BILL REQ. #: H-4949.1
| State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 02/03/2006. Referred to Committee on Criminal Justice & Corrections.
AN ACT Relating to sex offenders; amending RCW 9.94A.712, 9.94A.712, 9.94A.030, and 9.94A.030; reenacting and amending RCW 9.94A.670; adding new sections to chapter 9.94A RCW; prescribing penalties; providing an effective date; providing an expiration date; 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 9.94A RCW
to read as follows:
(1) In a prosecution for rape of a child in the first degree, rape
of a child in the second degree, or child molestation in the first
degree, the prosecuting attorney shall file a special allegation that
the offense was predatory whenever sufficient admissible evidence
exists, which, when considered with the most plausible, reasonably
foreseeable defense that could be raised under the evidence, would
justify a finding by a reasonable and objective fact-finder that the
offense was predatory.
(2) Once a special allegation has been made under this section, the
state has the burden to prove beyond a reasonable doubt that the
offense was predatory. If a jury is had, the jury shall, if it finds
the defendant guilty, also find a special verdict as to whether the
offense was predatory. If no jury is had, the court shall make a
finding of fact as to whether the offense was predatory.
(3) The prosecuting attorney shall not withdraw a special
allegation filed under this section without the approval of the court
through an order of dismissal of the allegation. The court may not
dismiss the special allegation unless it finds that the order is
necessary to correct an error in the initial charging decision or that
there are evidentiary problems that make proving the special allegation
doubtful.
NEW SECTION. Sec. 2 A new section is added to chapter 9.94A RCW
to read as follows:
(1) In a prosecution for rape in the first degree, rape in the
second degree, indecent liberties by forcible compulsion, or kidnapping
in the first degree with sexual motivation, the prosecuting attorney
shall file a special allegation that the victim of the offense was
under fifteen years of age at the time of the offense whenever
sufficient admissible evidence exists, which, when considered with the
most plausible, reasonably foreseeable defense that could be raised
under the evidence, would justify a finding by a reasonable and
objective fact-finder that the victim was under fifteen years of age at
the time of the offense.
(2) Once a special allegation has been made under this section, the
state has the burden to prove beyond a reasonable doubt that the victim
was under fifteen years of age at the time of the offense. If a jury
is had, the jury shall, if it finds the defendant guilty, also find a
special verdict as to whether the victim was under the age of fifteen
at the time of the offense. If no jury is had, the court shall make a
finding of fact as to whether the victim was under the age of fifteen
at the time of the offense.
(3) The prosecuting attorney shall not withdraw a special
allegation filed under this section without the approval of the court
through an order of dismissal of the allegation. The court may not
dismiss the special allegation unless it finds that the order is
necessary to correct an error in the initial charging decision or that
there are evidentiary problems that make proving the special allegation
doubtful.
NEW SECTION. Sec. 3 A new section is added to chapter 9.94A RCW
to read as follows:
(1) In a prosecution for rape in the first degree, rape in the
second degree with forcible compulsion, indecent liberties with
forcible compulsion, or kidnapping in the first degree with sexual
motivation, the prosecuting attorney shall file a special allegation
that the victim of the offense was, at the time of the offense,
developmentally disabled, mentally disordered, or a frail elder or
vulnerable adult, whenever sufficient admissible evidence exists,
which, when considered with the most plausible, reasonably foreseeable
defense that could be raised under the evidence, would justify a
finding by a reasonable and objective fact-finder that the victim was,
at the time of the offense, developmentally disabled, mentally
disordered, or a frail elder or vulnerable adult.
(2) Once a special allegation has been made under this section, the
state has the burden to prove beyond a reasonable doubt that the victim
was, at the time of the offense, developmentally disabled, mentally
disordered, or a frail elder or vulnerable adult. If a jury is had,
the jury shall, if it finds the defendant guilty, also find a special
verdict as to whether the victim was, at the time of the offense,
developmentally disabled, mentally disordered, or a frail elder or
vulnerable adult. If no jury is had, the court shall make a finding of
fact as to whether the victim was, at the time of the offense,
developmentally disabled, mentally disordered, or a frail elder or
vulnerable adult.
(3) The prosecuting attorney shall not withdraw a special
allegation filed under this section without the approval of the court
through an order of dismissal of the allegation. The court may not
dismiss the special allegation unless it finds that the order is
necessary to correct an error in the initial charging decision or that
there are evidentiary problems that make proving the special allegation
doubtful.
(4) For purposes of this section, "developmentally disabled,"
"mentally disordered," and "frail elder or vulnerable adult" have the
same meaning as in RCW 9A.44.010.
NEW SECTION. Sec. 4 A new section is added to chapter 9.94A RCW
to read as follows:
(1) In a prosecution for rape in the first degree, the prosecuting
attorney shall file a special allegation that the victim of the offense
was under twelve years of age at the time of the offense whenever
sufficient admissible evidence exists, which, when considered with the
most plausible, reasonably foreseeable defense that could be raised
under the evidence, would justify a finding by a reasonable and
objective fact-finder that the victim was under twelve years of age at
the time of the offense.
(2) Once a special allegation has been made under this section, the
state has the burden to prove beyond a reasonable doubt that the victim
was under twelve years of age at the time of the offense. If a jury is
had, the jury shall, if it finds the defendant guilty, also find a
special verdict as to whether the victim was under the age of twelve at
the time of the offense. If no jury is had, the court shall make a
finding of fact as to whether the victim was under the age of twelve at
the time of the offense.
(3) The prosecuting attorney shall not withdraw a special
allegation filed under this section without the approval of the court
through an order of dismissal of the allegation. The court may not
dismiss the special allegation unless it finds that the order is
necessary to correct an error in the initial charging decision or that
there are evidentiary problems that make proving the special allegation
doubtful.
Sec. 5 RCW 9.94A.712 and 2005 c 436 s 2 are each amended to read
as follows:
(1) An offender who is not a persistent offender shall be sentenced
under this section if the offender:
(a) Is convicted of:
(i) Rape in the first degree, rape in the second degree, rape of a
child in the first degree, child molestation in the first degree, rape
of a child in the second degree, or indecent liberties by forcible
compulsion;
(ii) Any of the following offenses with a finding of sexual
motivation: Murder in the first degree, murder in the second degree,
homicide by abuse, kidnapping in the first degree, kidnapping in the
second degree, assault in the first degree, assault in the second
degree, assault of a child in the first degree, or burglary in the
first degree; or
(iii) An attempt to commit any crime listed in this subsection
(1)(a);
committed on or after September 1, 2001; or
(b) Has a prior conviction for an offense listed in RCW
9.94A.030(33)(b), and is convicted of any sex offense which was
committed after September 1, 2001.
