Senate Bill No. 497
(By Senators Kessler, Mitchell, Snyder, Edgell, Hunter, Unger,
Plymale, Sharpe, Bowman, Ball, McKenzie and Sprouse)
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[Introduced February 15, 2000; referred to the
Committee on the Judiciary; and then to the Committee on
Finance.]
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A BILL 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 sections one-a,
two, two-a, three, five, eight and nine, article twelve of
said chapter, all relating to the registering of persons in
the central abuse registry and the sex offender registry;
reduced expectation of privacy for sex offenders; status of
individuals found not guilty by reason of mental illness;
sex offenders not in custody or under post-conviction
supervisory status and notice; required registration information on sex offenders; notice to register to persons
found not guilty by reason of mental illness; changes in
registration information; information required in notice of
release of persons required to register; persons required to
register who have been found not guilty by reason of mental
illness to sign acknowledgment; consideration of persons
found not guilty by reason of mental illness in determining
sexually violent predators; expansion of changes in
information registrants required to report; agencies,
entities and individuals to receive information on sex
offenders; information to be released in community
notification meetings; failure to provide notice of changes
in registration information, penalty and expansion of
information changes subject to violation; persons subject to
lifetime registration; failure of sexual predators to
provide changes in information required for registry;
failure of registrants on post-conviction supervisory status
subject to parole or probation revocation; registration of
out-of-state offenders who work, attend school or visit, or
have been convicted of offenses similar to registerable
offense in this state, and notification; and out-of-state offenders moving to 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, 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 following reports of
child abuse or neglect, abuse or neglect of an incapacitated
adult, and misappropriation of property.
(b) The central abuse registry shall contain, at a minimum,
information relating to: (1) Convictions of a misdemeanor or a
felony constituting 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; (2) 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 (3) information relating to all individuals required to
register with the West Virginia state police as sex offenders
pursuant to the provisions of article eight-f, chapter sixty-one
article twelve, chapter fifteen of this code. The central abuse
registry shall contain the following information with respect to
an individual found to have committed an act of abuse, neglect or
misappropriation of property, or an individual convicted of a
felony offense:
(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 such 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
pursuant to this chapter article 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 public's
interest in public safety.
§15-12-2. Registration.
(a) The provisions of this act apply both retroactively and
prospectively.
(b) Any person who has been convicted of a violation of the
following provisions of chapter sixty-one of this code shall
register as set forth in subsections (c) and (d) of this article,
and according to the internal management rules and regulations
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;
(5) Sections six, seven, twelve and thirteen, article
eight;
(6) A similar provision in another state, federal or
military jurisdiction for offenses listed above.
(i) Any person who has been convicted of an attempt to
commit any of the offenses set forth in this section shall also
register as set forth in this article.
(ii) 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.
(iii) Any person who has been found to have been found not
guilty by reason of mental illness of any of the offenses set
forth in this section shall also register as set forth in this
article.
(c) Any person who has been convicted of any of the offenses set forth in this section, or of the attempt to commit
any of the offenses set forth in the section, or who has been
found not guilty by reason of insanity of any of the offenses set
forth in this section, who is not confined, incarcerated or under
postconviction supervision on the effective date of this act
shall also register as set forth in this article. The state
police shall inform the person of his or her duty to register by
registered or certified mail. The person shall report to the
nearest state police detachment in the county in which he or she
resides at the time of registration.
(c) (d) Persons required to register under the provisions
of this act shall provide or cooperate in providing, at a
minimum, the following information 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 shall 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
anticipated future 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.
(d) (e) On the date that any person convicted or found not
guilty by reason of mental illness of any of the crimes listed
herein, including those persons continuing under some post
conviction supervisory status for crimes committed prior to the
date of this law, is released, is granted probation, is granted
a suspended sentence, is released on parole, probation, home
detention, work release, conditional release or any other release
from incarceration, or confinement, the commissioner of
corrections, regional jail administrator or city or sheriff
operating a jail, or secretary of the department of health and
human services which releases such the person, and any parole or
probation officer who releases such the person or supervises such the person following the release, shall obtain all information
required by this subsection prior to the release of the person,
inform the person of his or her duty to register, and shall send
written notice of the release of the person to the state police
within three days of receiving the information. The notice shall
include:
(1) The full name of the person, including any aliases,
nicknames, or other names used by the registrant;
(2) The address where the person shall reside, 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 anticipated future schools or training
facilities the registrant expects to attend;
(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, 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.
