2400-S AMH MCMA MORI 028

ADOPTED AS AMENDED 3/4/04

SHB 2400 - H AMD

By Representative McMahan

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 9.94A RCW to read as follows:

(1) Unless the context clearly requires otherwise, the definitions in this subsection apply to this section only.

(a) "Bodily injury" means physical pain or injury, illness, or an impairment of physical condition.

(b) "Family member" means a relative by blood, marriage, or adoption, or a foster parent.

(c) "First-time offender" means an offender: (i) With no prior convictions for a sex offense as defined in RCW 9.94A.030 or any other felony sex offenses in this or any other state; and (ii) who has not victimized any person other than the person who was victimized by the current offense, regardless of whether the offender was subject to criminal charges for such victimization.

(d) "Sex offender treatment provider" or "treatment provider" means a certified sex offender treatment provider as defined in RCW 18.155.020.

(e) "Substantial bodily harm" means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any body part or organ, or that causes a fracture of any body part or organ.

(f) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a result of the crime charged. "Victim" also means a parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

(2) An offender is eligible for the special sex offender sentencing alternative for sex offenses against children if:

(a) The offender has been convicted of any of the following offenses:

(i) Rape of a child in the third degree (RCW 9A.44.079);

(ii) Child molestation in the second degree (RCW 9A.44.086);

(iii) Child molestation in the third degree (RCW 9A.44.089); or

(iv) Sexual misconduct with a minor in the first degree (RCW 9A.44.093);

(b) The offender is the immediate victim's family member;

(e) The offender has no prior convictions for a violent offense that was committed within five years of the current offense;

(f) The victim of the offense has not suffered substantial bodily harm; and

(g) The offender's standard sentence range for the offense includes the possibility of confinement for less than eleven years.

(3) If the court finds the offender is eligible for this alternative, the court, on its own motion or the motion of the state or the offender, may order an examination to determine whether the offender is amenable to treatment.

(a) The report of the examination shall include at a minimum the following:

(i) The offender's version of the facts and the official version of the facts;

(ii) The offender's offense history;

(iii) An assessment of problems in addition to alleged deviant behaviors;

(iv) The offender's social and employment situation; and

(v) Other evaluation measures used.

The report shall set forth the sources of the examiner's information.

(b) The examiner shall assess and report regarding the offender's amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum:

(i) Frequency and type of contact between offender and therapist;

(ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;

(iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others;

(iv) Anticipated length of treatment; and

(v) Recommended crime-related prohibitions.

(c) The court on its own motion may order, or on a motion by the state or a victim shall order, a second examination regarding the offender's amenability to treatment. The examiner shall be selected by the party making the motion. The offender shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

(4) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this alternative, consider whether the alternative is too lenient in light of the extent and circumstances of the offense, consider whether the offender is amenable to treatment, consider the risk the offender would present to the community, to the victim, or to persons of similar age and circumstances as the victim, and consider the victim's opinion whether the offender should receive a treatment disposition under this section. When considering the victim's opinion, the court shall provide any victim the opportunity to provide testimony to the court. If the court imposes a sentence that is contrary to any victim's opinion, it shall enter written findings stating its reason for imposing such a sentence. The fact that the offender admits to his or her offense does not, by itself, constitute amenability to treatment. If the court determines that this alternative is appropriate, the court shall then impose a sentence or, pursuant to RCW 9.94A.712, a minimum term of sentence, within the standard sentence range. If the sentence imposed is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:

(a) The court shall order the offender to serve a term of total confinement of twelve months and one day in an institution operated by, or utilized under contract with, the department. An offender serving a term of confinement under this subsection is not eligible for earned release credits under RCW 9.94A.728.

(b) The court shall place the offender on community custody for the length of the suspended sentence, the length of the maximum term imposed pursuant to RCW 9.94A.712, or three years, whichever is greater, and require the offender to comply with the following conditions:

(i) Crime-related prohibitions;

(ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(iii) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030;

(iv) Reimburse the victim for the cost of any counseling required as a result of the offender's crime;

(v) Refrain from possessing or consuming alcohol or controlled substances except pursuant to lawfully issued prescriptions;

(vi) Refrain from possessing, viewing, or listening to pornography;

(vii) Refrain from having direct or indirect contact with children and refrain from being in a location where groups of children normally congregate; and

(viii) Any other conditions imposed by the department under RCW 9.94A.720.

