SB404: Bill Text

LRB-4105/1

JEO:kmg:kjf

1999 - 2000 LEGISLATURE

1999 Senate BILL 404

February 23, 2000 - Introduced by Senators Clausing, Burke and Roessler, cosponsored by Representatives Huber, Pocan and Seratti. Referred to Committee on Judiciary and Consumer Affairs.

SB404,2,9 An Act to repeal 51.30 (4) (b) 10m., 980.02 (2) (ag), 980.05 (1m) and 980.07 (3); to renumber 980.01 (1); to renumber and amend 938.396 (2) (e), 939.623 (1), 939.624 (1), 980.015 (4), 980.03 (4), 980.03 (5) and 980.04 (2); to amend 48.396 (1), 48.396 (5) (a) (intro.), 48.78 (1), 51.20 (13) (ct) 1m., 51.30 (3) (a), 51.30 (4) (b) 8m., 146.82 (2) (c), 756.06 (2) (b), 801.52, 808.04 (3), 808.04 (4), 809.10 (1) (a), 809.30 (1) (a), 809.30 (1) (b), 809.40 (1), 905.04 (4) (a), 911.01 (4) (c), 938.34 (15m) (am), 938.396 (1), 938.396 (5) (a) (intro.), 938.78 (2) (e), 946.42 (1) (a), 971.17 (1m) (b) 1m., 972.15 (4), 973.048 (1m), 978.045 (1r) (intro.), 980.01 (2), 980.01 (5), 980.01 (6) (a), 980.01 (6) (b), 980.01 (6) (c), 980.01 (7), 980.015 (2) (intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2) (c), 980.02 (1) (a), 980.02 (4) (intro.), 980.03 (2) (intro.), 980.03 (3), 980.04 (1), 980.04 (3), 980.05 (1), 980.05 (3) (a), 980.05 (3) (b), 980.07 (1), 980.08 (3), 980.08 (4), 980.09 (1) (b), 980.09 (2) (a), 980.09 (2) (b) and 980.12 (1); and to create 48.396 (6), 48.78 (2) (e), 48.981 (7) (a) 8s., 51.30 (3) (bm), 51.30 (4) (b) 8s., 118.125 (2) (ck), 146.82 (2) (cm), 756.06 (2) (cm), 814.61 (1) (c) 6., 938.35 (1) (e), 939.623 (1) (b), 939.624 (1) (b), 946.42 (3m), 972.15 (6), 980.01 (1g), 980.01 (6) (am), 980.01 (6) (bm), 980.01 (6) (d), 980.015 (2) (d), 980.02 (1) (b) 3., 980.02 (1m), 980.02 (6), 980.031 (title), 980.031 (1) and (2), 980.034, 980.035, 980.036, 980.038, 980.04 (2) (b), 980.05 (2m), 980.09 (3), 980.14 (title) and 980.14 (1) of the statutes; relating to: sexually violent person commitment proceedings, escape from custody by a person who is subject to a sexually violent person commitment proceeding, sentencing of persons who have prior convictions for certain crimes, requiring persons who commit certain offenses to register as a sex offender and providing penalties.

Analysis by the Legislative Reference Bureau

Sexually violent person commitment proceedings

Current law provides a procedure for involuntarily committing sexually violent persons to the department of health and family services (DHFS) for control, care and treatment. A sexually violent person is a person who has committed certain sexually violent offenses and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

A proceeding for the involuntary commitment of a sexually violent person is begun by the filing of a petition that alleges that the person is a sexually violent person. The petition may be filed by the department of justice (DOJ) or, if DOJ does not file a petition, by a district attorney. The petition must be filed before the person is going to be released from confinement that resulted from the commission of a sexually violent offense. The court in which the petition is filed must review the petition and decide whether to hold the person in custody pending a trial on the petition. The court must also hold a hearing to determine whether there is probable cause to believe that the person is a sexually violent person. If the court finds that there is probable cause to believe that the person is a sexually violent person, the court must schedule a trial on the petition and order the person to be sent to an appropriate facility for an evaluation.

