ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 158
(By Senators Tomblin, Mr. President, and Buckalew,
By Request of the Executive)
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[Passed March 14, 1998; in effect ninety days from passage.]
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AN ACT 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 three new sections, designated
sections one-a, two-a and two-b; 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; legislative intent;
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;
establishment of sex offender registration advisory board;
requiring registration within ten days of change in address; expansion of the duration certain persons must register;
notification distribution; creation of disclosure
exemptions; criminal 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 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 three new sections, designated sections
one-a, two-a and two-b; 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 sections twelve and thirteen, article eight of this
chapter, or of a felony violation involving a minor of section
six or seven, article eight, chapter sixty-one of this code, 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,
probation, home detention, work release or any other release from
incarceration, the commissioner of corrections, regional jail
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 subsection (a) of this section 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. The information
required to be made public by the state police by 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) 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) 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" 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.
§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 an
appropriate facility within this state designated by the court
after consultation with the director of the division of health.
(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) There is hereby created within the department of
military affairs and public safety a sex offender registration
advisory board consisting of a minimum of five members appointed
by the secretary of the department of military affairs and public
safety. At least two of the members shall be experts in the
field of the behavior and treatment of sexual offenders, and each
shall be a physician, psychologist or social worker in the employ of this state appointed by the secretary in consultation with the
director of the division of health. The remaining members shall
be victims rights advocates and representatives of law- enforcement agencies. Members of the board shall be reimbursed
their reasonable expenses pursuant to the rules promulgated by
the department of administration for the reimbursement of
expenses of state officials and employees, and shall receive no
other compensation for their services. The board shall utilize
the staff of the division or office within the department of
military affairs and public safety designated by the secretary
thereof in carrying out its duties and responsibilities as set
forth in this article.
(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 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.
(a) 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.
(b) A person whose conviction is overturned for the offense
which required them to register under this article shall, 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;
(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) 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), subsection (a), 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), subsection (a), 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.
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 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.
(a) 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.
(b) Any person:
(1) Who resides in another state;
(2) Who is employed, carries on a vocation or is a student
in this state; and
(3) Who is required by the state in which he or she resides
to register in that state under provisions of the law of that
state that are similar to the provisions of this article, shall
register in this state and otherwise comply with the provisions
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,
chapter sixty-one of this code, or under the provisions of
article eight-c or eight-b 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 sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen,
article eight, chapter sixty-one of this code, or of a felony
violation involving a minor of section six or seven, 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.