COMMITTEE SUBSTITUTE

FOR

H. B. 4039

(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]

(Originating in the Committee on the Judiciary)

[January 18, 2006]

A BILL to repeal §15-12-2a and §15-12-3a of the Code of West Virginia, 1931, as amended ; to amend and reenact §15-2C-1 of said code; to amend and reenact §15-12-2, §15-12-3, §15-12-4, §15-12-5, §15-12-8, §15-12-9 and §15-12-10 of said code; to amend said code by adding thereto two new sections, designated §15-12-6a and §15-12-11; to amend said code by adding thereto twenty-two new sections, designated §15-13-1, §15-13- 2, §15- 13- 3, §15-13- 3, §15-13-4, §15-13- 5, §15-13- 6, §15-13- 7, §15- 13- 8, §15-13- 9, §15-13- 10, §15-13- 11, §15-13- 12, §15-13- 13, §15-13- 14, §15-13- 15, §15-13- 16, §15-13- 17, §15-13- 18, §15-13- 19, §15-13- 20, §15-13- 21 and §15-13- 22 of said code ; to amend said code by adding thereto a new section, designated §18A-3- 12; to amend and reenact §17B-2-3 of said code; to amend and reenact §61-8B-3 and §61-8B-7; to amend and reenact §62-12-2 and §62-12-26 of said code; and to amend said code by adding thereto a new section, designated §62-12-27, all relating to the protection of the citizenry from sex offenders; providing for the submission of sex offender information to the central abuse registry; providing a definition for certain terms; providing for the release of sex offender information to the central abuse registry by the judiciary and agencies; providing for penalties for failure to properly register with the central abuse registry; creating new penalties for out-of- state sex offenders that fail to register; providing for verification of sex offender information by the central abuse registry; providing for penalties for assisting sex offenders evade registration; creating the sexually violent predator act; procedures for judicial determination; rights of parties and committed persons; procedures for conditional release to less restrictive alternative or unconditional release; duties and rule-making authority of Department of Health and Human Resources; procedures upon escape or disappearance; procedures for escorted leave; requiring sexually violent predators to be issued special coded driver's licenses or nondriver identification cards that identify the holder or owner as a sexually violent offender; increasing terms of incarceration for existing crimes; providing for supervised release requirements for sexually violent offenders; providing for electronic monitoring for sexually violent offenders on supervised release, probation and parole; and providing for professional educators, administrators, school service personnel, contractors and service providers to be checked against the central abuse registry.

Be it enacted by the Legislature of West Virginia:
That §15-12-2a and §15-12-3a of the Code of West Virginia, 1931, as amended, be repealed; that §15-2C-1 of said code be amended and reenacted; that §15-12-2, §15-12-3, §15-12-4, §15-12- 5, §15-12-8, §15-12-9 and §15-12-10 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §15-12-6a and §15-12-11; that said code be amended by adding thereto twenty-one new sections, designated §15- 13-1, §15-13- 2, §15-13- 3, §15-13- 3, §15-13-4, §15-13- 5, §15-13- 6, §15-13- 7, §15-13- 8, §15-13- 9, §15-13- 10, §15-13- 11, §15-13- 12, §15- 13- 13, §15-13- 14, §15-13- 15, §15-13- 16, §15-13- 17, §15-13- 18, §15- 13- 19, §15-13- 20, §15-13- 21 and §15-13- 22; that §17B-2-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18A-3-12; that §61-8B-3 and §61-8B-7 of said code be amended and reenacted; that §62-12-2, §62- 12-26 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §62-12-27, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-1. Definitions.
The following words when used in this article have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) "Central abuse registry" or "registry" means the registry created by this article which shall contain the names of individuals who have been convicted of a felony or a misdemeanor offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult or an adult receiving behavioral health services.
(b) "Child abuse and neglect" or "child abuse or neglect" means those terms as defined in section three, article one, chapter forty-nine of this code, and shall include any act with respect to a child which is a crime against the person pursuant to article two, chapter sixty-one of this code, any act which is unlawful pursuant to article eight-d of said chapter sixty-one, and any offense with respect to a child which is enumerated in section three of this article.
(c) "Abuse or neglect of an incapacitated adult" means "abuse," "neglect" and "incapacitated adult" as those terms are defined in section one, article six, chapter nine, and shall include any act with respect to an incapacitated adult which is a crime against the person pursuant to article two, chapter sixty-one of this code, and any offense with respect to an incapacitated adult which is enumerated in section three of this article.
(d) "Adult receiving behavioral health services" means a person over the age of eighteen years who is receiving any behavioral health service from a licensed behavioral health provider or any behavioral health provider whose services are paid for, in whole or in part, by medicaid or medicare.
(e) "Conviction" of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the merits, or entry of a plea of guilty or nolo contendere.
(f) "Residential care facility" means any facility where a child or an incapacitated adult or an adult receiving behavioral health services resides which is subject to registration, licensure or certification by the Department of Health and Human Resources, and shall include nursing homes, personal care homes, residential board and care homes, adult family care homes, group homes, legally unlicensed service providers, residential child care facilities, family based foster care homes, specialized family care homes and intermediate care facilities for the mentally retarded.