For purposes of this subsection (1)(b), failure to register is not
a sex offense.
(2) An offender convicted of rape of a child in the first or second
degree or child molestation in the first degree who was seventeen years
of age or younger at the time of the offense shall not be sentenced
under this section.
(3)(a) Upon a finding that the offender is subject to sentencing
under this section, the court shall impose a sentence to a maximum term
((consisting of the statutory maximum sentence for the offense)) and a
minimum term ((either within the standard sentence range for the
offense, or outside the standard sentence range pursuant to RCW
9.94A.535, if the offender is otherwise eligible for such a sentence)).
(b) The maximum term shall consist of the statutory maximum
sentence for the offense.
(c)(i) Except as provided in (c)(ii) of this subsection, the
minimum term shall be either within the standard sentence range for the
offense, or outside the standard sentence range pursuant to RCW
9.94A.535, if the offender is otherwise eligible for such a sentence.
(ii) If the offense that caused the offender to be sentenced under
this section was rape of a child in the first degree, rape of a child
in the second degree, or child molestation in the first degree, and
there has been a finding that the offense was predatory under section
1 of this act, the minimum term shall be either the maximum of the
standard sentence range for the offense or twenty-five years, whichever
is greater. If the offense that caused the offender to be sentenced
under this section was rape in the first degree, rape in the second
degree, indecent liberties by forcible compulsion, or kidnapping in the
first degree with sexual motivation, and there has been a finding that
the victim was under the age of fifteen at the time of the offense
under section 2 of this act, the minimum term shall be either the
maximum of the standard sentence range for the offense or twenty-five
years, whichever is greater. If the offense that caused the offender
to be sentenced under this section is rape in the first degree, rape in
the second degree with forcible compulsion, indecent liberties with
forcible compulsion, or kidnapping in the first degree with sexual
motivation, and there has been a finding under section 3 of this act
that the victim was, at the time of the offense, developmentally
disabled, mentally disordered, or a frail elder or vulnerable adult,
the minimum sentence shall be either the maximum of the standard
sentence range for the offense or twenty-five years, whichever is
greater. If the offense that caused the offender to be sentenced under
this section was rape in the first degree and there has been a finding
that the victim was under the age of twelve at the time of the offense
under section 4 of this act, the minimum term shall be life.
(d) The minimum terms in (c)(ii) of this subsection do not apply to
a juvenile tried as an adult pursuant to RCW 13.04.030(1)(e)(i) or (v).
The minimum term for such a juvenile shall be imposed under (c)(i) of
this subsection.
(4) A person sentenced under subsection (3) of this section shall
serve the sentence in a facility or institution operated, or utilized
under contract, by the state.
(5) When a court sentences a person to the custody of the
department under this section, the court shall, in addition to the
other terms of the sentence, sentence the offender to community custody
under the supervision of the department and the authority of the board
for any period of time the person is released from total confinement
before the expiration of the maximum sentence.
(6)(a)(i) Unless a condition is waived by the court, the conditions
of community custody shall include those provided for in RCW
9.94A.700(4). The conditions may also include those provided for in
RCW 9.94A.700(5). The court may also order the offender to participate
in rehabilitative programs or otherwise perform affirmative conduct
reasonably related to the circumstances of the offense, the offender's
risk of reoffending, or the safety of the community, and the department
and the board shall enforce such conditions pursuant to RCW 9.94A.713,
9.95.425, and 9.95.430.
(ii) If the offense that caused the offender to be sentenced under
this section was an offense listed in subsection (1)(a) of this section
and the victim of the offense was under eighteen years of age at the
time of the offense, the court shall, as a condition of community
custody, prohibit the offender from residing in a community protection
zone.
(b) As part of any sentence under this section, the court shall
also require the offender to comply with any conditions imposed by the
board under RCW 9.94A.713 and 9.95.420 through 9.95.435.
Sec. 6 RCW 9.94A.712 and 2004 c 176 s 3 are each amended to read
as follows:
(1) An offender who is not a persistent offender shall be sentenced
under this section if the offender:
(a) Is convicted of:
(i) Rape in the first degree, rape in the second degree, rape of a
child in the first degree, child molestation in the first degree, rape
of a child in the second degree, or indecent liberties by forcible
compulsion;
(ii) Any of the following offenses with a finding of sexual
motivation: Murder in the first degree, murder in the second degree,
homicide by abuse, kidnapping in the first degree, kidnapping in the
second degree, assault in the first degree, assault in the second
degree, assault of a child in the first degree, or burglary in the
first degree; or
(iii) An attempt to commit any crime listed in this subsection
(1)(a);
committed on or after September 1, 2001; or
(b) Has a prior conviction for an offense listed in RCW
9.94A.030(32)(b), and is convicted of any sex offense which was
committed after September 1, 2001.
For purposes of this subsection (1)(b), failure to register is not
a sex offense.
(2) An offender convicted of rape of a child in the first or second
degree or child molestation in the first degree who was seventeen years
of age or younger at the time of the offense shall not be sentenced
under this section.
(3)(a) Upon a finding that the offender is subject to sentencing
under this section, the court shall impose a sentence to a maximum term
((consisting of the statutory maximum sentence for the offense)) and a
minimum term ((either within the standard sentence range for the
offense, or outside the standard sentence range pursuant to RCW
9.94A.535, if the offender is otherwise eligible for such a sentence)).
(b) The maximum term shall consist of the statutory maximum
sentence for the offense.
(c)(i) Except as provided in (c)(ii) of this subsection, the
minimum term shall be either within the standard sentence range for the
offense, or outside the standard sentence range pursuant to RCW
9.94A.535, if the offender is otherwise eligible for such a sentence.
(ii) If the offense that caused the offender to be sentenced under
this section was rape of a child in the first degree, rape of a child
in the second degree, or child molestation in the first degree, and
there has been a finding that the offense was predatory under section
1 of this act, the minimum term shall be either the maximum of the
standard sentence range for the offense or twenty-five years, whichever
is greater. If the offense that caused the offender to be sentenced
under this section was rape in the first degree, rape in the second
degree, indecent liberties by forcible compulsion, or kidnapping in the
first degree with sexual motivation, and there has been a finding that
the victim was under the age of fifteen at the time of the offense
under section 2 of this act, the minimum term shall be either the
maximum of the standard sentence range for the offense or twenty-five
years, whichever is greater. If the offense that caused the offender
to be sentenced under this section is rape in the first degree, rape in
the second degree with forcible compulsion, indecent liberties with
forcible compulsion, or kidnapping in the first degree with sexual
motivation, and there has been a finding under section 3 of this act
that the victim was, at the time of the offense, developmentally
disabled, mentally disordered, or a frail elder or vulnerable adult,
the minimum sentence shall be either the maximum of the standard
sentence range for the offense or twenty-five years, whichever is
greater. If the offense that caused the offender to be sentenced under
this section was rape in the first degree and there has been a finding
that the victim was under the age of twelve at the time of the offense
under section 4 of this act, the minimum term shall be life.
