Amendment ASA1-AB431

LRBs0265/2

JEO:kmg:jf

1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 431

November 12, 1997 - Offered by Committee on Judiciary.

AB431-ASA1,1,8 An Act to renumber and amend 51.20 (13) (ct) 1., 51.20 (13) (ct) 2., 301.45 (7) (c) 1. and 2., 938.34 (15m) (a), 938.34 (15m) (b), 971.17 (1m) (b) 1., 971.17 (1m) (b) 2., 973.048 (1) and 973.048 (2); to amend 301.45 (1) (intro.), 301.45 (1) (e), 301.45 (7) (c) (intro.) and 948.13 (2); and to create 51.20 (13) (ct) 3., 301.45 (1m), 301.45 (7) (c) 2m., 301.46 (2m) (at), 938.34 (15m) (c), 948.13 (2m), 971.17 (1m) (b) 3. and 973.048 (3) of the statutes; relating to: exempting certain persons from the sex offender registration requirements and the prohibition on child sex offenders working with children.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB431-ASA1, s. 1 Section 1. 51.20 (13) (ct) 1. of the statutes, as created by 1995 Wisconsin Act 440, is renumbered 51.20 (13) (ct) 2m. and amended to read:

AB431-ASA1,2,7 51.20 (13) (ct) 2m. If the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1. and is found to have committed a violation, or to have solicited, conspired or attempted to commit a violation, of s. 940.225 (1), (2) or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.055, 948.06, 948.07, 948.08, 948.11 or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the subject individual was not the victim's parent, the court shall require the individual to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the individual, that the individual is not required to comply under s. 301.45 (1m).

AB431-ASA1, s. 2 Section 2. 51.20 (13) (ct) 2. of the statutes, as created by 1995 Wisconsin Act 440, is renumbered 51.20 (13) (ct) 1m. and amended to read:

AB431-ASA1,2,17 51.20 (13) (ct) 1m. Except as provided in subd. 1. 2m., if the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1. and is found to have committed any violation, or to have solicited, conspired or attempted to commit any violation, of ch. 940, 944 or 948 or ss. 943.01 to 943.15, the court may require the subject individual to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the subject individual report under s. 301.45.

AB431-ASA1, s. 3 Section 3. 51.20 (13) (ct) 3. of the statutes is created to read:

AB431-ASA1,2,21 51.20 (13) (ct) 3. In determining under subd. 1m. whether it would be in the interest of public protection to have the subject individual report under s. 301.45, the court may consider any of the following:

AB431-ASA1,2,23 a. The ages, at the time of the violation, of the subject individual and the victim of the violation.

AB431-ASA1,2,25 b. The relationship between the subject individual and the victim of the violation.

AB431-ASA1,3,2 c. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

AB431-ASA1,3,5 d. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

AB431-ASA1,3,7 e. The probability that the subject individual will commit other violations in the future.

AB431-ASA1,3,8 f. The report of the examination conducted under s. 301.45 (1m) (d).

AB431-ASA1,3,10 g. Any other factor that the court determines may be relevant to the particular case.

AB431-ASA1, s. 4 Section 4. 301.45 (1) (intro.) of the statutes, as affected by 1995 Wisconsin Act 440, is amended to read:

AB431-ASA1,3,15 301.45 (1) Who is covered. (intro.) A Except as provided in sub. (1m), a person shall comply with the reporting requirements under this section if he or she meets any of the following criteria:

AB431-ASA1, s. 5 Section 5. 301.45 (1) (e) of the statutes, as affected by 1995 Wisconsin Act 440, is amended to read:

AB431-ASA1,3,20 301.45 (1) (e) Is ordered by a court under s. 51.20 (13) (ct) 1m., 938.34 (15m) (am), 971.17 (1m) (b) 2. 1m. or 973.048 (1m) to comply with the reporting requirements under this section.

AB431-ASA1, s. 6 Section 6. 301.45 (1m) of the statutes is created to read:

AB431-ASA1,3,24 301.45 (1m) Exception to registration requirement. (a) A person is not required to comply with the reporting requirements under this section if all of the following apply:

AB431-ASA1,4,4 1. The person meets the criteria under sub. (1) (a) to (dh) based on any violation, or on the solicitation, conspiracy or attempt to commit any violation, of s. 948.02 (1) or (2) or 948.025 or of a law of another state that is comparable to s. 948.02 (1) or (2) or 948.025.

AB431-ASA1,4,9 2. At the time of the violation, or of the solicitation, conspiracy or attempt to commit the violation, of s. 948.02 (1) or (2) or 948.025 or of a law of another state that is comparable to s. 948.02 (1) or (2) or 948.025, the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child.

AB431-ASA1,4,11 3. It is not necessary, in the interest of public protection, to require the person to comply with the reporting requirements under this section.

