Senate Bill No. 430

(By Senators Dempsey, Unger and Jenkins)

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[Introduced January 30, 2006; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §15-12-1a, §15-12-2 , §15-12-2a, §15-12-2b, §15-12-5 and §15-12-8 of the Code of West Virginia, 1931, as amended; to amend and reenact §61-2-14 of said code; to amend and reenact §61-8-6, §61-8-7 and §61-8-12 of said code; to amend and reenact §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8, §61-8B-9 and §61-8B-10 of said code; to amend and reenact §61-8C-2 and §61-8C-3 of said code; to amend and reenact §61-8D-5 and §61-8D-6 of said code; to amend said code by adding thereto a new article, designated §61-8F-1, §61-8F-2 and §61-8F-3; and to amend said code by adding thereto a new article, designated §62-11D-1, §62-11D-2, §62-11D-3, §62-11D-4, §62-11D-5, §62-11D-6, §62-11D-7, §62-11D-8, §62-11D-9, §62-11D-10, §62-11D-11, §62-11D-12, §62-11D-13, §62-11D-14, §62-11D-15, §62-11D-16, §62-11D-17, §62-11D-18, §62-11D-19 and §62-11D-20, all relating to registration of sex offenders generally; listing certain legislative findings; identifying sexually violent predators; increasing prison terms of persons found guilty of violating sex offender registration requirements; providing for supervised electronic monitoring upon release; increasing certain fines and penalties for perpetrators of sex offenses; requiring notice to residents within one thousand feet of the residence of a registered sex offender; establishing a rebuttable presumption that release on bond of certain sex offenders would not protect the community; providing for mandatory supervised probation; establishing a procedure for committing sexually violent predators; setting forth certain findings; requiring notice to prosecuting attorney of proposed release of sexually violent predator; providing for the filing of a commitment petition for a sexually violent predator; providing for a probable cause hearing on the petition; setting forth certain rights of the parties; requiring the filing of a petition for conditional release; setting forth procedures for determining unconditional discharge of sexually violent predator; providing for hearing on least restrictive alternative; conditional release to a less restrictive setting; providing for a global positioning system monitoring requirement for release to less restrictive community setting; providing for the apprehension of persons placed in less restrictive alternatives; hearing and revocation of placement; setting forth certain responsibilities of the Department of Health and Human Resources; approval of community service personnel by Department of Health and Human Resources; providing for the release of certain information; establishing a procedure on escape or disappearance of violent sexual offenders; notice of escape and recapture; and providing for the proposing of rules for legislative approval.

