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.