AB431-ASA1,4,21 (b) If a person believes that he or she is not required under par. (a) to comply with the reporting requirements under this section and the person is not before the court under s. 51.20 (13) (ct), 938.34 (15m), 971.17 (1m) (b) or 973.048, the person may move a court to make a determination of whether the person satisfies the criteria specified in par. (a). A motion made under this paragraph shall be filed with the circuit court for the county in which the person was convicted, adjudicated delinquent, found in need of protection or services or found not guilty or not responsible by reason of mental disease or defect, except that if the person meets the criteria of sub. (1) (dh) the person shall file the motion in the circuit court for the county in which he or she resides.

AB431-ASA1,5,2 (be) A person who files a motion under par. (b) shall send a copy of the motion to the district attorney for the county in which the motion is filed. The district attorney shall make a reasonable attempt to contact the victim of the crime that is the subject of the person's motion to inform the victim of his or her right to make or provide a statement under par. (bv).

AB431-ASA1,5,5 (bm) A court shall hold a hearing on a motion made by a person under par. (b). The district attorney who receives a copy of a motion under par. (be) may appear at the hearing.

AB431-ASA1,5,10 (bv) Before deciding a motion filed under par. (b), the court shall allow the victim of the crime that is the subject of the motion to make a statement in court at the hearing under par. (bm) or to submit a written statement to the court. A statement under this paragraph must be relevant to the determinations that a court must make under par. (b).

AB431-ASA1,5,17 (d) 1. Before deciding a motion filed by a person under par. (b) or s. 51.20 (13) (ct) 2m., 938.34 (15m) (bm), 971.17 (1m) (b) 2m. or 973.048 (2m) requesting a determination of whether the person is required to comply with the reporting requirements under this section, a court may request the person to be examined by a physician, psychologist or other expert approved by the court. If the person refuses to undergo an examination requested by the court under this subdivision, the court shall deny the person's motion without prejudice.

AB431-ASA1,5,25 2. If a person is examined by a physician, psychologist or other expert under subd. 1., the physician, psychologist or other expert shall file a report of his or her examination with the court, and the court shall provide copies of the report to the person and, if he or she requests a copy, to the district attorney. The contents of the report shall be confidential until the physician, psychologist or other expert has testified at the hearing held under par. (bm). The report shall contain an opinion regarding whether it would be in the interest of public protection to have the person register under this section and the basis for that opinion.

AB431-ASA1,6,9 3. A person who is examined by a physician, psychologist or other expert under subd. 1. is responsible for paying the cost of the services provided by the physician, psychologist or other expert, except that if the person is indigent the cost of the services provided by the physician, psychologist or other expert shall be paid by the county. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07 (1), except that the person shall be considered indigent without another determination under s. 977.07 (1) if the person is represented by the state public defender or by a private attorney appointed under s. 977.08.

AB431-ASA1,6,13 (e) At the hearing held under par. (bm), the person who filed the motion under par. (b) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in par. (a). In deciding whether the person has satisfied the criterion specified in par. (a) 3., the court may consider any of the following:

AB431-ASA1,6,15 1. The ages, at the time of the violation, of the person and of the child with whom the person had sexual contact or sexual intercourse.

AB431-ASA1,6,17 2. The relationship between the person and the child with whom the person had sexual contact or sexual intercourse.

AB431-ASA1,6,19 3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the child with whom the person had sexual contact or sexual intercourse.

AB431-ASA1,6,23 4. Whether the child with whom the person had sexual contact or sexual intercourse suffered from a mental illness or mental deficiency that rendered the child temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

AB431-ASA1,6,24 5. The probability that the person will commit other violations in the future.

AB431-ASA1,6,25 6. The report of the examination conducted under par. (d).

AB431-ASA1,7,2 7. Any other factor that the court determines may be relevant to the particular case.

AB431-ASA1, s. 7 Section 7. 301.45 (7) (c) (intro.) of the statutes, as affected by 1995 Wisconsin Act 440, is amended to read:

AB431-ASA1,7,7 301.45 (7) (c) (intro.) A person about whom information is maintained in the registry under sub. (2) may request expungement of all pertinent information in the registry on if any of the grounds that his or her following applies:

AB431-ASA1,7,9 1m. The person's conviction, delinquency adjudication, finding of need of protection or services or commitment has been reversed, set aside or vacated.

AB431-ASA1,7,12 (d) The department shall purge all of that the information maintained in the registry under sub. (2) concerning a person to whom par. (c) applies if the department receives all of the following:

AB431-ASA1, s. 8 Section 8. 301.45 (7) (c) 1. and 2. of the statutes, as affected by 1995 Wisconsin Act 440, are renumbered 301.45 (7) (d) 1. and 2., and 301.45 (7) (d) 2., as renumbered, is amended to read:

AB431-ASA1,7,19 301.45 (7) (d) 2. A certified copy of the court order reversing, setting aside or vacating the conviction, delinquency adjudication, finding of need of protection or services or commitment or a certified copy of the court's determination under sub. (1m) (b).

AB431-ASA1, s. 9 Section 9. 301.45 (7) (c) 2m. of the statutes is created to read: