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PAG LIN
1 1 Section 1. NEW SECTION. 229A.1 LEGISLATIVE FINDINGS.
1 2 The general assembly finds that a small but extremely
1 3 dangerous group of sexually violent predators exists which is
1 4 made up of persons who do not have a mental disease or defect
1 5 that renders them appropriate for involuntary treatment
1 6 pursuant to the treatment provisions for mentally ill persons
1 7 under chapter 229, since that chapter is intended to provide
1 8 short-term treatment to persons with serious mental disorders
1 9 and then return them to the community. In contrast to persons
1 10 appropriate for civil commitment under chapter 229, sexually
1 11 violent predators generally have antisocial personality
1 12 features that are unamenable to existing mental illness
1 13 treatment modalities and that render them likely to engage in
1 14 sexually violent behavior. The general assembly finds that
1 15 sexually violent predators' likelihood of engaging in repeat
1 16 acts of predatory sexual violence is high and that the
1 17 existing involuntary commitment procedure under chapter 229 is
1 18 inadequate to address the risk these sexually violent
1 19 predators pose to society.
1 20 The general assembly further finds that the prognosis for
1 21 rehabilitating sexually violent predators in a prison setting
1 22 is poor, because the treatment needs of this population are
1 23 very long-term, and the treatment modalities for this
1 24 population are very different from the traditional treatment
1 25 modalities available in a prison setting or for persons
1 26 appropriate for commitment under chapter 229. Therefore, the
1 27 general assembly finds that a civil commitment procedure for
1 28 the long-term care and treatment of the sexually violent
1 29 predator is necessary.
1 30 Sec. 2. NEW SECTION. 229A.2 DEFINITIONS.
1 31 As used in this chapter:
1 32 1. "Agency with jurisdiction" means an agency which
1 33 releases a person serving a sentence or term of confinement
1 34 based upon a lawful order or authority, and includes but is
1 35 not limited to the department of corrections, the department
2 1 of human services, a judicial district department of
2 2 correctional services, and the Iowa board of parole.
2 3 2. "Mental abnormality" means a congenital or acquired
2 4 condition affecting the emotional or volitional capacity of a
2 5 person and predisposing that person to commit sexually violent
2 6 offenses to a degree which would constitute a menace to the
2 7 health and safety of others.
2 8 3. "Predatory" means acts directed toward a person with
2 9 whom a relationship has been established or promoted for the
2 10 primary purpose of victimization.
2 11 4. "Sexually motivated" means that one of the purposes for
2 12 commission of a crime is the purpose of sexual gratification
2 13 of the perpetrator of the crime.
2 14 5. "Sexually violent offense" means:
2 15 a. A violation of any provision of chapter 709.
2 16 b. A violation of any of the following if the offense
2 17 involves sexual abuse, attempted sexual abuse, or intent to
2 18 commit sexual abuse:
2 19 (1) Murder as defined in section 707.1.
2 20 (2) Kidnapping as defined in section 710.1.
2 21 (3) Burglary as defined in section 713.1.
2 22 (4) Child endangerment under section 726.6, subsection 1,
2 23 paragraph "e".
2 24 c. Sexual exploitation of a minor in violation of section
2 25 728.12, subsection 1.
2 26 d. Pandering involving a minor in violation of section
2 27 725.3, subsection 2.
2 28 e. An offense involving an attempt or conspiracy to commit
2 29 any offense referred to in this subsection.
2 30 f. An offense under prior law of this state or an offense
2 31 committed in another jurisdiction which would constitute an
2 32 equivalent offense under paragraphs "a" through "e".
2 33 g. Any act which, either at the time of sentencing for the
2 34 offense or subsequently during civil commitment proceedings
2 35 pursuant to this chapter, has been determined beyond a
3 1 reasonable doubt to have been sexually motivated.
3 2 6. "Sexually violent predator" means a person who has been
3 3 convicted of or charged with a sexually violent offense and
3 4 who suffers from a mental abnormality which makes the person
3 5 likely to engage in predatory acts constituting sexually
3 6 violent offenses, if not confined in a secure facility.