(d) The minimum terms in (c)(ii) of this subsection do not apply to
a juvenile tried as an adult pursuant to RCW 13.04.030(1)(e)(i) or (v).
The minimum term for such a juvenile shall be imposed under (c)(i) of
this subsection.
(4) A person sentenced under subsection (3) of this section shall
serve the sentence in a facility or institution operated, or utilized
under contract, by the state.
(5) When a court sentences a person to the custody of the
department under this section, the court shall, in addition to the
other terms of the sentence, sentence the offender to community custody
under the supervision of the department and the authority of the board
for any period of time the person is released from total confinement
before the expiration of the maximum sentence.
(6)(a) Unless a condition is waived by the court, the conditions of
community custody shall include those provided for in RCW 9.94A.700(4).
The conditions may also include those provided for in RCW 9.94A.700(5).
The court may also order the offender to participate in rehabilitative
programs or otherwise perform affirmative conduct reasonably related to
the circumstances of the offense, the offender's risk of reoffending,
or the safety of the community, and the department and the board shall
enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and
9.95.430.
(b) As part of any sentence under this section, the court shall
also require the offender to comply with any conditions imposed by the
board under RCW 9.94A.713 and 9.95.420 through 9.95.435.
Sec. 7 RCW 9.94A.030 and 2005 c 436 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) "Board" means the indeterminate sentence review board created
under chapter 9.95 RCW.
(2) "Collect," or any derivative thereof, "collect and remit," or
"collect and deliver," when used with reference to the department,
means that the department, either directly or through a collection
agreement authorized by RCW 9.94A.760, is responsible for monitoring
and enforcing the offender's sentence with regard to the legal
financial obligation, receiving payment thereof from the offender, and,
consistent with current law, delivering daily the entire payment to the
superior court clerk without depositing it in a departmental account.
(3) "Commission" means the sentencing guidelines commission.
(4) "Community corrections officer" means an employee of the
department who is responsible for carrying out specific duties in
supervision of sentenced offenders and monitoring of sentence
conditions.
(5) "Community custody" means that portion of an offender's
sentence of confinement in lieu of earned release time or imposed
pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670,
9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the
community subject to controls placed on the offender's movement and
activities by the department. For offenders placed on community
custody for crimes committed on or after July 1, 2000, the department
shall assess the offender's risk of reoffense and may establish and
modify conditions of community custody, in addition to those imposed by
the court, based upon the risk to community safety.
(6) "Community custody range" means the minimum and maximum period
of community custody included as part of a sentence under RCW
9.94A.715, as established by the commission or the legislature under
RCW 9.94A.850, for crimes committed on or after July 1, 2000.
(7) "Community placement" means that period during which the
offender is subject to the conditions of community custody and/or
postrelease supervision, which begins either upon completion of the
term of confinement (postrelease supervision) or at such time as the
offender is transferred to community custody in lieu of earned release.
Community placement may consist of entirely community custody, entirely
postrelease supervision, or a combination of the two.
(8) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(9) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(10) "Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other
sentence conditions imposed by a court pursuant to this chapter or RCW
16.52.200(6) or 46.61.524. Where the court finds that any offender has
a chemical dependency that has contributed to his or her offense, the
conditions of supervision may, subject to available resources, include
treatment. For purposes of the interstate compact for out-of-state
supervision of parolees and probationers, RCW 9.95.270, community
supervision is the functional equivalent of probation and should be
considered the same as probation by other states.
(11) "Confinement" means total or partial confinement.
(12) "Conviction" means an adjudication of guilt pursuant to Titles
10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and
acceptance of a plea of guilty.
(13) "Crime-related prohibition" means an order of a court
prohibiting conduct that directly relates to the circumstances of the
crime for which the offender has been convicted, and shall not be
construed to mean orders directing an offender affirmatively to
participate in rehabilitative programs or to otherwise perform
affirmative conduct. However, affirmative acts necessary to monitor
compliance with the order of a court may be required by the department.
(14) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in
federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i)
whether the defendant has been placed on probation and the length and
terms thereof; and (ii) whether the defendant has been incarcerated and
the length of incarceration.
(b) A conviction may be removed from a defendant's criminal history
only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or
a similar out-of-state statute, or if the conviction has been vacated
pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct
from the determination of an offender score. A prior conviction that
was not included in an offender score calculated pursuant to a former
version of the sentencing reform act remains part of the defendant's
criminal history.
(15) "Day fine" means a fine imposed by the sentencing court that
equals the difference between the offender's net daily income and the
reasonable obligations that the offender has for the support of the
offender and any dependents.
(16) "Day reporting" means a program of enhanced supervision
designed to monitor the offender's daily activities and compliance with
sentence conditions, and in which the offender is required to report
daily to a specific location designated by the department or the
sentencing court.
(17) "Department" means the department of corrections.
(18) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total
confinement, of partial confinement, of community supervision, the
number of actual hours or days of community restitution work, or
dollars or terms of a legal financial obligation. The fact that an
offender through earned release can reduce the actual period of
confinement shall not affect the classification of the sentence as a
determinate sentence.
(19) "Disposable earnings" means that part of the earnings of an
offender remaining after the deduction from those earnings of any
amount required by law to be withheld. For the purposes of this
definition, "earnings" means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonuses, or
otherwise, and, notwithstanding any other provision of law making the
payments exempt from garnishment, attachment, or other process to
satisfy a court-ordered legal financial obligation, specifically
includes periodic payments pursuant to pension or retirement programs,
or insurance policies of any type, but does not include payments made
under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050,
or Title 74 RCW.
(20) "Drug offender sentencing alternative" is a sentencing option
available to persons convicted of a felony offense other than a violent
offense or a sex offense and who are eligible for the option under RCW
9.94A.660.
(21) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of
a controlled substance (RCW 69.50.4013) or forged prescription for a
controlled substance (RCW 69.50.403);
(b) Any offense defined as a felony under federal law that relates
to the possession, manufacture, distribution, or transportation of a
controlled substance; or
(c) Any out-of-state conviction for an offense that under the laws
of this state would be a felony classified as a drug offense under (a)
of this subsection.