(g) "Misappropriation of property" means any act which is a crime against property under article three, chapter sixty-one of this code with respect to a child in a residential care facility or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a child or an incapacitated adult or an adult receiving behavioral health services who is a recipient of home care services.
(h) "Home care" or "home care services" means services provided to children or incapacitated adults or adults receiving behavioral health services in the home through a hospice provider, a community care provider, a home health agency, through the medicaid waiver program, or through any person when that service is reimbursable under the state medicaid program.
(I) "Requester" means the West Virginia Department of Education, any county school board that directly or indirectly through a school, contracts with a private entity for services that require the contractor to enter into the school when minor children are present, any residential care facility, any state licensed day care center, or any provider of home care services or an adult receiving behavioral health services providing to the central abuse registry the name of an individual and other information necessary to identify that individual, and either: (1) Certifying that the individual is being considered for employment by the requester or for a contractual relationship with the requester wherein the individual will provide services to a child or an incapacitated adult or an adult receiving behavioral health services for compensation; or (2) certifying that an allegation of abuse, neglect or misappropriation of property has been made against the individual.
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 register at the West Virginia State Police detachment in the county of his or her residence, in which he or she owns real property, place of employment, occupation, and school and/or training facility which he or she attends and, in doing so, 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: Provided, That a post office box shall not be provided in lieu of a physical residential address; 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;
(7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color, license plate number and vehicle identification number; and
(8) Information relating to any internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the internet; and
(9) Information related to any telephone or electronic paging device numbers that the registrant uses, including, but not limited to, residential, work and mobile telephone numbers.
(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, hereinafter referred to as a "qualifying offense", 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 Resources 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 business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status.
(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. Upon completion of the statement, the court shall provide a copy to the registry. 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 or telephone or electronic paging device numbers 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 persons' sexual gratification.
(k) For purposes of this article, the term "sexually violent predator" means a person who has been determined to be a sexually violent predator pursuant to article thirteen of this chapterconvicted 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.
(n) For the purposes of this article, the term "business days", means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-12-3. Change in registry information.
(a) When any person required to register under this article changes his or her residence, address, place of employment or occupation, vehicle information required by section two of this article, or school or training facility which he or she is attending, or motor vehicle, trailer or motor home information required by section two of this article, or when any of the other information required by this article changes, he or she shall, within ten business days, inform the West Virginia State Police of the changes 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.
(b) If a person who is required to register under the provisions of this article acquires real property within a county in this state, he or she must send written notice of the address of the property to the West Virginia State Police detachment in the county where the real property is located within ten days of acquiring the property.
§15-12-4. Duration.
(a) A person required to register under the terms of this article shall continue to comply with this section, except during ensuing periods of incarceration or confinement, until:
(1) Ten years have elapsed since the person was released from prison, jail or a mental health facility or ten years have elapsed since the person was placed on probation, parole or supervised or conditional release. The ten-year registration period shall not be reduced by the sex offender's release from probation, parole or supervised or conditional release; or
(2) For the life of that person if that person: (A) Has one or more prior convictions or has previously been found not guilty by reason of mental illness, mental retardation or addiction for any qualifying offense referred to in this article; or (B) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, and upon motion of the prosecuting attorney, the court finds by clear and convincing evidence, that the qualifying offense involved multiple victims or multiple violations of the qualifying offense; or (C) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense; or (D) has been determined pursuant to section two-a of this article thirteen of this chapter to be a sexually violent predator; or (E) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, involving a minor.
(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.
§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and state police; petition to circuit court.

(a) Within five business 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, owns real property, is employed or attends school or a training facility;
(2) The county superintendent of schools where the registrant resides, owns real property, 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, owns real property, 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, owns real property, 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, owns real property, 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 is not subject to the requirements of the West Virginia Freedom of Information Act, as set forth in chapter twenty-nine-b of this code, and may be disclosed and disseminated only as otherwise provided in this article and as follows:
(1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article thirteen of this chapter, the state police shall notify the prosecuting attorney of the county in which the person resides, owns real property, 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 or location of real property owned by the offender, 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 or telephone or electronic paging device numbers 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 or telephone or electronic paging device numbers 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 or owning real property 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 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.
§15-12-6a. Release of information to the Central Abuse Registry.
Upon the request of the entity maintaining the Central Abuse Registry, agencies in possession of records produced in conjunction with the investigation, prosecution, adjudication, incarceration, probation, parole, or pre-sentence review of a sex offender and/or any other records produced in conjunction with a sex offense shall provide those records to the entity maintaining the Central Abuse Registry.
§15-12-8. Failure to register or provide notice of registration changes; penalty.

(a) Except as provided in this section, any person required to register under this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information 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 or regional jail not more than one year, or both: Provided, That each Each time the a person has a change in any of the registration information as required by this article and knowingly fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense under this section.