3 7 Sec. 3. NEW SECTION. 229A.3 NOTICE OF DISCHARGE OF
3 8 SEXUALLY VIOLENT PREDATOR – IMMUNITY FROM LIABILITY –
3 9 MULTIDISCIPLINARY TEAM – PROSECUTOR'S REVIEW COMMITTEE –
3 10 ASSESSMENT OF PERSON.
3 11 1. When it appears that a person may meet the definition
3 12 of a sexually violent predator, the agency with jurisdiction
3 13 shall give written notice to the attorney general and the
3 14 multidisciplinary team established in subsection 4, no later
3 15 than ninety days prior to any of the following events:
3 16 a. The anticipated discharge of a person who has been
3 17 convicted of a sexually violent offense from total
3 18 confinement, except that in the case of a person who is
3 19 returned to prison for no more than ninety days as a result of
3 20 revocation of parole, written notice shall be given as soon as
3 21 practicable following the person's readmission to prison.
3 22 b. The discharge of a person who has been charged with a
3 23 sexually violent offense and who has been determined to be
3 24 incompetent to stand trial pursuant to chapter 812.
3 25 c. The discharge of a person who has been found not guilty
3 26 by reason of insanity of a sexually violent offense.
3 27 d. The discharge of a person who has been found not guilty
3 28 of a sexually violent offense referred to under section
3 29 229A.2, subsection 5, paragraph "b", or of an attempt or
3 30 conspiracy to commit an offense under that paragraph, where
3 31 the court or jury who found the person not guilty answers the
3 32 special allegation in section 229A.14 in the affirmative.
3 33 2. If notice is required under subsection 1, the agency
3 34 with jurisdiction shall inform the attorney general and the
3 35 multidisciplinary team established in subsection 4, of both of
4 1 the following:
4 2 a. The person's name, identifying factors, anticipated
4 3 future residence, and offense history.
4 4 b. Documentation of any institutional evaluation and any
4 5 treatment received.
4 6 3. The agency with jurisdiction, its employees, officials,
4 7 members of the multidisciplinary team established in
4 8 subsection 4, members of the prosecutor's review committee
4 9 appointed as provided in subsection 5, and individuals
4 10 contracting, appointed, or volunteering to perform services
4 11 under this section shall be immune from liability for any
4 12 good-faith conduct under this section.
4 13 4. The director of the department of corrections shall
4 14 establish a multidisciplinary team which may include
4 15 individuals from other state agencies to review available
4 16 records of each person referred to such team pursuant to
4 17 subsection 1. The team, within thirty days of receiving
4 18 notice, shall assess whether or not the person meets the
4 19 definition of a sexually violent predator. The team shall
4 20 notify the attorney general of its assessment.
4 21 5. The attorney general shall appoint a prosecutor's
4 22 review committee to review the records of each person referred
4 23 to the attorney general pursuant to subsection 1. The
4 24 prosecutor's review committee shall assist the attorney
4 25 general in the determination of whether or not the person
4 26 meets the definition of a sexually violent predator. The
4 27 assessment of the multidisciplinary team shall be made
4 28 available to the attorney general and the prosecutor's review
4 29 committee.
4 30 Sec. 4. NEW SECTION. 229A.4 PETITION, TIME, CONTENTS.
4 31 If it appears that a person presently confined may be a
4 32 sexually violent predator and the prosecutor's review
4 33 committee has determined that the person meets the definition
4 34 of a sexually violent predator, the attorney general may file
4 35 a petition, within seventy-five days of the date the attorney
5 1 general received the written notice by the agency of
5 2 jurisdiction pursuant to section 229A.3, alleging that the
5 3 person is a sexually violent predator and stating sufficient
5 4 facts to support such an allegation.
5 5 Sec. 5. NEW SECTION. 229A.5 PERSON TAKEN INTO CUSTODY,
5 6 DETERMINATION OF PROBABLE CAUSE, HEARING, EVALUATION.