If, after the trial on a sexually violent person petition, the person is found by a judge or jury to be a sexually violent person, the person must be committed to the custody of DHFS and placed in institutional care. A person who is committed as a sexually violent person and placed in institutional care may petition the committing court to modify its order by authorizing supervised release in the community if at least 18 months have elapsed since the initial commitment order was entered or at least six months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. In addition, current law provides for periodic reexaminations of a person committed as a sexually violent person and provides a method by which the person may petition the court for discharge from the commitment on the grounds that he or she is no longer a sexually violent person.

This bill makes numerous changes to the current sexually violent person commitment procedure. Among the changes made by the bill are the following:

1. Definition of sexually violent offenses. A person may be subject to a proceeding for commitment as a sexually violent person only if the person has committed certain sexually violent offenses. This bill adds additional offenses to the current list of sexually violent offenses that may serve as a basis for a petition. Currently, the list includes such offenses as first and second degree sexual assault, first and second degree sexual assault of a child, incest with a child and child enticement. This bill adds sexual exploitation by a therapist and third degree sexual assault to the list.

The current list of sexually violent offenses also includes offenses such as homicide, certain battery offenses, kidnapping and burglary, if the offense is found to have been sexually motivated. Under the bill, the following crimes are considered to be sexually violent crimes if they are found to have been sexually motivated: a) felony murder; b) administering a dangerous or stupefying drug with the intent to facilitate the commission of a crime; c) soliciting a child to participate in criminal gang activity; d) arson to a building; e) robbery; and f) physical abuse of a child.

In addition, the bill provides that an offense that was a crime under an earlier law of this state that is comparable to any of the sexually violent offenses included in the list is also considered to be a sexually violent offense.

Finally, the bill includes in the list of sexually violent offenses the offense of escape, if the escape was from any type of custody that is related to a sexually violent person commitment proceeding (see Escape, below).

2. Expert examinations of persons who are subject to sexually violent person petitions. Under current law, if a person who is the subject of a sexually violent person petition or who has been committed as a sexually violent person is required to submit to an examination, he or she may retain experts or professional persons to perform an examination. If the person is indigent, the court must, upon the person's request, appoint a qualified and available expert or professional person to perform an examination of the person on the person's behalf.

This bill maintains the current provision concerning retention of an expert by a person who is subject to a petition or appointment of an expert for the person. The bill also provides that, if a person who is subject to a sexually violent person petition denies the facts alleged in the petition, the court may appoint at least one expert to conduct an examination of the person and testify at the trial on the petition. The bill also provides that the state may retain an expert to examine a person who is subject to a sexually violent person petition and testify at the trial on the petition or at other proceedings. Finally, the bill provides that an expert retained or appointed under any of these provisions must be a licensed physician, licensed psychologist or other mental health professional.

3. Access to confidential records. Under current law, with certain exceptions, a person's medical records (including mental health treatment records) are confidential. Also, if a juvenile has been subject to a delinquency proceeding or a proceeding to determine whether he or she is in need of protection or services, the records concerning the court proceeding and any placement or treatment resulting from the proceeding are generally confidential. Among the exceptions to the confidentiality requirements that apply to medical and juvenile records are exceptions allowing access to certain persons for use in connection with proceedings to commit a person as a sexually violent person. Specifically, current law allows access to these records by an expert who is examining a person for purposes of providing an opinion as to whether the person may meet the criteria for commitment as a sexually violent person. Current law also provides access to the records by DOJ or a district attorney for purposes of prosecuting a sexually violent person commitment proceeding.

This bill modifies the current exceptions to medical and juvenile records confidentiality by broadening the provisions concerning who may have access to the records and by clarifying how those persons may use information obtained from the records. Under the bill, the records must be released to authorized representatives of DHFS, DOJ, the department of corrections (DOC) or a district attorney for use in the evaluation or prosecution of a sexually violent person proceeding if the records involve or relate to an individual who is the subject of or who is being evaluated for the proceeding. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records and that any representative of DHFS, DOJ or DOC or a district attorney may disclose information obtained from the records for any purpose consistent with any sexually violent person proceeding.