(e) (f) At the time the person is convicted or found not
guilty by reason of mental illness of the crimes set forth in
subsection (a) 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 such the provisions. Such The statement,
when signed and witnessed, shall constitute prima facie evidence
that the person had knowledge of the requirements of this
article.
(f) When a person required to register under this article is released following incarceration, the commissioner of
corrections, the regional jail supervisor or the city or sheriff
or any other person supervising the operation of the place of
confinement shall, within three days, inform the state police of
such release and provide such further information as is required
by this article.
(g) 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.
(h) 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.
(i) The term "sexually motivated" means that one of the
purposes for which a person committed the crime was for the
purpose of any person's sexual gratification.
(j) The term "sexually violent predator" means a person who
has been convicted or found not guilty by reason of mental
illness 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.
(k) 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.
(l) 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
having committed a sexually violent offense 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
information pleading by the prosecuting attorney. The
information 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 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 such
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 and 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 choice and testimony from such
the expert as a medical witness on his behalf. At the
termination of such 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, or address, place of employment or
occupation, or school or training facility which he or she is
attending, or changes any of the information required by this
article, he or she shall, within ten days, inform the West
Virginia state police of his or her new address 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 and campus police office in the city and or
county where the person will reside registrant resides, is
employed, or attends school or a training facility;
(2) The county superintendent of schools where the person
will reside 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 person will reside 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 person will reside 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 incapacitated infirm or mentally
incapacitated or infirm persons in the county where the
registered person will reside 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
on the list of the sexual offender registry, and are not required
to register for life, shall be disseminated only in the following
manner, and not be subject to the requirements of the West
Virginia freedom of information act 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 intends to reside resides, is
employed, or attends a school or training facility. The
prosecuting attorney shall in cooperation with the state police
conduct a community notification program which shall include publication of the offender's name, photograph, and place of
residence, employment and education or training and 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 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 pre-
employment 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 outlined below, any person required to
register under this article who knowingly provides false identity
or address information or who refuses to provide such accurate
information when so required by terms of this article, or who
knowingly fails to register or knowingly fails to provide a
change of address 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 jail not more than
one year, or both fined and imprisoned: Provided, That each time
such the person changes residence has a change in any of the
registration information as required by this article and fails to
register the change or changes, each such 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 of address in any information as required by this article, or any person who has one or more prior
convictions for any conviction for a sexually violent offense any
person who is required to register for life pursuant to
subsection (2), subdivision (a), section four, article twelve,
chapter fifteen, 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
penal facility for not less than one year nor more than five
years.
(c) Any person required to register as a sexual predator as
defined by section two of this article, who fails to register or
provide a change of address in information as required by this
article is guilty of a felony and, upon conviction thereof,
shall, for a first offense, be imprisoned in a state correctional
facility not less than two years nor more than ten years, and for
a second or subsequent offense, be imprisoned 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 of address
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, such 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 identical information
required of persons convicted in this state under subsection (b),
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, or 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, or federal or military
jurisdiction in which he or she resides to register in that
state, or federal or military jurisdiction under provisions of
the law of that state that are similar to the provisions of this
article, as a sex offender, or has been convicted of a violation
in that state, federal or military jurisdiction which 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 and shall be subject
to notification if qualified.
(c) Any person changing residence from another state, or
federal or military jurisdiction to this state who is required to
register as a sex offender under the laws of another state, or
federal or military jurisdiction, shall be required to register
as a sex offender in this state and shall be subject to
notification if qualified.
NOTE:
This bill substitutes the correct statute citation for
the state's "Sex Offender Registration Act" in the state's
"Central Abuse Registry" statute. The bill expands the statement
of intent and findings, the number of people who would be
required to register as sex offenders, the amount of information
registrants must provide, the jurisdictions in which registerable
convictions occurred, and the types of law enforcement entities
entitled to receive sex offender information. The bill clarifies
that sex offenders not presently incarcerated or under
postconviction supervisory status are eligible to register. The
bill also expands the type of changes registrants are obligated
to report to state police. The bill makes threatening, injuring
or intimidating registrant offenders a crime if the conduct is
based on their status as sex offenders, and provides a penalty.
The bill also provides that lifetime registrants who fail to
register are guilty of a felony.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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