ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 158
(By Senators Tomblin, Mr. President, and Buckalew,
By Request of the Executive)
____________
[Originating in the Committee on the
Judiciary;
reported January 28, 1998.]
____________
A BILL to amend article eight-f, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto two new sections, designated
sections one-a and two-a; to amend and reenact sections two,
three, four, five, seven, eight, nine and ten of said
article; and to amend and reenact section two, article
twelve, chapter sixty-two of said code, all relating to the
registration of sex offenders; stating the intent of the
Legislature; 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; establishment of a verification process; and
eligibility for probation.
Be it enacted by the Legislature of West Virginia:
That article eight-f, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections
one-a and two-a; that sections two, three, four, five, seven,
eight, nine and ten of said article be amended and reenacted; 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-1a. Intent.
It is the intent of this article to provide a law- enforcement tool to protect the public from child molesters and
violent sexual offenders by registration of persons who have
demonstrated by their criminal conduct that they may constitute
a continuing threat to the public safety.
§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, article eight-d of this chapter, or of section fourteen, article
two, or of section thirteen twelve, article eight of this
chapter, or of a felony violation of section six or seven,
article eight, chapter sixty-one of this code, involving a minor,
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
commissioner of corrections, regional jail supervisor 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.
(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. The information
required to be made public by the state police under subdivision
(2), subsection (b), section five of this article shall be
accessible through the internet.
(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 a person who has been 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.
(h) A person is defined as having a mental abnormality if
the person has a disorder congenital or acquired condition
affecting emotional or volitional capacity that makes predisposes the person likely to engage in predatory sexually violent
offenses and 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. A person
required to register as a sexually violent predator under the
sexual offender registration laws of another state or of the
federal or military jurisdiction of the United States, who moves
into this state shall be presumed to be a sexually violent
predator and be required to register as such in this state,
unless granted relief from such determination through procedures
specified in section two-a of this article.
§61-8F-2a. Determination by court of sexually violent predator.
Determination of whether a person is a sexually violent
predator, as defined in section two-g of this article, shall be
made by the circuit court in which the person resides or to which
the person will be released for residence. The court shall hear
the matter as a civil case upon petition prepared by the prosecuting attorney alleging that a person is a sexually violent
predator as defined in this section. Prior to a hearing in the
matter, the offender's case shall be examined by at least two
experts in the field of sexual behavior who may be psychiatrists
or licensed psychologists and who shall either jointly or
individually present the court with a report on whether the
offender suffers from a mental abnormality or personality
disorder qualifying him or her for inclusion as a sexual sexually
violent predator under this article. In addition, the prosecutor
and the attorney for the accused may introduce such other
witnesses, including representatives of local law enforcement and
crime victims or victim's advocates as may be required for a
determination of the case. Upon conclusion, the court shall
determine by a preponderance of the evidence whether a person is
a sexually violent predator, and shall enter an order stating its
determination. The clerk of the court shall forward a copy of
the order to the state police.
§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 rules and regulations
promulgated under authority of 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 him or her to
register under this article shall be permitted to petition the
court for removal of their his or her name 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.
(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 sexual 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) The prosecuting attorney of a county may petition the
circuit court for an order requiring the state police to release
information concerning other persons residing in that county who
are required to register under section two of this article. The
circuit court may order release of the information where a
preponderance of the evidence demonstrates that public disclosure
of such information is in the interest of public safety.
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 preemployment
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 address or
city, county or other locality 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
address or city, county or other locality 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 willfully 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 confined in the county or
regional jail not more than one year, or both fined and
imprisoned confined: 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 willfully fails to
register or has any conviction for a sexually violent offense and
who willfully fails to register is guilty of a felony and, upon
conviction thereof, shall be confined in a state penal facility
for not less than one year nor more than ten years.
(c) Any person required to register as a sexually violent
predator as defined by section two of this article, who willfully
fails to register or knowingly fails to 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 confined
in a state correctional facility not less than two years nor more
than ten years, and for a second or subsequent offense, be
confined 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 willfully 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 or of any other
sanction short of confinement in jail or prison 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 compact 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 chapter twenty-nine-a 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,
chapter sixty-one, or under the provisions of article eight-c or
eight-b, both of said chapter, 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, article eight-d, chapter sixty-one of this code, or of
section fourteen, article two, or of section thirteen twelve,
article eight, all of chapter sixty-one of this code, or of a
felony violation of section six or seven, article eight, chapter
sixty-one of this code, involving a minor, 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.