BP BHEAD INT S [atlas:bill]

AN ACT Relating to sexually violent predators; amending RCW 71.09.010, 71.09.020, 71.09.060, 71.09.070, 71.09.090, 71.09.094, and 71.09.096; creating a new section; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 71.09.010 and 1990 c 3 s 1001 are each amended to read as follows:

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 act, chapter 71.05 RCW, which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under chapter 71.05 RCW, sexually violent predators ((~~generally~~)) have ((~~antisocial~~)) personality ((~~features which~~)) disorders and/or mental abnormalities that are unamenable to existing mental illness treatment modalities and those ((~~features~~)) 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 act, chapter 71.05 RCW, 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 consideration of placement in a setting less restrictive than total confinement cannot occur at the initial commitment trial for sexually violent predators. As a result of their extreme dangerousness and unique mental conditions, sexually violent predators are initially unsuitable for less restrictive placements normally available to persons committed under chapter 71.05 RCW. Sexually violent predators require an intensive period of evaluation and treatment following commitment in a controlled and secure environment before determining the possibility of a less restrictive alternative. 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.

Sec. 2. RCW 71.09.020 and 1995 c 216 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "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.

(2) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.

(3) "Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under RCW 71.09.030.

(4) "Predatory" means acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.

(5) "Recent overt act" means any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act. A statement may constitute an act under this definition.

(6) "Sexually violent offense" means an act committed on, before, or after July 1, 1990, that is: (a) An act defined in Title 9A RCW as rape in the first degree, rape in the second degree by forcible compulsion, rape of a child in the first or second degree, statutory rape in the first or second degree, indecent liberties by forcible compulsion, indecent liberties against a child under age fourteen, incest against a child under age fourteen, or child molestation in the first or second degree; (b) a felony offense in effect at any time prior to July 1, 1990, that is comparable to a sexually violent offense as defined in (a) of this subsection, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection; (c) 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 chapter 71.09 RCW, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in RCW 9.94A.030; or (d) an act as described in chapter 9A.28 RCW, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in (a), (b), or (c) of this subsection.

(7) "Less restrictive alternative" means court-ordered treatment in a setting less restrictive than total confinement.

(8) "Secretary" means the secretary of social and health services or his or her designee.

(9) "Probable cause to believe that a person is a sexually violent predator" means that a preponderance of the evidence supports a finding that a person meets the definition of a sexually violent predator contained in this section.

Sec. 3. RCW 71.09.060 and 1995 c 216 s 6 are each amended to read as follows:

(1) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. In considering 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 only consider any actual conditions and voluntary treatment options that would exist for the person if unconditionally released from detention. The court may impose less restrictive alternatives only at hearings ordered pursuant to RCW 71.09.090 following initial commitment under this section. When the determination is made by a jury, the verdict must be unanimous.

If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in RCW 71.09.020(6)(c), the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated as defined in RCW 9.94A.030.

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 social and health services for placement in a secure facility operated by the department of social and health services for control, care, and treatment until such time as (a) the person's ((~~mental abnormality or personality disorder~~)) condition has so changed that the person ((~~is safe either (a) to be at large~~)) no longer meets the definition of a sexually violent predator, or (b) ((~~to be released~~)) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and will adequately protect the community. If the court or unanimous jury ((~~is not satisfied beyond a reasonable doubt~~)) decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release.

If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and, at the request of the prosecuting agency, set a retrial within forty-five days of the date of the mistrial. The retrial may be continued upon the request of either party accompanied by a showing of good cause, or by the court on its own motion in the due administration of justice provided that the respondent will not be substantially prejudiced. In no event may the person be released from confinement prior to retrial.

(2) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to RCW 10.77.090(3), and his or her commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under RCW 10.77.090(3) that the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.

(3) The state shall comply with RCW 10.77.220 while confining the person pursuant to this chapter, except that during all court proceedings the person shall be detained in a secure facility. The facility shall not be located on the grounds of any state mental facility or regional habilitation center because these institutions are insufficiently secure for this population.

Sec. 4. RCW 71.09.070 and 1995 c 216 s 7 are each amended to read as follows:

Each person committed under this chapter shall have a current examination of his or her mental condition made ((~~at least~~)) by the department of social and health services 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 reasonably available less restrictive alternative is in the best interest of the person and will adequately protect the community. The department of social and health services shall file this periodic report with the court that committed the person under this chapter. The report shall be in the form of a declaration or certification in compliance with the requirements of RCW 9A.72.085 and shall be prepared by a professionally qualified person as defined by rules developed by the department of social and health services. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person and his or her counsel. The committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person. ((~~The periodic report shall be provided to the court that committed the person under this chapter.~~))

Sec. 5. RCW 71.09.090 and 1995 c 216 s 9 are each amended to read as follows:

(1) If the secretary determines either (a) that the person's ((~~mental abnormality or personality disorder~~)) condition has so changed that the person ((~~is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged~~)) no longer meets the definition of a sexually violent predator, or (b) that conditional release to a reasonably available less restrictive alternative is in the best interest of the person and will 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 ((~~served upon~~)) filed with the court and served upon the prosecuting ((~~attorney~~)) 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. ((The prosecuting attorney or the attorney general, if requested by the county, shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of his or her choice. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney or attorney general. The burden of proof shall be upon the prosecuting attorney or attorney general to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that if conditionally released to a less restrictive alternative or unconditionally discharged is likely to engage in predatory acts of sexual violence.))

