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Introduced Version House Bill 2181 History

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hb2181 intr
H. B. 2181


          (By Delegates Reynolds, Marcum, Manchin, Pino and Ferro)
          [Introduced February 13, 2013; referred to the
          Committee on the Judiciary then Finance.]




A BILL to amend and reenact §15-12-2, §15-12-5 and §15-12-8 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-5-13b of said code, all relating to authorizing a court to require a convicted juvenile sex offender whose underlying offense constitutes a first or second degree sexual assault and who is sixteen years of age or older to register as a sex offender; and maintaining confidentiality of juvenile sex offender registration information except for disclosure to law enforcement, school administration and counsel until the juvenile attains the age of eighteen years.
Be it enacted by the Legislature of West Virginia:
     That §15-12-2, §15-12-5 and §15-12-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §49-5-13b of said code be amended and reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§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-a;
     (2) 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the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year 2000 legislative session;
     (3) Article eight-c;
     (4) Sections five and six, article eight-d;
     (5) Section fourteen, article two;
     (6) Sections six, seven, twelve and thirteen, article eight; or
     (7) Section fourteen-b, article three-c, as it relates to violations of those provisions of chapter sixty-one listed in this subsection.
     (c) Any person who The following shall also register as set forth in this article:
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(1) A 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. and
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(2) A person who is required to register by a court order issued pursuant to subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code.
     (d) Persons required to register under the provisions of this article shall register in person at the West Virginia State Police detachment responsible for covering the county of his or her residence, and in doing so, 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 address of any habitable real property owned or leased by the registrant that he or she regularly visits: Provided, That a post office box may not be provided in lieu of a physical residential address, 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 palm prints;
     (7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color and license plate number: Provided, That for the purposes of this article, the term "trailer" shall mean travel trailer, fold-down camping trailer and house trailer as those terms are defined in section one, article one, chapter seventeen-a of this code;
     (8) Information relating to any Internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the Internet; and
     (9) Information related to any telephone or electronic paging device numbers that the registrant has or uses, including, but not limited to, residential, work and mobile telephone numbers; and
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(10) If the registrant is a juvenile, the physical address and telephone of the registrant's parent or legal guardian and any other relative or person with whom the registrant regularly engages in overnight visits.
     (e) (1) 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, inpatient treatment facility or juvenile detention facility or any other release from confinement, the Commissioner of Corrections, regional jail administrator, city official or sheriff operating a jail, administrator of the treatment or juvenile detention facility or Secretary of the Department of Health and Human Resources who releases the person and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the State Police within three business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status. Any person currently registered who is incarcerated for any offense shall re-register within three business days of his or her release.
     (2) Notwithstanding any provision of this article to the contrary, a court of this state shall, upon presiding over a criminal matter resulting in conviction, a disposition under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code or a finding of not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense, cause, within seventy-two hours of entry of the commitment or sentencing order, the transmittal to the sex offender registry for inclusion in the registry all information required for registration by a registrant as well as the following nonidentifying information regarding the victim or victims:
     (A) His or her sex;
     (B) His or her age at the time of the offense; and
     (C) The relationship between the victim and the perpetrator.
     The provisions of this paragraph do not relieve a person required to register pursuant to this section from complying with any provision of this article.
     (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, required to register pursuant to an order entered under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court shall provide a copy to the registry. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the State Police whenever the State Police obtain information that the person is subject to registration requirements.
     (h) (1) 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.
     (2) Information maintained on juveniles required to register by a court order issued under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code, shall be confidential and may be disclosed only as authorized under section five of this article.
_____(3) Notwithstanding any other provision of this code to the contrary, the provisions of this article with respect to special reporting requirements, confidentiality and disclosure are not applicable on or after that juvenile attains the age of eighteen years. Upon the date the juvenile attains the age of eighteen years, he or she shall thereafter be subject to each and every provision of this article as if he or she had been convicted of a violation of section three or four, article eight-b, chapter sixty-one of this code. Notwithstanding any provision of article five, chapter forty-nine of this code, on and after the date the juvenile attains the age of eighteen years, upon request of the West Virginia State Police, the circuit clerk of the court in which the order was issued under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code shall deliver to the West Virginia State Police a copy of the records of the juvenile proceeding in which the order was issued without cost and without order of the court. Those records may be used for all purposes under the provisions of this article to the extent that the same would otherwise be used if they were a courts' records of the proceedings under which he or she had been an adult and convicted of a violation of section three or four, article eight-b, chapter sixty-one of this code.
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(4) 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.
     (5) No information relating to telephone or electronic paging device numbers 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 2000 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.
     (n) For the purposes of this article, the term "business days" means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and State Police; petition to circuit court.
     (a) In the case of persons required to register pursuant to section two of this article, except juveniles required to register by a court order issued under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code, within five business 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, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility;
     (2) The county superintendent of schools in each county where the registrant resides, owns or leases habitable real property that he or she regularly visits, 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, owns or leases habitable real property that he or she regularly visits, 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, owns or leases habitable real property that he or she regularly visits, 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, owns or leases habitable real property that he or she regularly visits, is employed or attends school or a training facility; and
     (6) The Federal Bureau of Investigation (FBI); and
     (7) The State Police detachments in the county of the offender's occupation, employment, owned or leased habitable real property and school or training.
     (b) (1) In the case of juveniles required to register by a court order issued under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code, within five business days after receiving any notification as described in this article, the State Police shall distribute a copy of the notification statement only to:
_____(A) The superintendent of the county school system where the juvenile attends school or intends to attend school;
_____(B) The administrator of a training facility where the juvenile is enrolled or intends to enroll; and
_____(C) Counsel for the juvenile, upon request.
_____(2) Notification pursuant to this subsection shall inform the recipient that the information contained in the notification may be disclosed to the school or training facility, upon request, and is strictly confidential.___
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(b) (c) Information concerning persons whose names are contained in the sex offender registry 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, owns or leases habitable real property that he or she regularly visits, 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, location of regularly visited habitable real property owned or leased by the offender, county of employment and place at which the offender attends school or a training facility, 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 telephone or electronic paging device numbers 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 where a person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article resides, owns or leases habitable real property that he or she regularly visits, is employed or attends a school or training facility. 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 telephone or electronic paging device numbers 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 that reside or own or lease habitable real property that the persons regularly visit in that county and 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 telephone or electronic paging device numbers a registrant has or uses be released.
     (c) (d) 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. The State Police also may disclose information collected under this article to the Division of Motor Vehicles pursuant to the provisions of section three, article two, chapter seventeen-b of this code.
     (d) (e) 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; penalty for aiding and abetting.
     (a) Each time a person has a change in any of the registration information as required by this article and knowingly fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense under this section.
     (b) Except as provided in this section, any person required to register for ten years pursuant to subdivision (1), subsection (a), section four of this article who knowingly provides materially false information or who refuses to provide accurate information when so required by the terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any required information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or confined in jail not more than one year, or both. Any person convicted of a second offense under this subsection 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. Any person convicted of a third or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five nor more than twenty-five years.
     (c) Any person required to register for life pursuant to this article who knowingly provides materially false information or who refuses to provide accurate information when so required by the terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any required 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. Any person convicted of a second or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten nor more than twenty-five years.
     (d) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence.
     (e) Notwithstanding the provisions of subsection (c) of this section, any person required to register as a sexually violent predator pursuant to this article who knowingly provides materially 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 required 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 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 fifteen nor more than thirty-five years.
     (f) Any person who knows or who has reason to know that a sex offender is not complying, or has not complied, with the requirements of this section and who, with the intent to assist the sex offender in eluding a law-enforcement agency that is seeking to find the sex offender to question the sex offender about, or to arrest the sex offender for, his or her noncompliance with the requirements of this section:
     (1) Withholds information from, the law-enforcement agency about the sex offender's noncompliance with the requirements of this section and, if known, the whereabouts of the sex offender; or
     (2) Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the sex offender; or
     (3) Conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the sex offender; or
     (4) Provides information to the law-enforcement agency regarding the sex offender which the person knows to be false information is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $10,000 or confined in jail not more than one year, or both: Provided, That where the person assists or seeks to assist a sex offender whose violation of this section would constitute a felony, the person shall be 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.
     (g) The State Police shall notify the court of the failure of any juvenile to register as required by an order issued under subdivision (5), subsection (a), section thirteen-b, article five, chapter forty-nine of this code, within five business days following the last day upon which the juvenile had the duty to register. In addition to notifying the court of the juvenile's failure to register, the State Police shall send a copy of this notice, by certified mail, to the juvenile, the juvenile's parents and legal counsel.
CHAPTER 49. CHILD WELFARE.

ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13b. Authority of the courts to order fines; revocation of vehicle privileges and restitution; and juvenile sex offender registration.
     (a) In addition to the methods of disposition provided in section thirteen of this article, the court may enter an order imposing one or more of the following penalties, conditions and limitations:
     (1) Impose a fine not to exceed $100 upon such the child;
     (2) Require the child to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which the child was found to be delinquent, or if the child does not make full restitution, require the custodial parent or parents, as defined in section two, article seven-a, chapter fifty-five, of the child to make partial or full restitution to the victim to the extent the child fails to make full restitution;
     (3) Require the child to participate in a public service project under such conditions as the court prescribes, including participation in the litter control program established pursuant to the authority of section three, article fifteen-a, chapter twenty-two of this code;
     (4) When the child is fifteen years of age or younger and has been adjudged delinquent, the court may order that the child is not eligible to be issued a junior probationary operator's license or when the child is between the ages of sixteen and eighteen years and has been adjudged delinquent, the court may order that the child is not eligible to operate a motor vehicle in this state and any junior or probationary operator's license shall be surrendered to the court. Such The child's driving privileges shall be suspended for a period not to exceed two years and the clerk of the court shall notify the Commissioner of the Division of Motor Vehicles of such the order;
     (5) When the child is sixteen years of age or older and is adjudicated delinquent for violation of section three or four, article eight-b, chapter sixty-one of this code, the court may enter an order requiring the child to register as a sex offender pursuant to article twelve, chapter fifteen of this code. The order shall be delivered to the West Virginia State Police and shall be confidential and may be disclosed only as authorized under section five, article twelve, chapter fifteen of this code.

     (b) Nothing herein stated shall This section does not limit the discretion of the court in disposing of a juvenile case Provided, except that the juvenile shall not be denied court may not deny probation or any other disposition pursuant to this article because the juvenile is financially unable to pay a fine or make restitution or reparation Provided, however, and that all penalties, conditions and limitations imposed under this section shall be based upon a consideration by the court of the seriousness of the offense, the child's ability to pay and a program of rehabilitation consistent with the best interests of the child.
     (c) Notwithstanding any other provisions of this code to the contrary, in the event a child charged with delinquency under this chapter is transferred to adult jurisdiction and there convicted, the court may nevertheless, in lieu of sentencing such person as an adult, make its disposition in accordance with this section.



     NOTE: The purpose of this bill is to require convicted juvenile sex offenders who are sixteen years of age or older to register as a sex offender and to maintain confidentiality of the juvenile's registration information except for disclosure to specified entities.

     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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