(22) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(23) "Escape" means:
(a) Sexually violent predator escape (RCW 9A.76.115), escape in the
first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060),
willful failure to return from work release (RCW 72.65.070), or willful
failure to be available for supervision by the department while in
community custody (RCW 72.09.310); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as an escape
under (a) of this subsection.
(24) "Felony traffic offense" means:
(a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW
46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a felony
traffic offense under (a) of this subsection.
(25) "Fine" means a specific sum of money ordered by the sentencing
court to be paid by the offender to the court over a specific period of
time.
(26) "First-time offender" means any person who has no prior
convictions for a felony and is eligible for the first-time offender
waiver under RCW 9.94A.650.
(27) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(28) "Legal financial obligation" means a sum of money that is
ordered by a superior court of the state of Washington for legal
financial obligations which may include restitution to the victim,
statutorily imposed crime victims' compensation fees as assessed
pursuant to RCW 7.68.035, court costs, county or interlocal drug funds,
court-appointed attorneys' fees, and costs of defense, fines, and any
other financial obligation that is assessed to the offender as a result
of a felony conviction. Upon conviction for vehicular assault while
under the influence of intoxicating liquor or any drug, RCW
46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense
of an emergency response to the incident resulting in the conviction,
subject to RCW 38.52.430.
(29) "Most serious offense" means any of the following felonies or
a felony attempt to commit any of the following felonies:
(a) Any felony defined under any law as a class A felony or
criminal solicitation of or criminal conspiracy to commit a class A
felony;
(b) Assault in the second degree;
(c) Assault of a child in the second degree;
(d) Child molestation in the second degree;
(e) Controlled substance homicide;
(f) Extortion in the first degree;
(g) Incest when committed against a child under age fourteen;
(h) Indecent liberties;
(i) Kidnapping in the second degree;
(j) Leading organized crime;
(k) Manslaughter in the first degree;
(l) Manslaughter in the second degree;
(m) Promoting prostitution in the first degree;
(n) Rape in the third degree;
(o) Robbery in the second degree;
(p) Sexual exploitation;
(q) Vehicular assault, when caused by the operation or driving of
a vehicle by a person while under the influence of intoxicating liquor
or any drug or by the operation or driving of a vehicle in a reckless
manner;
(r) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(s) Any other class B felony offense with a finding of sexual
motivation;
(t) Any other felony with a deadly weapon verdict under RCW
9.94A.602;
(u) Any felony offense in effect at any time prior to December 2,
1993, that is comparable to a most serious offense under this
subsection, or any federal or out-of-state conviction for an offense
that under the laws of this state would be a felony classified as a
most serious offense under this subsection;
(v)(i) A prior conviction for indecent liberties under RCW
9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess.
as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as
it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1)
(a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;
(ii) A prior conviction for indecent liberties under RCW
9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988,
if: (A) The crime was committed against a child under the age of
fourteen; or (B) the relationship between the victim and perpetrator is
included in the definition of indecent liberties under RCW
9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997,
or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993,
through July 27, 1997.
(30) "Nonviolent offense" means an offense which is not a violent
offense.
(31) "Offender" means a person who has committed a felony
established by state law and is eighteen years of age or older or is
less than eighteen years of age but whose case is under superior court
jurisdiction under RCW 13.04.030 or has been transferred by the
appropriate juvenile court to a criminal court pursuant to RCW
13.40.110. Throughout this chapter, the terms "offender" and
"defendant" are used interchangeably.
(32) "Partial confinement" means confinement for no more than one
year in a facility or institution operated or utilized under contract
by the state or any other unit of government, or, if home detention or
work crew has been ordered by the court, in an approved residence, for
a substantial portion of each day with the balance of the day spent in
the community. Partial confinement includes work release, home
detention, work crew, and a combination of work crew and home
detention.
(33) "Persistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony considered a
most serious offense; and
(ii) Has, before the commission of the offense under (a) of this
subsection, been convicted as an offender on at least two separate
occasions, whether in this state or elsewhere, of felonies that under
the laws of this state would be considered most serious offenses and
would be included in the offender score under RCW 9.94A.525; provided
that of the two or more previous convictions, at least one conviction
must have occurred before the commission of any of the other most
serious offenses for which the offender was previously convicted; or
(b)(i) Has been convicted of: (A) Rape in the first degree, rape
of a child in the first degree, child molestation in the first degree,
rape in the second degree, rape of a child in the second degree, or
indecent liberties by forcible compulsion; (B) any of the following
offenses with a finding of sexual motivation: Murder in the first
degree, murder in the second degree, homicide by abuse, kidnapping in
the first degree, kidnapping in the second degree, assault in the first
degree, assault in the second degree, assault of a child in the first
degree, or burglary in the first degree; or (C) an attempt to commit
any crime listed in this subsection (33)(b)(i); and
(ii) Has, before the commission of the offense under (b)(i) of this
subsection, been convicted as an offender on at least one occasion,
whether in this state or elsewhere, of an offense listed in (b)(i) of
this subsection or any federal or out-of-state offense or offense under
prior Washington law that is comparable to the offenses listed in
(b)(i) of this subsection. A conviction for rape of a child in the
first degree constitutes a conviction under (b)(i) of this subsection
only when the offender was sixteen years of age or older when the
offender committed the offense. A conviction for rape of a child in
the second degree constitutes a conviction under (b)(i) of this
subsection only when the offender was eighteen years of age or older
when the offender committed the offense.
(34) "Postrelease supervision" is that portion of an offender's
community placement that is not community custody.
(35) "Predatory" means: (a) The perpetrator of the crime was a
stranger to the victim, as defined in this section; (b) the perpetrator
established or promoted a relationship with the victim prior to the
offense and the victimization of the victim was a significant reason
the perpetrator established or promoted the relationship; or (c) the
perpetrator was: (i) A teacher, counselor, volunteer, or other person
in authority in any public or private school and the victim was a
student of the school under his or her authority or supervision. For
purposes of this subsection, "school" does not include home-based
instruction as defined in RCW 28A.225.010; (ii) a coach, trainer,
volunteer, or other person in authority in any recreational activity
and the victim was a participant in the activity under his or her
authority or supervision; or (iii) a pastor, elder, volunteer, or other
person in authority in any church or religious organization, and the
victim was a member or participant of the organization under his or her
authority.
(36) "Private school" means a school regulated under chapter
28A.195 or 28A.205 RCW.
(((36))) (37) "Public school" has the same meaning as in RCW
28A.150.010.
(((37))) (38) "Restitution" means a specific sum of money ordered
by the sentencing court to be paid by the offender to the court over a
specified period of time as payment of damages. The sum may include
both public and private costs.