5 7 1. Upon filing of a petition under section 229A.4, the
5 8 court shall make a preliminary determination as to whether
5 9 probable cause exists to believe that the person named in the
5 10 petition is a sexually violent predator. Upon a preliminary
5 11 finding of probable cause, the court shall direct that the
5 12 person named in the petition be taken into custody and that
5 13 the person be served with a copy of the petition and any
5 14 supporting documentation and notice of the procedures required
5 15 by this chapter.
5 16 2. Within seventy-two hours after being taken into
5 17 custody, a hearing shall be held to determine whether probable
5 18 cause exists to believe the detained person is a sexually
5 19 violent predator. At the probable cause hearing, the detained
5 20 person shall have the following rights:
5 21 a. To be provided with prior notice of date, time, and
5 22 location of the probable cause hearing.
5 23 b. To respond to the preliminary finding of probable
5 24 cause.
5 25 c. To appear in person at the hearing.
5 26 d. To be represented by counsel.
5 27 e. To present evidence on the respondent's own behalf.
5 28 f. To cross-examine witnesses who testify against the
5 29 respondent.
5 30 g. To view and copy all petitions and reports in the
5 31 possession of the court.
5 32 3. At the hearing, the state may rely upon the petition
5 33 filed under subsection 1 but may also supplement the petition
5 34 with additional documentary evidence or live testimony.
5 35 4. At the conclusion of the hearing, the court shall enter
6 1 an order which does both of the following:
6 2 a. Verifies the respondent's identity.
6 3 b. Determines whether probable cause exists to believe
6 4 that the respondent is a sexually violent predator.
6 5 5. If the court determines that probable cause does exist,
6 6 the court shall direct that the respondent be transferred to
6 7 an appropriate secure facility, including, but not limited to,
6 8 a county jail, for an evaluation as to whether the respondent
6 9 is a sexually violent predator. The evaluation shall be
6 10 conducted by a person deemed to be professionally qualified to
6 11 conduct such an examination.
6 12 Sec. 6. NEW SECTION. 229A.6 COUNSEL AND EXPERTS,
6 13 INDIGENT PERSONS.
6 14 1. A respondent to a petition alleging the person to be a
6 15 sexually violent predator shall be entitled to the assistance
6 16 of counsel upon the filing of the petition under section
6 17 299A.4 and, if the respondent is indigent, the court shall
6 18 appoint counsel to assist the respondent.
6 19 2. If a respondent is subjected to an examination under
6 20 this chapter, the respondent may retain experts or
6 21 professional persons to perform an independent examination on
6 22 the respondent's behalf. If the respondent wishes to be
6 23 examined by a qualified expert or professional person of the
6 24 respondent's own choice, the examiner of the respondent's
6 25 choice shall be given reasonable access to the respondent for
6 26 the purpose of the examination, as well as access to all
6 27 relevant medical and psychological records and reports. If
6 28 the respondent is indigent, the court, upon the respondent's
6 29 request, shall determine whether the services are necessary
6 30 and the reasonable compensation for the services. If the
6 31 court determines that the services are necessary and the
6 32 requested compensation for the services is reasonable, the
6 33 court shall assist the respondent in obtaining an expert or
6 34 professional person to perform an examination or participate
6 35 in the trial on the respondent's behalf. The court shall
7 1 approve payment for such services upon the filing of a
7 2 certified claim for compensation supported by a written
7 3 statement specifying the time expended, services rendered,
7 4 expenses incurred on behalf of the respondent, and
7 5 compensation received in the same case or for the same
7 6 services from any other source.
7 7 Sec. 7. NEW SECTION. 229A.7 TRIAL, DETERMINATION,
7 8 COMMITMENT PROCEDURE, INTERAGENCY AGREEMENTS, MISTRIALS.
7 9 1. Within sixty days after the completion of any hearing
7 10 held pursuant to section 229A.5, the court shall conduct a
7 11 trial to determine whether the respondent is a sexually
7 12 violent predator. The trial may be continued upon the request
7 13 of either party and a showing of good cause, or by the court
7 14 on its own motion in the due administration of justice, and
7 15 when the respondent will not be substantially prejudiced. The
7 16 respondent, the attorney general, or the judge shall have the
7 17 right to demand that the trial be before a jury. Such demand
7 18 for the trial to be before a jury shall be filed, in writing,
7 19 at least four days prior to trial. The number and selection
7 20 of jurors shall be determined as provided in chapter 607A. If
7 21 no demand is made, the trial shall be before the court.
