in the county where the registrant resides, is
employed or attends school or a training facility; and
(6) The federal bureau of investigation (FBI).
(b) Information concerning persons whose names are contained
in the sexual offender registry
and who are not required to
register for life is to be disseminated only in the following
manner and shall not be is not subject to the requirements of the
West Virginia freedom of information act, as set forth in chapter
twenty-nine-b of this code,
and may be disclosed and disseminated
only as otherwise provided in this article and as follows:
(1) When a person has been determined to be a sexually violent
predator under the terms of section two-a of this article, the
state police shall notify the prosecuting attorney of the county in
which the person resides, is employed or attends a school or
training facility. The prosecuting attorney shall cooperate with
the state police in conducting a community notification program
which is to include publication of the offender's name, photograph,
place of residence, employment and education or training, as well
as information concerning the legal rights and obligations of both
the offender and the community. Information relating to the victim
of an offense requiring registration may not be released to the
public except to the extent the prosecuting attorney and the state
police consider it necessary to best educate the public as to the
nature of sexual offenses
: Provided, That no victim's name may be
released in any public notification pursuant to this subsection.
No information relating to internet accounts, screen names, user
names or aliases a registrant has or uses may be released to the
public with this notification program. The prosecuting attorney
and state police may conduct a community notification program in
the county of residence, employment or where a person is attending
school or a training facility of any person who is required to
register for life under the terms of subdivision (2), subsection
(a), section four of this article. Community notification may be
repeated when determined to be appropriate by the prosecuting attorney;
(2) The state police shall maintain and make available to the
public at least quarterly the list of all persons who are required
to register for life according to the terms of subdivision (2),
subsection (a), section four of this article. No information
concerning the identity of a victim of an offense requiring
registration or information relating to internet accounts, screen
names, user names or aliases a registrant has or uses may be
released with this list. The method of publication and access to
this list are to be determined by the superintendent; and
(3) A resident of a county may petition the circuit court for
an order requiring the state police to release information about
persons residing in that county who are required to register under
section two of this article. The court shall determine whether
information contained on the list is relevant to public safety and
whether its relevance outweighs the importance of confidentiality.
If the court orders information to be released, it may further
order limitations upon secondary dissemination by the resident
seeking the information. In no event may information concerning
the identity of a victim of an offense requiring registration or
information relating to internet accounts, screen names, user names
or aliases a registrant has or uses be released.
(c) The state police may furnish information and documentation
required in connection with the registration to authorized law-enforcement, campus police and governmental agencies of the
United States and its territories, of foreign countries duly
authorized to receive the same, of other states within the United
States and of the state of West Virginia upon proper request
stating that the records will be used solely for law
enforcement-related purposes. The state police may disclose
information collected under this article to federal, state and
local governmental agencies responsible for conducting
preemployment checks.
(d) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or in
bad faith.
§15-12-6. Duties of institution officials.
In addition to the duties imposed by sections two and four of
this article,
the official in charge of the place of confinement
shall inform any person required to register under this article,
before parole or release,
shall be informed of
their the duty to
register
by the official in charge of the place of confinement.
Further, the official shall obtain
the full address of the person
and a statement signed by the person acknowledging that the person
has been informed of
their his or her duty to register.
§15-12-8. Failure to register or provide notice of registration changes; penalty.
(a) Except as provided in this section, any person required to
register under this article who knowingly provides false
information or who refuses to provide accurate information when so
required by terms of this article, or who knowingly fails to
register or knowingly fails to provide a change in any information
as required by this article, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty
dollars nor more than ten thousand dollars or imprisoned in the
county or regional jail not more than one year, or both:
Provided,
That each time the person has a change in any of the registration
information as required by this article and fails to register the
change or changes, each failure to register each separate item of
information changed shall constitute a separate offense.
(b) Any person required to register under this article who is
convicted of a second or subsequent offense of failing to register
or provide a change in any information as required by this article
or any person who is required to register for life pursuant to
subsection (2), subdivision (a), section four of this article and
who
knowingly provides false information or who refuses to provide
accurate information when so required by terms of this article or
who knowingly fails to register or
knowingly fails to provide a
change in information as required by this article is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five
years.
(c) Any person required to register as a sexual predator who
knowingly provides false information or who refuses to provide
accurate information when so required by terms of this article or
who knowingly fails to register or
knowingly fails to provide a
change in
any information as required by this article is guilty of
a felony and, upon conviction thereof, shall, for a first offense,
be confined in a state correctional facility not less than two
years nor more than ten years and for a second or subsequent
offense, is guilty of a felony and shall be confined in a state
correctional facility not less than five years nor more than twenty
years.
(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.
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(NOTE:
The purpose of this bill is to bring the West Virginia
sex offender registration act into minimum federal standards to
qualify for Byrne grant funds.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)