COMMITTEE SUBSTITUTE
FOR
H. B. 4011
(By Mr. Speaker, Mr. Kiss, and Delegate Ashley)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[January 28, 1998]
A BILL to amend and reenact sections two, three, four, five,
seven, eight, nine and ten, article eight-f, chapter sixty- one of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to further amend said article by
adding thereto two new sections, designated sections two-a
and two-b; and to amend and reenact section two, article
twelve, chapter sixty-two of said code, all relating to the
registration of sex offenders; expansion of persons required
to be registered; notification requirements for sex
offenders who leave prison or move in or out of the state;
changing the definition of mental abnormality; establishment
of a judicial process to determine whether a person is a
sexually violent person; requiring registration within ten
days of change in address; expansion of the duration certain
persons must register; notification distribution; creation
of disclosure exemptions; penalties for failing to provide
information and registering; parole officers providing
information to the state police; and establishment of a
verification process.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five, seven, eight, nine and
ten, article eight-f, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that said article be further amended by
adding thereto two new sections, designated sections two-a and
two-b; and that section two, article twelve, chapter sixty-two of
said code be amended and reenacted, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8F. SEX OFFENDER REGISTRATION ACT.
§61-8F-2. Registration.
(a) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c, or sections five and six
of article eight-d of this chapter, or of section fourteen,
article two, or of section sections twelve and thirteen, article
eight of this chapter, or of a felony violation involving a minor
of sections six or seven of article eight, chapter sixty-one, or
of a similar provision in another state, federal or military
jurisdiction shall be required to be registered as set forth in
this article. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this section shall also
be required to register as set forth in this article.
(b) On the date that any person convicted 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 or probation, or is ordered to be placed on home detention, the
parole, probation, home detention, work release or any other
release from incarceration, the commissioner of corrections,
regional jail supervisor administrator or city or sheriff
operating a jail which releases such person and any parole or
probation officer who releases such person or supervises such
person following the release shall obtain all information
required by this subsection prior to the release of the person,
inform the person that he or she must register within three days
of release with the state police detachment in the county where
he or she shall reside, 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;
(2) The address where the person shall reside;
(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.
Persons who have been convicted for any of the offenses contained in paragraph (a) above and released from incarceration
or correctional supervision shall be required to register as
provided herein if that person is arrested on any new criminal
charge within a period of ten years from release from
correctional supervision of the original sexual offense. The
arresting agency shall inform the person of his or her duty to
register and shall send written notice of the person's arrest and
of this notification to the state police.
(c) At the time the person is convicted 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 provisions. Such statement, when
signed and witnessed shall constitute prima facie evidence that
the person had knowledge of the requirements of this article.
(d) 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.
(e) 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.
(f) For the purposes of this article, sexually violent
offenses shall be defined as any criminal offenses set forth in
article eight-b of this chapter which include forcible
compulsion, bodily injury or the use of deadly weapons.
(g) A person is defined as a sexually violent predator when
the person is convicted of a sexually violent offense and who
suffers from a mental abnormality or personality disorder, a
symptom of which includes a likelihood of engaging in predatory
sexually violent behavior.
(g) The term "sexually violent predator" means a person who
has been convicted 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.
(h) A person is defined as having a mental abnormality if
the person has a disorder that makes the person likely to engage
in predatory sexually violent offenses.
(h) 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.
(i) The term "predatory act" as defined in this article
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.
(j)Determining if the offender is a sexually violent
predator shall be the responsibility of the person or persons
conducting the offender's psychiatric study and diagnosis
required for probation eligibility as set forth in section two,
article twelve of chapter sixty-two of this code.
§61-8F-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 by the prosecuting attorney. The information shall
describe the record of the judgment of the court on the person's
conviction 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 a
mental health facility designated by the director of the bureau
for behavioral health and health facilities.
(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
expert as a medical witness on his behalf. At the termination of
such 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 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.
§61-8F-2b. Creation of sex offender registration advisory board.
(a) The director of the office of behavioral health
services shall establish a sex offender registration advisory
board consisting of experts in the field of the behavior and
treatment of sexual offenders, victim rights advocates, and
representatives of from law enforcement agencies. There shall be
a minimum of three members of the advisory board who shall
receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of
this board shall be provided appropriate professional or other
liability insurance, without additional premium, by the state
board of risk and insurance management created pursuant to
article twelve, chapter twenty-nine of this code.
(b) The board shall assist the circuit courts of this state
in determining whether persons convicted
of sexually violent
offenses are sexually violent predators.
§61-8F-3. Change of address.
When any person required to register under this article
changes his or her residence or address, he or she shall, within
ten days, inform the West Virginia state police of his or her new
address in writing, within ten days 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.
§61-8F-4. Duration.
Any person required to register under this article shall be
required to do so for a period of ten years after conviction for
the offense defined herein if not imprisoned, and if imprisoned,
for a period of ten years after release from prison by discharge
or parole. a person is no longer required to register at the
expiration of ten years from the date of initial registration,
when that convicted person is not otherwise required, during such
period, to register. A person required to register under terms
of this article shall continue to comply with this section,
except during ensuing periods of incarceration, until:
(1) Ten years have elapsed since the person was released
from prison or jail, or from the time the person was placed upon
probation , parole or supervised release; or
(2) For the life of that person if that person (a) has one
or more prior convictions for any qualifying offense described in
this article, or (b) has been convicted of a sexually violent
offense, or (c) has been determined to be a sexually violent
predator as defined above. A person whose conviction is
overturned for the offense which required them to register under
this article shall, be permitted to petition the court for
removal of their name from the registry. upon petition to the
court, have their name removed from the registry.