In addition, the bill allows for access to other confidential records and reports which, under current law, are not generally available for use in connection with a sexually violent person commitment proceeding. Specifically, the bill allows access to law enforcement records concerning juveniles, records concerning required reports of abused or neglected children, court records of other civil commitment proceedings, pupil records maintained by a school and presentence investigation reports prepared by DOC in connection with the sentencing of a person convicted of a crime. As with the exception for medical and juvenile records, the bill provides that these records and reports must be released to authorized representatives of DHFS, DOJ, DOC or a district attorney for use in the evaluation or prosecution of a sexually violent person proceeding if the records involve or relate to an individual who is the subject of or who is being evaluated for the proceeding. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records and that any representative of DHFS, DOJ or DOC or a district attorney may disclose information obtained from the records for any purpose consistent with any sexually violent person proceeding.

4. Timing of probable cause hearing. Under current law, the court in which a sexually violent person petition has been filed must conduct a probable cause hearing on the petition within a reasonable period of time after the filing of the petition, except that the probable cause hearing must be held within 72 hours after the petition is filed (excluding Saturdays, Sundays and legal holidays) if the person is being held in custody pending trial on the petition.

This bill provides that the probable cause hearing generally must be held within 30 days after the filing of the petition, excluding Saturdays, Sundays and legal holidays, unless that time limit is extended by the court for good cause. However, if the person who is subject to the petition is in custody under a criminal sentence, a juvenile dispositional order or a commitment order that is based on the person's commission of a sexually violent offense and the probable cause hearing is scheduled to be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order or commitment order, then the probable cause hearing must be held no later than ten days after the person's scheduled date of release or discharge, excluding Saturdays, Sundays and legal holidays, unless that time limit is extended by the court for good cause.

5. Timing of the trial on a sexually violent person petition. Under current law, a trial to determine whether the person who is the subject of a petition is a sexually violent person must commence no later than 45 days after the date of the probable cause hearing, unless the court grants a continuance of the trial date for good cause. The bill provides that the trial must begin no later than 90 days after the date of the probable cause hearing, except that the court may grant one or more continuances for good cause.

6. Rights of a person who is subject to a petition. Under current law, the rules of evidence applicable at a criminal trial apply to a trial on a sexually violent person petition and a person who is subject to a sexually violent person petition generally has the same constitutional rights available to a defendant in a criminal proceeding. Current law also specifically provides that the person has the right to counsel, the right to remain silent, the right to present and cross-examine witnesses and the right to have the allegations in the petition proven beyond a reasonable doubt.

This bill eliminates the requirement that the rules of evidence applicable at a criminal trial also apply at a trial on a petition. In addition, the bill eliminates the general provision affording a person who is subject to a petition the same constitutional rights as are available to a defendant in a criminal proceeding. The bill does not eliminate the person's specified rights to counsel, to present and cross-examine witnesses and to have the petition proven beyond a reasonable doubt. Likewise, the bill does not eliminate the person's specified right to remain silent; however, the bill does provide that the state may present evidence that a person who is the subject of a petition refused to participate in an examination that was conducted for the purpose of evaluating whether to file a petition against the person or for the purpose of evaluating the person after a petition had been filed.

7. Reexaminations of persons found to be sexually violent persons. Under current law, a person who has been committed as a sexually violent person must be examined by DHFS within six months after the initial commitment and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged from the commitment. This bill provides that DHFS is not required to examine the person until 18 months after the person's initial commitment. The bill does not change the requirement that DHFS conduct further evaluations at least once each 12 months thereafter.

In addition, under current law the court that committed the person may order a reexamination of the person at any time. The bill eliminates the ability of the court to order a reexamination of the person at any time.

8. Miscellaneous procedural provisions. Current law does not explicitly address various procedural issues relating to sexually violent person commitment proceedings. This bill creates new procedural provisions addressing a number of these issues. Among the issues addressed by new procedural provisions are the following:

a. Substitution of judge.

b. Making motions to challenge the jurisdiction of the court or the timeliness of the filing of a petition.

c. Methods by which one party may discover and inspect material in the possession of the other party.

d. Changing the place where the trial on the petition is held.

e. Jury selection.

f. Filing motions for relief from a commitment order that is entered after a person has been found to be a sexually violent person.

The bill also provides that the rules applicable to appeals in criminal, juvenile and other civil commitment cases will generally apply in an appeal from an order committing a person as a sexually violent person.

