ENROLLED

H. B. 2409


(By Delegates Staton, Stemple,

Varner and Beane)



[Passed April 14, 2001; in effect ninety days from passage.]





AN ACT to amend and reenact sections two and five, article twelve, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the sex offender registry; clarifying use of information regarding the identity of victims; requiring registrants to provide information about their internet accounts and screen names; and excluding certain information from dissemination under certain circumstances.

Be it enacted by the Legislature of West Virginia:
That sections two and five, article twelve, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.
(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a statutory provision of another state, the United States code or the uniform code of military justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an act of the Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense, and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article.
(d) Persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or resides at the time of registration, the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of registration;
(5) A brief description of the crime or crimes for which the registrant was convicted;
(6) Fingerprints; and
(7) Information relating to any internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the internet.
(e) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed in subsection (b) of this section, including those persons who are continuing under some post- conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the commissioner of corrections, regional jail administrator, city or sheriff operating a jail, or secretary of the department of health and human services which releases the person, and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the state police within three days of receiving the information. The notice must include the information required by subsection (d) of this section.
(f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) 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 the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the state police whenever the state police obtain information that the person is subject to registration requirements.
(h) 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 is to be accessible through the internet. No information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released through the internet.
(i) For the purpose of this article, "sexually violent offense" means:
(1) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;
(2) Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction;
(3) Sexual assault of a spouse as set forth in the former provisions of section six, article eight-b, chapter sixty-one of this code which was repealed by an act of the Legislature during the two thousand legislative session, or of a similar provision in another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty-one of this code, or of a similar provision in another state, federal or military jurisdiction.
(j) For purposes of this article, the term "sexually motivated" means that one of the purposes for which a person committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent predator" means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction 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.
(l) For purposes of this article, 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.
(m) For purposes of this article, 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.
§15-12-5. 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 and any campus police department in the city and county where the registrant resides, is employed or attends school or a training facility;
(2) The county superintendent of schools where the registrant resides, is employed or attends school or a training facility;
(3) The child protective services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, is employed or attends school or a training facility;
(4) All community organizations or religious organizations which regularly provide services to youths in the county where the registrant resides, is employed or attends school or a training facility;
(5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides, is employed or attends school or a training facility; and
(6) The federal bureau of investigation (FBI).
(b) Information concerning persons whose names are contained in the sexual offender registry and who are not required to register for life is to be disseminated only in the following manner and shall not be subject to the requirements of the West Virginia freedom of information act, as set forth in chapter twenty-nine-b of this code:
(1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article, the state police shall notify the prosecuting attorney of the county in which the person resides, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the state police in conducting a community notification program which is to include publication of the offender's name, photograph, place of residence, employment and education or training, as well as information concerning the legal rights and obligations of both the offender and the community. Information relating to the victim of an offense requiring registration may not be released to the public except to the extent the prosecuting attorney and the state police consider it necessary to best educate the public as to the nature of sexual offenses: Provided, That no victim's name may be released in any public notification pursuant to this subsection. No information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released to the public with this notification program. The prosecuting attorney and state police may conduct a community notification program in the county of residence, employment or where a person is attending school or a training facility 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 to be 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. No information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released with this list. The method of publication and access to this list are to 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 is relevant to public safety and whether its relevance outweighs the importance of confidentiality. 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 may information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses be released.
(c) The state police may furnish information and documentation required in connection with the registration to authorized law-enforcement, campus police 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.