(((38))) (39) "Risk assessment" means the application of an
objective instrument supported by research and adopted by the
department for the purpose of assessing an offender's risk of
reoffense, taking into consideration the nature of the harm done by the
offender, place and circumstances of the offender related to risk, the
offender's relationship to any victim, and any information provided to
the department by victims. The results of a risk assessment shall not
be based on unconfirmed or unconfirmable allegations.
(((39))) (40) "Serious traffic offense" means:
(a) Driving while under the influence of intoxicating liquor or any
drug (RCW 46.61.502), actual physical control while under the influence
of intoxicating liquor or any drug (RCW 46.61.504), reckless driving
(RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5));
or
(b) Any federal, out-of-state, county, or municipal conviction for
an offense that under the laws of this state would be classified as a
serious traffic offense under (a) of this subsection.
(((40))) (41) "Serious violent offense" is a subcategory of violent
offense and means:
(a)(i) Murder in the first degree;
(ii) Homicide by abuse;
(iii) Murder in the second degree;
(iv) Manslaughter in the first degree;
(v) Assault in the first degree;
(vi) Kidnapping in the first degree;
(vii) Rape in the first degree;
(viii) Assault of a child in the first degree; or
(ix) An attempt, criminal solicitation, or criminal conspiracy to
commit one of these felonies; or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a serious
violent offense under (a) of this subsection.
(((41))) (42) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.130(11);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than
RCW 9.68A.070 or 9.68A.080; or
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt,
criminal solicitation, or criminal conspiracy to commit such crimes;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a sex
offense in (a) of this subsection;
(c) A felony with a finding of sexual motivation under RCW
9.94A.835 or 13.40.135; or
(d) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a sex
offense under (a) of this subsection.
(((42))) (43) "Sexual motivation" means that one of the purposes
for which the defendant committed the crime was for the purpose of his
or her sexual gratification.
(((43))) (44) "Standard sentence range" means the sentencing
court's discretionary range in imposing a nonappealable sentence.
(((44))) (45) "Statutory maximum sentence" means the maximum length
of time for which an offender may be confined as punishment for a crime
as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining
the crime, or other statute defining the maximum penalty for a crime.
(((45))) (46) "Stranger" means that the victim did not know the
offender twenty-four hours before the offense.
(47) "Total confinement" means confinement inside the physical
boundaries of a facility or institution operated or utilized under
contract by the state or any other unit of government for twenty-four
hours a day, or pursuant to RCW 72.64.050 and 72.64.060.
(((46))) (48) "Transition training" means written and verbal
instructions and assistance provided by the department to the offender
during the two weeks prior to the offender's successful completion of
the work ethic camp program. The transition training shall include
instructions in the offender's requirements and obligations during the
offender's period of community custody.
(((47))) (49) "Victim" means any person who has sustained
emotional, psychological, physical, or financial injury to person or
property as a direct result of the crime charged.
(((48))) (50) "Violent offense" means:
(a) Any of the following felonies:
(i) Any felony defined under any law as a class A felony or an
attempt to commit a class A felony;
(ii) Criminal solicitation of or criminal conspiracy to commit a
class A felony;
(iii) Manslaughter in the first degree;
(iv) Manslaughter in the second degree;
(v) Indecent liberties if committed by forcible compulsion;
(vi) Kidnapping in the second degree;
(vii) Arson in the second degree;
(viii) Assault in the second degree;
(ix) Assault of a child in the second degree;
(x) Extortion in the first degree;
(xi) Robbery in the second degree;
(xii) Drive-by shooting;
(xiii) Vehicular assault, when caused by the operation or driving
of a vehicle by a person while under the influence of intoxicating
liquor or any drug or by the operation or driving of a vehicle in a
reckless manner; and
(xiv) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a violent
offense in (a) of this subsection; and
(c) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a violent
offense under (a) or (b) of this subsection.
(((49))) (51) "Work crew" means a program of partial confinement
consisting of civic improvement tasks for the benefit of the community
that complies with RCW 9.94A.725.
(((50))) (52) "Work ethic camp" means an alternative incarceration
program as provided in RCW 9.94A.690 designed to reduce recidivism and
lower the cost of corrections by requiring offenders to complete a
comprehensive array of real-world job and vocational experiences,
character-building work ethics training, life management skills
development, substance abuse rehabilitation, counseling, literacy
training, and basic adult education.
(((51))) (53) "Work release" means a program of partial confinement
available to offenders who are employed or engaged as a student in a
regular course of study at school.
Sec. 8 RCW 9.94A.030 and 2003 c 53 s 55 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Board" means the indeterminate sentence review board created
under chapter 9.95 RCW.
(2) "Collect," or any derivative thereof, "collect and remit," or
"collect and deliver," when used with reference to the department,
means that the department, either directly or through a collection
agreement authorized by RCW 9.94A.760, is responsible for monitoring
and enforcing the offender's sentence with regard to the legal
financial obligation, receiving payment thereof from the offender, and,
consistent with current law, delivering daily the entire payment to the
superior court clerk without depositing it in a departmental account.
(3) "Commission" means the sentencing guidelines commission.
(4) "Community corrections officer" means an employee of the
department who is responsible for carrying out specific duties in
supervision of sentenced offenders and monitoring of sentence
conditions.
(5) "Community custody" means that portion of an offender's
sentence of confinement in lieu of earned release time or imposed
pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670,
9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the
community subject to controls placed on the offender's movement and
activities by the department. For offenders placed on community
custody for crimes committed on or after July 1, 2000, the department
shall assess the offender's risk of reoffense and may establish and
modify conditions of community custody, in addition to those imposed by
the court, based upon the risk to community safety.
(6) "Community custody range" means the minimum and maximum period
of community custody included as part of a sentence under RCW
9.94A.715, as established by the commission or the legislature under
RCW 9.94A.850, for crimes committed on or after July 1, 2000.
(7) "Community placement" means that period during which the
offender is subject to the conditions of community custody and/or
postrelease supervision, which begins either upon completion of the
term of confinement (postrelease supervision) or at such time as the
offender is transferred to community custody in lieu of earned release.
Community placement may consist of entirely community custody, entirely
postrelease supervision, or a combination of the two.
(8) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(9) "Community supervision" means a period of time during which a
convicted offender is subject to crime-related prohibitions and other
sentence conditions imposed by a court pursuant to this chapter or RCW
16.52.200(6) or 46.61.524. Where the court finds that any offender has
a chemical dependency that has contributed to his or her offense, the
conditions of supervision may, subject to available resources, include
treatment. For purposes of the interstate compact for out-of-state
supervision of parolees and probationers, RCW 9.95.270, community
supervision is the functional equivalent of probation and should be
considered the same as probation by other states.