7 22 2. At trial, the court or jury shall determine whether,
7 23 beyond a reasonable doubt, the respondent is a sexually
7 24 violent predator. If the determination that the respondent is
7 25 a sexually violent predator is made by a jury, the
7 26 determination shall be by unanimous verdict of such jury.
7 27 If the court or jury determines that the respondent is a
7 28 sexually violent predator, the respondent shall be committed
7 29 to the custody of the director of the department of human
7 30 services for control, care, and treatment until such time as
7 31 the person's mental abnormality has so changed that the person
7 32 is safe to be at large. The determination may be appealed.
7 33 3. The control, care, and treatment of a person determined
7 34 to be a sexually violent predator shall be provided at a
7 35 facility operated by the department of human services. At all
8 1 times, persons committed for control, care, and treatment by
8 2 the department of human services pursuant to this chapter
8 3 shall be kept in a secure facility and those patients shall be
8 4 segregated at all times from any other patient under the
8 5 supervision of the department of human services. A person
8 6 committed pursuant to this chapter to the custody of the
8 7 department of human services may be kept in a facility or
8 8 building separate from any other patient under the supervision
8 9 of the department of human services. The department of human
8 10 services may enter into an interagency agreement with the
8 11 department of corrections for the confinement of patients who
8 12 have been determined to be sexually violent predators.
8 13 Patients who are in the confinement of the director of the
8 14 department of corrections pursuant to an interagency agreement
8 15 shall be housed and managed separately from criminal offenders
8 16 in the custody of the director of the department of
8 17 corrections, and except for occasional instances of supervised
8 18 incidental contact, shall be segregated from those offenders.
8 19 4. If the court or jury is not satisfied beyond a
8 20 reasonable doubt that the respondent is a sexually violent
8 21 predator, the court shall direct the respondent's release.
8 22 Upon a mistrial, the court shall direct that the respondent be
8 23 held at an appropriate secure facility, including, but not
8 24 limited to, a county jail, until another trial is conducted.
8 25 Any subsequent trial following a mistrial shall be held within
8 26 ninety days of the previous trial, unless such subsequent
8 27 trial is continued as provided in subsection 1.
8 28 5. If a person charged with a sexually violent offense has
8 29 been found incompetent to stand trial or has been found not
8 30 guilty of a sexually violent offense by reason of insanity,
8 31 and the person is about to be discharged pursuant to section
8 32 812.5, if a petition has been filed seeking the person's
8 33 commitment under this chapter, the court shall first hear
8 34 evidence and determine whether the person did commit the act
8 35 or acts charged. At the hearing on this issue, the rules of
9 1 evidence applicable in criminal cases shall apply, and all
9 2 constitutional rights available to defendants at criminal
9 3 trials, other than the right not to be tried while
9 4 incompetent, shall apply. After hearing evidence on this
9 5 issue, the court shall make specific findings on whether the
9 6 person did commit the act or acts charged, the extent to which
9 7 the person's incompetence or insanity affected the outcome of
9 8 the hearing, including its effect on the person's ability to
9 9 consult with and assist counsel and to testify on the person's
9 10 own behalf, the extent to which the evidence could be
9 11 reconstructed without the assistance of the person, and the
9 12 strength of the prosecution's case. If after the conclusion
9 13 of the hearing on this issue, the court finds, beyond a
9 14 reasonable doubt, that the person did commit the act or acts
9 15 charged, the court shall enter a final order, appealable by
9 16 the person, on that issue, and may proceed to consider whether
9 17 the person should be committed pursuant to this chapter.
9 18 Sec. 8. NEW SECTION. 229A.8 ANNUAL EXAMINATIONS,
9 19 DISCHARGE PETITIONS BY PERSONS COMMITTED.
