BILL REQ. #: S-3590.3
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/14/10. Referred to Committee on Human Services & Corrections.
AN ACT Relating to sex offender registration concerning consistency in registration deadlines, criteria for which a court may relieve a person of the duty to register, the class of felony for a failure to register, when a failure to register will be considered a sex offense, and community custody terms for a failure to register; amending RCW 9A.44.130, 9A.44.140, 9.94A.030, and 9.94A.701; adding new sections to chapter 9A.44 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9A.44.130 and 2008 c 230 s 1 are each amended to read
as follows:
(1)(a) Any adult or juvenile residing whether or not the person has
a fixed residence, or who is a student, is employed, or carries on a
vocation in this state who has been found to have committed or has been
convicted of any sex offense or kidnapping offense, or who has been
found not guilty by reason of insanity under chapter 10.77 RCW of
committing any sex offense or kidnapping offense, shall register with
the county sheriff for the county of the person's residence, or if the
person is not a resident of Washington, the county of the person's
school, or place of employment or vocation, or as otherwise specified
in this section. Where a person required to register under this
section is in custody of the state department of corrections, the state
department of social and health services, a local division of youth
services, or a local jail or juvenile detention facility as a result of
a sex offense or kidnapping offense, the person shall also register
((at the time)) within three business days of release from custody with
an official designated by the agency that has jurisdiction over the
person.
(b) Any adult or juvenile who is required to register under (a) of
this subsection:
(i) Who is attending, or planning to attend, a public or private
school regulated under Title 28A RCW or chapter 72.40 RCW shall, within
((ten)) three business days of enrolling or prior to arriving at the
school to attend classes, whichever is earlier, notify the sheriff for
the county of the person's residence of the person's intent to attend
the school, and the sheriff shall promptly notify the principal of the
school;
(ii) Who is admitted to a public or private institution of higher
education shall, within ((ten days of enrolling or by the first)) three
business days after arriving at the institution, whichever is earlier,
notify the sheriff for the county of the person's residence of the
person's intent to attend the institution;
(iii) Who gains employment at a public or private institution of
higher education shall, within ((ten days of accepting employment or by
the first)) three business days after commencing work at the
institution, ((whichever is earlier,)) notify the sheriff for the
county of the person's residence of the person's employment by the
institution; or
(iv) Whose enrollment or employment at a public or private
institution of higher education is terminated shall, within ((ten))
three business days of such termination, notify the sheriff for the
county of the person's residence of the person's termination of
enrollment or employment at the institution.
(c) Persons required to register under this section who are
enrolled in a public or private institution of higher education on June
11, 1998, or a public or private school regulated under Title 28A RCW
or chapter 72.40 RCW on September 1, 2006, must notify the county
sheriff ((immediately)) within three business days.
(d) The sheriff shall notify the school's principal or
institution's department of public safety and shall provide that
department with the same information provided to a county sheriff under
subsection (3) of this section.
(e)(i) A principal receiving notice under this subsection must
disclose the information received from the sheriff under (b) of this
subsection as follows:
(A) If the student who is required to register as a sex offender is
classified as a risk level II or III, the principal shall provide the
information received to every teacher of any student required to
register under (a) of this subsection and to any other personnel who,
in the judgment of the principal, supervises the student or for
security purposes should be aware of the student's record;
(B) If the student who is required to register as a sex offender is
classified as a risk level I, the principal shall provide the
information received only to personnel who, in the judgment of the
principal, for security purposes should be aware of the student's
record.
(ii) Any information received by a principal or school personnel
under this subsection is confidential and may not be further
disseminated except as provided in RCW 28A.225.330, other statutes or
case law, and the family and educational and privacy rights act of
1994, 20 U.S.C. Sec. 1232g et seq.
(2) This section may not be construed to confer any powers pursuant
to RCW 4.24.550 upon the public safety department of any public or
private school or institution of higher education.
(3)(a) The person shall provide the following information when
registering: (i) Name; (ii) complete residential address; (iii) date
and place of birth; (iv) place of employment; (v) crime for which
convicted; (vi) date and place of conviction; (vii) aliases used;
(viii) social security number; (ix) photograph; and (x) fingerprints.
(b) Any person who lacks a fixed residence shall provide the
following information when registering: (i) Name; (ii) date and place
of birth; (iii) place of employment; (iv) crime for which convicted;
(v) date and place of conviction; (vi) aliases used; (vii) social
security number; (viii) photograph; (ix) fingerprints; and (x) where he
or she plans to stay.
(4)(a) Offenders shall register with the county sheriff within the
following deadlines. For purposes of this section the term
"conviction" refers to adult convictions and juvenile adjudications for
sex offenses or kidnapping offenses:
(i) OFFENDERS IN CUSTODY. (A) Sex offenders who committed a sex
offense on, before, or after February 28, 1990, and who, on or after
July 28, 1991, are in custody, as a result of that offense, of the
state department of corrections, the state department of social and
health services, a local division of youth services, or a local jail or
juvenile detention facility, and (B) kidnapping offenders who on or
after July 27, 1997, are in custody of the state department of
corrections, the state department of social and health services, a
local division of youth services, or a local jail or juvenile detention
facility, must register at the time of release from custody with an
official designated by the agency that has jurisdiction over the
offender. The agency shall within three days forward the registration
information to the county sheriff for the county of the offender's
anticipated residence. The offender must also register within
((twenty-four hours)) three business days from the time of release with
the county sheriff for the county of the person's residence, or if the
person is not a resident of Washington, the county of the person's
school, or place of employment or vocation. The agency that has
jurisdiction over the offender shall provide notice to the offender of
the duty to register. Failure to register ((at the time of release and
within twenty-four hours of release)) as provided in this subsection
constitutes a violation of this section and is punishable as provided
in ((subsection (11) of this)) section 2 of this act.