(10) "Confinement" means total or partial confinement.
(11) "Conviction" means an adjudication of guilt pursuant to Titles
10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and
acceptance of a plea of guilty.
(12) "Crime-related prohibition" means an order of a court
prohibiting conduct that directly relates to the circumstances of the
crime for which the offender has been convicted, and shall not be
construed to mean orders directing an offender affirmatively to
participate in rehabilitative programs or to otherwise perform
affirmative conduct. However, affirmative acts necessary to monitor
compliance with the order of a court may be required by the department.
(13) "Criminal history" means the list of a defendant's prior
convictions and juvenile adjudications, whether in this state, in
federal court, or elsewhere.
(a) The history shall include, where known, for each conviction (i)
whether the defendant has been placed on probation and the length and
terms thereof; and (ii) whether the defendant has been incarcerated and
the length of incarceration.
(b) A conviction may be removed from a defendant's criminal history
only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or
a similar out-of-state statute, or if the conviction has been vacated
pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct
from the determination of an offender score. A prior conviction that
was not included in an offender score calculated pursuant to a former
version of the sentencing reform act remains part of the defendant's
criminal history.
(14) "Day fine" means a fine imposed by the sentencing court that
equals the difference between the offender's net daily income and the
reasonable obligations that the offender has for the support of the
offender and any dependents.
(15) "Day reporting" means a program of enhanced supervision
designed to monitor the offender's daily activities and compliance with
sentence conditions, and in which the offender is required to report
daily to a specific location designated by the department or the
sentencing court.
(16) "Department" means the department of corrections.
(17) "Determinate sentence" means a sentence that states with
exactitude the number of actual years, months, or days of total
confinement, of partial confinement, of community supervision, the
number of actual hours or days of community restitution work, or
dollars or terms of a legal financial obligation. The fact that an
offender through earned release can reduce the actual period of
confinement shall not affect the classification of the sentence as a
determinate sentence.
(18) "Disposable earnings" means that part of the earnings of an
offender remaining after the deduction from those earnings of any
amount required by law to be withheld. For the purposes of this
definition, "earnings" means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonuses, or
otherwise, and, notwithstanding any other provision of law making the
payments exempt from garnishment, attachment, or other process to
satisfy a court-ordered legal financial obligation, specifically
includes periodic payments pursuant to pension or retirement programs,
or insurance policies of any type, but does not include payments made
under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050,
or Title 74 RCW.
(19) "Drug offender sentencing alternative" is a sentencing option
available to persons convicted of a felony offense other than a violent
offense or a sex offense and who are eligible for the option under RCW
9.94A.660.
(20) "Drug offense" means:
(a) Any felony violation of chapter 69.50 RCW except possession of
a controlled substance (RCW 69.50.4013) or forged prescription for a
controlled substance (RCW 69.50.403);
(b) Any offense defined as a felony under federal law that relates
to the possession, manufacture, distribution, or transportation of a
controlled substance; or
(c) Any out-of-state conviction for an offense that under the laws
of this state would be a felony classified as a drug offense under (a)
of this subsection.
(21) "Earned release" means earned release from confinement as
provided in RCW 9.94A.728.
(22) "Escape" means:
(a) Sexually violent predator escape (RCW 9A.76.115), escape in the
first degree (RCW 9A.76.110), escape in the second degree (RCW
9A.76.120), willful failure to return from furlough (RCW 72.66.060),
willful failure to return from work release (RCW 72.65.070), or willful
failure to be available for supervision by the department while in
community custody (RCW 72.09.310); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as an escape
under (a) of this subsection.
(23) "Felony traffic offense" means:
(a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW
46.61.522), eluding a police officer (RCW 46.61.024), or felony hit-and-run injury-accident (RCW 46.52.020(4)); or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a felony
traffic offense under (a) of this subsection.
(24) "Fine" means a specific sum of money ordered by the sentencing
court to be paid by the offender to the court over a specific period of
time.
(25) "First-time offender" means any person who has no prior
convictions for a felony and is eligible for the first-time offender
waiver under RCW 9.94A.650.
(26) "Home detention" means a program of partial confinement
available to offenders wherein the offender is confined in a private
residence subject to electronic surveillance.
(27) "Legal financial obligation" means a sum of money that is
ordered by a superior court of the state of Washington for legal
financial obligations which may include restitution to the victim,
statutorily imposed crime victims' compensation fees as assessed
pursuant to RCW 7.68.035, court costs, county or interlocal drug funds,
court-appointed attorneys' fees, and costs of defense, fines, and any
other financial obligation that is assessed to the offender as a result
of a felony conviction. Upon conviction for vehicular assault while
under the influence of intoxicating liquor or any drug, RCW
46.61.522(1)(b), or vehicular homicide while under the influence of
intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial
obligations may also include payment to a public agency of the expense
of an emergency response to the incident resulting in the conviction,
subject to RCW 38.52.430.
(28) "Most serious offense" means any of the following felonies or
a felony attempt to commit any of the following felonies:
(a) Any felony defined under any law as a class A felony or
criminal solicitation of or criminal conspiracy to commit a class A
felony;
(b) Assault in the second degree;
(c) Assault of a child in the second degree;
(d) Child molestation in the second degree;
(e) Controlled substance homicide;
(f) Extortion in the first degree;
(g) Incest when committed against a child under age fourteen;
(h) Indecent liberties;
(i) Kidnapping in the second degree;
(j) Leading organized crime;
(k) Manslaughter in the first degree;
(l) Manslaughter in the second degree;
(m) Promoting prostitution in the first degree;
(n) Rape in the third degree;
(o) Robbery in the second degree;
(p) Sexual exploitation;
(q) Vehicular assault, when caused by the operation or driving of
a vehicle by a person while under the influence of intoxicating liquor
or any drug or by the operation or driving of a vehicle in a reckless
manner;
(r) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(s) Any other class B felony offense with a finding of sexual
motivation;
(t) Any other felony with a deadly weapon verdict under RCW
9.94A.602;
(u) Any felony offense in effect at any time prior to December 2,
1993, that is comparable to a most serious offense under this
subsection, or any federal or out-of-state conviction for an offense
that under the laws of this state would be a felony classified as a
most serious offense under this subsection;
(v)(i) A prior conviction for indecent liberties under RCW
9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess.
as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as
it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1)
(a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;
(ii) A prior conviction for indecent liberties under RCW
9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988,
if: (A) The crime was committed against a child under the age of
fourteen; or (B) the relationship between the victim and perpetrator is
included in the definition of indecent liberties under RCW
9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997,
or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993,
through July 27, 1997.