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

ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-1a. Intent and findings.
(a) It is the intent of this article to assist law-enforcement agencies' efforts to protect the public from sex offenders by requiring sex offenders to register with the State Police detachment in the county where he or she shall reside and by making certain information about sex offenders available to the public as provided in this article. It is not the intent of the Legislature that the information be used to inflict retribution or additional punishment on any person convicted of any offense requiring registration under this article. This article is intended to be regulatory in nature and not penal.
(b) The Legislature finds and declares that there is a compelling and necessary public interest that the public have information concerning persons convicted of sexual offenses in order to allow members of the public to adequately protect themselves and their children from these persons.
(c) The Legislature also finds and declares that persons required to register as sex offenders pursuant to this article have a reduced expectation of privacy because of the state's interest in public safety.
(d) The Legislature finds 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 provisions of this 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, sexually violent predators generally have personality disorders and mental abnormalities which are not amenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior. The Legislature further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure, is inadequate to address the risk to reoffend 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. The Legislature further finds 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.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.
(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a statutory provision of another state, the United States code or the uniform code of military justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article.
(d) Persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or resides at the time of registration, the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of registration;
(5) A brief description of the crime or crimes for which the registrant was convicted;
(6) Fingerprints;
(7) Information related to any motor vehicle owned or regularly operated by a registrant; 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.
(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) A sexually violent predator must report in person each year during the month of the sexually violent predator's birthday and during the sixth month following the sexually violent predator's birth month to the nearest State Police office of the county in which he or she resides or is otherwise located to reregister. The State Police office may determine the appropriate times and days for reporting by the sexually violent predator, which shall be consistent with the reporting requirements of this paragraph.
(h) Reregistration shall include any changes to the following information:
(1) Name; social security number; age; race; sex; date of birth; height; weight; hair and eye color; address of any permanent residence and address of any current temporary residence, within the state or out-of-state, including a rural route address and a post-office box; date and place of any employment; vehicle make, model, color, and license tag number; fingerprints; and photograph. A post-office box may not be provided in lieu of a physical residential address;
(2) If the sexually violent predator is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the sexually violent predator shall also provide to the department the name, address, and county of each institution, including each campus attended, and the sexually violent predator's enrollment or employment status; and
(3) If the sexually violent predator's place of residence is a motor vehicle, trailer, mobile home, or manufactured home, the sexually violent predator shall also provide the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. If the sexually violent predator's place of residence is a vessel, live-aboard vessel, or houseboat, the sexually violent predator shall also provide the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.
(i) The State Police office shall, within two business days, electronically submit all information provided by the sexually violent predator to the department in a manner prescribed by the department.
(g) (j) 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. A sexually violent predator must maintain registration with the State Police for the duration of his or her life, unless the sexually violent predator has received a full pardon or has had a conviction set aside in a post-conviction proceeding for any offense that met the criteria for the sexually violent predator designation.
(h) (k) The State Police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the State Police by subdivision (2), subsection (b), section five of this article is to be accessible through the internet. No information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released through the internet.
(i) (l) 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) (m) For purposes of this article, the term "sexually motivated" means that one of the purposes for which a person committed the crime was for any person's sexual gratification.
(k) (n) For purposes of this article, the term "sexually violent predator" means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.
(l) (o) 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) (p) 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) (q) 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.
(r) Notwithstanding any other provision of this code to the contrary, a person required to register under the provisions of this section may not reside within one thousand feet of a school, or childcare facility or be in the presence of a minor unless the parent, guardian or other adult is present. Any person, violating the provisions of this subsection, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than two years nor more than ten years.
§15-12-2a. Court determination of sexually violent predator.
(a) The circuit court that has sentenced a person for the commission of a sexually violent offense or that has entered a judgment of acquittal of a charge of committing a sexually violent offense in which the defendant has been found not guilty by reason of mental illness, mental retardation or addiction shall make a determination whether:
(1) A person is a sexually violent predator; or
(2) A person is not a sexually violent predator.
(b) A hearing to make a determination as provided in subsection (a) of this section is a summary proceeding, triable before the court without a jury.
(c) A proceeding seeking to establish that a person is a sexually violent predator upon conviction or finding of not guilty by reason of mental illness, mental retardation or addiction is initiated by the filing of a written pleading by the prosecuting attorney. The pleading shall describe the record of the judgment of the court on the person's conviction or finding of not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and shall set forth a short and plain statement of the prosecutor's claim that the person suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.
(d) Prior to making a determination pursuant to the provisions of this section, the sentencing court may order a psychiatric or other clinical examination and, after examination, may further order a period of observation in an appropriate facility within this state designated by the court after consultation with the Director of the Division of Health.
(e) Prior to making a determination pursuant to the provisions of this section, the sentencing court shall request and receive a report by the board established pursuant to section two-b of this article. The report shall set forth the findings and recommendation of the board on the issue of whether the person is a sexually violent predator.
(f) At a hearing to determine whether a person is a sexually violent predator, the person shall be present and shall have the right to be represented by counsel, introduce evidence and cross-examine witnesses. The offender shall have access to a summary of the medical evidence to be presented by the state. The offender shall have the right to an examination by an independent expert of his or her choice and testimony from the expert as a medical witness on his or her behalf. At the termination of the hearing the court shall make a finding of fact upon a preponderance of the evidence as to whether the person is a sexually violent predator.
(g) If a person is determined by the circuit court to be a sexually violent predator, the clerk of the court shall forward a copy of the order to the State Police in the manner promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(h) Notwithstanding any other provision of this code to the contrary, no person determined to be a sexually violent predator under the provisions of this section may be released from confinement until a commitment hearing is held under the provisions of article eleven-d, chapter sixty-two of this code.
§15-12-2b. Creation of sex offender registration advisory board.
(a) There is hereby created within the Department of Military Affairs and Public Safety a sex offender registration advisory board consisting of a minimum of five members appointed by the Secretary of the Department of Military Affairs and Public Safety. At least two of the members shall be experts in the field of the behavior and treatment of sexual offenders, and each shall be a physician, psychologist or social worker in the employ of this state appointed by the secretary in consultation with the Director of the Division of Health. The remaining members shall be victims rights advocates and representatives of law-enforcement agencies. Members of the board shall be reimbursed their reasonable expenses pursuant to the rules promulgated by the Department of Administration for the reimbursement of expenses of state officials and employees and shall receive no other compensation for their services. The board shall utilize the staff of the division or office within the Department of Military Affairs and public safety designated by the secretary thereof in carrying out its duties and responsibilities as set forth in this article.
(b) The board shall assist the circuit courts of this state in determining whether persons convicted of sexually violent offenses are sexually violent predators at sentencing: Provided, That the provisions of article eleven-d, chapter sixty-two shall govern the procedure for determining, prior to release to the community, whether an incarcerated or committed person is a sexually violent predator for the purposes of committing that person under the provisions of article eleven-d, chapter sixty-two.
§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, is employed or attends school or a training facility;
(2) The county superintendent of schools where the registrant resides, is employed or attends school or a training facility;
(3) The child protective services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, is employed or attends school or a training facility;
(4) All community organizations or religious organizations which regularly provide services to youths in the county where the registrant resides, is employed or attends school or a training facility;
(5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides, is employed or attends school or a training facility; and
(6) The Federal Bureau of Investigation (FBI); and
(7) A notification statement to every person residing within one thousand feet of the registrant's residence. The notice must provide sufficient information to place each resident on notice that a registered sex offender is residing withing one thousand feet of his or her residence.