(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 in any information as required by this article or any person who is required to register for life pursuant to subsection (2), subdivision (a), section four of this article and who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Except as provided in this section, any person required to register for ten years or less pursuant to subdivision (1), subsection (a), section four of this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information 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 confined in jail not more than one year, or both fined and imprisoned. Any person convicted of a second offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a third or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five years nor more than twenty-five years.
(c) Any person required to register as a sexual predator who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in any information 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, is guilty of a felony and shall be confined in a state correctional facility not less than five years nor more than twenty years. Any person required to register for life pursuant to this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a second or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five 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 fails to provide a change in information 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.Any person required to register pursuant to section nine of this article who is convicted of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person required to register pursuant to section nine of this article who is convicted of a second or subsequent offense of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five years.
(e) 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 fails to provide a change in information 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.
§ 15-12-9. 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, the 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 information required in subsection (d), section two of this article.
(b) Any person:
(1) Who resides in another state or federal or military jurisdiction;
(2) Who is employed, carries on a vocation, is a student in this state or is a visitor to this state for a period of more than fifteen continuous days; and
(3) Who is required by the state, federal or military jurisdiction in which he or she resides to register in that state, federal or military jurisdiction as a sex offender, or has been convicted of a violation in that state, federal or military jurisdiction that is similar to a violation in this article requiring registration as a sex offender in this state, shall register in this state and otherwise comply with the provisions of this article.
(c) Any person acquiring real property in this state or changing residence to this state from another state or federal or military jurisdiction who is required to register as a sex offender under the laws of that state or federal or military jurisdiction shall register as a sex offender in this state.
§15-12-10. 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 pertaining thereto promulgated by the superintendent under authority of section twenty-five, article two, chapter fifteen of this code. All registrants, including those for whom there has been no change in registration information since their initial registration or previous address verification, must respond to all verification inquiries or requests made by the State Police pursuant to this section.
§15-12-11. Additional penalties.
A person commits 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 jail not more than one year, or both fined and imprisoned, when he or she:
(1) Knows that a sexual offender required to register under this article is not complying, or has not complied, with the registration requirements of this article; and
(2) Intends to assist the sexual offender in eluding a law-enforcement agency seeking to find said sexual offender to question the sexual offender about, or to arrest the sexual offender for, his or her noncompliance with the requirements of this article; and withholds information from the law-enforcement agency about the sexual offender's non-compliance with requirements of this article while aware of the whereabouts of the sexual offender or provides information to the law-enforcement agency regarding the sexual offender that he or she knows to be false.
ARTICLE 13. SEXUALLY VIOLENT PREDATOR ACT.
§15-13-1. Legislative Findings.
The Legislature finds:
(1) That a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act, article five, chapter twenty-seven of the Code, which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under article five, chapter twenty-seven of the Code, sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior.
(2) That sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act, article five, chapter twenty-seven of the Code, is inadequate to address the risk to re-offend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement.
(3) That the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
§15-13-2 Definitions.
Unless the context clearly requires otherwise, the definitions in this section apply throughout this article:.
(1) "Department" means the Department of Health and Human Resources.
(2) "Escort" means a correctional officer or other person approved by the superintendent or the superintendent's designee to accompany a resident on a leave of absence and be in visual or auditory contact with the resident at all times .
(3) "Escorted leave" means a leave of absence from a facility housing persons detained or committed pursuant to this article under the continuous supervision of an escort.
(4) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement which satisfies the conditions set forth in section eleven of this article.
(5) "Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under section four of this article .
(6) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.
(7) "Predatory" means acts directed towards: (a) Strangers; (b) individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or (c) persons of casual acquaintance with whom no substantial personal relationship exists.
(8) "Recent overt act" means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.
(9) "Resident" means a person detained or committed pursuant to this article.
(10) "Risk potential activity" or "risk potential facility" means an activity or facility that provides a higher incidence of risk to the public from persons conditionally released from the special commitment center. Risk potential activities and facilities include: Public and private schools, school bus stops, licensed day care and licensed preschool facilities, public parks, publicly dedicated trails, sports fields, playgrounds, recreational and community centers, churches, synagogues, temples, mosques, public libraries, and public and private youth camps. For purposes of this article, "school bus stops" does not include bus stops established primarily for public transit.
(11) "Secretary" means the Secretary of the Department of Health and Human Services or the Secretary's designee.
(12) "Secure facility" means a residential facility for persons civilly confined under the provisions of this article that includes security measures sufficient to protect the community. Such facilities include total confinement facilities, and any residence used as a court-ordered placement under section eleven of this article.
(13) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.
(14) "Sexually violent offense" means an act that is defined in:
(a) any of the following provisions of chapter sixty-one of this code:
(i) 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;
(ii) article eight-c;
(iii) sections five and six, article eight-d;
(iv) section fourteen, article two; or
(v) sections six, seven, twelve and thirteen, article eight; (b) a felony offense that is comparable to a sexually violent offense as defined in subparagraph (a) of this paragraph, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection;
(c) any of the following provisions of chapter sixty-one of this code:
(i) section one, article two;
(ii) section nine, article two;
(iii) section ten, article two;
(iv) section fourteen, article two;
(v) section twenty-eight, article two;
(vi) section twenty-nine, article two; or
(vii) section eleven, article three,
if the act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this article, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in paragraph seventeen of this section; or
(d) an act that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in (a), (b), or (c) of this paragraph.
