- Committee -
SCS/SB 515 & 783 - This act provides for civil commitment of sexually violent predators. A sexually violent offense is: a) forcible rape, first degree statutory rape, forcible sodomy, first degree statutory sodomy, child molestation in the first degree when classified as a Class B felony, or sexual abuse when classified as a Class B felony; b) a felony offense comparable to a sexually violent offense or any federal or out-of-state conviction for what would be a sexually violent offense in this state; c) murder in the first or second degree, assault in the first or second degree, first or second degree assault of a child, first or second degree kidnapping, burglary in the first degree, residential burglary or unlawful imprisonment, if any of these acts has been determined beyond a reasonable doubt to have been sexually motivated; or d) an attempt, criminal solicitation or criminal conspiracy t commit any one of the felonies listed above.
A sexually violent predator is defined as any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality which makes the person likely to engage in predatory acts of sexual violence.
The agency with jurisdiction, which includes the Department of Mental Health or Department of Corrections, shall refer the name of a sexually violent predator to the Attorney General and to a multidisciplinary team. Notice shall be provided one hundred and eighty days before the person's anticipated release from confinement, or at any time prior to release of a person found not guilty of a sexual offense by reason of insanity, or a person who was committed as a criminal sexual psychopath. The notice shall include the person's name, anticipated future residence, offense history, and institutional treatment.
The Directors of the Department of Mental Health and the Department of Corrections shall jointly establish the multidisciplinary team to review the person's records and assess, within thirty days of receiving notice, whether the person meets the definition of a sexual predator. The team shall notify the Attorney General of its assessment.
The Attorney General shall appoint a five-member prosecutor's review committee, composed of a cross-section of prosecutors from urban and rural counties. The team shall review the person's records and shall assist the Attorney General in the determination of whether the person meets the definition of a sexual predator. The committee must make such a determination by a majority vote.
The Attorney General may file a petition within forty-five days after the receipt of the notice, alleging that the person is a sexual predator if such a determination has been made. The judge shall conduct a hearing within seventy-two hours to determine if probable cause exists to believe that the person is a sexual predator. At the probable cause hearing, the person has the right to be represented by counsel, to present evidence and cross-examine witnesses, and to review and copy all petitions and reports in the court file.
If a probable cause determination is made, the court shall direct that the person be transferred to an appropriate facility for evaluation within forty-five days. Within sixty days after completion of the examination, the court shall conduct a trial to determine beyond a reasonable doubt whether the person is a sexual predator. The person shall be entitled to representation, and counsel shall be appointed if the person is indigent. The person may also retain experts to perform an examination on his own behalf. Either party may demand a trial by jury. Any jury verdict must be unanimous. The determination may be appealed.
If the court or jury determines the person is a sexual predator, the person shall be committed to the custody of the Department of Mental Health in a secure facility for control, care and treatment until such time as the person's mental abnormality has changed so that the person is safe to be at large. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the confinement of such persons. The person's commitment must conform to constitutional requirements for care and treatment.
Each person committed shall have a yearly examination of his mental condition. A periodic report shall be provided to the court. If the Director of the Department of Mental Health determines that the person is not likely to engage in predatory acts if released, the Director shall authorize the person to petition the court for release. A committed person may also petition the court for release. The petition shall be served upon the Attorney General and the court. The court shall order a hearing within thirty days after receipt of the petition. The Attorney General shall have the right to conduct an examination of the person. The person shall have the same rights afforded at the probable cause hearing. The burden of proof is on the state to show beyond a reasonable doubt that the petitioner's mental abnormality remains so that the person is likely to commit a sexual offense if released.
The person may also petition the court for release without the Director's approval, which must be filed with a notice of waiver of rights and the annual report to the court. The court shall set a show cause hearing, at which the person has no right to be present but may be represented by counsel. If the court finds probable cause to believe the person is no longer likely to commit a sexual offense, a full hearing on the matter shall be ordered. The court shall deny a person's petition if the person had previously filed a petition for discharge without the Director's approval and the court determined that the petition was frivolous or denied the petition. Prior to any release, the Director of the Department of Mental Health shall provide written notice to any victim of the person's activities, or if deceased, to the victim's family.
JOAN GUMMELS