(2)(a) Nothing contained in this chapter 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 reasonably available less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall ((~~forward~~)) file the notice and waiver form ((~~to the court with~~)) 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 sufficient facts exist that warrant a hearing on whether: (i) The person's condition has so changed that he or she ((~~is safe to be conditionally released to a less restrictive alternative or unconditionally discharged~~)) no longer meets the definition of a sexually violent predator; or (ii) conditional release to a reasonably available less restrictive alternative would be in the best interest of the person and would adequately protect the community. The committed person shall have a right to have an attorney represent him or her at the show cause hearing ((~~but the person is not entitled to be present at the show cause hearing~~)).

(b) At the show cause hearing, the prosecuting attorney or attorney general shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that any reasonably available less restrictive alternative is not in the best interest of the person or will not adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to RCW 71.09.070. The state may supplement this with additional evidence. The committed person may present evidence on his or her behalf. If the court at the show cause hearing determines that ((probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged)) 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 reasonably available less restrictive alternative is in the best interest of the person and will adequately protect the community; or (ii) facts exist that would warrant a reasonable person's belief that (A) the committed person's condition has so changed that the person no longer meets the definition of a sexually violent predator or (B) release to a reasonably available less restrictive alternative would be in the best interest of the person and would adequately protect the community, then the court shall set a hearing on ((~~the~~)) either or both issues.

(3) 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 or the attorney general if requested by the county 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 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. If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof ((~~at the hearing~~)) shall be upon the state to prove beyond a reasonable doubt that the committed person's ((~~mental abnormality or personality disorder~~)) condition remains such that the person ((~~is likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged~~)) continues to meet the definition of a sexually violent predator. If the issue at the hearing is whether the person should be conditionally released, the burden of proof at the hearing shall be upon the state to prove by clear and convincing evidence that conditional release to any proposed less restrictive alternative (a) is not in the best interest of the committed person or would not adequately protect the community; or (b) is not reasonably available. In hearings where release to a less restrictive alternative is at issue, the state's proof on this issue may be rebutted only with evidence of a potential less restrictive alternative that meets the requirements of RCW 71.09.092.

((~~(3)~~)) (4) The jurisdiction of the court over a person civilly committed pursuant to this chapter continues until such time as the person is unconditionally discharged.

Sec. 6. RCW 71.09.094 and 1995 c 216 s 11 are each amended to read as follows:

(1) Upon the conclusion of the evidence in a hearing held pursuant to RCW 71.09.090, if the court finds that there is no legally sufficient evidentiary basis for a reasonable jury to find that the conditions set forth in RCW 71.09.092 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:

(a) Has the state proved ((~~beyond a reasonable doubt~~)) by clear and convincing evidence that ((~~the~~)) any proposed less restrictive alternative is not in the best interests of respondent or will not adequately protect the community? Answer: Yes or No.

(b) Has the state proved by clear and convincing evidence that any proposed less restrictive alternative is not reasonably available? Answer: Yes or No.

Ten jurors must agree as to each question in order to reach a verdict.

Sec. 7. RCW 71.09.096 and 1995 c 216 s 12 are each amended to read as follows:

(1) If the court or jury determines that conditional release to a less restrictive alternative is reasonably available, and is in the best interest of the person and will adequately protect the community, and the court determines that the minimum conditions set forth in ((~~section 9 of this act~~)) RCW 71.09.092 are met, the court shall enter judgment and direct a conditional release except as provided in subsection (2) of this section.

(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 social and health services for control, care, and treatment in a secure facility as designated in RCW 71.09.060(1).

(3) If the service provider designated 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 social and health services or the department of corrections, then the service provider so designated must agree in writing to provide such treatment.

(4) Prior to authorizing any release to a less restrictive alternative, the court shall impose such conditions upon the person as are necessary to ensure the safety of the community. The court shall order the department of corrections to investigate the less restrictive alternative and recommend any additional conditions to the court. These conditions shall include, but are not limited to the following: Specification of residence, prohibition of contact with potential or past victims, prohibition of alcohol and other drug use, participation in a specific course of inpatient or outpatient treatment that may include monitoring by the use of polygraph and plethysmograph, supervision by a department 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 social and health services facility from which the person was released, to the prosecutor of the county in which the person was found to be a sexually violent predator, and to the supervising community corrections officer, a report stating whether the person is complying with the terms and conditions of the conditional release to a less restrictive alternative.

(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.

NEW SECTION. Sec. 8. The provisions of this act apply to all individuals currently committed or awaiting commitment under chapter 71.09 RCW either on, before, or after the effective date of this act.

NEW SECTION. Sec. 9. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.