(15) "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.
(16) "Total confinement facility" means a secure facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include a special commitment center or any facility designated as a total confinement facility by the secretary.
§15-13-3. Notice to prosecuting attorney prior to release.
(a)(1) When it appears that a person may be a sexually violent predator, the agency with jurisdiction shall refer the person in writing to the prosecuting attorney of the county where that person was charged, three months prior to:
(i) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense;
(ii) The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;
(iii) Release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to section four, article six, chapter twenty- seven of the Code; or
(iv) Release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to section four, article six, chapter twenty-seven of the Code.
(2) The agency shall provide the prosecutor with all relevant information including, but not limited to, the following information:
(i) A complete copy of the institutional records compiled by the Division of Corrections relating to the person, and any such out-of-state Division of Corrections' records, if available;
(ii) All records relating to the psychological or psychiatric evaluation and/or treatment of the person;
(iii) A current record of all prior arrests and convictions, and full police case reports relating to those arrests and convictions; and
(iv) A current mental health evaluation or mental health records review.
(b) The agency with jurisdiction, its employees, and officials shall be immune from liability for any good-faith conduct under this section.
(c) As used in this section, "agency with jurisdiction" means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the Division of Corrections, the West Virginia Parole Board, the Regional Jail and Correctional Facility Authority and the Department.
§15-13-4. Sexually violent predator petition - Filing.
When it appears that:
(1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement;
(2) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement;
(3) a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is about to be released, or has been released pursuant to section four, article six, chapter twenty-seven of the Code;
(4) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, pursuant to section four, article six, chapter twenty-seven of the Code; or
(5) a person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act;
and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged may file a petition alleging that the person is a "sexually violent predator" and stating sufficient facts to support such allegation.
§15-13-5. Sexually violent predator petition - Probable cause hearing - Judicial determination - Transfer for evaluation.
(a) Upon the filing of a petition under section four of this article, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody.
(b) Within seventy-two hours after a person is taken into custody pursuant to subsection (a) of this section, the court shall provide the person with notice of, and an opportunity to appear in person, at a hearing to contest probable cause as to whether the person is a sexually violent predator. At this hearing, the court shall:
(1) verify the person's identity, and
(2) determine whether probable cause exists to believe that the person is a sexually violent predator.
At the probable cause hearing, the state may rely upon the petition and certification for determination of probable cause filed pursuant to section four of this article. The state may supplement this with additional documentary evidence or live testimony.
(c) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (1) to be represented by counsel; (2) to present evidence on his or her behalf; (3) to cross-examine witnesses who testify against him or her; and (4) to view and copy all petitions and reports in the court file.
(d) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the Department. In adopting such rules, the Department shall consult with the bureau for public health and the division of corrections. In no event shall the person be released from confinement prior to trial. A witness called by either party shall be permitted to testify by telephone.
§15-13-6. Trial - Rights of parties.
(a) Within forty-five days after the completion of any hearing held pursuant to section five of this article, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings under this article, any person subject to this article shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist him or her. The person shall be confined in a secure facility for the duration of the trial.
(b) Whenever any person is subjected to an examination under this article, he or she may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf.
(c) The person, the prosecuting attorney, or the judge shall have the right to demand that the trial be before a twelve-person jury. If no demand is made, the trial shall be before the court.
§15-13-7. Trial - Determination - Commitment procedures.
(a) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. In determining whether or not the person would be likely to engage in predatory acts of sexual violence if not confined in a secure facility, the fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent predator petition. When the determination is made by a jury, the verdict must be unanimous.
(1) If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated, the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.
(2) If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the Department for placement in a secure facility operated by the Department for control, care, and treatment until such time as: (i) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (ii) conditional release to a less restrictive alternative as set forth in section eleven of this article is in the best interest of the person and conditions can be imposed that would adequately protect the community.
(3) If the court or unanimous jury decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release.
(4) If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and set a retrial within forty-five days of the date of the mistrial unless the prosecuting attorney earlier moves to dismiss the petition. The retrial may be continued upon the request of either party accompanied by a showing of good cause, or by the court on its own motion in the due administration of justice provided that the respondent will not be substantially prejudiced. In no event may the person be released from confinement prior to retrial or dismissal of the case.
(b) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to section four, article six, chapter twenty- seven of the Code, and his or her commitment is sought pursuant to subsection (a) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under section four, article six, chapter twenty-seven of the Code that the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.
(c) The state shall comply with section three, article six-A, chapter twenty-seven of the Code while confining the person pursuant to this article, except that during all court proceedings the person shall be detained in a secure facility.