(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, the State Police shall notify the prosecuting attorney of the county in which the person resides, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the State Police in conducting a community notification program which is to include publication of the offender's name, photograph, place of residence, employment and education or training, as well as information concerning the legal rights and obligations of both the offender and the community. Information relating to the victim of an offense requiring registration may not be released to the public except to the extent the prosecuting attorney and the State Police consider it necessary to best educate the public as to the nature of sexual offenses: Provided, That no victim's name may be released in any public notification pursuant to this subsection. No information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released to the public with this notification program. The prosecuting attorney and State Police may conduct a community notification program in the county of residence, employment or where a person is attending school or a training facility of any person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article. Community notification may be repeated when determined to be appropriate by the prosecuting attorney;
(2) The State Police shall maintain and make available to the public at least quarterly the list of all persons who are required to register for life according to the terms of subdivision (2), subsection (a), section four of this article. No information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses may be released with this list. The method of publication and access to this list are to be determined by the superintendent; and
(3) A resident of a county may petition the circuit court for an order requiring the State Police to release information about persons residing in that county who are required to register under section two of this article. The court shall determine whether information contained on the list is relevant to public safety and whether its relevance outweighs the importance of confidentiality. If the court orders information to be released, it may further order limitations upon secondary dissemination by the resident seeking the information. In no event may information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses be released.
(c) The State Police may furnish information and documentation required in connection with the registration to authorized law enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the records will be used solely for law-enforcement-related purposes. The State Police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting preemployment checks.
(d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith.
§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 time the person has a change in any of the registration information as required by this article and fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense.
(b) Any person required to register under this article who is convicted of a second or subsequent offense of failing to register or provide a change 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 five years nor more than five fifteen years and upon release from incarceration shall be placed on supervised electronic monitoring pursuant to section four, article eleven-b, chapter sixty-two of this code for not less than 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 five years nor more than ten fifteen years and upon release from incarceration shall be placed on supervised electronic monitoring pursuant to section four, article eleven-b, chapter sixty-two of this code for not less than five 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 twenty-five years and upon release from incarceration shall be placed on supervised electronic monitoring pursuant to section four, article eleven-b, chapter sixty-two of this code for not less than ten 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14. Abduction of person; kidnapping or concealing child; penalties.

(a) Any person who takes away another person, or detains another person against such the person's will, with intent to marry or defile the person, or to cause the person to be married or defiled by another person; or takes away a child under the age of sixteen years from any person having lawful charge of such the child, for the purpose of prostitution or concubinage, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary a state correctional facility not less than three nor more than ten years.
(b) Any person, other than the father or mother, who illegally, or for any unlawful, improper or immoral purpose other than the purposes stated in subsection (a) of this section or section fourteen-a or fourteen-c of this article, seizes, take or secretes a child under sixteen years of age, from the person or persons having lawful charge of such the child, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary a state correctional facility not less than one nor more than ten years.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-6. Detention of person in place of prostitution; penalty.

Whoever shall by any means keep, hold, detain or restrain any person in a house of prostitution or other place where prostitution is practiced or allowed; or whoever shall, directly or indirectly, keep, hold, detain or restrain, or attempt to keep, hold, detain or restrain, in any house of prostitution or other place where prostitution is practiced or allowed, any person by any means, for the purpose of compelling such the person, directly or indirectly, to pay, liquidate or cancel any debt, dues or obligations incurred or said to have been incurred by such the person shall be guilty of a felony and, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred nor more than five hundred dollars, shall be punished by imprisonment in a correctional facility for not less than two nor more than six years and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary a state correctional facility for not less than one four nor more than three eight years: Provided, That in any offense under this section where the person so kept, held, detained or restrained is a minor, any person violating the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary a state correctional facility not less than two five years nor more than five ten years or fined not more than five ten thousand dollars, or both.
§61-8-7. Procuring for house of prostitution; penalty; venue; competency as witness; marriage no defense.