9. Codification of certain case law interpretations. The bill codifies certain Wisconsin appellate court decisions relating to the sexually violent person commitment procedure, including the following:

a. The bill provides that a person may be subject to a sexually violent person commitment proceeding at the time that he or she is being paroled under or discharged from a commitment under a previous sex crimes commitment law that was repealed in 1980. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

b. The bill provides that, for purposes of determining the proper time to file a petition, confinement under a sentence of imprisonment that was imposed for a sexually violent offense includes confinement that was imposed consecutively to any sentence for a sexually violent offense. This codifies a holding of State v. Keith, 216 Wis. 2d 61 (Ct. App. 1997).

c. The bill provides that a person committed as a sexually violent person must be afforded the right to request a jury for a hearing on his or her petition for a discharge from the commitment. This codifies a holding of State v. Post, 197 Wis. 2d 279 (1995).

d. The bill provides that, when reviewing a person's petition for discharge from a commitment as a sexually violent person, the court does not hold an evidentiary hearing but instead considers only reports concerning reexaminations of the person and any relevant documentation submitted by the parties. This codifies the holding of State v. Paulick, 213 Wis. 2d 432 (Ct. App. 1997).

Escape

Current law provides penalties for escaping from certain types of custody, including actual physical custody in a jail, state prison or juvenile correctional institution, actual physical custody of a law enforcement officer or institution guard and constructive custody of prisoners and juveniles temporarily outside an institution for the purpose of work, school, medical care or other authorized temporary leave. A person who is convicted of escape is subject to fines or imprisonment or both. The maximum term of imprisonment that may be imposed depends on the type of custody from which the person escapes. For instance, a person who escapes after being arrested for, charged with or sentenced for a crime may be imprisoned for not more than ten years or fined not more than $10,000 or both, while a person who escapes after being arrested for, charged with or convicted of a violation of a law that is penalized with a forfeiture (a civil monetary penalty) may be imprisoned for not more than nine months or fined not more than $10,000 or both.

This bill provides that a person may be imprisoned for not more 60 years if he or she escapes while he or she is in custody in connection with a sexually violent person commitment proceeding or while he or she is in institutional care or on supervised release after having been found to be a sexually violent person.

Sentence enhancement for repeat serious sex crimes and repeat violent crimes

Under current law, a person must be sentenced to not less than five years of imprisonment if he or she commits a serious sex crime after having previously been convicted of a serious sex crime. The serious sex crimes covered by this requirement are first and second degree sexual assault, which generally involves sexual intercourse or sexual contact with another without the other person's consent under certain aggravating circumstances (such as the use or the threat of use of a weapon, force or violence). This bill adds third degree sexual assault (sexual intercourse or sexual contact with another without the other person's consent) to the list of serious sex crimes covered by this minimum sentence requirement. In addition, the bill provides that a person is covered by this minimum sentence requirement if any of the following applies: 1) the person was previously convicted of a crime under an earlier law of this state that is comparable to first, second or third degree sexual assault; or 2) the person has previously been convicted of a crime under federal law or the law of another state and that federal or state law is comparable to first, second or third degree sexual assault.

Current law also provides that a person must be sentenced to not less than five years of imprisonment if he or she commits a serious violent crime after having previously been convicted of a serious violent crime. The serious violent crimes covered by this requirement are felony murder (causing the death of another during the commission of certain felonies) and second degree intentional homicide. This bill provides that a person is covered by this minimum sentence requirement if he or she has previously been convicted of a crime under federal law or the law of another state and that federal or state law is comparable to felony murder or second degree intentional homicide.

Sex offender registration requirements

Under current law, with certain exceptions, a person must register as a sex offender if he or she has committed certain sex offenses, such as sexual assault, sexual assault of a child, incest, sexual exploitation of a child or child enticement. In addition, current law allows a court to order a person to register as a sex offender if the person has committed certain serious felony offenses that are not sex offenses, such as homicide, battery or burglary, but that the court finds were sexually motivated. This bill provides that a court may order a person to register as a sex offender if the person has committed the offense of administering a dangerous or stupefying drug with the intent to facilitate the commission of a crime or the offense of soliciting a child to participate in criminal gang activity if the court finds that the offense was sexually motivated.

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