When the agency with jurisdiction intends to release an offender
with a duty to register under this section, and the agency has
knowledge that the offender is eligible for developmental disability
services from the department of social and health services, the agency
shall notify the division of developmental disabilities of the release.
Notice shall occur not more than thirty days before the offender is to
be released. The agency and the division shall assist the offender in
meeting the initial registration requirement under this section.
Failure to provide such assistance shall not constitute a defense for
any violation of this section.
(ii) OFFENDERS NOT IN CUSTODY BUT UNDER STATE OR LOCAL
JURISDICTION. Sex offenders who, on July 28, 1991, are not in custody
but are under the jurisdiction of the indeterminate sentence review
board or under the department of corrections' active supervision, as
defined by the department of corrections, the state department of
social and health services, or a local division of youth services, for
sex offenses committed before, on, or after February 28, 1990, must
register within ten days of July 28, 1991. Kidnapping offenders who,
on July 27, 1997, are not in custody but are under the jurisdiction of
the indeterminate sentence review board or under the department of
corrections' active supervision, as defined by the department of
corrections, the state department of social and health services, or a
local division of youth services, for kidnapping offenses committed
before, on, or after July 27, 1997, must register within ten days of
July 27, 1997. A change in supervision status of a sex offender who
was required to register under this subsection (4)(a)(ii) as of July
28, 1991, or a kidnapping offender required to register as of July 27,
1997, shall not relieve the offender of the duty to register or to
reregister following a change in residence. The obligation to register
shall only cease pursuant to RCW 9A.44.140.
(iii) OFFENDERS UNDER FEDERAL JURISDICTION. Sex offenders who, on
or after July 23, 1995, and kidnapping offenders who, on or after July
27, 1997, as a result of that offense are in the custody of the United
States bureau of prisons or other federal or military correctional
agency for sex offenses committed before, on, or after February 28,
1990, or kidnapping offenses committed on, before, or after July 27,
1997, must register within ((twenty-four hours)) three business days
from the time of release with the county sheriff for the county of the
person's residence, or if the person is not a resident of Washington,
the county of the person's school, or place of employment or vocation.
Sex offenders who, on July 23, 1995, are not in custody but are under
the jurisdiction of the United States bureau of prisons, United States
courts, United States parole commission, or military parole board for
sex offenses committed before, on, or after February 28, 1990, must
register within ten days of July 23, 1995. Kidnapping offenders who,
on July 27, 1997, are not in custody but are under the jurisdiction of
the United States bureau of prisons, United States courts, United
States parole commission, or military parole board for kidnapping
offenses committed before, on, or after July 27, 1997, must register
within ten days of July 27, 1997. A change in supervision status of a
sex offender who was required to register under this subsection
(4)(a)(iii) as of July 23, 1995, or a kidnapping offender required to
register as of July 27, 1997 shall not relieve the offender of the duty
to register or to reregister following a change in residence, or if the
person is not a resident of Washington, the county of the person's
school, or place of employment or vocation. The obligation to register
shall only cease pursuant to RCW 9A.44.140.
(iv) OFFENDERS WHO ARE CONVICTED BUT NOT CONFINED. Sex offenders
who are convicted of a sex offense on or after July 28, 1991, for a sex
offense that was committed on or after February 28, 1990, and
kidnapping offenders who are convicted on or after July 27, 1997, for
a kidnapping offense that was committed on or after July 27, 1997, but
who are not sentenced to serve a term of confinement immediately upon
sentencing, shall report to the county sheriff to register
((immediately upon completion)) within three business days of being
sentenced.
(v) OFFENDERS WHO ARE NEW RESIDENTS OR RETURNING WASHINGTON
RESIDENTS. Sex offenders and kidnapping offenders who move to
Washington state from another state or a foreign country that are not
under the jurisdiction of the state department of corrections, the
indeterminate sentence review board, or the state department of social
and health services at the time of moving to Washington, must register
within three business days of establishing residence or reestablishing
residence if the person is a former Washington resident. The duty to
register under this subsection applies to sex offenders convicted under
the laws of another state or a foreign country, federal or military
statutes for offenses committed before, on, or after February 28, 1990,
or Washington state for offenses committed before, on, or after
February 28, 1990, and to kidnapping offenders convicted under the laws
of another state or a foreign country, federal or military statutes, or
Washington state for offenses committed before, on, or after July 27,
1997. Sex offenders and kidnapping offenders from other states or a
foreign country who, when they move to Washington, are under the
jurisdiction of the department of corrections, the indeterminate
sentence review board, or the department of social and health services
must register within twenty-four hours of moving to Washington. The
agency that has jurisdiction over the offender shall notify the
offender of the registration requirements before the offender moves to
Washington.
(vi) OFFENDERS FOUND NOT GUILTY BY REASON OF INSANITY. Any adult
or juvenile who has been found not guilty by reason of insanity under
chapter 10.77 RCW of (A) committing a sex offense on, before, or after
February 28, 1990, and who, on or after July 23, 1995, is in custody,
as a result of that finding, of the state department of social and
health services, or (B) committing a kidnapping offense on, before, or
after July 27, 1997, and who on or after July 27, 1997, is in custody,
as a result of that finding, of the state department of social and
health services, must register within ((twenty-four hours)) three
business days from the time of release with the county sheriff for the
county of the person's residence. The state department of social and
health services shall provide notice to the adult or juvenile in its
custody of the duty to register. Any adult or juvenile who has been
found not guilty by reason of insanity of committing a sex offense on,
before, or after February 28, 1990, but who was released before July
23, 1995, or any adult or juvenile who has been found not guilty by
reason of insanity of committing a kidnapping offense but who was
released before July 27, 1997, shall be required to register within
((twenty-four hours)) three business days of receiving notice of this
registration requirement. The state department of social and health
services shall make reasonable attempts within available resources to
notify sex offenders who were released before July 23, 1995, and
kidnapping offenders who were released before July 27, 1997. Failure
to register within ((twenty-four hours)) three business days of
release, or of receiving notice, constitutes a violation of this
section and is punishable as provided in ((subsection (11) of this))
section 2 of this act.