(c) The court shall order treatment for any period up to seven years in duration. The court, in its discretion, shall order outpatient sex offender treatment or inpatient sex offender treatment, if available. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court. If any party or the court objects to a proposed change, the offender shall not change providers or conditions without court approval after a hearing.

(5) As conditions of the suspended sentence, the court may impose one or more of the following:

(a) Require the offender to devote time to a specific employment or occupation;

(b) Report as directed to the court and a community corrections officer; or

(6) At the time of sentencing, the court shall set a treatment termination hearing for three months prior to the anticipated date for completion of treatment.

(7)(a) The sex offender treatment provider shall submit quarterly reports on the offender's progress in treatment to the court and the parties. The report shall reference the treatment plan and include at a minimum the following: Dates of attendance, offender's compliance with requirements, treatment activities, the offender's relative progress in treatment, and any other material specified by the court at sentencing.

(b) The court shall conduct a hearing on the offender's progress in treatment at least once a year. At least fourteen days prior to the hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender's supervision and treatment.

(8) At least fourteen days prior to the treatment termination hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender's supervision and treatment. Prior to the treatment termination hearing, the treatment provider and community corrections officer shall submit written reports to the court and parties regarding the offender's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community custody conditions. The court shall order an evaluation regarding the advisability of termination from treatment by a sex offender treatment provider who may not be the same person who treated the offender under subsection (4) of this section or any person who employs, is employed by, or shares profits with the person who treated the offender under subsection (4) of this section. The offender shall pay the cost of the evaluation. At the treatment termination hearing the court may: (a) Modify conditions of community custody, and either (b) terminate treatment, or (c) extend treatment in three-year increments for up to the remaining period of community custody.

(9)(a) If a violation of the mandatory conditions imposed under subsection (4)(b) of this section occurs during community custody, the department shall refer the violation to the court and recommend revocation of the suspended sentence as provided in subsections (6) and (8) of this section.

(b) If a violation of the conditions imposed under subsection (5) of this section occurs during community custody, the department shall either impose sanctions as provided for in RCW 9.94A.737(2)(a) or refer the violation to the court and recommend revocation of the suspended sentence as provided for in subsections (6) and (8) of this section.

(10)(a) The court shall revoke the suspended sentence during the period of community custody and order execution of the sentence if: (i) The offender violates any of the mandatory conditions of the suspended sentence imposed under subsection (4)(b)(v) or (vi) of this section; or (ii) the offender violates any of the mandatory conditions imposed under subsection (4)(b)(i) through (iv), (vii), or (viii) of this section, and the offender has a previous violation of any of the mandatory conditions of the suspended sentence imposed under subsection (4)(b)(i) through (iv), (vii), or (viii) of this section.

(b) The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (i) The offender violates the conditions of the suspended sentence imposed under subsection (5) of this section; (ii) the offender violates the mandatory conditions of the suspended sentence imposed under subsection (4)(b)(i) through (iv), (vii), or (viii) of this section and the offender has no previous violation of any of the mandatory conditions of the suspended sentence imposed under subsection (4)(b)(i) through (iv), (vii), or (viii) of this section; or (iii) the court finds that the offender is failing to make satisfactory progress in treatment.

(c) All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.

(11) The offender's sex offender treatment provider may not be the same person who examined the offender under subsection (3) of this section or any person who employs, is employed by, or shares profits with the person who examined the offender under subsection (3) of this section. Examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW unless the court finds that:

(a) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; or

(b)(i) No certified providers are available for treatment within a reasonable geographical distance of the offender's home; and

(ii) The evaluation and treatment plan comply with this section and the rules adopted by the department of health.

(12) If the offender is less than eighteen years of age when the charge is filed, the state shall pay for the cost of initial evaluation and treatment.

Sec. 2. RCW 9.94A.670 and 2002 c 175 s 11 are each amended to read as follows:

(1) Unless the context clearly requires otherwise, the definitions in this subsection apply to this section only.

(a) "Sex offender treatment provider" or "treatment provider" means a certified sex offender treatment provider as defined in RCW 18.155.020.

(b) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a result of the crime charged. "Victim" also means a parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

(2) An offender is eligible for the special sex offender sentencing alternative if:

(a) The offender has been convicted of a sex offense other than a violation of RCW 9A.44.050, 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, 9A.44.086, 9A.44.089, or 9A.44.093 or a sex offense that is also a serious violent offense;

(b) The offender has no prior convictions for a sex offense as defined in RCW 9.94A.030 or any other felony sex offenses in this or any other state; and

(c) The offender's standard sentence range for the offense includes the possibility of confinement for less than eleven years.

