Senate Bill No. 449

(By Senators Sprouse, Buckalew, Kessler, Kimble, Sharpe and Ross)

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[Introduced February 10, 1998; referred to the Committee on the Judiciary.]
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A BILL to amend article eight-b, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nineteen, relating to "The Sexual Predator Act of 1998"; short title; requiring that sexual offenders who pose a threat, are deemed mentally abnormal and appear likely to commit new crimes, as concluded by a judge or jury, shall be detained in a secure mental health facility beyond their release date; psychiatric and psychological testing to be performed before release to determine likelihood of future criminal sexual activity; prosecuting attorney's duty; court proceeding; option of offender to elect to have jury of six decide if clear and convincing evidence exists that he or she will likely commit future sexual crimes; order for further detainment; and semiannual review by psychologist or psychiatrist to determine if likelihood continues to exist that offender will commit further sexual crimes.

Be it enacted by the Legislature of West Virginia:
That article eight-b, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section nineteen, to read as follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-19. Short title; incarceration of dangerous sexual offenders beyond originally imposed sentence; psychiatric and psychological testing mandated prior to release; duty of prosecuting attorney; court proceeding; offender's option for jury; order of further detainment; and, semiannual review.
(a) This section shall be designated "The Sexual Predator Act of 1998."
(b) It shall be required of any person convicted of and incarcerated for a sexual offense involving the sexual touching or sexual penetration of another person, to submit to a psychological and psychiatric examination. The examination shall be arranged by the department of corrections, for the purpose of determining whether the offender is afflicted with an abnormal mental condition and whether there is a likelihood that the offender is predisposed to commit further sexual crimes in the event of release from incarceration. The examination shall employ standard and appropriate psychiatric and psychological testing and evaluative techniques and shall be administered no less than six months before any convicted person is eligible for release. The results of the examination shall be reduced to a written report and shall be forwarded to the particular county prosecuting attorney's office responsible for the prosecution of the offender, at least three months before the scheduled release date. The report shall include specific findings and recommendations, and the clinical observations upon which they are based, as to whether an abnormal mental condition exists and whether there exists a likelihood that the offender will commit future criminal sexual acts if released from incarceration.
(c) It shall be the duty of the prosecuting attorney to file a petition with the circuit court prior to the release date of any person convicted for any sexual offense involving the sexual touching or sexual penetration of any other person, upon receiving a report as required under subsection (b) of this section, that reaches a medical conclusion based on a reasonable probability, that an offender will commit further sexual crimes against others. The court, thereafter, shall hold an expedited proceeding in order to determine whether clear and convincing evidence exists that the offender will commit further sexual offenses. The offender shall be entitled to counsel and shall be afforded the opportunity to present expert testimony from any qualified physician. The offender shall further be entitled to elect, in lieu of a bench trial, a jury trial of six persons to determine, by clear and convincing evidence, whether there exists a likelihood that the offender will commit further sexual offenses if released from incarceration. A verdict concluding there is such a likelihood shall require unanimous concurrence: Provided, That, in the event a judicial determination or jury verdict cannot plausibly be reached until after an offender's release date, the court shall order the detainment of the offender in a secure mental health facility pending the judicial determination or jury verdict.
(d) Upon a finding that an offender will likely commit further sexual criminal acts, the court shall order the detainment of the sexual offender to a secure mental health facility. The order of detainment shall include a provision that the offender is required to receive treatment and counseling for any mental affliction believed to present a likelihood that he or she will engage in future criminal sexual activity: Provided, That in the event a duly qualified and licensed psychiatrist considers the affliction not to be susceptible to treatment or counseling and so states to the court in writing the order of detainment may be modified to the extent the court may omit any requirement that counseling and treatment be imposed.
(e) The commissioner of the department of corrections shall be required to conduct a semiannual review of any offender further detained under the provisions of this section to determine if his or her mental condition no longer evidences a likelihood that he or she may engage in future sexual criminal acts. The review shall be conducted by a qualified psychiatrist or clinical psychologist who shall issue a report within fourteen days of the review. The report shall contain a specific recommendation and the clinical and other observations upon which same are based concerning whether or not the offender's mental or physical condition continues to present a likelihood that future sexual criminal acts will be committed. The report shall be forthwith forwarded to the appropriate prosecuting attorney's office and to the appropriate circuit court judge. In the event the report recommends that the offender does not present a likelihood of committing future sexual criminal acts, the circuit court shall forthwith release the offender from further detainment. In the event the report recommends that there still exists a likelihood that future sexual criminal acts will be committed, the offender will continue to remain detained, but shall continue to be subject to semiannual review as herein specified: Provided, That in the event of a recommendation that there continues to exist a likelihood that the offender will commit further criminal sexual acts the offender, at his or her own cost and initiative, may contest the recommendation by petitioning the court. Thereafter, the psychiatrist or psychologist who issued the recommendation shall be subject to cross-examination. The offender shall, additionally, be entitled to produce medical witnesses in contravention to the recommendation and to testify on his or her own behalf.







NOTE: The purpose of this bill is to create "The Sexual Predator Act of 1998." The bill requires that sexual offenders who present a likelihood of committing future criminal sexual acts be detained in a secure mental health facility after their release date from incarceration. The bill provides a framework in which the offender is evaluated by qualified physicians before release, and in the event is found to present a likelihood of committing further criminal sexual acts, the prosecutor petitions the court to detain the offender beyond the release date in a secure mental health facility. The offender is entitled to contest the recommendation with legal counsel and by calling his or her own expert witnesses. The offender is further given the election of a jury trial of six persons. The state's burden of proof is "clear and convincing." In the event an offender is detained under the bill's provisions, the state is required to conduct a semiannual review of his or her mental condition to determine if circumstances have changed resulting in less than a likelihood that future criminal sexual acts will be committed.

This section is new; therefore, strike-throughs and underscoring have been omitted.