(vii) OFFENDERS WHO LACK A FIXED RESIDENCE. Any person who lacks
a fixed residence and leaves the county in which he or she is
registered and enters and remains within a new county for twenty-four
hours is required to register with the county sheriff not more than
((twenty-four hours)) three business days after entering the county and
provide the information required in subsection (3)(b) of this section.
(viii) OFFENDERS WHO LACK A FIXED RESIDENCE AND WHO ARE UNDER
SUPERVISION. Offenders who lack a fixed residence and who are under
the supervision of the department shall register in the county of their
supervision.
(ix) OFFENDERS WHO MOVE TO, WORK, CARRY ON A VOCATION, OR ATTEND
SCHOOL IN ANOTHER STATE. Offenders required to register in Washington,
who move to another state, or who work, carry on a vocation, or attend
school in another state shall register a new address, fingerprints, and
photograph with the new state within ((ten)) three business days after
establishing residence, or after beginning to work, carry on a
vocation, or attend school in the new state. The person must also send
written notice within ((ten)) three business days of moving to the new
state or to a foreign country to the county sheriff with whom the
person last registered in Washington state. The county sheriff shall
promptly forward this information to the Washington state patrol.
(b) Failure to register within the time required under this section
constitutes a per se violation of this section and is punishable as
provided in ((subsection (11) of this)) section 2 of this act. The
county sheriff shall not be required to determine whether the person is
living within the county.
(c) An arrest on charges of failure to register, service of an
information, or a complaint for a violation of this section, or
arraignment on charges for a violation of this section, constitutes
actual notice of the duty to register. Any person charged with the
crime of failure to register under this section who asserts as a
defense the lack of notice of the duty to register shall register
((immediately)) within three business days following actual notice of
the duty through arrest, service, or arraignment. Failure to register
as required under this subsection (4)(c) constitutes grounds for filing
another charge of failing to register. Registering following arrest,
service, or arraignment on charges shall not relieve the offender from
criminal liability for failure to register prior to the filing of the
original charge.
(d) The deadlines for the duty to register under this section do
not relieve any sex offender of the duty to register under this section
as it existed prior to July 28, 1991.
(5)(a) If any person required to register pursuant to this section
changes his or her residence address within the same county, the person
must send signed written notice of the change of address to the county
sheriff within ((seventy-two hours)) within three business days of
moving. If any person required to register pursuant to this section
moves to a new county, the person must send signed written notice of
the change of address at least fourteen days before moving to the
county sheriff in the new county of residence and must register with
that county sheriff within ((twenty-four hours)) three business days of
moving. The person must also send signed written notice within ((ten))
three business days of the change of address in the new county to the
county sheriff with whom the person last registered. The county
sheriff with whom the person last registered shall promptly forward the
information concerning the change of address to the county sheriff for
the county of the person's new residence. Upon receipt of notice of
change of address to a new state, the county sheriff shall promptly
forward the information regarding the change of address to the agency
designated by the new state as the state's offender registration
agency.
(b) It is an affirmative defense to a charge that the person failed
to send a notice at least ((fourteen)) three business days in advance
of moving as required under (a) of this subsection that the person did
not know the location of his or her new residence at least ((fourteen))
three business days before moving. The defendant must establish the
defense by a preponderance of the evidence and, to prevail on the
defense, must also prove by a preponderance that the defendant sent the
required notice within ((twenty-four hours)) three business days of
determining the new address.
(6)(a) Any person required to register under this section who lacks
a fixed residence shall provide signed written notice to the sheriff of
the county where he or she last registered within ((forty-eight hours
excluding weekends and holidays)) three business days after ceasing to
have a fixed residence. The notice shall include the information
required by subsection (3)(b) of this section, except the photograph
and fingerprints. The county sheriff may, for reasonable cause,
require the offender to provide a photograph and fingerprints. The
sheriff shall forward this information to the sheriff of the county in
which the person intends to reside, if the person intends to reside in
another county.
(b) A person who lacks a fixed residence must report weekly, in
person, to the sheriff of the county where he or she is registered.
The weekly report shall be on a day specified by the county sheriff's
office, and shall occur during normal business hours. The county
sheriff's office may require the person to list the locations where the
person has stayed during the last seven days. The lack of a fixed
residence is a factor that may be considered in determining an
offender's risk level and shall make the offender subject to disclosure
of information to the public at large pursuant to RCW 4.24.550.
(c) If any person required to register pursuant to this section
does not have a fixed residence, it is an affirmative defense to the
charge of failure to register, that he or she provided written notice
to the sheriff of the county where he or she last registered within
((forty-eight hours excluding weekends and holidays after)) three
business days of ceasing to have a fixed residence and has subsequently
complied with the requirements of subsections (4)(a)(vii) or (viii) and
(6) of this section. To prevail, the person must prove the defense by
a preponderance of the evidence.