(d) A court has jurisdiction to order a less restrictive alternative placement only after a hearing ordered pursuant to section ten of this article following initial commitment under this section and in accord with the provisions of this article.
§15-13-8. Annual examinations of persons committed under article.
Each person committed under this article shall have a current examination of his or her mental condition made by the Department at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that would adequately protect the community. The Department shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration or certification in compliance with the requirements of section ten-a, article one, chapter thirty-nine of the Code and shall be prepared by a professionally qualified person as defined by rules adopted by the secretary. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person and his or her counsel. The committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person.
§15-13-9. Rights of persons committed.
(a) Any person subjected to restricted liberty as a sexually violent predator pursuant to this article shall not forfeit any legal right or suffer any legal disability as a consequence of any actions taken or orders made, other than as specifically provided in this article.
(b) Any person committed pursuant to this article has the right to adequate care and individualized treatment. The Department shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations made pursuant to this article. All such records and reports shall be made available upon request only to: The committed person, his or her attorney, the prosecuting attorney, the court, a protection and advocacy agency, or another expert or professional person who, upon proper showing, demonstrates a need for access to such records.
(c) At the time a person is taken into custody or transferred into a facility pursuant to a petition under this article, the person in charge of such facility or his or her designee shall take reasonable precautions to inventory and safeguard the personal property of the persons detained or transferred. A copy of the inventory, signed by the staff member making it, shall be given to the person detained and shall, in addition, be open to inspection to any responsible relative, subject to limitations, if any, specifically imposed by the detained person. For purposes of this subsection, "responsible relative" includes the guardian, conservator, attorney, spouse, parent, adult child, or adult brother or sister of the person. The facility shall not disclose the contents of the inventory to any other person without consent of the patient or order of the court.
(d) Nothing in this article prohibits a person presently committed from exercising a right presently available to him or her for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus.
§15-13-10. Petition for conditional release to less restrictive alternative or unconditional discharge - Procedures.
(a) If the secretary determines that the person's condition has so changed that either: (a) the person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge. The petition shall be filed with the court and served upon the prosecuting attorney responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a hearing.
(b)(1) Nothing contained in this article shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. The secretary shall provide the committed person with an annual written notice of the person's right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall file the notice and waiver form and the annual report with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
(2) The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting attorney or attorney general shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to section eight of this article. The committed person may present responsive affidavits or declarations to which the state may reply.
(3) If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that (A) the committed person continues to meet the definition of a sexually violent predator; or (B) release to a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
(4) If the court has not previously considered the issue of release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in subsection (a), section twelve of this article, the court shall consider whether release to a less restrictive alternative would be in the best interests of the person and conditions can be imposed that would adequately protect the community, without considering whether the person's condition has changed.
(c)(1) At the hearing resulting from subsection (a) or (b) of this section, the committed person shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting agency shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The committed person shall also have the right to a jury trial and the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment.
(2) If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof shall be upon the state to prove beyond a reasonable doubt that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible.
(3) If the issue at the hearing is whether the person should be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that conditional release to any proposed less restrictive alternative either: (i) Is not in the best interest of the committed person; or (ii) does not include conditions that would adequately protect the community. Evidence of the prior commitment trial and disposition is admissible.
(d)(1) Probable cause exists to believe that a person's condition has "so changed," under subsection (b) of this section, only when evidence exists, since the person's last commitment trial proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community.
(2) A new trial proceeding under subsection (c) of this section may be ordered, or held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding:
(i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
(ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
(3) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding under subsection (c) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
(e) The jurisdiction of the court over a person civilly committed pursuant to this article continues until such time as the person is unconditionally discharged.
§15-13-11. Conditional release to less restrictive alternative - Findings.
Before the court may enter an order directing conditional release to a less restrictive alternative, it must find the following:
(1) The person will be treated by a treatment provider who is qualified to provide such treatment in the state of West Virginia;
(2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, and the supervising community corrections;
(3) housing exists that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, and the supervising community corrections officer if the person leaves the housing to which he or she has been assigned without authorization;
(4) the person is willing to comply with the treatment provider and all requirements imposed by the treatment provider and by the court; and
(5) the person is willing to comply with supervision requirements imposed by the division of corrections.
§15-13-12. Conditional release to less restrictive alternative - Verdict.
(a) Upon the conclusion of the evidence in a hearing held pursuant to section ten of this article or through summary judgment proceedings prior to such a hearing, if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in section eleven of this article have been met, the court shall grant a motion by the state for a judgment as a matter of law on the issue of conditional release to a less restrictive alternative.
(b) Whenever the issue of conditional release to a less restrictive alternative is submitted to the jury, the court shall instruct the jury to return a verdict in substantially the following form: Has the state proved beyond a reasonable doubt that either: (a) The proposed less restrictive alternative is not in the best interests of respondent; or (b) does not include conditions that would adequately protect the community? Answer: Yes or No.
§15-13-13. Conditional release to less restrictive alternative - Judgment - Conditions - Annual review.