Any person who shall procure procures an inmate for a house of prostitution, or who, by promises, threats, violence, or by any device or scheme, shall cause, induce, persuade or encourage causes, induces, persuades or encourages a person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a person; or any person who, shall, by promises, threats, violence, or by any device or scheme cause, induce, persuade or encourage causes, induces, persuades or encourages an inmate of a house of prostitution to remain therein as such inmate; or any person who shall, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure procures any person to become an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into or leave this state for the purpose of prostitution, or who shall procure procures any person to become an inmate of a house of ill fame within this state or to come into or leave this state for the purpose of prostitution; or shall receive or give or agree receives or gives or agrees to receive or give any money or thing of value for procuring or attempting to procure any person to become an inmate of a house of ill fame within this state, or to come into or leave this state for the purpose of prostitution, shall be is guilty of pandering, a felon offense, and, upon a first conviction for an offense under this section, shall be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred nor more than five hundred dollars be punished by imprisonment in a state correctional facility for a period of not less than one nor more than five years, and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary a state correctional facility for a period of not less than one two nor more than five ten years: Provided, That where the inmate referred to in this section is a minor, any person violating the provisions of this section shall be is guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary a state correctional facility not less than two years five nor more than five ten years or fined not more than five ten thousand dollars, or both.
It shall not be is not a defense to prosecution for any of the acts prohibited in this section that any part of such the act or acts shall have been were committed outside of this state, and the offense shall in such case be deemed and alleged to have been committed and the offender tried and punished in any county in which the prostitution was intended to be practiced, or in which the offense was consummated, or any overt act in furtherance of the offense was committed.
Any such person shall be a competent witness in any prosecution under this section to testify for or against the accused as to any transaction, or as to conversation with the accused, or by the accused with another person or persons in his or her presence, notwithstanding his or her having married the accused before or after the violation of any of the provisions of this section, whether called as a witness during the existence of the marriage or after its dissolution. The act or state of marriage shall not be is not a defense to any violation of this section.
§61-8-12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive father or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or daughter;
(6) "Grandfather" means the father of a person's father or mother;
(7) "Grandmother" means the mother of a person's father or mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party;
(14) "Sister" means the daughter of a person's father or mother;
(15) "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or mother.
(b) A person is guilty of incest when such person engages in sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than five ten years nor more than fifteen thirty years, or fined not less than five hundred one thousand dollars nor more than five ten thousand dollars and imprisoned in the penitentiary a state correctional facility not less than five ten years nor more than fifteen thirty years.
(d) In addition to any penalty provided under this section and any restitution which may be ordered by the court under article eleven-a of this chapter, the court may order any person convicted under the provisions of this section where the victim is a minor to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the victim, the need for which results from the act or acts for which the person is convicted, whether or not the victim is considered to have sustained bodily injury.
(e) In any case where a person is convicted of an offense described herein against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of said that article.

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-five fifty years, or fined not less than one two thousand dollars nor more than ten twenty thousand dollars and imprisoned in a state correctional facility not less than fifteen twenty-five nor more than thirty-five fifty years.
§61-8B-4. Sexual assault in the second degree.
(a) A person is guilty of sexual assault in the second degree when the:
(1) Such Person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such Person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than ten twenty nor more than twenty-five forty years, or fined not less than one two thousand dollars nor more than ten twenty thousand dollars and imprisoned in the penitentiary a state correctional facility not less than ten twenty nor more than twenty-five forty years.
§61-8B-5. Sexual assault in the third degree.
(a) A person is guilty of sexual assault in the third degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
(2) The person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant and is not married to the defendant.
(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 one year two years nor more than five ten years , or fined not more than ten twenty thousand dollars and imprisoned in a state correctional facility not less than one year two years nor more than five ten 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 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 twenty thousand dollars and imprisoned in the penitentiary a state correctional facility not less than one year two years nor more than five ten years.
§61-8B-8. Sexual abuse in the second degree.
(a) A person is guilty of sexual abuse in the second degree when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.
(b) Any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail not more than for twelve months, or fined not more than five hundred one thousand dollars and confined in the county jail not more than for twelve months.
§61-8B-9. Sexual abuse in the third degree.
(a) A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent, when such lack of consent is due to the victim's incapacity to consent by reason of being less than sixteen years old.
(b) In any prosecution under this section it is a defense that:
(1) The defendant was less than sixteen years old; or
(2) The defendant was less than four years older than the victim.
(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail not more less than ninety days nor more than six months, or fined not more than five hundred one thousand dollars and confined in the county jail not more less than ninety days nor more than six months.
§61-8B-10. Imposition of sexual intercourse or sexual intrusion on incarcerated persons; penalties.

(a) Any person employed by the Division of Corrections, any person working at a correctional facility managed by the Commissioner of Corrections pursuant to contract or as an employee of a state agency, any person working at a correctional facility managed by the Division of Juvenile Services pursuant to contract or as an employee of a state agency, any person employed by a county jail or by the Regional Jail and Correctional Facility Authority or any person working at a facility managed by the Regional Jail and Correctional Facility authority or a county jail who engages in sexual intercourse or sexual intrusion with a person who is incarcerated in this state is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one two nor more than five ten years or fined not more than five ten thousand dollars.
(b) Any person employed by the Division of Corrections as a parole officer or by the West Virginia Supreme Court of Appeals as an adult or juvenile probation officer who engages in sexual intercourse or sexual intrusion with a person said parole officer or probation officer is charged as part of his or her employment with supervising, is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility under the control of the Commissioner of Corrections for not less than one two nor more than five ten years or fined not more than five ten thousand dollars, or both.

ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.
§61-8C-2. Use of minors in filming sexually explicit conduct prohibited; penalty.

(a) Any person who causes or knowingly permits, uses, persuades, induces, entices or coerces such minor to engage in or uses such minor to do or assist in any sexually explicit conduct shall be guilty of a felony when such person has knowledge that any such act is being photographed or filmed. Upon conviction thereof, such person shall be fined not more than ten twenty thousand dollars, or imprisoned in the penitentiary a state correctional facility not more less than ten years, or both fined and imprisoned.
(b) Any person who photographs or films such a minor engaging in any sexually explicit conduct shall be guilty of a felony and, upon conviction thereof, shall be fined not more than ten twenty thousand dollars, or imprisoned in the penitentiary a state correctional facility not more less than ten years, or both fined and imprisoned.
(c) Any parent, legal guardian or person having custody and control of a minor, who photographs or films such minor in any sexually explicit conduct or causes or knowingly permits, uses, persuades, induces, entices or coerces such minor child to engage in or assist in any sexually explicit act shall be guilty of a felony when such person has knowledge that any such act may be photographed or filmed. Upon conviction thereof, such person shall be fined not more less than ten thousand dollars, or imprisoned in the penitentiary a state correctional facility not more less than ten years, or both fined and imprisoned.
§61-8C-3. Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct prohibited; penalty.

Any person who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses or displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not more less than two years, and fined not more less than two thousand dollars.
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child; parent, guardian, custodian or person in a position of trust allowing sexual abuse to be inflicted upon a child; displaying of sex organs by a parent, guardian, or custodian; penalties.

(a) In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such the conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten twenty nor more than twenty forty years, or fined not less than five hundred one thousand nor more than five ten thousand dollars and imprisoned in the penitentiary a state correctional facility not less than ten twenty years nor more than twenty forty years.
(b) If any parent, guardian, custodian or other person in a position of trust in relation to the child shall knowingly procure another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is less than sixteen years of age, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than five ten years nor more than fifteen thirty years, or fined not less than one two thousand nor more than ten twenty thousand dollars and imprisoned in the penitentiary a state correctional facility not less than five ten years nor more than fifteen thirty years.
(c) If any parent, guardian, custodian or other person in a position of trust in relation to the child shall knowingly procure another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is sixteen years of age or older, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be 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.
(d) The provisions of this section shall not apply to a custodian or person in a position of trust whose age exceeds the age of the child by less than four two years.
§61-8D-6. Sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a child engaged in sexually explicit conduct; penalty.

Any parent, guardian or custodian who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses, displays or transports, any material visually portraying a child under his or her care, custody or control engaged in any sexually explicit conduct, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not more less than two years, and fined not less than four eight hundred dollars nor more than four eight thousand dollars.
ARTICLE 8F. SPECIAL SEXUAL OFFENSE PROVISIONS.
§61-8F-1. Bail for Repeat Sexual Offenders.
(a) Notwithstanding the provisions of section one, article one-c, chapter sixty-two of this code or any provisions of this code to the contrary, in determining bond and other conditions of release, a rebuttable presumption that no conditions of release on bond would assure the safety of the community or any person therein shall arise if the state shows by a preponderance of the evidence that both:
(1) The individual is charged with an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or sections three-a, five or six of article eight-d of this chapter, or an offense upon a child determined by the court to be sexually motivated in nature; and either
(2) The person is currently registered as a sexual offender as provided in section two, article twelve, chapter fifteen of this code;
(3) The person has previously been convicted of an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or sections three-a, five or six of article eight-d of this chapter, or has been so convicted under any law of the United States or any other state for an offense which has the same elements as any offense described in this section; or
(4) The person has previously been declared a sexually violent predator as provided in section two-a, article twelve, chapter fifteen of this code or has been similarly found to be under any law of the United States or any other state.
(b) Notwithstanding any provisions of this code to the contrary, any person charged with an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or sections three-a, five or six of article eight-d of this chapter shall be subject to supervised electronic monitoring as provided for in section four, article eleven-b, chapter sixty-two as a condition for release on bond.
§61-8F-2. Requirement for supervised probation following
release.