9 20 1. Each person committed under this chapter shall have a
9 21 current examination of the person's mental abnormality made
9 22 once every year. The person may retain, or if the person is
9 23 indigent and so requests, the court may appoint a qualified
9 24 expert or professional person to examine such person, and such
9 25 expert or professional person shall be given access to all
9 26 records concerning the person.
9 27 2. The annual report shall be provided to the court that
9 28 committed the person under this chapter. The court shall
9 29 conduct an annual review and probable cause hearing on the
9 30 status of the committed person.
9 31 3. Nothing contained in this chapter shall prohibit the
9 32 person from otherwise petitioning the court for discharge at
9 33 the probable cause hearing. The director of human services
9 34 shall provide the committed person with an annual written
9 35 notice of the person's right to petition the court for
10 1 discharge over the director's objection. The notice shall
10 2 contain a waiver of rights. The director shall forward the
10 3 notice and waiver form to the court with the annual report.
10 4 4. The committed person shall have a right to have an
10 5 attorney represent the person at the probable cause hearing
10 6 but the person is not entitled to be present at the hearing.
10 7 If the court at the hearing determines that probable cause
10 8 exists to believe that the person's mental abnormality has so
10 9 changed that the person is safe to be at large and will not
10 10 engage in predatory acts or sexually violent offenses if
10 11 discharged, then the court shall set a final hearing on the
10 12 issue.
10 13 5. At the final hearing, the committed person shall be
10 14 entitled to be present and is entitled to the benefit of all
10 15 constitutional protections that were afforded the person at
10 16 the original commitment proceeding. The attorney general
10 17 shall represent the state and shall have a right to a jury
10 18 trial and to have the committed person evaluated by experts
10 19 chosen by the state. The committed person shall also have the
10 20 right to have experts evaluate the person on the person's
10 21 behalf. The court shall appoint an expert if the person is
10 22 indigent and requests an appointment. The burden of proof at
10 23 the hearing shall be upon the state to prove beyond a
10 24 reasonable doubt that the committed person's mental
10 25 abnormality or personality disorder remains such that the
10 26 person is not safe to be at large and if discharged is likely
10 27 to engage in acts of sexual violence.
10 28 Sec. 9. NEW SECTION. 229A.9 DETENTION AND COMMITMENT TO
10 29 CONFORM TO CONSTITUTIONAL REQUIREMENTS.
10 30 The involuntary detention or commitment of persons under
10 31 this chapter shall conform to constitutional requirements for
10 32 care and treatment.
10 33 Sec. 10. NEW SECTION. 229A.10 PETITION FOR DISCHARGE –
10 34 PROCEDURE.
10 35 If the director of human services determines that the
11 1 person's mental abnormality has so changed that the person is
11 2 not likely to commit predatory acts or sexually violent
11 3 offenses if discharged, the director shall authorize the
11 4 person to petition the court for discharge. The petition
11 5 shall be served upon the court and the attorney general. The
11 6 court, upon receipt of the petition for discharge, shall order
11 7 a hearing within thirty days. The attorney general shall
11 8 represent the state, and shall have the right to have the
11 9 petitioner examined by an expert or professional person of the
11 10 attorney general's choice. The hearing shall be before a jury
11 11 if demanded by either the petitioner or the attorney general.
11 12 The burden of proof shall be upon the attorney general to show
11 13 beyond a reasonable doubt that the petitioner's mental
11 14 abnormality or personality disorder remains such that the
11 15 petitioner is not safe to be at large and that if discharged
11 16 is likely to commit predatory acts or sexually violent
11 17 offenses.
11 18 Sec. 11. NEW SECTION. 229A.11 SUBSEQUENT DISCHARGE
11 19 PETITIONS, LIMITATIONS.