(a) If the court or jury determines that conditional release to a less restrictive alternative is in the best interest of the person and includes conditions that would adequately protect the community, and the court determines that the minimum conditions set forth in section eleven of this article and in this section are met, the court shall enter judgment and direct a conditional release.
(b) The court shall impose any additional conditions necessary to ensure compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the person's compliance with treatment and protect the community, then the person shall be remanded to the custody of the Department for control, care, and treatment in a secure facility as designated in subsection (a), section seven of this article.
(c) If the service provider designated by the court to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a person's placement in a less restrictive alternative is other than the Department or the division of corrections, then the service provider so designated must agree in writing to provide such treatment, monitoring, or supervision in accord with this section. Any person providing or agreeing to provide treatment, monitoring, or supervision services pursuant to this article may be compelled to testify and any privilege with regard to such person's testimony is deemed waived.
(d) Prior to authorizing any release to a less restrictive alternative, the court shall impose such conditions upon the person as are necessary to ensure the safety of the community. The court shall order the division of corrections to investigate the less restrictive alternative and recommend any additional conditions to the court. These conditions shall include, but are not limited to the following: Specification of residence, prohibition of contact with potential or past victims, prohibition of alcohol and other drug use, participation in a specific course of inpatient or outpatient treatment that may include monitoring by the use of polygraph and plethysmograph, supervision by a division of corrections community corrections officer, a requirement that the person remain within the state unless the person receives prior authorization by the court, and any other conditions that the court determines are in the best interest of the person or others. A copy of the conditions of release shall be given to the person and to any designated service providers.
(e) Any service provider designated to provide inpatient or outpatient treatment shall monthly, or as otherwise directed by the court, submit to the court, to the Department facility from which the person was released, to the prosecutor of the county in which the person was found to be a sexually violent predator, and to the supervising community corrections officer, a report stating whether the person is complying with the terms and conditions of the conditional release to a less restrictive alternative.
(f) Each person released to a less restrictive alternative shall have his or her case reviewed by the court that released him or her no later than one year after such release and annually thereafter until the person is unconditionally discharged. Review may occur in a shorter time or more frequently, if the court, in its discretion on its own motion, or on motion of the person, the secretary, or the prosecuting attorney so determines. The sole question to be determined by the court is whether the person shall continue to be conditionally released to a less restrictive alternative. The court in making its determination shall be aided by the periodic reports filed pursuant to subsection (e) of this section and the opinions of the secretary and other experts or professional persons.
§15-13-14. Conditional release to less restrictive alternative - Hearing on revocation or modification - Authority to apprehend conditionally released person.
(a) Any service provider submitting reports pursuant to subsection (e), section thirteen of this article, the supervising community corrections officer or the prosecuting attorney may petition the court, or the court on its own motion may schedule an immediate hearing, for the purpose of revoking or modifying the terms of the person's conditional release to a less restrictive alternative if the petitioner or the court believes the released person is not complying with the terms and conditions of his or her release or is in need of additional care, monitoring, supervision, or treatment.
(b) If the prosecuting attorney, the supervising community corrections officer, or the court, based upon information received by them, reasonably believes that a conditionally released person is not complying with the terms and conditions of his or her conditional release to a less restrictive alternative, the court or community corrections officer may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the person's apprehension. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the examination.
(c) The court, upon receiving notification of the person's apprehension, shall promptly schedule a hearing. The issue to be determined is whether the state has proven by a preponderance of the evidence that the conditionally released person did not comply with the terms and conditions of his or her release. Hearsay evidence is admissible if the court finds it otherwise reliable. At the hearing, the court shall determine whether the person shall continue to be conditionally released on the same or modified conditions or whether his or her conditional release shall be revoked and he or she shall be committed to total confinement, subject to release only in accordance with provisions of this article.
§15-13-15. Department of Health and Human Resources - Jurisdiction continues after criminal conviction - Exception.
A person subject to court order under the provisions of this article who is thereafter convicted of a criminal offense remains under the jurisdiction of the Department following: (1) Completion of the criminal sentence; or (2) release from confinement in a state or local correctional facility, and shall be returned to the custody of the Department.
This section does not apply to persons subject to a court order under the provisions of this article who are thereafter sentenced to life without the possibility of release.
§15-13-16. Release of information authorized.
In addition to any other information required to be released under this article, the Department is authorized, pursuant to section five, article twelve of this chapter, to release relevant information that is necessary to protect the public, concerning a specific sexually violent predator committed under this article.
§15-13-17. Notice of escape or disappearance.
In the event of an escape by a person committed under this article from a state institution or the disappearance of such a person while on conditional release, the superintendent or community corrections officer shall notify the following as appropriate: Local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons about information necessary for the public safety or to assist in the apprehension of the person.
§15-13-18. Notice of conditional release or unconditional discharge - Notice of escape and recapture.