§61-8F-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 in the city and county where the person will
reside;
(2) The county superintendent of schools where the person
will reside;
(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the person will reside; and
(4) All community organizations or religious organizations
which regularly provide services to youths in the county where
the person will reside;
(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; and
(6) The Federal Bureau of Investigation (FBI).
(b) The information and documentation required in connection
with the registration may be provided to any other person upon
application to the circuit court in the county where an applicant
seeking the information resides, when that court finds that the
information is sufficiently relevant to public safety to outweigh
the importance of maintaining confidentiality of this article.
When the court orders the release of that information, the court
shall further order to what extent the applicant may provide for the release of the information to third parties. Information
concerning persons whose names are contained on the list of the
sexual offender registry 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 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. The prosecuting
attorney shall in cooperation with the state police conduct a
community notification program which shall include publication of
the offender's name and place of residence, 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 of any person who is required to register for life
under the terms of subdivision (2), 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), 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 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.
§61-8F-7. Information shall be released when person moves out
of state.
When a person who is required to register pursuant to the
provisions of this article notifies any law-enforcement official
or corrections official, that he or she is moving to another
state, the official shall notify law-enforcement officials where
the person indicates he or she shall reside of the information
provided by the person under the provisions of this article.
A person who is required to register pursuant to the
provisions of this article, who intends to move to another state
or country shall at least ten days prior to such move notify the
state police of his or her intent to move and of the location to
which he or she intends to move, or if that person is
incarcerated he or she shall notify correctional officials of his
or her intent to reside in some other state or country upon his
or her release, and of the location to which he or she intends to
move. Upon such notification, the state police shall notify law- enforcement officials of the jurisdiction where the person
indicates he or she intends to reside of the information provided
by the person under the provisions of this article.
§61-8F-8. Failure to register; 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 as required by this section 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
person changes residence and fails to register, such failure
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 as required, or any
person who has one or more prior convictions for qualifying
sexual offenses under this article and who fails to register or
has any conviction for a sexually violent offense and who fails
to register 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 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 gives false information concerning his
or her residence, or who knowingly fails to provide a change of address 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.
§61-8F-9. Registration of out-of-state offenders.
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 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.
§61-8F-10. Address verification.
The state police shall verify addresses of those persons
registered as sexually violent predators every ninety days and
all other registered persons once a year. The state police may
require registrants to periodically submit to new fingerprints
and photographs as part of the verification process. The method
of verification shall be in accordance with internal management
rules and regulations pertaining thereto promulgated by the
superintendent under authority of section twenty-five, article
two, chapter fifteen of this code.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to
any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this
section shall apply to an accessory before the fact or a
principal in the second degree who has been convicted as if he or
she were a principal in the first degree if, in the commission of
or in the attempted commission of the felony, only the principal
in the first degree used, presented or brandished a firearm.
(c) (1) The existence of any fact which would make any
person ineligible for probation under subsection (b) of this
section because of the commission or attempted commission of a
felony with the use, presentment or brandishing of a firearm
shall not be applicable unless such fact is clearly stated and
included in the indictment or presentment by which such person is
charged and is either: (i) Found by the court upon a plea of
guilty or nolo contendere; or (ii) found by the jury, if the
matter be tried before a jury, upon submitting to such jury a special interrogatory for such purpose; or (iii) found by the
court, if the matter be tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year
one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August of that year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in
any case submitted to such jury on or after the first day of
August of that year or to the requisite findings of the court
upon a plea of guilty or in any case tried without a jury:
Provided, That the state shall give notice in writing of its
intent to seek such finding by the jury or court, as the case may
be, which notice shall state with particularity the grounds upon
which such finding shall be sought as fully as such grounds are
otherwise required to be stated in an indictment, unless the
grounds therefor are alleged in the indictment or presentment
upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by
such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment; and
Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the
jury or the court.
(d) For the purpose of this section, the term "firearm"
shall mean any instrument which will, or is designed to, or may
readily be converted to, expel a projectile by the action of an
explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of,
or pleaded guilty to, a felony or misdemeanor under the
provisions of section twelve or twenty-four, article eight of
chapter sixty-one, or under the provisions of article eight-c or
eight-b, both of chapter sixty-one, all of this code, such person
shall only be eligible for probation after undergoing a physical,
mental and psychiatric study and diagnosis which shall include an
on-going treatment plan requiring active participation in sexual
abuse counseling at a mental health facility or through some
other approved program: Provided, That nothing disclosed by the
person during such study or diagnosis shall be made available to
any law-enforcement agency, or other party without that person's
consent, or admissible in any court of this state, unless such
information disclosed shall indicate the intention or plans of
the probationer to do harm to any person, animal, institution, or
property, in which case such information may be released only to
such persons as might be necessary for protection of the said
person, animal, institution, or property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or eight-d sections five
and six of article eight-d, chapter sixty-one of this code, or of section fourteen, article two, or of section sections twelve and
thirteen, article eight, all of chapter sixty-one of this code,
or of a felony violation involving a minor of sections six or
seven of article eight, chapter sixty-one of this code, or of a
similar provision in another jurisdiction shall be required to be
registered upon release on probation. Any person who has been
convicted of an attempt to commit any of the offenses set forth
in this subsection shall also be registered upon release on
probation.
(g) The probation officer shall within three days of release
of the offender, send written notice to the state police of the
release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(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 as defined in section two, article eight-f, chapter
sixty-one of this code, 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.
NOTE: The purpose of this bill is to bring the West
Virginia sex offender registration act into compliance with
federal requirements and to increase penalties for failure to
comply with the act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Sections two-a and two-b are new; therefore, strike-through
and underscoring have been omitted.