11 20 Nothing in this chapter shall prohibit a person from filing
11 21 a petition for discharge pursuant to this chapter. However,
11 22 if a person has previously filed a petition for discharge
11 23 without the authorization of the director of human services,
11 24 and the court determines either upon review of the petition or
11 25 following a hearing that the petition was frivolous or that
11 26 the petitioner's condition had not so changed that the person
11 27 was safe to be at large, then the court shall summarily deny
11 28 the subsequent petition unless the petition contains facts
11 29 upon which a court could find the condition of the petitioner
11 30 had so changed that a hearing was warranted. Upon receipt of
11 31 a first or subsequent petition from a committed person without
11 32 the director's authorization, the court shall endeavor
11 33 whenever possible to review the petition and determine if the
11 34 petition is based upon frivolous grounds. If the court
11 35 determines that a petition is frivolous, the court shall deny
12 1 the petition without a hearing.
12 2 Sec. 12. NEW SECTION. 229A.12 DIRECTOR OF HUMAN SERVICES
12 3 – RESPONSIBILITY FOR COSTS – DUTIES – REIMBURSEMENT.
12 4 The director of human services shall be responsible for all
12 5 costs relating to the evaluation and treatment of persons
12 6 committed to the director's custody under any provision of
12 7 this chapter. Reimbursement may be obtained by the director
12 8 from the patient and any person legally liable or bound by
12 9 contract for the support of the patient for the cost of care
12 10 and treatment provided.
12 11 Sec. 13. NEW SECTION. 229A.13 NOTICE TO VICTIMS OF
12 12 DISCHARGE OF PERSONS COMMITTED.
12 13 In addition to any other information required to be
12 14 released under this chapter, prior to the discharge of a
12 15 person committed under this chapter, the director of human
12 16 services shall give written notice of the person's discharge
12 17 to any living victim of the person's activities or crime whose
12 18 address is known to the director or, if the victim is
12 19 deceased, to the victim's family, if the family's address is
12 20 known. Failure to notify shall not be a reason for
12 21 postponement of discharge. Nothing in this section shall
12 22 create a cause of action against the state or an employee of
12 23 the state acting within the scope of the employee's employment
12 24 as a result of the failure to notify pursuant to this action.
12 25 Sec. 14. NEW SECTION. 229A.14 SPECIAL ALLEGATION OF
12 26 SEXUAL MOTIVATION – PROCEDURE – WITHDRAWAL OR DISMISSAL.
12 27 1. Except as otherwise provided in subsection 4, the
12 28 county attorney shall file a special allegation of sexual
12 29 motivation within ten days after arraignment, when sufficient
12 30 admissible evidence exists, which, when considered with the
12 31 most plausible, reasonably foreseeable defense that could be
12 32 raised under the evidence, would justify a finding of sexual
12 33 motivation by a reasonable and objective fact finder.
12 34 2. In a criminal case in which a special allegation of
12 35 sexual motivation has been filed, the state shall prove beyond
13 1 a reasonable doubt that the crime was sexually motivated. The
13 2 court shall make a finding of fact of whether or not a sexual
13 3 motivation was present at the time of the commission of the
13 4 crime, or if a jury trial is had, the jury shall return a
13 5 special verdict as to whether or not the crime was sexually
13 6 motivated.
13 7 3. The county attorney shall not withdraw the special
13 8 allegation of sexual motivation without approval of the court
13 9 through an order of dismissal of the special allegation. The
13 10 court shall not dismiss the special allegation unless it finds
13 11 that such an order is necessary to correct an error in the
13 12 initial charging decision or unless evidentiary problems exist
13 13 which make proving the special allegation doubtful.
13 14 4. This section shall not apply to criminal cases alleging
13 15 a violation of chapter 709 or a case in which the commission
13 16 of a sex act is an element of the offense charged.
13 17 Sec. 15. NEW SECTION. 229A.15 SEVERABILITY.
13 18 If any provision of this chapter or the application thereof
13 19 to any person or circumstances is held invalid, the invalidity
13 20 shall not affect other provisions or applications of the
13 21 chapter which can be given effect without the invalid
13 22 provisions or application and, to this end, the provisions of
13 23 this chapter are severable.
13 24 Sec. 16. NEW SECTION. 229A.16 RELEASE OF CONFIDENTIAL OR
13 25 PRIVILEGED INFORMATION AND RECORDS.