In addition to any conditions of probation or release imposed by a court, any person convicted for an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or section three-a, five or six of article eight-d of this chapter shall be subject to a mandatory five year supervised probation upon release from incarceration or parole, the terms of which shall include the following:
(1) Mandatory participation in a sexual offender treatment and counseling program approved by the chief probation officer of the county in which the individual resides and/or is being supervised;
(2) Quarterly certification to the individual's probation officer of successful attendance and participation in the sexual offender program;
(3) Mandatory supervised electronic monitoring if the individual has been found to be sexually violent predator as provided in section two-a, article twelve, chapter fifteen of this code; and
(4) Prohibition from employment or voluntary work in which the function of the employment or voluntary work places the individual in a position of trust with a child under the age of eighteen years.
§61-8F-3. Penalties for subsequent sexual offenses.
Notwithstanding the provisions of section eighteen, article eleven of this chapter or any other provisions of this code to the contrary, when any person is convicted of an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or sections three-a, five or six of article eight-d of this chapter, or an offense upon a child determined by the court to be sexually motivated in nature, and it is determined, as provided in section nineteen of this article, that such person had been before convicted in the state of an offense in violation of section twelve of article eight; article eight-a; article eight-b; article eight-c; or section three-a, five or six of article eight-d of this chapter or has been so convicted under any law of the United States or any other state for an offense which has the same elements as any offense described in this section, the person shall be punished by confinement in a state correctional facility for life and is not eligible for parole.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 11D. SEXUALLY VIOLENT PREDATOR COMMITMENT ACT.
§62-11D-1. 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) "Health care facility" means any hospital, hospice care center, licensed or certified health care facility or health maintenance organization or other licensed facility designated by the secretary for the purposes of this article as a health care facility.
(3) "Health care practitioner" means an individual or firm licensed or certified to engage actively in a regulated health profession.
(4) "Health care services" means those services provided by licensed health care professionals.
(5) "Health profession" means those health professions licensed under the provisions of this code to provide health care services.
(6) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.
(7) "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 sexual predatory acts if released unconditionally from detention. The likely to engage in predatory acts of sexual violence finding must be shown by evidence of a recent overt act if the person is not confined at the time the petition is filed.
(8) "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 which make the person a menace to the health and safety of others.
(9) "Predatory" means an act or series of actions directed toward others for the primary purpose of making them victims of sexual violence.
(10) "Recent overt act" means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of harm in the mind of an objective person with knowledge of the history and mental condition of the person engaging in the act.
(11) "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, public and private youth camps, and others identified by the department. For purposes of this article, "school bus stops" do not include bus stops established primarily for public transit.
(12) "Secretary" means the Secretary of Health and Human Resources or the secretary's designee.
(13) "Secure facility" means a residential facility for persons civilly confined under the provisions of this chapter that includes security measures sufficient to protect the community. These facilities include total confinement facilities, secure community transition facilities, and any secured residence used as a court-ordered placement.
(14) "Secure community transition facility" means a residential facility for persons civilly committed and conditionally released to a less restrictive alternative under this article. A secure community transition facility has supervision and security, and either provides or ensures the provision of sex offender treatment services. Secure community transition facilities include but are not limited to a facility established pursuant to this article and any community-based facility established under this article and operated by the secretary or under contract with the secretary.
(15) "Sexually violent offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in section two, article twelve, chapter fifteen of this code, 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; (b) an act of murder in the first or second degree, assault in the first or second degree, assault of a child in the first or second degree, kidnapping in the first or second degree, burglary in the first degree, residential burglary, or unlawful imprisonment, which act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this chapter, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined; or (c) an act as described that is an attempt to commit a crime set forth in subsection (a) or (b) of this section.
(16) "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.
(17) "Total confinement facility" means a secure facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include the special commitment center and any similar facility designated as a total confinement facility by the Secretary of Health and Human Resources.
§62-11D-2. Notice to prosecuting attorney prior to release.
When it appears that a person may meet the criteria of 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:
(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense;
(2) The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;
(3) Release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial; or
(4) Release of a person who has been found not guilty by reason of insanity of a sexually violent offense.
The agency with jurisdiction shall provide the prosecuting attorney 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 out-of-state Division of Corrections' records, if available;
(ii) A complete copy, if applicable, of any file compiled by the parole board relating to the person;
(iii) All records relating to the psychological or psychiatric evaluation and treatment of the person;
(iv) A current record of all prior arrests and convictions, and full police case reports relating to those arrests and convictions; and
(v) A current mental health evaluation or mental health records review.
(2) This section applies to acts committed before, on, or after the first day of July, one thousand nine hundred ninety.
(3) The agency with jurisdiction, their employees, and officials are immune from liability for any good-faith conduct under this section.
(4) 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 Regional Jail Authority, the parole board, and the Department of Health and Human Resources.
§62-11D-3. Sexually violent predator petition.