(7) All offenders who are required to register pursuant to this
section who have a fixed residence and who are designated as a risk
level II or III must report, in person, every ninety days to the
sheriff of the county where he or she is registered. Reporting shall
be on a day specified by the county sheriff's office, and shall occur
during normal business hours. An offender who complies with the
ninety-day reporting requirement with no violations for a period of at
least five years in the community may petition the superior court to be
relieved of the duty to report every ninety days. The petition shall
be made to the superior court in the county where the offender resides
or reports under this section. The prosecuting attorney of the county
shall be named and served as respondent in any such petition. The
court shall relieve the petitioner of the duty to report if the
petitioner shows, by a preponderance of the evidence, that the
petitioner has complied with the reporting requirement for a period of
at least five years and that the offender has not been convicted of a
criminal violation of this section for a period of at least five years,
and the court determines that the reporting no longer serves a public
safety purpose. Failure to report, as specified, constitutes a
violation of this section and is punishable as provided in ((subsection
(11) of this)) section 2 of this act.
(8) A sex offender subject to registration requirements under this
section who applies to change his or her name under RCW 4.24.130 or any
other law shall submit a copy of the application to the county sheriff
of the county of the person's residence and to the state patrol not
fewer than five days before the entry of an order granting the name
change. No sex offender under the requirement to register under this
section at the time of application shall be granted an order changing
his or her name if the court finds that doing so will interfere with
legitimate law enforcement interests, except that no order shall be
denied when the name change is requested for religious or legitimate
cultural reasons or in recognition of marriage or dissolution of
marriage. A sex offender under the requirement to register under this
section who receives an order changing his or her name shall submit a
copy of the order to the county sheriff of the county of the person's
residence and to the state patrol within five days of the entry of the
order.
(9) The county sheriff shall obtain a photograph of the individual
and shall obtain a copy of the individual's fingerprints. A photograph
may be taken at any time to update an individual's file.
(10) For the purpose of RCW 9A.44.130 through 9A.44.145, 10.01.200,
43.43.540, 70.48.470, and 72.09.330:
(a) "Sex offense" means:
(i) Any offense defined as a sex offense by RCW 9.94A.030;
(ii) Any violation under RCW 9A.44.096 (sexual misconduct with a
minor in the second degree);
(iii) Any violation under RCW 9.68A.090 (communication with a minor
for immoral purposes);
(iv) Any federal or out-of-state conviction for an offense that
under the laws of this state would be classified as a sex offense under
this subsection; and
(v) Any gross misdemeanor that is, under chapter 9A.28 RCW, a
criminal attempt, criminal solicitation, or criminal conspiracy to
commit an offense that is classified as a sex offense under RCW
9.94A.030 or this subsection.
(b) "Kidnapping offense" means: (i) The crimes of kidnapping in
the first degree, kidnapping in the second degree, and unlawful
imprisonment, as defined in chapter 9A.40 RCW, where the victim is a
minor and the offender is not the minor's parent; (ii) any offense that
is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation,
or criminal conspiracy to commit an offense that is classified as a
kidnapping offense under this subsection (10)(b); and (iii) any federal
or out-of-state conviction for an offense that under the laws of this
state would be classified as a kidnapping offense under this subsection
(10)(b).
(c) "Employed" or "carries on a vocation" means employment that is
full-time or part-time for a period of time exceeding fourteen days, or
for an aggregate period of time exceeding thirty days during any
calendar year. A person is employed or carries on a vocation whether
the person's employment is financially compensated, volunteered, or for
the purpose of government or educational benefit.
(d) "Student" means a person who is enrolled, on a full-time or
part-time basis, in any public or private educational institution. An
educational institution includes any secondary school, trade or
professional institution, or institution of higher education.
(11)(((a) A person who knowingly fails to comply with any of the
requirements of this section is guilty of a class B felony if the crime
for which the individual was convicted was a felony sex offense as
defined in subsection (10)(a) of this section or a federal or out-of-state conviction for an offense that under the laws of this state would
be a felony sex offense as defined in subsection (10)(a) of this
section.)) Except as may otherwise be provided by law, nothing in this
section shall impose any liability upon a peace officer, including a
county sheriff, or law enforcement agency, for failing to release
information authorized under this section.
(b) If the crime for which the individual was convicted was other
than a felony or a federal or out-of-state conviction for an offense
that under the laws of this state would be other than a felony,
violation of this section is a gross misdemeanor.
(12)(a) A person who knowingly fails to comply with any of the
requirements of this section is guilty of a class C felony if the crime
for which the individual was convicted was a felony kidnapping offense
as defined in subsection (10)(b) of this section or a federal or out-of-state conviction for an offense that under the laws of this state
would be a felony kidnapping offense as defined in subsection (10)(b)
of this section.
(b) If the crime for which the individual was convicted was other
than a felony or a federal or out-of-state conviction for an offense
that under the laws of this state would be other than a felony,
violation of this section is a gross misdemeanor.
(13)
NEW SECTION. Sec. 2 (1) A person who has a duty to register
under RCW 9A.44.130 for a felony sex offense as defined in that section
or a federal or out-of-state conviction that under the laws of this
state would be a felony sex offense and who knowingly fails to comply
with any of the requirements of RCW 9A.44.130:
(a) Is guilty of a class C felony if the person has been convicted
in this state of a failure to register on no more than one prior
occasion; or
(b) Is guilty of a class B felony if the person has been convicted
in this state of a failure to register on two or more prior occasions.
(2) A person who has a duty to register under RCW 9A.44.130 for a
sex offense other than a felony or a federal or out-of-state conviction
for a sex offender that under the laws of this state would be other
than a felony and who knowingly fails to comply with any of the
requirements of RCW 9A.44.130 is guilty of a gross misdemeanor.