(29) "Nonviolent offense" means an offense which is not a violent
offense.
(30) "Offender" means a person who has committed a felony
established by state law and is eighteen years of age or older or is
less than eighteen years of age but whose case is under superior court
jurisdiction under RCW 13.04.030 or has been transferred by the
appropriate juvenile court to a criminal court pursuant to RCW
13.40.110. Throughout this chapter, the terms "offender" and
"defendant" are used interchangeably.
(31) "Partial confinement" means confinement for no more than one
year in a facility or institution operated or utilized under contract
by the state or any other unit of government, or, if home detention or
work crew has been ordered by the court, in an approved residence, for
a substantial portion of each day with the balance of the day spent in
the community. Partial confinement includes work release, home
detention, work crew, and a combination of work crew and home
detention.
(32) "Persistent offender" is an offender who:
(a)(i) Has been convicted in this state of any felony considered a
most serious offense; and
(ii) Has, before the commission of the offense under (a) of this
subsection, been convicted as an offender on at least two separate
occasions, whether in this state or elsewhere, of felonies that under
the laws of this state would be considered most serious offenses and
would be included in the offender score under RCW 9.94A.525; provided
that of the two or more previous convictions, at least one conviction
must have occurred before the commission of any of the other most
serious offenses for which the offender was previously convicted; or
(b)(i) Has been convicted of: (A) Rape in the first degree, rape
of a child in the first degree, child molestation in the first degree,
rape in the second degree, rape of a child in the second degree, or
indecent liberties by forcible compulsion; (B) any of the following
offenses with a finding of sexual motivation: Murder in the first
degree, murder in the second degree, homicide by abuse, kidnapping in
the first degree, kidnapping in the second degree, assault in the first
degree, assault in the second degree, assault of a child in the first
degree, or burglary in the first degree; or (C) an attempt to commit
any crime listed in this subsection (32)(b)(i); and
(ii) Has, before the commission of the offense under (b)(i) of this
subsection, been convicted as an offender on at least one occasion,
whether in this state or elsewhere, of an offense listed in (b)(i) of
this subsection or any federal or out-of-state offense or offense under
prior Washington law that is comparable to the offenses listed in
(b)(i) of this subsection. A conviction for rape of a child in the
first degree constitutes a conviction under (b)(i) of this subsection
only when the offender was sixteen years of age or older when the
offender committed the offense. A conviction for rape of a child in
the second degree constitutes a conviction under (b)(i) of this
subsection only when the offender was eighteen years of age or older
when the offender committed the offense.
(33) "Postrelease supervision" is that portion of an offender's
community placement that is not community custody.
(34) "Predatory" means: (a) The perpetrator of the crime was a
stranger to the victim, as defined in this section; (b) the perpetrator
established or promoted a relationship with the victim prior to the
offense and the victimization of the victim was a significant reason
the perpetrator established or promoted the relationship; or (c) the
perpetrator was: (i) A teacher, counselor, volunteer, or other person
in authority in any public or private school and the victim was a
student of the school under his or her authority or supervision. For
purposes of this subsection, "school" does not include home-based
instruction as defined in RCW 28A.225.010; (ii) a coach, trainer,
volunteer, or other person in authority in any recreational activity
and the victim was a participant in the activity under his or her
authority or supervision; or (iii) a pastor, elder, volunteer, or other
person in authority in any church or religious organization, and the
victim was a member or participant of the organization under his or her
authority.
(35) "Restitution" means a specific sum of money ordered by the
sentencing court to be paid by the offender to the court over a
specified period of time as payment of damages. The sum may include
both public and private costs.
(((35))) (36) "Risk assessment" means the application of an
objective instrument supported by research and adopted by the
department for the purpose of assessing an offender's risk of
reoffense, taking into consideration the nature of the harm done by the
offender, place and circumstances of the offender related to risk, the
offender's relationship to any victim, and any information provided to
the department by victims. The results of a risk assessment shall not
be based on unconfirmed or unconfirmable allegations.
(((36))) (37) "Serious traffic offense" means:
(a) Driving while under the influence of intoxicating liquor or any
drug (RCW 46.61.502), actual physical control while under the influence
of intoxicating liquor or any drug (RCW 46.61.504), reckless driving
(RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5));
or
(b) Any federal, out-of-state, county, or municipal conviction for
an offense that under the laws of this state would be classified as a
serious traffic offense under (a) of this subsection.
(((37))) (38) "Serious violent offense" is a subcategory of violent
offense and means:
(a)(i) Murder in the first degree;
(ii) Homicide by abuse;
(iii) Murder in the second degree;
(iv) Manslaughter in the first degree;
(v) Assault in the first degree;
(vi) Kidnapping in the first degree;
(vii) Rape in the first degree;
(viii) Assault of a child in the first degree; or
(ix) An attempt, criminal solicitation, or criminal conspiracy to
commit one of these felonies; or
(b) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a serious
violent offense under (a) of this subsection.
(((38))) (39) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.130(11);
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation of chapter 9.68A RCW other than
RCW 9.68A.070 or 9.68A.080; or
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt,
criminal solicitation, or criminal conspiracy to commit such crimes;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a sex
offense in (a) of this subsection;
(c) A felony with a finding of sexual motivation under RCW
9.94A.835 or 13.40.135; or
(d) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a sex
offense under (a) of this subsection.
(((39))) (40) "Sexual motivation" means that one of the purposes
for which the defendant committed the crime was for the purpose of his
or her sexual gratification.
(((40))) (41) "Standard sentence range" means the sentencing
court's discretionary range in imposing a nonappealable sentence.
(((41))) (42) "Statutory maximum sentence" means the maximum length
of time for which an offender may be confined as punishment for a crime
as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining
the crime, or other statute defining the maximum penalty for a crime.
(((42))) (43) "Stranger" means that the victim did not know the
offender twenty-four hours before the offense.
(44) "Total confinement" means confinement inside the physical
boundaries of a facility or institution operated or utilized under
contract by the state or any other unit of government for twenty-four
hours a day, or pursuant to RCW 72.64.050 and 72.64.060.
(((43))) (45) "Transition training" means written and verbal
instructions and assistance provided by the department to the offender
during the two weeks prior to the offender's successful completion of
the work ethic camp program. The transition training shall include
instructions in the offender's requirements and obligations during the
offender's period of community custody.
(((44))) (46) "Victim" means any person who has sustained
emotional, psychological, physical, or financial injury to person or
property as a direct result of the crime charged.