(a) The report of the examination shall include at a minimum the following:

(i) The offender's version of the facts and the official version of the facts;

(ii) The offender's offense history;

(iii) An assessment of problems in addition to alleged deviant behaviors;

(iv) The offender's social and employment situation; and

(v) Other evaluation measures used.

The report shall set forth the sources of the examiner's information.

(i) Frequency and type of contact between offender and therapist;

(ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;

(iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others;

(iv) Anticipated length of treatment; and

(v) Recommended crime-related prohibitions.

(c) The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment. The examiner shall be selected by the party making the motion. The offender shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

(4) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this section. If the court determines that this alternative is appropriate, the court shall then impose a sentence or, pursuant to RCW 9.94A.712, a minimum term of sentence, within the standard sentence range. If the sentence imposed is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:

(a) The court shall place the offender on community custody for the length of the suspended sentence, the length of the maximum term imposed pursuant to RCW 9.94A.712, or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department under RCW 9.94A.720.

(b) The court shall order treatment for any period up to three years in duration. The court, in its discretion, shall order outpatient sex offender treatment or inpatient sex offender treatment, if available. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court. If any party or the court objects to a proposed change, the offender shall not change providers or conditions without court approval after a hearing.

(5) As conditions of the suspended sentence, the court may impose one or more of the following:

(a) Up to six months of confinement, not to exceed the sentence range of confinement for that offense;

(b) Crime-related prohibitions;

(d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

(e) Report as directed to the court and a community corrections officer;

(f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030;

(g) Perform community restitution work; or

(h) Reimburse the victim for the cost of any counseling required as a result of the offender's crime.

(6) At the time of sentencing, the court shall set a treatment termination hearing for three months prior to the anticipated date for completion of treatment.

(7) The sex offender treatment provider shall submit quarterly reports on the offender's progress in treatment to the court and the parties. The report shall reference the treatment plan and include at a minimum the following: Dates of attendance, offender's compliance with requirements, treatment activities, the offender's relative progress in treatment, and any other material specified by the court at sentencing.

(8) Prior to the treatment termination hearing, the treatment provider and community corrections officer shall submit written reports to the court and parties regarding the offender's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community custody conditions. Either party may request, and the court may order, another evaluation regarding the advisability of termination from treatment. The offender shall pay the cost of any additional evaluation ordered unless the court finds the offender to be indigent in which case the state shall pay the cost. At the treatment termination hearing the court may: (a) Modify conditions of community custody, and either (b) terminate treatment, or (c) extend treatment for up to the remaining period of community custody.

(9) If a violation of conditions occurs during community custody, the department shall either impose sanctions as provided for in RCW 9.94A.737(2)(a) or refer the violation to the court and recommend revocation of the suspended sentence as provided for in subsections (6) and (8) of this section.

(10) The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.

(11) Examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW unless the court finds that:

(a) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; or

(b)(i) No certified providers are available for treatment within a reasonable geographical distance of the offender's home; and

(ii) The evaluation and treatment plan comply with this section and the rules adopted by the department of health.

(12) If the offender is less than eighteen years of age when the charge is filed, the state shall pay for the cost of initial evaluation and treatment.

Sec. 3. RCW 18.155.050 and 1990 c 3 s 805 are each amended to read as follows:

(1) The sexual offender treatment providers advisory committee is established to advise the secretary concerning the administration of this chapter and conduct reviews of the special sex offender sentencing alternative under section 6 of this act.

(2) The secretary shall appoint the members of the advisory committee who shall consist of the following persons:

(a) One superior court judge;

(b) ((Three)) One sexual offender treatment ((providers)) provider;

(d) One defense attorney with experience in representing persons charged with sexual offenses;

(e) One representative from the Washington association of prosecuting attorneys;

(f) The secretary of the department of social and health services or his or her designee;

(g) The secretary of the department of corrections or his or her designee;

(h) One person representing a statewide organization that advocates on behalf of victims of sexual assault.

The secretary shall develop and implement the certification procedures with the advice of the committee by July 1, 1991. Following implementation of these procedures by the secretary, the committee shall be a permanent body. The members shall serve staggered six-year terms, to be set by the secretary. No person other than the members representing the departments of social and health services and corrections may serve more than two consecutive terms.