(3)(a) A person who knowingly fails to comply with any of the
requirements of RCW 9A.44.130 is guilty of a class C felony if the
crime for which the individual was convicted was a felony kidnapping
offense as defined in that section or a federal or out-of-state
conviction for an offense that under the laws of this state would be a
felony kidnapping offense.
(b) If the crime for which the individual was convicted was other
than a felony or a federal or out-of-state conviction for an offense
that under the laws of this state would be other than a felony,
violation of RCW 9A.44.130 is a gross misdemeanor.
Sec. 3 RCW 9A.44.140 and 2002 c 25 s 1 are each amended to read
as follows:
(1) The duty to register under RCW 9A.44.130 shall end:
(a) For a person convicted of a class A felony or an offense listed
in subsection (5) of this section, or a person convicted of any sex
offense or kidnapping offense who has one or more prior convictions for
a sex offense or kidnapping offense: Such person may only be relieved
of the duty to register under subsection (3) ((or (4))) of this section
or as provided in section 4 of this act.
(b) For a person convicted of a class B felony((, and the person))
who does not have one or more prior convictions for a sex offense or
kidnapping offense and ((the person's)) whose current offense is not
listed in subsection (5) of this section: Fifteen years after the last
date of release from confinement, if any, (including full-time
residential treatment) pursuant to the conviction, or entry of the
judgment and sentence, if the person has spent fifteen consecutive
years in the community without being convicted of any new offenses.
(c) For a person convicted of a class C felony, a violation of RCW
9.68A.090 or 9A.44.096, or an attempt, solicitation, or conspiracy to
commit a class C felony, and the person does not have one or more prior
convictions for a sex offense or kidnapping offense and the person's
current offense is not listed in subsection (5) of this section: Ten
years after the last date of release from confinement, if any,
(including full-time residential treatment) pursuant to the conviction,
or entry of the judgment and sentence, if the person has spent ten
consecutive years in the community without being convicted of any new
offenses.
(2) The provisions of subsection (1) of this section shall apply
equally to a person who has been found not guilty by reason of insanity
under chapter 10.77 RCW of a sex offense or kidnapping offense.
(3)(a) Except as provided in (((b) of this)) subsection (4)(a) of
this section, any person having a duty to register under RCW 9A.44.130
may petition the superior court to be relieved of that duty, if the
person has spent ten consecutive years in the community without being
convicted of any new offenses. The petition shall be made to the court
in which the petitioner was convicted of the offense that subjects him
or her to the duty to register, or, in the case of convictions in other
states, a foreign country, or a federal or military court, to the court
in Thurston county. The prosecuting attorney of the county shall be
named and served as the respondent in any such petition. The court
shall consider the nature of the registrable offense committed, and the
criminal and relevant noncriminal behavior of the petitioner both
before and after conviction, and may consider other factors. Except as
provided in ((subsection (4) of this)) section 4 of this act, the court
may relieve the petitioner of the duty to register only if the
petitioner shows((, with)) by clear and convincing evidence((,)) that
((future registration of the petitioner will not serve the purposes of
RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and
72.09.330)) the petitioner is sufficiently rehabilitated to warrant
removal from the sex offender registry.
(b)(((i))) In determining whether the petitioner is sufficiently
rehabilitated to warrant removal from the sex offender registry, the
court shall consider the following factors:
(i) The nature of the registrable offense committed including the
number of victims and the length of the offense history;
(ii) Any subsequent criminal history;
(iii) The petitioner's compliance with supervision requirements;
(iv) The length of time since the charged incident(s) occurred;
(v) Any input from corrections officers, law enforcement, or
treatment providers;
(vi) Participation in sex offender treatment;
(vii) Participation in other treatment and rehabilitative programs;
(viii) The offender's stability in employment and housing;
(ix) The offender's community and personal support system;
(x) Any risk assessments or evaluations prepared by a qualified
professional;
(xi) Any updated polygraph examination;
(xii) Any input of the victim;
(xiii) Any other factors the court may consider relevant.
(4)(a) The court may not relieve a person of the duty to register
if the person has been:
(i) Determined to be a sexually violent predator as defined in RCW
71.09.020((, or has been));
(ii) Convicted as an adult of a sex offense or kidnapping offense
that is a class A felony and that was committed with forcible
compulsion on or after June 8, 2000((.)); or
(ii) The court may not relieve a person of the duty to register if
the person has been
(iii) Until July 1, 2012, convicted of one aggravated offense or
more than one sexually violent offense, as defined in subsection (5) of
this section, and the offense or offenses were committed on or after
March 12, 2002.
(((c))) (b) Any person ((subject to (b) of this subsection or
subsection (5) of this section)) who may not be relieved of the duty to
register may petition the court to be exempted from any community
notification requirements that the person may be subject to fifteen
years after the later of the entry of the judgment and sentence or the
last date of release from confinement, including full-time residential
treatment, pursuant to the conviction, if the person has spent the time
in the community without being convicted of any new offense.
(((4) An offender having a duty to register under RCW 9A.44.130 for
a sex offense or kidnapping offense committed when the offender was a
juvenile may petition the superior court to be relieved of that duty.
The court shall consider the nature of the registrable offense
committed, and the criminal and relevant noncriminal behavior of the
petitioner both before and after adjudication, and may consider other
factors.))
(a) The court may relieve the petitioner of the duty to register
for a sex offense or kidnapping offense that was committed while the
petitioner was fifteen years of age or older only if the petitioner
shows, with clear and convincing evidence, that future registration of
the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200,
43.43.540, 46.20.187, 70.48.470, and 72.09.330.