13 26 Notwithstanding anything in chapter 22 to the contrary,
13 27 relevant information and records which would otherwise be
13 28 confidential or privileged shall be released to the agency
13 29 with jurisdiction or the attorney general for the purpose of
13 30 meeting the notice requirement provided in section 229A.3 and
13 31 determining whether a person is or continues to be a sexually
13 32 violent predator.
13 33 Sec. 17. NEW SECTION. 229A.17 COURT RECORDS – SEALED
13 34 AND OPENED BY COURT ORDER.
13 35 Any psychological reports, drug and alcohol reports,
14 1 treatment records, reports of any diagnostic center, medical
14 2 records, or victim impact statements which have been submitted
14 3 to the court or admitted into evidence under this chapter
14 4 shall be part of the record but shall be sealed and opened
14 5 only on order of the court.
14 6 Sec. 18. NEW SECTION. 299A.18 SHORT TITLE.
14 7 This chapter shall be known and may be cited as the
14 8 "Sexually Violent Predator Act".
14 9 EXPLANATION
14 10 This bill establishes a procedure for the civil commitment
14 11 of persons who are determined to be sexually violent
14 12 predators. Under the bill, a sexually violent predator is a
14 13 person who has been convicted of or charged with a sexually
14 14 violent offense and who suffers from a mental abnormality
14 15 which makes the person likely to engage in predatory acts
14 16 constituting sexually violent offenses, if not confined in a
14 17 secure facility. A sexually violent offense is defined under
14 18 the bill as violation of the sexual abuse chapter, chapter
14 19 709; the commission of murder, kidnapping, burglary, or
14 20 knowingly permitting the continual sexual or physical abuse of
14 21 a child or a minor, if the commission of any of the offenses
14 22 involved sexual abuse, attempted sexual abuse, or the intent
14 23 to commit sexual abuse; sexual exploitation of a minor;
14 24 pandering involving a minor; any offense involving an attempt
14 25 or conspiracy to commit one of the enumerated offenses; or any
14 26 offense under prior state law or the law of another
14 27 jurisdiction which would be the equivalent of one of the
14 28 enumerated offenses.
14 29 Not later than 90 days before the discharge of a person who
14 30 is believed to be a sexually violent predator, the agency
14 31 which is discharging the person is required to give notice to
14 32 the attorney general and a department of corrections
14 33 multidisciplinary team of the impending discharge of the
14 34 person from confinement, treatment, or other custody. The
14 35 multidisciplinary team is to review available records to
15 1 determine whether the person in question meets the definition
15 2 of a sexually violent predator, and notify the attorney
15 3 general as to the results of its assessment. The attorney
15 4 general is to establish a prosecutor's review committee which,
15 5 like the corrections multidisciplinary team, is to conduct a
15 6 review of the available information, including the
15 7 multidisciplinary team's assessment, and to assist the
15 8 attorney general in making a determination as to whether the
15 9 person is a sexually violent predator.
15 10 Within 75 days of receipt of the notice from the
15 11 discharging agency, if it appears that the person is a
15 12 sexually violent predator, the attorney general may file a
15 13 petition alleging that the person is a sexually violent
15 14 predator. The court is to make a preliminary determination of
15 15 the existence of probable cause to support the petition. If
15 16 the preliminary determination is affirmative, the court shall
15 17 issue a custody order and an order for hearing on the issue of
15 18 probable cause. At the hearing, the person alleged to be a
15 19 sexually violent predator is to have the right to be present,
15 20 be represented by counsel, present and cross-examine the
15 21 evidence, and view and copy all petitions and reports. If the
15 22 court determines that there is probable cause to believe that
15 23 the person is a sexually violent predator, the court is to set
15 24 the matter down for trial and order a professional evaluation
15 25 of the person.
