AB431: Bill Text

LRB-3525/1

JEO:kmg:km

1997 - 1998 LEGISLATURE

1997 Assembly BILL 431

June 24, 1997 - Introduced by Representatives Huber, Hoven, Goetsch, Ziegelbauer, Powers, Ryba, M. Lehman, Vander Loop, Hanson, Olsen, Baumgart, Musser, Duff, Gronemus, Sykora, Kelso, Plouff, Staskunas, R. Young and Bock, cosponsored by Senators Panzer, Adelman, Darling and Roessler. Referred to Committee on Judiciary.

AB431,1,8 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.

Analysis by the Legislative Reference Bureau

This bill makes the following changes relating to the sex offender registration requirements and the prohibition on child sex offenders working with children:

Sex offender registration requirements

Currently, a person must register as a sex offender if he or she has been convicted, found not guilty by reason of mental disease or defect or adjudicated delinquent for certain sex offenses, including sexual assault of a child or repeated sexual assault of a child. Sexual assault of a child is defined as sexual intercourse or sexual contact with a child who is younger than 16 years old, and repeated sexual assault of a child is 3 or more sexual assaults of the same child within a specific period of time. While sexual assault generally involves sexual intercourse or sexual contact without the consent of the victim, consent is not an issue in cases involving sexual assault of a child.

Under current law, the department of corrections (DOC) must maintain a registry of sex offenders that contains specified information about persons who are required to register as a sex offender. Generally, the information in the sex offender registry is confidential. However, DOC or other state agencies that have custody or control of a sex offender may release information from the registry to certain persons, including local law enforcement agencies, certain community organizations and the general public. In addition to releasing information from the sex offender registry, DOC and other state agencies are required in certain cases to notify law enforcement agencies and victims about the release of sex offenders from custody into the community.

This bill provides that a person who has been convicted or found not guilty by reason of mental disease or defect for sexual assault of a child or repeated sexual assault of a child is not required to register as a sex offender if a judge determines that the person was not more than 4 years older or not more than 4 years younger than the child at the time of the sexual intercourse or sexual contact. However, the bill also provides that, even if a judge determines that a person is not required to register as a sex offender, the judge may still order the person to register as a sex offender if the judge determines that it would be in the interest of public protection to have the person register as a sex offender.

If a person is not required to register as a sex offender under the bill and he or she is not ordered by a judge to register as a sex offender, information about the person will not be included in the sex offender registry. Thus, the sex offender registry will not provide local law enforcement agencies, community organizations and the general public with information concerning the person. The bill does not change any provisions under current law that require DOC or other state agencies to notify law enforcement agencies and victims about the release of the person from custody into the community.

Child sex offenders working with children

Under current law, a person who has been convicted of a serious child sex offense is prohibited from engaging in an occupation or participating in a volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age. The serious child sex offenses covered under this law include sexual assault of a child who has not attained the age of 13 and repeated sexual assault of a child. A person who violates this prohibition may be fined not more than $10,000 or imprisoned for not more than 10 years or both.

This bill provides that a person who has been convicted of sexual assault of a child who has not attained the age of 13 or repeated sexual assault of a child may petition the court in which he or she was convicted for an exemption from the prohibition against working with children. The court may grant the person's petition if the court determines that all of the following apply: 1) at the time of the commission of the crime, the person was not more than 4 years older or not more than 4 years younger than the child; and 2) it is not necessary, in the interest of public protection, to require the person to comply with the prohibition against working with children.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB431, 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:

AB431,3,12 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), in which case subd. 3. applies.

AB431, 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:

AB431,4,2 51.20 (13) (ct) 1m. Except as provided in subd. 1. subds. 2m. and 3., 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, s. 3 Section 3. 51.20 (13) (ct) 3. of the statutes is created to read:

AB431,4,8 51.20 (13) (ct) 3. If the court determines under subd. 2m. that the subject individual is not required to comply with the reporting requirements under s. 301.45, the court may order the subject individual to comply with the reporting requirements if the court determines that it would be in the interest of public protection to have the subject individual report under s. 301.45.

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

AB431,4,13 301.45 (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, s. 5 Section 5. 301.45 (1) (e) of the statutes, as affected by 1995 Wisconsin Act 440, is amended to read:

AB431,4,18 301.45 (1) (e) Is ordered by a court under sub. (1m) (c) or s. 51.20 (13) (ct) 1m. or 3., 938.34 (15m) (am) or (c), 971.17 (1m) (b) 2. 1m. or 3. or 973.048 (1m) or (3) to comply with the reporting requirements under this section.

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

AB431,4,22 301.45 (1m) Exception to registration requirement. (a) A person is not required to comply with the reporting requirements under this section if a court determines that all of the following apply:

AB431,5,2 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.

AB431,5,6 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 was not more than 4 years older or not more than 4 years younger than the child.

AB431,5,15 (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 par. (a) applies to the person. 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.

AB431,5,20 (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).

AB431,5,23 (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.

AB431,6,3 (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 pars. (b) and (c).

AB431,6,8 (c) Notwithstanding par. (a), if a court determines after a hearing under par. (bm) that the person is not required to comply with the reporting requirements under this section, the court may order the person to comply with the reporting requirements if the court determines that it would be in the interest of public protection to have the person report under this section.

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

AB431,6,13 301.45 (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:

AB431,6,15 1m. The person's conviction, delinquency adjudication, finding of need of protection or services or commitment has been reversed, set aside or vacated.

AB431,6,18 (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, 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:

AB431,6,25 301.45 (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, s. 9 Section 9. 301.45 (7) (c) 2m. of the statutes is created to read:

AB431,7,5 301.45 (7) (c) 2m. A court has determined under sub. (1m) (b) that the person is not required to comply with the reporting requirements under this section and the court has not ordered the person to comply with the reporting requirements under sub. (1m) (c).

AB431, s. 10 Section 10. 301.46 (2m) (at) of the statutes is created to read:

AB431,7,10 301.46 (2m) (at) Paragraphs (a) and (am) do not apply to a person to whom s. 301.45 (1m) applies unless the person is required to comply with the reporting requirements under s. 301.45 by a court acting under s. 51.20 (13) (ct) 3., 301.45 (1m) (c), 938.34 (15m) (c), 971.17 (1m) (b) 3. or 973.048 (3).

AB431, s. 11 Section 11. 938.34 (15m) (a) of the statutes, as created by 1995 Wisconsin Act 440, is renumbered 938.34 (15m) (bm) and amended to read:

AB431,7,20 938.34 (15m) (bm) If the child juvenile is adjudicated delinquent on the basis of a violation, or the solicitation, conspiracy or attempt 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 child juvenile was not the victim's parent, the court shall require the person juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (1m), in which case par. (c) applies.