When it appears that: (1) A person who, at any time previously, has been convicted of a sexually violent offense and is about to be released from total confinement on, before, or after the first day of July two thousand five; (2) a person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement on, before, or after the first day of July two thousand five; (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 on, before, or after the first day of July, two thousand five; (4) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, or has been released on, before, or after the first day of July, two thousand five; 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 the allegation.
§62-11D-4. Sexually violent predator petition; probable cause hearing; judicial determination; transfer for evaluation.

(1) Upon the filing of a petition, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the determination is made, the judge shall direct that the person be taken into custody.
(2) Within seventy-two hours after a person is taken into custody pursuant to subsection (1) 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 (a) verify the person's identity, and (b) 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. The state may supplement this with additional documentary evidence or live testimony.
(3) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (a) To be represented by counsel; (b) to present evidence on his or her behalf; (c) to cross-examine witnesses who testify against him or her; (d) to view and copy all petitions and reports in the court file.
(4) 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 an examination pursuant to rules proposed by the Secretary of the Department of Health and Human Resources. The Secretary of the Department of Health and Human Resources is hereby directed to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this section. In adopting rules, the secretary shall consult with the Division of Corrections, the Supreme Court of Appeals and the parole board. In no event may the person be released from confinement prior to trial. A witness called by either party may testify by telephone.
§62-11D-5. Trial; rights of parties.
(1) Within forty-five days after the completion of any hearing held, 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 being determined a violent sexual predator prior to release under 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.
(2) Any person subjected to an examination for determination as a violent sexual predator prior to release under this article, 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, the examiner shall be permitted to have reasonable access to the person for the purpose of 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.
(3) The person, the prosecuting attorney or the judge 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.
§62-11D-6. Trial; determination; commitment procedures.
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.
If, on the date that the petition is filed, the person is living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person 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.
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 of Health and Human Resources for placement in a secure facility operated by the department for control, care, and treatment until: (a) The person's condition has so changed that 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 would adequately protect the community.
§62-11D-7. Annual examinations of persons committed under chapter.
Each person committed under the provisions of this article shall have a current examination of his or her mental condition made by the Department of Health and Human Resources 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 of Health and Human Resources shall file this periodic report on the status of each person committed under this article with the court committing the person. The report shall be certified and shall be prepared by a professionally qualified person as defined by rules proposed by the secretary. A copy of the report shall be served on the prosecuting attorney 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 the expert or professional person shall have access to all records concerning the person.
§62-11D-8. Rights of persons committed.
(1) 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.
(2) Any person committed has the right to adequate care and individualized treatment. The Department of Health and Human Resources shall maintain 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 of the person. All records and reports shall be made available upon request only to: The committed person; his or her attorney; the prosecuting attorney; the court; or, another expert or professional person who, upon proper showing, demonstrates a need for access to the records.
(3) At the time a person is taken into custody or transferred into a facility pursuant to a petition, the professional person in charge of the facility or his or her designee shall take reasonable precautions to inventory and safeguard the personal property of the person 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 or representative, subject to limitations, if any, specifically imposed by the detained person. For purposes of this subsection, "responsible relative or representative" 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 the consent of the committed person or by order of the court.
(4) Nothing in this article prohibits a person presently committed from exercising a right available to him or her for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus.
(5) No indigent person may be conditionally released or unconditionally discharged under this article without suitable clothing, and the secretary shall furnish the person with money as may be required for persons without funds who are released from correctional institutions. As funds are available, the secretary may provide payment to an indigent person conditionally released.
§62-11D-9. Petition for conditional release to less restrictive alternative or unconditional discharge; procedures.

(1) 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 agency 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.
(2)(a) 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.
(b) 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 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. The committed person may present responsive affidavits or declarations to which the state may reply.
(c) If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is 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.
(d) 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 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.
(3)(a) At the hearing resulting from subsection (1) or (2) 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 attorney 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.
(b) 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 continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible.
(c) 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.
(4)(a) Probable cause exists to believe that a person's condition has "so changed," under subsection (2) 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 which 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.
(b) A new trial proceeding under subsection (3) 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, including 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.
(c) 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 (3) 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.
(5) The jurisdiction of the court over a person civilly committed pursuant to this article continues until the person is unconditionally discharged.
§62-11D-10. 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 the treatment in this state; (2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for the treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, the probation officer, and the director of a special commitment center; (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, the probation officer, and the director of a special commitment center 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, the Department of Health and Human Resources and the parole board.
§62-11D-11. Conditional release to less restrictive alternative; verdict.

(1) Upon the conclusion of the evidence in a hearing held pursuant to section nine of this article or through summary judgment proceedings prior to the 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 ten 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.
(2) 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.
§62-11D-12. Conditional release to less restrictive alternative; judgment; conditions; annual review.