(b) The court may relieve the petitioner of the duty to register
for a sex offense or kidnapping offense that was committed while the
petitioner was under the age of fifteen if the petitioner (i) has not
been adjudicated of any additional sex offenses or kidnapping offenses
during the twenty-four months following the adjudication for the
offense giving rise to the duty to register, and (ii) proves by a
preponderance of the evidence that future registration of the
petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200,
43.43.540, 46.20.187, 70.48.470, and 72.09.330.
This subsection shall not apply to juveniles prosecuted as
adults.
(5)(a) A person who has been convicted of an aggravated offense, or
has been convicted of one or more prior sexually violent offenses or
criminal offenses against a victim who is a minor, as defined in (b) of
this subsection may only be relieved of the duty to register under
subsection (((3)(b))) (4)(a) of this section. This provision shall
apply to convictions for crimes committed on or after July 22, 2001.
(b) Unless the context clearly requires otherwise, the following
definitions apply only to the federal lifetime registration
requirements under this subsection:
(i) "Aggravated offense" means an adult conviction that meets the
definition of 18 U.S.C. Sec. 2241, which is limited to the following:
(A) Any sex offense involving sexual intercourse or sexual contact
where the victim is under twelve years of age;
(B) RCW 9A.44.040 (rape in the first degree), RCW 9A.44.073 (rape
of a child in the first degree), or RCW 9A.44.083 (child molestation in
the first degree);
(C) Any of the following offenses when committed by forcible
compulsion or by the offender administering, by threat or force or
without the knowledge or permission of that person, a drug, intoxicant,
or other similar substance that substantially impairs the ability of
that person to appraise or control conduct: RCW 9A.44.050 (rape in the
second degree), RCW 9A.44.100 (indecent liberties), RCW 9A.44.160
(custodial sexual misconduct in the first degree), RCW 9A.64.020
(incest), or RCW 9.68A.040 (sexual exploitation of a minor);
(D) Any of the following offenses when committed by forcible
compulsion or by the offender administering, by threat or force or
without the knowledge or permission of that person, a drug, intoxicant,
or other similar substance that substantially impairs the ability of
that person to appraise or control conduct, if the victim is twelve
years of age or over but under sixteen years of age and the offender is
eighteen years of age or over and is more than forty-eight months older
than the victim: RCW 9A.44.076 (rape of a child in the second degree),
RCW 9A.44.079 (rape of a child in the third degree), RCW 9A.44.086
(child molestation in the second degree), or RCW 9A.44.089 (child
molestation in the third degree);
(E) A felony with a finding of sexual motivation under RCW
9.94A.835 where the victim is under twelve years of age or that is
committed by forcible compulsion or by the offender administering, by
threat or force or without the knowledge or permission of that person,
a drug, intoxicant, or other similar substance that substantially
impairs the ability of that person to appraise or control conduct;
(F) An offense that is, under chapter 9A.28 RCW, an attempt or
solicitation to commit such an offense; or
(G) An offense defined by federal law or the laws of another state
that is equivalent to the offenses listed in (b)(i)(A) through (F) of
this subsection.
(ii) "Sexually violent offense" means an adult conviction that
meets the definition of 42 U.S.C. Sec. 14071(a)(1)(A), which is limited
to the following:
(A) An aggravated offense;
(B) An offense that is not an aggravated offense but meets the
definition of 18 U.S.C. Sec. 2242, which is limited to RCW 9A.44.050(1)
(b) through (f) (rape in the second degree) and RCW 9A.44.100(1) (b)
through (f) (indecent liberties);
(C) A felony with a finding of sexual motivation under RCW
9.94A.835 where the victim is incapable of appraising the nature of the
conduct or physically incapable of declining participation in, or
communicating unwillingness to engage in, the conduct;
(D) An offense that is, under chapter 9A.28 RCW, an attempt or
solicitation to commit such an offense; or
(E) An offense defined by federal law or the laws of another state
that is equivalent to the offenses listed in (b)(ii)(A) through (D) of
this subsection.
(iii) "Criminal offense against a victim who is a minor" means, in
addition to any aggravated offense or sexually violent offense where
the victim was under eighteen years of age, an adult conviction for the
following offenses where the victim is under eighteen years of age:
(A) RCW 9A.44.060 (rape in the third degree), RCW 9A.44.076 (rape
of a child in the second degree), RCW 9A.44.079 (rape of a child in the
third degree), RCW 9A.44.086 (child molestation in the second degree),
RCW 9A.44.089 (child molestation in the third degree), RCW 9A.44.093
(sexual misconduct with a minor in the first degree), RCW 9A.44.096
(sexual misconduct with a minor in the second degree), RCW 9A.44.160
(custodial sexual misconduct in the first degree), RCW 9A.64.020
(incest), RCW 9.68A.040 (sexual exploitation of a minor), RCW 9.68A.090
(communication with a minor for immoral purposes), or RCW 9.68A.100
(((patronizing a juvenile prostitute))) (commercial sexual abuse of a
minor);
(B) RCW 9A.40.020 (kidnapping in the first degree), RCW 9A.40.030
(kidnapping in the second degree), or RCW 9A.40.040 (unlawful
imprisonment), where the victim is a minor and the offender is not the
minor's parent;
(C) A felony with a finding of sexual motivation under RCW
9.94A.835 where the victim is a minor;
(D) An offense that is, under chapter 9A.28 RCW, an attempt or
solicitation to commit such an offense; or
(E) An offense defined by federal law or the laws of another state
that is equivalent to the offenses listed in (b)(iii)(A) through (D) of
this subsection.
