H. B. 4631


(By Delegates Yost and Moore)
[Introduced February 17, 2006; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §15-12-1a, §15-12-2a and §15-12-2b of the Code of West Virginia, 1931, as amended; 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, §2-11D-14, 62-11D-15, §62-11D-16, §62-11D-17, §62-11D-18, §62-11D-19 and §62-11D-20, all relating to 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 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; procedure on escape or disappearance of violent sexual offenders; notice of escape and recapture; and proposing of rules for legislative approval.

Be it enacted by the Legislature of West Virginia:
That §15-12-1a, §15-12-2a and §15-12-2b of the Code of West Virginia, 1931, as amended, be amended and reenacted; 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.
§15-12-2a. 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.
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, the first day of July, one thousand nine hundred ninety, 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 subsections (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.

(a) 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 department 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, nineteen 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 such 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; and (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 such time as: (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 remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible.
(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 that he or she 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, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
(ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
(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 such time as 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 such 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 such 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. 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 such release and annually thereafter until the person is unconditionally discharged. Review may occur in a shorter time or more frequently, if the court, in its discretion on its own motion, or on motion of the person, the secretary, or the prosecuting attorney so determines. The sole question to be determined by the court is whether the person shall continue to be conditionally released to a less restrictive alternative. The court in making its determination shall be aided by the periodic reports filed pursuant to subsection (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 Resources 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 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 such 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 such 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 such 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 establish a procedure for involuntary civil commitment of sexually violent predators. The bill provides that 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 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 be 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.

Article §62-11D is new, therefore strike-throughs and underscoring are omitted.