(((45))) (47) "Violent offense" means:
(a) Any of the following felonies:
(i) Any felony defined under any law as a class A felony or an
attempt to commit a class A felony;
(ii) Criminal solicitation of or criminal conspiracy to commit a
class A felony;
(iii) Manslaughter in the first degree;
(iv) Manslaughter in the second degree;
(v) Indecent liberties if committed by forcible compulsion;
(vi) Kidnapping in the second degree;
(vii) Arson in the second degree;
(viii) Assault in the second degree;
(ix) Assault of a child in the second degree;
(x) Extortion in the first degree;
(xi) Robbery in the second degree;
(xii) Drive-by shooting;
(xiii) Vehicular assault, when caused by the operation or driving
of a vehicle by a person while under the influence of intoxicating
liquor or any drug or by the operation or driving of a vehicle in a
reckless manner; and
(xiv) Vehicular homicide, when proximately caused by the driving of
any vehicle by any person while under the influence of intoxicating
liquor or any drug as defined by RCW 46.61.502, or by the operation of
any vehicle in a reckless manner;
(b) Any conviction for a felony offense in effect at any time prior
to July 1, 1976, that is comparable to a felony classified as a violent
offense in (a) of this subsection; and
(c) Any federal or out-of-state conviction for an offense that
under the laws of this state would be a felony classified as a violent
offense under (a) or (b) of this subsection.
(((46))) (48) "Work crew" means a program of partial confinement
consisting of civic improvement tasks for the benefit of the community
that complies with RCW 9.94A.725.
(((47))) (49) "Work ethic camp" means an alternative incarceration
program as provided in RCW 9.94A.690 designed to reduce recidivism and
lower the cost of corrections by requiring offenders to complete a
comprehensive array of real-world job and vocational experiences,
character-building work ethics training, life management skills
development, substance abuse rehabilitation, counseling, literacy
training, and basic adult education.
(((48))) (50) "Work release" means a program of partial confinement
available to offenders who are employed or engaged as a student in a
regular course of study at school.
Sec. 9 RCW 9.94A.670 and 2004 c 176 s 4 and 2004 c 38 s 9 are
each reenacted and amended to read as follows:
(1) Unless the context clearly requires otherwise, the definitions
in this subsection apply to this section only.
(a) "Family member" means a relative by blood, marriage, or
adoption, or a foster parent.
(b) "Sex offender treatment provider" or "treatment provider" means
a certified sex offender treatment provider or a certified affiliate
sex offender treatment provider as defined in RCW 18.155.020.
(((b))) (c) "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.
(((c))) (d) "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 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;
(c) The offender has no prior adult convictions for a violent
offense that was committed within five years of the date the current
offense was committed;
(d) The offense did not result in substantial bodily harm to the
victim;
(e) The offender had an established relationship with, or
connection to, the victim such that the sole connection with the victim
was not the commission of the crime; ((and))
(f) The offender's standard sentence range for the offense includes
the possibility of confinement for less than eleven years;
(g) The offender was the immediate victim's family member; and
(h) The immediate victim or immediate victim's family agrees to the
sentence imposed under this section.
(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 and affirmative
conditions, which must include, to the extent known, an identification
of specific activities or behaviors that are precursors to the
offender's offense cycle, including, but not limited to, activities or
behaviors such as viewing or listening to pornography or use of alcohol
or controlled substances.
(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, consider whether the alternative is too lenient in light
of the extent and circumstances of the offense, consider whether the
offender has victims in addition to the victim 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. The court shall give great weight to
the victim's opinion whether the offender should receive a treatment
disposition under this section. If the sentence imposed is contrary to
the victim's opinion, the court shall enter written findings stating
its reasons for imposing the treatment disposition. 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
confinement of up to twelve months or the maximum term within the
standard range, whichever is less. The court may order the offender to
serve a term of confinement greater than twelve months or the maximum
term within the standard range based on the presence of an aggravating
circumstance listed in RCW 9.94A.535(((2))) (3). In no case shall the
term of confinement exceed the statutory maximum sentence for the
offense. The court may order the offender to serve all or part of his
or her term of confinement in partial confinement. An offender
sentenced to a term of confinement under this subsection is not
eligible for earned release under RCW 9.92.151 or 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 any conditions imposed
by the department under RCW 9.94A.720.
(c) The court shall order treatment for any period up to five 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.
(d) As conditions of the suspended sentence, the court shall impose
specific prohibitions and affirmative conditions relating to the known
precursor activities or behaviors identified in the proposed treatment
plan under subsection (3)(b)(v) of this section or identified in an
annual review under subsection (7)(b) of this section.
(5) As conditions of the suspended sentence, the court may impose
one or more of the following:
(a) Crime-related prohibitions;
(b) Require the offender to devote time to a specific employment or
occupation;
(c) Require the offender to 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;
(d) Require the offender to report as directed to the court and a
community corrections officer;
(e) Require the offender to pay all court-ordered legal financial
obligations as provided in RCW 9.94A.030;
(f) Require the offender to perform community restitution work; or
(g) Require the offender to 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)(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. At the hearing,
the court may modify conditions of community custody including, but not
limited to, crime-related prohibitions and affirmative conditions
relating to activities and behaviors identified as part of, or relating
to precursor activities and behaviors in, the offender's offense cycle
or revoke the suspended sentence.
(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
may 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
unless the court has entered written findings that such evaluation is
in the best interest of the victim and that a successful evaluation of
the offender would otherwise be impractical. 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 two-year increments for
up to the remaining period of community custody.
(9)(a) If a violation of conditions other than a second violation
of the prohibitions or affirmative conditions relating to precursor
behaviors or activities imposed under subsection (4)(d) or (7)(b) 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.
(b) If a second violation of the prohibitions or affirmative
conditions relating to precursor behaviors or activities imposed under
subsection (4)(d) or (7)(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
subsection (10) 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) 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, unless the court has entered written findings that such
treatment is in the best interests of the victim and that successful
treatment of the offender would otherwise be impractical. Examinations
and treatment ordered pursuant to this subsection shall only be
conducted by certified sex offender treatment providers or certified
affiliate sex offender treatment providers under 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 sex offender treatment providers or certified
affiliate sex offender treatment 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.
NEW SECTION. Sec. 10 Sections 5 and 7 of this act expire July 1,
2006.
NEW SECTION. Sec. 11 Sections 6 and 8 of this act take effect
July 1, 2006.
NEW SECTION. Sec. 12 Sections 1 through 5, 7, and 9 of this act
are necessary for the immediate preservation of the public peace,
health, or safety, or support of the state government and its existing
public institutions, and take effect immediately.