(a) At the earliest possible date, and in no event later than thirty days before conditional release or unconditional discharge, except in the event of escape, the Department shall send written notice of conditional release, unconditional discharge, or escape, to the following:
(1) The chief of police of the city, if any, in which the person will reside or in which placement will be made under a less restrictive alternative;
(2) The sheriff of the county in which the person will reside or in which placement will be made under a less restrictive alternative; and
(3) The sheriff of the county where the person was last convicted of a sexually violent offense, if the Department does not know where the person will reside.
(b) The Department shall notify the State Police of the release of all sexually violent predators.
(c) The same notice as required by subsection (a) of this section shall be sent to the following if such notice has been requested in writing about a specific person found to be a sexually violent predator under this article:
(1) The victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. "Next of kin" as used in this section means a person's spouse, parents, siblings, and children;
(2) Any witnesses who testified against the person in his or her commitment trial; and
(3) Any person specified in writing by the prosecuting attorney.
Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the committed person.
(d) If a person committed as a sexually violent predator under this article escapes from a Department facility, the Department shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the committed person resided immediately before his or her commitment as a sexually violent predator, or immediately before his or her incarceration for his or her most recent offense. If previously requested, the Department shall also notify the witnesses and the victims of the sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. If the person is recaptured, the Department shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the Department learns of such recapture.
(e) If the victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.
(f) The Department shall send the notices required by this article to the last address provided to the Department by the requesting party. The requesting party shall furnish the Department with a current address.
(g) Nothing in this section shall impose any liability upon a chief of police of a city or sheriff of a county for failing to request in writing a notice as provided in subsection (a) of this section.
§15-13-19. Escorted leave - Conditions.
The superintendent of any facility housing persons detained or committed pursuant to this article may, subject to the approval of the secretary, grant escorted leaves of absence to residents confined in such institutions to:
(1) Go to the bedside of the resident's wife, husband, child, mother or father, or other member of the resident's immediate family who is seriously ill;
(2) Attend the funeral of a member of the resident's immediate family listed in subparagraph (1) of this section; and
(3) Receive necessary medical or dental care which is not available in the institution.
§15-13-20. Escorted leave - Notice.
A resident shall not be allowed to start a leave of absence under section nineteen of this article until the secretary, or the secretary's designee, has notified any county and city law enforcement agency having jurisdiction in the area of the resident's destination.
§15-13-21. Escorted leave - Rules.
(a) The secretary is authorized to adopt rules providing for the conditions under which residents will be granted leaves of absence and providing for safeguards to prevent escapes while on leaves of absence. Leaves of absence granted to residents under section nineteen of this article, however, shall not allow or permit any resident to go beyond the boundaries of this state.
(b) The secretary shall adopt rules requiring reimbursement of the state from the resident granted leave of absence, or the resident's family, for the actual costs incurred arising from any leave of absence granted under the authority of subparagraphs (1) and (2) of section nineteen of this article. No state funds shall be expended in connection with leaves of absence granted under subparagraphs (1) and (2) of section nineteen of this article unless the resident and the resident's immediate family are indigent and without resources sufficient to reimburse the state for the expenses of such leaves of absence.
§15-13-22. Rules.
The Secretary is hereby directed to propose rules and emergency rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code in accordance with the provisions of this section and for the oversight and operation of the program established pursuant to this article. Such rules shall include provisions for an annual inspection of a special commitment center and requirements for treatment plans and the retention of records.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSE.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

 §17B-2-3. What persons may not be licensed; exceptions.
(a) The Division may not issue any license hereunder:
(1) To any person who is under the age of eighteen years: Provided, That the Division may issue a junior driver's license or on or after the first day of January, two thousand and one, a graduated driver's license, to a person under the age of eighteen years in accordance with the provisions of section three-a of this article;
(2) To any person, as a Class A, B, C or D driver, who is under the age of eighteen years;
(3) To any person, whose license has been suspended or revoked, during the suspension or revocation;
(4) To any person who is an habitual drunkard or is addicted to the use of narcotic drugs;
(5) To any person, who has previously been adjudged to be afflicted with or suffering from any mental disability or disease and who has not at the time of application been restored to competency by judicial decree or released from a hospital for the mentally incompetent upon the certificate of the superintendent of the institution that the person is competent, and not then unless the Commissioner is satisfied that the person is competent to operate a motor vehicle with a sufficient degree of care for the safety of persons or property;
(6) To any person who is required by this chapter to take an examination, unless the person has successfully passed the examination;
(7) To any person when the Commissioner has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare.
(b) The Division may not issue a license or nondriver identification card to any person determined to be a sexually violent predator pursuant to article thirteen, chapter fifteen of this code or any person convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code, unless he or she obtains a driver's license or nondriver identification card coded by the Commissioner to denote the licensee is a sexually violent offender as follows:
(1) At determination. -- If an applicant is determined to be a sexually violent predator or is convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code, after the effective date of this section, the court shall take possession of his or her driver's license or nondriver identification card and shall direct the person to report to the Division for a replacement driver's license or nondriver identification card coded by the Commissioner to denote the licensee is a sexually violent offender. The court shall forward to the Division all licenses or nondriver identification cards that it receives, along with a copy of the judgment order.
