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.