AN
ACT Relating to civil commitment and related proceedings for sexually violent
predators under chapter 71.09 RCW; amending RCW 5.60.060, 71.09.010, 71.09.020,
71.09.025, 71.09.040, 71.09.060, 71.09.070, 71.09.090, 71.09.094, 71.09.096,
and 71.09.098; adding a new section to chapter 71.09 RCW; creating new
sections; and declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 71.09 RCW to read as follows:
The
legislature finds that presentation of evidence related to conditions of a less
restrictive alternative that are beyond the authority of the court to order,
and that would not exist in the absence of a court order, reduces the public
respect for the rule of law and for the authority of the courts. Consequently,
the legislature finds that the decision in In re the Detention of Casper
Ross, 102 Wn. App 108 (2000), is contrary to the legislature's intent. The
legislature hereby clarifies that it intends, and has always intended, in any
proceeding under this chapter that the court and jury be presented only with
conditions that would exist or that the court would have the authority to order
in the absence of a finding that the person is a sexually violent predator.
Sec.
2. RCW
5.60.060 and 1998 c 72 s 1 are each amended to read as follows:
(1)
A husband shall not be examined for or against his wife, without the consent of
the wife, nor a wife for or against her husband without the consent of the
husband; nor can either during marriage or afterward, be without the consent of
the other, examined as to any communication made by one to the other during
marriage. But this exception shall not apply to a civil action or proceeding
by one against the other, nor to a criminal action or proceeding for a crime
committed by one against the other, nor to a criminal action or proceeding
against a spouse if the marriage occurred subsequent to the filing of formal
charges against the defendant, nor to a criminal action or proceeding for a
crime committed by said husband or wife against any child of whom said husband
or wife is the parent or guardian, nor to a proceeding under chapter 70.96A ((or)),
71.05, or 71.09 RCW: PROVIDED, That the spouse of a person sought to be
detained under chapter 70.96A ((or)), 71.05, or 71.09 RCW
may not be compelled to testify and shall be so informed by the court prior to
being called as a witness.
(2)(a)
An attorney or counselor shall not, without the consent of his or her client,
be examined as to any communication made by the client to him or her, or his or
her advice given thereon in the course of professional employment.
(b)
A parent or guardian of a minor child arrested on a criminal charge may not be
examined as to a communication between the child and his or her attorney if the
communication was made in the presence of the parent or guardian. This
privilege does not extend to communications made prior to the arrest.
(3)
A member of the clergy or a priest shall not, without the consent of a person
making the confession, be examined as to any confession made to him or her in
his or her professional character, in the course of discipline enjoined by the
church to which he or she belongs.
(4)
Subject to the limitations under RCW 70.96A.140 or 71.05.250, a physician or
surgeon or osteopathic physician or surgeon or podiatric physician or surgeon
shall not, without the consent of his or her patient, be examined in a civil
action as to any information acquired in attending such patient, which was
necessary to enable him or her to prescribe or act for the patient, except as
follows:
(a)
In any judicial proceedings regarding a child's injury, neglect, or sexual
abuse or the cause thereof; and
(b)
Ninety days after filing an action for personal injuries or wrongful death, the
claimant shall be deemed to waive the physician-patient privilege. Waiver of
the physician-patient privilege for any one physician or condition constitutes
a waiver of the privilege as to all physicians or conditions, subject to such
limitations as a court may impose pursuant to court rules.
(5)
A public officer shall not be examined as a witness as to communications made
to him or her in official confidence, when the public interest would suffer by
the disclosure.
(6)(a)
A peer support group counselor shall not, without consent of the law
enforcement officer making the communication, be compelled to testify about any
communication made to the counselor by the officer while receiving counseling.
The counselor must be designated as such by the sheriff, police chief, or chief
of the Washington state patrol, prior to the incident that results in
counseling. The privilege only applies when the communication was made to the
counselor while acting in his or her capacity as a peer support group
counselor. The privilege does not apply if the counselor was an initial
responding officer, a witness, or a party to the incident which prompted the
delivery of peer support group counseling services to the law enforcement
officer.
(b)
For purposes of this section, "peer support group counselor" means a:
(i)
Law enforcement officer, or civilian employee of a law enforcement agency, who
has received training to provide emotional and moral support and counseling to
an officer who needs those services as a result of an incident in which the
officer was involved while acting in his or her official capacity; or
(ii)
Nonemployee counselor who has been designated by the sheriff, police chief, or
chief of the Washington state patrol to provide emotional and moral support and
counseling to an officer who needs those services as a result of an incident in
which the officer was involved while acting in his or her official capacity.
(7)
A sexual assault advocate may not, without the consent of the victim, be
examined as to any communication made by the victim to the sexual assault
advocate.
(a)
For purposes of this section, "sexual assault advocate" means the
employee or volunteer from a rape crisis center, victim assistance unit,
program, or association, that provides information, medical or legal advocacy,
counseling, or support to victims of sexual assault, who is designated by the
victim to accompany the victim to the hospital or other health care facility
and to proceedings concerning the alleged assault, including police and
prosecution interviews and court proceedings.
(b) A sexual assault advocate may disclose a confidential
communication without the consent of the victim if failure to disclose is
likely to result in a clear, imminent risk of serious physical injury or death
of the victim or another person. Any sexual assault advocate participating in
good faith in the disclosing of records and communications under this section
shall have immunity from any liability, civil, criminal, or otherwise, that
might result from the action. In any proceeding, civil or criminal, arising
out of a disclosure under this section, the good faith of the sexual assault
advocate who disclosed the confidential communication shall be presumed.
Sec.
3. 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)) disorders
and/or mental abnormalities which 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 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.