(6) Unless relieved of the duty to register pursuant to this
section, a violation of RCW 9A.44.130 is an ongoing offense for
purposes of the statute of limitations under RCW 9A.04.080.
(7) Nothing in RCW 9.94A.637 relating to discharge of an offender
shall be construed as operating to relieve the offender of his or her
duty to register pursuant to RCW 9A.44.130.
(8) For purposes of determining whether a person has been convicted
of more than one sex offense, failure to register as a sex offender or
kidnapping offender is not a sex or kidnapping offense.
NEW SECTION. Sec. 4 (1) An offender having a duty to register
under RCW 9A.44.130 for a sex offense or kidnapping offense committed
when the offender was a juvenile may petition the superior court to be
relieved of that duty as provided in this section.
(2) The court may relieve the petitioner of the duty to register
if:
(a) At least twenty-four months have passed since the adjudication
for the offense giving rise to the duty to register and the petitioner
has not been adjudicated of any additional sex offenses or kidnapping
offenses;
(b) The petitioner has not been adjudicated or convicted of a
failure to comply with RCW 9A.44.130 during the twenty-four months
prior to filing the petition; and
(c)(i) The petitioner was fifteen years of age or older at the time
the sex offense or kidnapping offense was committed and the petitioner
shows by clear and convincing evidence that the petitioner is
sufficiently rehabilitated to warrant removal from the sex offender
registry; or
(ii) The petitioner was under the age of fifteen at the time the
sex offense or kidnapping offense was committed and the petitioner
shows by a preponderance of the evidence that the petitioner is
sufficiently rehabilitated to warrant removal from the sex offender
registry.
(3) In determining whether the petitioner is sufficiently
rehabilitated to warrant removal from the sex offender registry, the
court shall consider the following factors:
(a) The nature of the registrable offense committed including the
number of victims and the length of the offense history;
(b) Any subsequent criminal history;
(c) The petitioner's compliance with supervision requirements;
(d) The length of time since the charged incident(s) occurred;
(e) Any input from corrections officers, law enforcement, or
treatment providers;
(f) Participation in sex offender treatment;
(g) Participation in other treatment and rehabilitative programs;
(h) The offender's stability in employment and housing;
(i) The offender's community and personal support system;
(j) Any risk assessments or evaluations prepared by a qualified
professional;
(k) Any updated polygraph examination;
(l) Any input of the victim;
(m) Any other factors the court may consider relevant.
(4) A juvenile prosecuted and convicted of a sex offense or
kidnapping offense as an adult may not petition to the superior court
under this section.
Sec. 5 RCW 9.94A.030 and 2009 c 375 s 4 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 as
part of a sentence under this chapter and served in the community
subject to controls placed on the offender's movement and activities by
the department.
(6) "Community protection zone" means the area within eight hundred
eighty feet of the facilities and grounds of a public or private
school.
(7) "Community restitution" means compulsory service, without
compensation, performed for the benefit of the community by the
offender.
(8) "Confinement" means total or partial confinement.
(9) "Conviction" means an adjudication of guilt pursuant to Title
10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and
acceptance of a plea of guilty.
(10) "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.
(11) "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.
(12) "Criminal street gang" means any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having a common name or common identifying sign or symbol,
having as one of its primary activities the commission of criminal
acts, and whose members or associates individually or collectively
engage in or have engaged in a pattern of criminal street gang
activity. This definition does not apply to employees engaged in
concerted activities for their mutual aid and protection, or to the
activities of labor and bona fide nonprofit organizations or their
members or agents.
(13) "Criminal street gang associate or member" means any person
who actively participates in any criminal street gang and who
intentionally promotes, furthers, or assists in any criminal act by the
criminal street gang.
(14) "Criminal street gang-related offense" means any felony or
misdemeanor offense, whether in this state or elsewhere, that is
committed for the benefit of, at the direction of, or in association
with any criminal street gang, or is committed with the intent to
promote, further, or assist in any criminal conduct by the gang, or is
committed for one or more of the following reasons:
(a) To gain admission, prestige, or promotion within the gang;
(b) To increase or maintain the gang's size, membership, prestige,
dominance, or control in any geographical area;
(c) To exact revenge or retribution for the gang or any member of
the gang;
(d) To obstruct justice, or intimidate or eliminate any witness
against the gang or any member of the gang;
(e) To directly or indirectly cause any benefit, aggrandizement,
gain, profit, or other advantage for the gang, its reputation,
influence, or membership; or
(f) To provide the gang with any advantage in, or any control or
dominance over any criminal market sector, including, but not limited
to, manufacturing, delivering, or selling any controlled substance
(chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen
property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88
RCW); human trafficking (RCW 9A.40.100); or promoting pornography
(chapter 9.68 RCW).
(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 custody, 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), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)); 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.825;
(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;
(w) Any out-of-state conviction for a felony offense with a finding
of sexual motivation if the minimum sentence imposed was ten years or
more; provided that the out-of-state felony offense must be comparable
to a felony offense under Title 9 or 9A RCW and the out-of-state
definition of sexual motivation must be comparable to the definition of
sexual motivation contained in this section.
