Senate Bill No. 426
(By Senators Jones, Plymale and Anderson)
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[Introduced March 19, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend chapter forty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-d; and to
amend chapter sixty-one of said code by adding thereto a new
article, designated article eleven-b, all relating to sexual
offenders generally; presentencing evaluations; establishing
a juvenile offender treatment program; providing conditions
for adult parole and probation; providing for evaluation of
adult sexual offenders; requiring certain statistics be
maintained; and increased supervision of persons convicted
of sexual offenses against minors.
Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto, a new article, designated article five-d; and
that chapter sixty-one of said code be amended by adding thereto
a new article, designated article eleven-b, all to read asfollows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 5D. JUVENILE SEXUAL OFFENDER TREATMENT PROGRAM.
§49-5D-1. Responsibilities of the department of health and human
resources for the program; advisory board.
The department of health and human resources shall have the
sole authority and responsibility for establishing the design of
the juvenile sexual offender treatment program, but shall consult
with the courts and the department of corrections.
The department may enter into agreements with public or
private agencies in order to implement and operate the juvenile
sexual offender treatment program.
The department shall maintain complete and comprehensive
data on each juvenile sexual offender participating in the
program and an annual statistical report on the program.
A juvenile sexual offender treatment board shall be created
as an advisory body to the department solely for the purpose of
monitoring the program and coordinating appropriate resources.
The board shall serve as an advisory body for all juvenile sexual
offender treatment programs provided or contracted by the cabinet
for human resources.
The board shall be composed of the following members:
(a) Two employees of the department who deal with the
problems of children or sexual or domestic violence;
(b) Two employees of the division of corrections, one of
whom shall be a specialist dealing with sexual offenders;
(c) A prosecuting attorney;
(d) A circuit judge;
(e) A local law-enforcement officer dealing with juvenile
offenders or sexual offenders;
(f) Three citizens at large.
Members who serve as voting ex officio members are:
(a) The superintendent of the division of public safety or
his or her designee; and
(b) The attorney general or his or her designee.
Members of the board shall be appointed by the governor to
serve until the first day of July, one thousand nine hundred
ninety-eight.
A chairperson and vice-chairperson of the board shall be
elected annually by a majority of the voting members of the
board. The chairperson shall appoint chairs of committees
established by the board.
The board shall do all of the following:
(a) Meet not less than four times annually and at the call
of the chairperson or a majority of the board.
(b) Issue an annual report which shall be transmitted to the
Legislature and appropriate interim committees of the Legislature
and to the governor. The annual report shall include the
following:
(1) A review of the operation of the program, including
statistical data concerning participation in the program and
post-program follow-up data;
(2) Recommendations for the coordination and exchange of
information on the establishment and maintenance of the program;
(3) Proposals for statewide educational training and public
informational seminars on the issue of treatment of the juvenile
sexual offender;
(4) Establishment of a procedure for an annual, internal
evaluation of the functions, responsibilities and performance of
the program; and
(5) Recommendations to the governor and the Legislature for
changes in state programs, statutes, rules, policies, budgets and
treatment and service standards which will reduce the problem of
juvenile sexual offenders, improve communication and coordination
among state agencies, and improve the opportunity for juvenile
sexual offenders and their families to receive treatment.
Recommendations shall include a statewide treatment philosophy
and standards of practice for juvenile sexual offender cases;
recommended sentencing guidelines for sexual offender cases
involving youthful offenders; and the credentialing process for
mental health professionals who accept referrals from the court
to provide assessment or treatment services for juvenile sexual
offenders.
(c) Board members shall serve without compensation, but be
reimbursed for actual expenses consistent with state rules.
The department shall maintain on file, for a period of
fifteen years following their participation in the program, the
names and identities of the individuals who participated. Thenames and identities shall not be disclosed except for the
purposes allowed in this section.
Every other year, the department shall request from the
supreme court administrator, the division of public safety and
the division of corrections, information concerning whether any
of the individuals who participated in the program have been
arrested, tried, convicted or incarcerated of any sexual offense
or any other criminal offense.
On or before the first day of January, one thousand nine
hundred ninety-five, and every other year thereafter, the
department shall compile the information obtained and present it
to the Legislature and the governor. The report shall not
contain the names of any of the individuals who participated in
the program, but shall contain such identifying information as
shall be helpful in evaluation of the program and in
determination of whether participants have engaged in criminal
behavior as juveniles or adults.
§49-5D-2. Juvenile sexual offender treatment program.
The department of health and human resources shall operate
a program for the treatment of juvenile sexual offenders,
hereinafter referred to as the "program." The general purpose of
the program is to provide early intervention and treatment of the
juvenile sexual offender in an effort to impact the progression
to adult criminal activity. Recognizing the significance of
these offenses, the program will endeavor to deter reoffenses
through mandatory follow-up and serve to protect potentialvictims in the community.
As used in this section, unless the context otherwise
requires:
(a) The "treatment program" means a continuum of services
provided in community and institutional settings designed to
provide early intervention and treatment services for juvenile
sexual offenders.
(b) A "juvenile sexual offender" as used in this article
means an individual under the age of eighteen years who has been
adjudicated guilty of a sexual offense.
If, prior to an adjudicatory hearing, there is reasonable
cause to believe that a child before the court has committed a
sexual offense, the court shall proceed with the provisions of
this section. A child may be declared a juvenile sexual offender
when the court determines that the alleged offender:
(1) Used physical force or threat of force, express or
implied, in the commission of the act; or
(2) Has a documented case history of a long-term pattern of
sexual offenses. Upon final adjudication by the circuit court or
the juvenile referee, the judge or referee shall order a mental
health assessment to be conducted on the child by the program or
by a qualified mental health professional and approved by the
program which recommends the appropriate course of treatment.