4. 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 on the
sexually violent predator petition. 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: (a) Strangers ((or));
(b) individuals with whom a relationship has been established or promoted
for the primary purpose of victimization; or (c) persons of casual
acquaintance with whom no substantial personal relationship exists.
(5)
"Recent overt act" means any act or threat 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.
(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 which satisfies the
conditions set forth in RCW 71.09.092.
(8)
"Secretary" means the secretary of social and health services or his
or her designee.
Sec.
5. RCW
71.09.025 and 1995 c 216 s 2 are each amended to read as follows:
(1)(a)
When it appears that a person may meet the criteria of a sexually violent predator
as defined in RCW 71.09.020(1), 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:
(i)
The anticipated release from total confinement of a person who has been
convicted of a sexually violent offense;
(ii)
The anticipated release from total confinement of a person found to have
committed a sexually violent offense as a juvenile;
(iii)
Release of a person who has been charged with a sexually violent offense and
who has been determined to be incompetent to stand trial pursuant to RCW
10.77.090(((3))) (4); or
(iv)
Release of a person who has been found not guilty by reason of insanity of a
sexually violent offense pursuant to RCW 10.77.020(3).
(b)
The agency shall provide the prosecutor with all relevant information including
but not limited to the following information:
(i)
A complete copy of the institutional records compiled by the department of
corrections relating to the person, and any such out-of-state department of
corrections' records, if available;
(ii)
A complete copy, if applicable, of any file compiled by the indeterminate
sentence review board relating to the person;
(iii)
All records relating to the psychological or psychiatric evaluation and/or
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 March 26, 1992.
(3)
The agency, its employees, and officials shall be 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 department of corrections, the indeterminate
sentence review board, and the department of social and health services.
Sec.
6. RCW
71.09.040 and 1995 c 216 s 4 are each amended to read as follows:
(1)
Upon the filing of a petition under RCW 71.09.030, the judge shall determine
whether probable cause exists to believe that the person named in the petition
is a sexually violent predator. If such 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 filed pursuant to RCW
71.09.030. The state may supplement this with additional documentary evidence
or live testimony.
(3)
At the probable cause hearing, the person shall have the following rights in
addition to the rights previously specified: (a) To be represented by counsel;
(b) to present evidence on his or her behalf; (c) to cross-examine witnesses
who testify against him or her; (d) to view and copy all petitions and reports
in the court file.
(4)
If the probable cause determination is made, the judge shall direct that the
person be transferred to an appropriate facility for an evaluation as to
whether the person is a sexually violent predator. The evaluation shall be
conducted by a person deemed to be professionally qualified to conduct such an
examination pursuant to rules developed by the department of social and health
services. In adopting such rules, the department of social and health services
shall consult with the department of health and the department of corrections.
In no event shall the person be released from confinement prior to trial. A
witness called by either party shall be permitted to testify by telephone.
Sec.
7. RCW
71.09.060 and 1998 c 146 s 1 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 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 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 conditions can be imposed that would 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 set a retrial within forty-five days of the date of the mistrial
unless the prosecuting agency earlier moves to dismiss the petition. 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 or dismissal of the case.
(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))) (4), 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)))
(4) 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 department shall not place the person, even
temporarily, in a facility on the grounds of any state mental facility or
regional habilitation center because these institutions are insufficiently
secure for this population.
(4)
A court has jurisdiction to order a less restrictive alternative placement only
after a hearing ordered pursuant to RCW 71.09.090 following initial commitment
under this section and in accord with the provisions of this chapter.
Sec.
8. 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 by the department of social and health services
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 ((will)) conditions
can be imposed that would 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 adopted by the secretary. 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.
9. RCW
71.09.090 and 1995 c 216 s 9 are each amended to read as follows:
(1)
If the secretary determines that either: (a) 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) 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 ((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 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 ((facts)) probable cause exists
((that)) to 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 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
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 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 prepared pursuant to RCW 71.09.070. 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 ((mental
abnormality or personality disorder)) condition has so changed that:
(A) 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) release to a 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 ((the)) 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 RCW 71.09.094(1), 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)) agency 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 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 ((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. 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.
(((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.
NEW
SECTION. Sec. 10. The
department of social and health services shall, in consultation with interested
stakeholders, develop recommendations for improving the procedures used to
notify victims when a sexually violent predator is conditionally released to a
less restrictive alternative under chapter 71.09 RCW, while at the same time
maintaining the confidentiality of victim information.
Sec.
11. 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
or through summary judgment proceedings prior to such a 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 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: 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 ((will not)) (b) does
not include conditions that would adequately protect the community?
Answer: Yes or No.
Sec.
12. 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 in the best interest of the person and ((will)) includes
conditions that would adequately protect the community, and the court
determines that the minimum conditions set forth in ((section 9 of this act))
RCW 71.09.092 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 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 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 social and health services or the department of corrections, then
the service provider so designated must agree in writing to provide such
treatment, monitoring, or supervision in accord with this section. Any
person providing or agreeing to provide treatment, monitoring, or supervision
services pursuant to this chapter 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 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.
Sec.
13. RCW
71.09.098 and 1995 c 216 s 13 are each amended to read as follows:
(1)
Any service provider submitting reports pursuant to RCW 71.09.096(((5)))
(6), the supervising community corrections officer, the prosecuting
attorney, or the attorney general 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 ((and)), monitoring, supervision, or treatment.
(2)
If the prosecuting attorney, the supervising community corrections 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 or
community corrections officer may order that the conditionally released person
be apprehended and taken into custody until such time as 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
chapter.
NEW
SECTION. Sec. 14. This
act applies to all individuals currently committed or awaiting commitment under
chapter 71.09 RCW either on, before, or after the effective date of this act,
whether confined in a secure facility or on conditional release.
NEW
SECTION. Sec. 15. 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.