(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. In addition, for the purpose of community custody
requirements under this chapter, "offender" also means a misdemeanor or
gross misdemeanor probationer convicted of an offense included in RCW
9.94A.501(1) and ordered by a superior court to probation under the
supervision of the department pursuant to RCW 9.92.060, 9.95.204, or
9.95.210. 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) "Pattern of criminal street gang activity" means:
(a) The commission, attempt, conspiracy, or solicitation of, or any
prior juvenile adjudication of or adult conviction of, two or more of
the following criminal street gang-related offenses:
(i) Any "serious violent" felony offense as defined in this
section, excluding Homicide by Abuse (RCW 9A.32.055) and Assault of a
Child 1 (RCW 9A.36.120);
(ii) Any "violent" offense as defined by this section, excluding
Assault of a Child 2 (RCW 9A.36.130);
(iii) Deliver or Possession with Intent to Deliver a Controlled
Substance (chapter 69.50 RCW);
(iv) Any violation of the firearms and dangerous weapon act
(chapter 9.41 RCW);
(v) Theft of a Firearm (RCW 9A.56.300);
(vi) Possession of a Stolen Firearm (RCW 9A.56.310);
(vii) Malicious Harassment (RCW 9A.36.080);
(viii) Harassment where a subsequent violation or deadly threat is
made (RCW 9A.46.020(2)(b));
(ix) Criminal Gang Intimidation (RCW 9A.46.120);
(x) Any felony conviction by a person eighteen years of age or
older with a special finding of involving a juvenile in a felony
offense under RCW 9.94A.833;
(xi) Residential Burglary (RCW 9A.52.025);
(xii) Burglary 2 (RCW 9A.52.030);
(xiii) Malicious Mischief 1 (RCW 9A.48.070);
(xiv) Malicious Mischief 2 (RCW 9A.48.080);
(xv) Theft of a Motor Vehicle (RCW 9A.56.065);
(xvi) Possession of a Stolen Motor Vehicle (RCW 9A.56.068);
(xvii) Taking a Motor Vehicle Without Permission 1 (RCW 9A.56.070);
(xviii) Taking a Motor Vehicle Without Permission 2 (RCW
9A.56.075);
(xix) Extortion 1 (RCW 9A.56.120);
(xx) Extortion 2 (RCW 9A.56.130);
(xxi) Intimidating a Witness (RCW 9A.72.110);
(xxii) Tampering with a Witness (RCW 9A.72.120);
(xxiii) Reckless Endangerment (RCW 9A.36.050);
(xxiv) Coercion (RCW 9A.36.070);
(xxv) Harassment (RCW 9A.46.020); or
(xxvi) Malicious Mischief 3 (RCW 9A.48.090);
(b) That at least one of the offenses listed in (a) of this
subsection shall have occurred after July 1, 2008;
(c) That the most recent committed offense listed in (a) of this
subsection occurred within three years of a prior offense listed in (a)
of this subsection; and
(d) Of the offenses that were committed in (a) of this subsection,
the offenses occurred on separate occasions or were committed by two or
more persons.
(34) "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, assault of a child in the second degree, or burglary in the
first degree; or (C) an attempt to commit any crime listed in this
subsection (34)(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.
(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.
(37) "Public school" has the same meaning as in RCW 28A.150.010.
(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.
(39) "Risk assessment" means the application of the risk instrument
recommended to the department by the Washington state institute for
public policy as having the highest degree of predictive accuracy for
assessing an offender's risk of reoffense.
(40) "Serious traffic offense" means:
(a) Nonfelony driving while under the influence of intoxicating
liquor or any drug (RCW 46.61.502), nonfelony 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.
(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.
(42) "Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.130(((12)));
(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.080; ((or))
(iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt,
criminal solicitation, or criminal conspiracy to commit such crimes; or
(v) A felony violation pursuant to section 2(1) of this act if the
person has been convicted on at least one prior occasion;
(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.
(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.
(44) "Standard sentence range" means the sentencing court's
discretionary range in imposing a nonappealable sentence.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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. 6 RCW 9.94A.701 and 2009 c 375 s 5 are each amended to read
as follows:
(1) If an offender is sentenced to the custody of the department
for one of the following crimes, the court shall, in addition to the
other terms of the sentence, sentence the offender to community custody
for three years:
(a) A sex offense not sentenced under RCW 9.94A.507;
(b) A serious violent offense; or
(c) A violation ((of RCW 9A.44.130(11)(a))) under section 2(1) of
this act committed on or after June 7, 2006, when a court sentences the
person to a term of confinement of one year or less and the offender
has committed a violation of section 2(1) of this act on at least one
other occasion.
(2) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for eighteen months when the
court sentences the person to the custody of the department for a
violent offense that is not considered a serious violent offense.
(3) A court shall, in addition to the other terms of the sentence,
sentence an offender to community custody for one year when the court
sentences the person to the custody of the department for:
(a) Any crime against persons under RCW 9.94A.411(2);
(b) An offense involving the unlawful possession of a firearm under
RCW 9.41.040, where the offender is a criminal street gang member or
associate; ((or))
(c) A felony offense under chapter 69.50 or 69.52 RCW, committed on
or after July 1, 2000; or
(d) A felony violation under section 2(1) of this act that is the
offender's first violation.
(4) If an offender is sentenced under the drug offender sentencing
alternative, the court shall impose community custody as provided in
RCW 9.94A.660.
(5) If an offender is sentenced under the special ((sexual [sex]))
sex offender sentencing alternative, the court shall impose community
custody as provided in RCW 9.94A.670.
(6) If an offender is sentenced to a work ethic camp, the court
shall impose community custody as provided in RCW 9.94A.690.
(7) If a sex offender is sentenced as a nonpersistent offender
pursuant to RCW 9.94A.507, the court shall impose community custody as
provided in that section.
(8) The term of community custody specified by this section shall
be reduced by the court whenever an offender's standard range term of
confinement in combination with the term of community custody exceeds
the statutory maximum for the crime as provided in RCW 9A.20.021.
NEW SECTION. Sec. 7 Sections 2 and 4 of this act are each added
to chapter