ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 497
(Senators Kessler, Mitchell, Snyder, Edgell, Hunter, Unger, Plymale,
Sharpe, Bowman, Ball, McKenzie and Sprouse, original sponsors)
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[Passed March 11, 2000; in effect ninety days from passage.]
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AN ACT to amend and reenact section two, article two-c, chapter
fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one-a, two, two-a, three, four, five, eight and
nine, article twelve of said chapter, all relating to the
central abuse and the sex offender registries; declaring a
reduced expectation of privacy for sex offenders; including
persons convicted of certain attempted offenses and persons
found not guilty by reason of mental illness, mental
retardation or addiction within registration requirements;
adding required registration information from sex offenders;
requiring the department of health and human resources to obtain information; adding persons found not guilty by
reason of mental illness, mental retardation or addiction in
duration determination; adding entities that receive
information on sex offenders; providing that failure to
provide notice of changes in registration information
constitutes a criminal offense; requiring notice to certain
offenders; increasing penalties for certain offenders who
fail to provide information; requiring registration of out-
of-state persons who visit this state and who have been
convicted of an offense similar to an offense requiring
registration in this state or in the state of residence; and
requiring registration of certain offenders moving to this
state.
Be it enacted by the Legislature of West Virginia:
That section two, article two-c, chapter fifteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections one-a, two,
two-a, three, four, five, eight and nine, article twelve of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-2. Central abuse registry; required information;
procedures.
(a) The criminal identification bureau of the West Virginia state police shall establish a central abuse registry, to contain
information relating to criminal convictions involving child
abuse or neglect, abuse or neglect of an incapacitated adult and
misappropriation of property by individuals specified in
subsection (b) of this section and information relating to
individuals required to be registered as a sex offender.
(b) The central abuse registry shall contain, at a minimum,
information relating to: convictions of a misdemeanor or a
felony involving abuse, neglect or misappropriation of property,
by an individual performing services for compensation, within the
scope of the individual's employment or contract to provide
services, in a residential care facility, in a licensed day care
center, or in connection with the provision of home care
services; information relating to individuals convicted of
specific offenses enumerated in subsection (a), section three of
this article with respect to a child or an incapacitated adult;
and information relating to all individuals required to register
with the West Virginia state police as sex offenders pursuant to
the provisions of article twelve, chapter fifteen of this code.
The central abuse registry shall contain the following
information:
(1) The individual's full name;
(2) Sufficient information to identify the individual,
including date of birth, social security number and fingerprints
if available;
(3) Identification of the criminal offense constituting
abuse, neglect or misappropriation of property of a child or an
incapacitated adult;
(4) For cases involving abuse, neglect or misappropriation
of property of a child or an incapacitated adult in a residential
care facility or a day care center, or of a child or an
incapacitated adult receiving home care services, sufficient
information to identify the location where the documentation of
any investigation by the department of health and human resources
is on file and the location of pertinent court files; and
(5) Any statement by the individual disputing the
conviction, if he or she chooses to make and file one.
(c) Upon conviction in the criminal courts of this state of
a misdemeanor or a felony offense constituting child abuse or
neglect or abuse or neglect of an incapacitated adult, the
individual so convicted shall be placed on the central abuse registry.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§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.
§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 similar provision in another state, federal
or military jurisdiction 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, chapter fifteen of
this code:
(1) Article eight-b;
(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, which at the time of sentencing was found by the
sentencing judge to have been 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(s) for which the
registrant was convicted; and
(6) Fingerprints.
(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 herein, 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 services 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
shall include the information required by subsection (d) of this
section.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
shall 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, shall
constitute 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 shall be
informed of such 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 shall be
accessible 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 section six,
article eight-b, chapter sixty-one of this code, 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 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 a sexually violent predator is initiated by the filing of
a petition by the person who has been determined to be 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, 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.
§15-12-4. Duration.
(a) A person required to register under the terms of this
article shall continue to comply with this section, except during
ensuing periods of incarceration or confinement, until:
(1) Ten years have elapsed since the person was released
from prison, jail or a mental health facility or ten years have
elapsed since the person was placed on probation, parole or
supervised or conditional release. The ten year registration period shall not be reduced by the sex offender's release from
probation, parole or supervised or conditional release; or
(2) For the life of that person if that person: (A) Has
one or more prior convictions or has previously been found not
guilty by reason of mental illness, mental retardation or
addiction for any qualifying offense referred to in this article;
or (B) has been convicted or has been found not guilty by reason
of mental illness, mental retardation or addiction of a
qualifying offense as referred to in this article, and upon
motion of the prosecuting attorney, the court finds by clear and
convincing evidence, that the qualifying offense involved
multiple victims or multiple violations of the qualifying
offense; or (C) has been convicted or has been found not guilty
by reason of mental illness, mental retardation or addiction of
a sexually violent offense; or (D) has been determined pursuant
to section two-a of this article to be a sexually violent
predator; or (E) has been convicted or has been found not guilty
by reason of mental illness, mental retardation or addiction of
a qualifying offense as referred to in this article, involving a
minor.
(b) A person whose conviction is overturned for the offense
which required them to register under this article shall, upon petition to the court, have their name removed from the registry.
§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 shall be disseminated only in the following
manner and shall not be subject to the requirements of the West
Virginia freedom of information act, as set forth in chapter
twenty-nine-b of this code:
(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 shall include publication of the
offender's name, photograph, and 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. 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.
The method of publication and access to this list shall 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 and relevant
to public safety outweighs the importance of confidentiality, and
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 shall information concerning the identity of a victim of an offense requiring
registration be released.
(c) The state police may furnish information and
documentation required in connection with the registration to
authorized law-enforcement, campus police and governmental
agencies of the United States and its territories, of foreign
countries duly authorized to receive the same, of other states
within the United States and of the state of West Virginia upon
proper request stating that the records will be used solely for
law enforcement-related purposes. The state police may disclose
information collected under this article to federal, state and
local governmental agencies responsible for conducting
preemployment checks.
(d) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or
in bad faith.
§15-12-8. Failure to register or provide notice of registration
changes; penalty.
(a) Except as provided in this section, any person required
to register under this article who knowingly provides false
information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to
register or knowingly fails to provide a change in any
information as required by this article, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than two hundred fifty dollars nor more than ten thousand
dollars, or imprisoned in the county or regional jail not more
than one year, or both:
Provided, That each 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 fails to register or 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 fails to register or provide a change in 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.
§15-12-9. Registration of out-of-state offenders.
(a) When any probation or parole officer accepts supervision
of and has legal authority over any person required to register
under this article from another state under the terms and
conditions of the uniform act for out-of-state parolee
supervision established under article six, chapter twenty-eight of this code, the officer shall give the person written notice of
the registration requirements of this section and obtain a signed
statement from the person
required to register acknowledging the
receipt of the notice. The officer shall obtain and submit to
the state police the information required in subsection (d),
section two of this article.
(b) Any person:
(1) Who resides in another state or federal or military
jurisdiction;
(2) Who is employed, carries on a vocation, is a student in
this state or is a visitor to this state for a period of more
than fifteen continuous days; and
(3) Who is required by the state, federal or military
jurisdiction in which he or she resides to register in that
state, federal or military jurisdiction as a sex offender, or has
been convicted of a violation in that state, federal or military
jurisdiction that is similar to a violation in this article
requiring registration as a sex offender in this state, shall
register in this state and otherwise comply with the provisions
of this article.
(c) Any person changing residence to this state from another
state or federal or military jurisdiction who is required to register as a sex offender under the laws of that state or
federal or military jurisdiction shall register as a sex offender
in this state.
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