Upon receipt of the findings of the assessment, the judge or
referee shall initiate a referral to the program for evaluation
and treatment.
If the court or referee finds the child to be a juvenile
sexual offender, the individual shall be committed to the custody
of the department of health and human resources and shall receive
treatment in a juvenile sexual offender treatment program for a
minimum of two years but not more than three years, except that
the juvenile sexual offender shall not remain in the care of the
department of health and human resources after the age of
nineteen.
Based on the assessment and evaluation of the juvenile
sexual offender and family, the department of health and human
resources shall utilize the treatment setting which provides the
least restrictive alternative available and shall develop a
written treatment agreement detailing the responsibilities of the
juvenile sexual offender, family and program to include, but not
be limited to: Attendance, participation in education,
participation in planning and completion of treatment goals,
curfew, visit of appropriate staff to the home, participation in
parenting groups and family counseling, continuing required
contact with the program, schools and courts, ensuring legal
rights and discharge criteria.
The written treatment agreement shall be presented to the
court or referee and the court or referee shall include the
agreement as part of its order except for good cause shown.
The program shall be responsible for forwarding written
reports every sixty days to the court or referee concerning the
participation of the juvenile sexual offender and family in thetreatment program. The written report shall include information
about the treatment received by such offender and family, an
assessment of the offender's current condition, and
recommendations by the staff.
The case may be called for review upon the recommendation of
the staff or by the court or referee at any time during the
course of treatment. The review may be called to consider
documentation of noncompliance, absenteeism or unwillingness to
acknowledge responsibility for sexually inappropriate behavior.
A discharge review shall be requested by the program sixty
days prior to the recommended release date. The court or referee
shall schedule a hearing to formally consider the recommendation
of release from the program.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11B. Sexual Offenders.
§16-11B-1. Evaluation of sexual offenders.
If a defendant has been convicted of a sexual offense prior
to considering the motion to suspend a sentence, the court shall
order an evaluation of the defendant to be conducted by the sex
offender treatment program operated by the division of
corrections. The evaluation shall provide to the court a
recommendation related to the risk of reoffense by the defendant
and the defendant's amenability to treatment, and shall be
considered by the court in determining whether to suspend the
sentence.
If the defendant has been convicted of a misdemeanor sexualoffense prior to considering the motion to suspend the sentence,
the court shall order an evaluation of the defendant to be
conducted by the sex offender treatment program operated by the
division of corrections. The evaluation shall provide to the
court a recommendation related to the risk of reoffense by the
defendant and the defendant's amenability to treatment, and shall
be considered by the court in determining whether to suspend the
sentence. If the court suspends the sentence and places the
defendant on probation, notwithstanding other provisions of this
code to the contrary, probation may not be granted to, nor may
the execution or imposition of sentence be suspended for, nor may
a finding bringing the defendant within the provision of this
section be stricken for any person convicted of a sexual offense
or:
(a) A person who commits a sexual offense against a minor by
the use of force, violence, duress, menace or threat of bodily
harm;
(b) A person who, in committing any sexual offense, caused
bodily injury to the minor;
(c) A person convicted of any sexual offense and who was a
stranger to the minor or made friends with the minor for the
purpose of committing sexual offense; unless the defendant
honestly and reasonably believed the minor was eighteen years old
or older;
(d) A person who used a dangerous instrument or deadly
weapon against a minor during the commission of a sexual offense;
(e) A person convicted of any sexual offense enumerated in
subsection (1) and who has had a prior conviction of assaulting
a minor, with intent to commit sexual offense;
(f) A person convicted of kidnapping a minor and who
kidnapped the minor for the purpose of committing a sexual
offense;
(g) A person who is convicted of committing sexual offenses
on more than one minor at the same time or in the same course of
conduct;
(h) A person who in committing a sexual offense has
substantial sexual conduct with a minor under the age of fourteen
years; or
(i) A person who occupies a position of special trust and
commits an act of substantial sexual conduct. "Position of
special trust" means that position occupied by a person in a
position of authority who by reason of that position is able to
exercise undue influence over the minor. Position of authority
includes, but is not limited to, the position occupied by a
biological parent, adoptive parent, stepparent, foster parent,
relative, household member, adult youth leader, recreational
staff or volunteer who is an adult, adult athletic manager, adult
coach, teacher, counselor, staff or volunteer with either a
residential treatment facility, holding facility or detention
facility, staff or volunteer with a youth services organization,
religious leader, health care provider or employer.
For the purpose of this article, "substantial sexualconduct" means penetration of the vagina or rectum by the penis
or other body part or by any foreign object, oral copulation or
masturbation of either the minor or the offender.
When a person is not otherwise prohibited from obtaining
probation or conditional discharge pursuant to the provisions of
this section, the court may impose on the person a period of
probation or conditional discharge. Probation or conditional
discharge may not be granted until the court is in receipt of an
evaluation of the offender performed by the sex offender
treatment program operated by the division of corrections or
another agency authorized to perform such evaluations by the
division of corrections. The court shall use the evaluation in
determining the appropriateness of probation or conditional
discharge.
If the court grants probation or conditional discharge, the
offender shall be required, as a condition of probation or
conditional discharge, to successfully complete a community based
sexual offender treatment program operated or approved by the
division of corrections.
Failure to successfully complete the sexual offender
treatment program constitutes grounds for the revocation of
probation or conditional discharge.
NOTE: The purpose of this bill is to establish a sexual
offenders sentencing and evaluation program in this state. The
bill provides for presentencing evaluation of offenders. It
restricts parole and probation conditions for adult sexual
offenders. The bill also establishes a juvenile sexual offendertreatment program.
§49-5D and §61-11B are new; therefore, strike-throughs and
underscoring have been omitted.