(1) 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 ten of this article and in this section are met, the court shall enter judgment and direct a conditional release.
(2) 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 of Health and Human Resources for control, care, and treatment in a secure facility.
(3) 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 of Health and Human Resources or the Division of Corrections, then the service provider so designated must agree in writing to provide 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 the person's testimony is deemed waived.
(4) Prior to authorizing any release to a less restrictive alternative, the court shall impose conditions upon the person as are necessary to ensure the safety of the community. One condition that shall always be ordered by the court is that the person be required to wear a monitoring device as designated by the State Police to allow the State Police to monitor the movement of the person twenty four hours a day through a global positioning system device. If the person refuses to wear the monitoring device, or agrees to wear it and then removes it or disables the device, he or she shall be subject to the provisions of section thirteen of this article regarding arrest, revocation and modification of conditional release. The court shall order the Division of Corrections and the Department of Health and Human Resources 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.
(5) 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 of Health and Human Resources 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 probation officer, a report stating whether the person is complying with the terms and conditions of the conditional release to a less restrictive alternative.
(6) 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 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 (5) of this section and the opinions of the secretary and other experts or professional persons.
§62-11D-13. Conditional release to less restrictive alternative; hearing on revocation or modification; authority to apprehend conditionally released person.

(1) Any service provider submitting reports pursuant to this article, the probation officer, the parole 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.
(2) If the prosecuting attorney, the probation officer, parole 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, prosecuting attorney, probation officer or parole officer may order that the conditionally released person be apprehended and taken into custody until 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.
(3) 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.
§62-11D-14. Department of Health and Human Resources; duties; reimbursement.

The Department of Health and Human Resources shall be responsible for all costs relating to the evaluation and treatment of persons committed to their custody whether in a secure facility or under a less restrictive alternative under any provision of this article.
§62-11D-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.
§62-11D-16. Secretary of Health and Human Services to approve personnel and facilities.

Notwithstanding any other provision of this code to the contrary, the Secretary of the Department of Health and Human Resources shall determine the qualifications, character, suitability, and competency requirements for employment or engagement at a community facility provided for in this article. Information submitted to the department by the facility shall include a criminal history records check for all employees of the facility.
§62-11D-17. Release of information authorized.
In addition to any other information required to be released under article twelve, chapter fifteen of this code, the department is authorized, pursuant to release relevant information that is necessary to protect the public, concerning a specific sexually violent predator committed under this article.
§62-11D-18. 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 a person while on conditional release, the superintendent or probation or parole 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.
§62-11D-19. Notice of conditional release or unconditional discharge; notice of escape and recapture.
(1) 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 of Health and Human Resources shall send written notice of conditional release, unconditional discharge, or escape, to the following:
(a) 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;
(b) The sheriff of the county in which the person will reside or in which placement will be made under a less restrictive alternative; and
(c) 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.
The department shall notify the State Police of the release of all sexually violent predators and that information shall be placed in the West Virginia crime information center for dissemination to all law enforcement.
(2) The same notice as required by subsection (1) of this section shall be sent to the following if the notice has been requested in writing about a specific person found to be a sexually violent predator under this chapter:
(a) 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;
(b) Any witnesses who testified against the person in his or her commitment trial; and
(c) 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.
(3) If a person committed as a sexually violent predator under this article escapes from a Department of Health and Human Resources designated 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 the recapture.
(4) 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.
(5) The Department of Health and Human Resources shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address.
(6) 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 (1) of this section.
§62-11D-20. Rule making.
The Secretary of the Department of Health and Human Resources is hereby directed to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article relating to the citing of facilities, required community involvement, public hearings, restrictions on facilities and staff, protection of the public and compliance with federal laws, state and federal court decisions relating to the treatment and confinement of civilly committed violent sexual offenders.

NOTE: The purpose of this bill is to increase penalties for sex offenses; increase penalties for failing to register as a sex offender; provide notice to residents within one thousand feet of the residence of a convicted sex offender; establish a rebuttable presumption that release on bond of certain sex offenders would not protect the community; and provide for mandatory supervised probation. The bill also provides for a procedure for involuntary civil commitment of sexually violent predators. Under the bill, before a sexually violent predator is released from confinement, the prosecuting attorney for the county in which the sexually violent predator was sentenced must be notified. The prosecuting attorney may then petition the court for a commitment of the sexually violent person to a secure facility. The bill sets up safeguards to protect the rights of persons accused of being a sexually violent predator and provides for the placement of the sexually violent predator determined to be less dangerous in less restrictive community settings. The bill provides that no sexually violent predator may be released to the community unless he or she agrees to wear a device that is monitored by a GPS system within the State Police. The Department of Health and Human Resources is responsible for providing secure facilities for persons committed as sexually violent predators. Under the bill, a sexually violent predator may he committed for his or her life if he or she does not show improvement as determined by a court.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Articles 61-8F and §62-11D are new, therefore strike-throughs and underscoring are omitted.