(2) Current Sexually Violent Offenders. -- If a holder or an applicant is determined to be a sexually violent predator or is convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code prior to the effective date of this section, he or she shall surrender his or her driver's license or nondriver identification card to the Division for a replacement driver's license or nondriver identification card coded by the Commissioner to denote the licensee is a sexually violent offender.
The Division may charge a fee of five dollars for a replacement license or nondriver identification card. Upon showing proof that a person is no longer determined to be a sexually violent predator or is removed from the sexual offender registry as a person convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code, the Division shall issue a driver's license or nondriver identification card without the sexually violent offender code printed upon the license at no charge. No person issued a special operator's license or nondriver identification card under the provisions of this section may alter or deface the license to obscure the special marking identifying the owner as a sexually violent offender.
Any person failing to comply with the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars and confined in jail for not more than one year.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-12. Mandatory central abuse registry checks of school service personnel, contractors and service providers.

(a) Prior to permitting professional educators, administrators, school service personnel, contractors or service providers direct contact with students or access to school grounds when students are present, the county school board shall check against the central abuse registry, established pursuant to article two-c, chapter fifteen of this code, and the United States Department of Justice National Sex Offender Public Registry, or its successor, the name and address of such school service personnel, contractors or service providers. For the purposes of this section, contractor and service provider shall include any vendor, individual or entity under contract with a county board.
(b) As of the effective date of this section, professional educators, administrators, school service personnel, contractors or service providers already permitted direct contact with students or access to school grounds when students are present shall have their names and addresses checked against the central abuse registry within a reasonable time from the effective date of this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(I) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen twenty-five nor more than thirty-fivesixty years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteentwenty-five nor more than thirty-fivesixty years.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree when:
(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or
(2) Such person subjects another person to sexual contact who is physically helpless; or
(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section shall be is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than one year two years nor more than five ten years, or fined not more than ten thousand dollars and imprisoned in the penitentiary a state correctional facility not less than one year two years nor more than five ten years.
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-a, article twelvepursuant to article thirteen, chapter fifteen 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.
§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

(a) Notwithstanding any provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter mayshall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That a defendant convicted after the effective date of this provision of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life and shall be further prohibited from:
(1) establishing a residence or accepting employment within two thousand feet of a school or child care facility or within one thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted;
(2) establishing a residence or any other living accommodation in a household in which a child under sixteen resides if the person has been convicted of a sexually violent offense involving a child who is sixteen years old or less unless the person is the parent, grandparent or stepparent of the child: Provided, That the person was the stepparent of the child prior to being convicted of a sexual violent offense, and
(i) the person's parental rights have not been terminated;
(ii) the child is not a victim of a sexually violent offense perpetrated by the person; and
(iii) the court determines that the person convicted of the sexually violent offense is not likely to cause harm to the child or children with whom such person will reside.
The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.
(b) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by the probation office of the sentencing court or by the community corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.
(c) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine, article twelve, chapter sixty-one of this code: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems such to no longer be appropriate or necessary and makes express findings in support thereof: Provided however, That a defendant convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code and sentenced to supervised release for life pursuant to subsection (a) of this section, shall be subject to electronic monitoring, as defined in section twenty-seven, article twelve of this chapter, for the duration of their supervised release.
(d) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed fifty dollars per month. Said fee may be modified periodically based upon the defendant's ability to pay.
(e) Modification of conditions or revocation. -- The court may:
(1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
(3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release: Provided, That no person may serve a period of incarceration for a violation of supervised release which exceeds the maximum statutory period of confinement for the offense of conviction underlying the period of supervised release;
(4) Order the defendant to remain at his place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.
(f) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.
(g) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.
(h) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (f) of this section, a further term of supervised release extends beyond the expiration of the term of adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.
§62-12-27. Mandatory electronic monitoring of sexually violent offenders on probation and parole; penalty for tampering with or destroying electronic monitoring device.

(a) A defendant convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code shall be subject, as a condition of his or her subsequent probation or parole, to electronic monitoring for the duration of said probation or parole.
(b) If probation or parole for a defendant convicted of a sexually violent offense as defined under subsection (i), section two, article twelve, chapter fifteen of this code is revoked by the court pursuant to this article and the court imposes a subsequent term of probation or parole following the revocation, the court must order electronic monitoring as a condition of any subsequent term of probation or parole.
(c) For the purposes of this section, "electronic monitoring" means the use of an electronic signaling device or apparatus approved by the Division of Corrections which is capable of recording or transmitting information regarding the offender's presence or nonpresence in a designated area. The Division of Corrections must select a system that actively monitors and identifies the defendant's location and timely reports or records the defendant's presence near or within a crime scene or a prohibited area or the defendant's departure from specified geographic limitations.
(d) A person who intentionally alters, tampers with, damages or destroys any electronic monitoring equipment, absent court or commission order, unless such person is the owner of the equipment, or an agent of the owner, performing ordinary maintenance and repair, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than three years nor more than ten years.