15 26 The trial on the issue of whether the person is a sexually
15 27 violent predator is to be held within 60 days after completion
15 28 of the probable cause hearing. The trial may be heard before
15 29 a jury or a judge. The person, the attorney general, or the
15 30 judge has the right to demand that the case be heard before a
15 31 jury. At trial, the burden of proof is beyond a reasonable
15 32 doubt. If the matter is heard by a jury, any determination
15 33 that the person is a sexually violent predator must be by
15 34 unanimous verdict. If the person is determined to be a
15 35 sexually violent predator, the person is to be committed to
16 1 the custody of the director of the department of human
16 2 services for control, care, and treatment until the person may
16 3 be safely discharged. If a person is not found to be a
16 4 sexually violent predator, the court is to direct the person's
16 5 discharge from custody. If the trial proceedings result in a
16 6 mistrial, the person is to be held in a secure facility until
16 7 a new trial is conducted, which must be within 90 days of the
16 8 previous proceeding.
16 9 If the person is alleged to be a sexually violent predator,
16 10 but has been found to be incompetent to stand trial or not
16 11 guilty by reason of insanity, and is about to be discharged,
16 12 the court must first conduct a hearing to determine if the
16 13 person actually did commit the act or acts charged before the
16 14 court can conduct a trial to determine if the person should be
16 15 committed. That hearing is to be conducted in the same manner
16 16 and under the same procedures as a criminal trial. If the
16 17 court finds that the person did commit the acts alleged, then
16 18 the matter may proceed to trial on the sexually violent
16 19 predator commitment issue.
16 20 A person who is committed as a sexually violent predator is
16 21 to be committed to the care, custody, and control of the
16 22 department of human services, although the department may
16 23 contract with the department of corrections for placement of
16 24 the person at a facility under the direction of the department
16 25 of corrections. All persons who are committed as sexually
16 26 violent predators are to be segregated from persons who are
16 27 otherwise in the care of the department of human services or
16 28 the department of corrections. Persons who are committed to
16 29 the custody of the department of human services may be located
16 30 in a facility that is separate from facilities used to house
16 31 other individuals in the department's custody and care.
16 32 A person who has been committed as a sexually violent
16 33 predator shall be examined annually by qualified
16 34 professionals. The findings are to be submitted in a report
16 35 to the court, which shall annually review the person's
17 1 commitment status. The person may petition the court for
17 2 discharge at any time and the filing of previous petitions
17 3 will not jeopardize the person's right to petition the court
17 4 for discharge. The director of human services may authorize a
17 5 person to petition for discharge also, if the director
17 6 believes that the person's condition has so changed that the
17 7 person may be safely discharged. At any hearing on a
17 8 petition, the person committed has the right to be represented
17 9 by counsel but is not entitled to be present at the hearing.
17 10 If the court finds that probable cause exists to believe that
17 11 the person may be safely discharged, a hearing must be held
17 12 and the person is entitled to be present and is entitled to
17 13 all of the same protections that they were entitled to at the
17 14 original commitment trial.
17 15 Any involuntary detention or commitment is to conform to
17 16 constitutional requirements for care and treatment. The cost
17 17 of the care and treatment provided is the responsibility of
17 18 the department of human services, although the department may
17 19 seek reimbursement from the person committed or anyone legally
17 20 liable or bound by contract for the support of the person
17 21 committed.
17 22 Prior to the discharge of a person who has been committed
17 23 as a sexually violent offender, victims of the person's
17 24 activities or crimes are to be notified. A failure to notify
17 25 does not create a cause of action against the state or
17 26 employee of the state, however.
17 27 Except in the case of violations of the sexual abuse
17 28 chapter or crimes in which the commission of a sex act is an
17 29 element, if sufficient supporting evidence exists, the county
17 30 attorney is to include a special allegation of sexual
17 31 motivation with the crime charged and the jury is to return a
17 32 special finding on that allegation.
17 33 Records which would otherwise be confidential under chapter
17 34 22 may be released to the agency which is about to discharge a
17 35 person believed to be a sexually violent predator or to the
18 1 attorney general, for purposes of complying with the notice
18 2 and other requirements of the bill. Any psychological
18 3 reports, drug and alcohol reports, treatment records,
18 4 diagnostic reports, or other medical records or victim impact
18 5 statements which are submitted to the court are a part of the
18 6 record but shall be sealed and opened only on order of the
18 7 court.
18 8 LSB 3007HH 77
18 9 lh/cf/28
Text: HF02099 Text: HF02101 Text: HF02100 - HF02199 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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