The secretary may remove any member of the advisory committee for cause as specified by rule. In a case of a vacancy, the secretary shall appoint a person to serve for the remainder of the unexpired term.

(3) Committee members shall be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(4) The committee shall elect officers as deemed necessary to administer its duties. A simple majority of the committee members currently serving shall constitute a quorum of the committee.

(5) Members of the advisory committee shall be residents of this state. The members who are sex offender treatment providers must have a minimum of five years of extensive work experience in treating sex offenders to qualify for appointment to the initial committee, which shall develop and implement the certification program. After July 1, 1991, the sex offender treatment providers on the committee must be certified pursuant to this chapter.

(6) The committee shall meet at times as necessary to conduct committee business.

NEW SECTION. Sec. 4. A new section is added to chapter 18.155 RCW to read as follows:

(1) The sexual offender treatment providers advisory committee shall conduct a review every six months of the efficacy of the special sex offender sentencing alternative established under RCW 9.94A.670.

(2) When conducting its review, the committee shall consider:

(a) Recidivism rates of offenders receiving treatment under the sentencing alternative compared to recidivism rates for sex offenders in general;

(b) The amenability to treatment of offenders receiving the sentencing alternative;

(c) The number of successful treatment outcomes for offenders receiving treatment under the sentencing alternative compared to the number of successful treatment outcomes for sex offenders in general;

(d) The impacts of the sentencing alternative on victims and families; and

(e) The outcomes and usage of the sentencing alternative in light of the original purposes of the alternative.

(3) The committee shall make recommendations on its findings and ways to improve the special sex offender sentencing alternative to the appropriate standing committees of the legislature at least twice a year.

NEW SECTION. Sec. 5. The sum of one million seven hundred forty-seven thousand dollars, or as much thereof as may be necessary, is appropriated for the fiscal year ending June 30, 2005, from the general fund--state to the department of corrections solely for the purposes of:

(1) Providing specialized training to community corrections officers regarding the supervision of sex offenders in the community; and

(2) Reducing the caseloads of community corrections officers who supervise sex offenders in the community.

NEW SECTION. Sec. 6. The sum of one hundred fifty thousand dollars, or as much thereof as may be necessary, is appropriated for the fiscal year ending June 30, 2005, from the general fund--state to the department of community, trade, and economic development solely for the purposes of distribution to sexual assault victims programs.

NEW SECTION. Sec. 7. This act may be known and cited as the child protection act of 2004.

NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 9. This act takes effect July 1, 2004."

Correct the title.

EFFECT: Eliminates the increases to the seriousness levels of rape in the first degree and rape in the second degree. Makes changes to SSOSA that apply only to offenders convicted of rape of a child in the third degree, child molestation in the second and third degrees, and sexual misconduct with a minor in the first degree. Adds to the existing SSOSA eligibility requirements. Makes the following types of offenders ineligible for SSOSA: (a) Offenders convicted of rape of a child in the first and second degrees and child molestation in the first degree; (b) persons who have multiple victims; (c) persons who caused substantial bodily harm to the victim; and (d) persons who are not family members of the victim. Requires a second pre-SSOSA evaluation to be ordered upon motion of the victim. Requires the court to consider whether the alternative is too lenient in light of the extent and circumstances of the offense when deciding whether to grant a SSOSA sentence. Requires the court to allow the victim to testify when deciding whether to grant a SSOSA sentence. Increases the mandatory term of incarceration to 12 months and one day, which must be served in total confinement in a state institution. Increases the maximum term of treatment the court may impose to up to seven years. Requires the court to impose mandatory conditions of the suspended sentence, including prohibitions relating to alcohol, drugs, and pornography. Requires that violations of the mandatory conditions be sent directly to court. Requires that the suspended sentence be revoked upon a first violation of a mandatory term relating to drugs, alcohol, or pornography. Requires the suspended sentence to be revoked upon a second violation of any other mandatory term. Requires the Sexual Offender Treatment Providers Advisory Committee to conduct a review of the SSOSA program every six months. Changes the membership of the committee. Makes appropriations to the Department of Corrections for training and reduced caseloads for community corrections officers who supervise sex offenders. Makes appropriations to the Department of Community, Trade, and Economic Development for distribution to sexual assault victims' programs.