SB404: Bill Text

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.

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

SB404, s. 1 Section 1. 48.396 (1) of the statutes is amended to read:

SB404,9,7 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under sub. (1b), (1d) or, (5) or (6) or s. 48.293 or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child involved, to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125 and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 938.396 (1). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

SB404, s. 2 Section 2. 48.396 (5) (a) (intro.) of the statutes is amended to read:

SB404,9,12 48.396 (5) (a) (intro.) Any person who is denied access to a record under sub. (1), (1b) or, (1d) or (6) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

SB404, s. 3 Section 3. 48.396 (6) of the statutes is created to read:

SB404,9,24 48.396 (6) Records of law enforcement officers and of the court assigned to exercise jurisdiction under this chapter and ch. 938 shall be open for inspection by and production to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subsection. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this subsection for any purpose consistent with any proceeding under ch. 980.

SB404, s. 4 Section 4. 48.78 (1) of the statutes is amended to read:

SB404,10,7 48.78 (1) In this section, unless otherwise qualified, "agency" means the department, a county department, a licensed child welfare agency, a licensed day care center or, a licensed maternity hospital or any public or private institution in which a child has been placed pursuant to a court order under this chapter.

SB404, s. 5 Section 5. 48.78 (2) (e) of the statutes is created to read:

SB404,10,20 48.78 (2) (e) Notwithstanding par. (a), an agency shall, upon request, disclose information to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the information involves or relates to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

SB404, s. 6 Section 6. 48.981 (7) (a) 8s. of the statutes is created to read:

SB404,11,7 48.981 (7) (a) 8s. Authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the reports or records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under ch. 980.

SB404, s. 7 Section 7. 51.20 (13) (ct) 1m. of the statutes is amended to read:

SB404,11,16 51.20 (13) (ct) 1m. Except as provided in subd. 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. 941.32, 941.38 or 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.

SB404, s. 8 Section 8. 51.30 (3) (a) of the statutes is amended to read:

SB404,11,20 51.30 (3) (a) Except as provided in pars. (b) and, (bm), (c) and (d), the files and records of the court proceedings under this chapter shall be closed but shall be accessible to any individual who is the subject of a petition filed under this chapter.

SB404, s. 9 Section 9. 51.30 (3) (bm) of the statutes is created to read:

SB404,12,8 51.30 (3) (bm) The files and records of court proceedings under this chapter shall be released to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the files or records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

SB404, s. 10 Section 10. 51.30 (4) (b) 8m. of the statutes is amended to read:

SB404,12,13 51.30 (4) (b) 8m. To appropriate examiners and facilities in accordance with s. 971.17 (2) (e), (4) (c) and (7) (c), 980.03 (4) or 980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17 or ch. 980.

SB404, s. 11 Section 11. 51.30 (4) (b) 8s. of the statutes is created to read:

SB404,13,2 51.30 (4) (b) 8s. To appropriate persons in accordance with s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the treatment records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under ch. 980.

SB404, s. 12 Section 12. 51.30 (4) (b) 10m. of the statutes is repealed.

SB404, s. 13 Section 13. 118.125 (2) (ck) of the statutes is created to read:

SB404,13,16 118.125 (2) (ck) The school district clerk or his or her designee shall make pupil records available for inspection or disclose the contents of pupil records to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the pupil records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning pupil records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

SB404, s. 14 Section 14. 146.82 (2) (c) of the statutes is amended to read:

SB404,13,22 146.82 (2) (c) Notwithstanding sub. (1), patient health care records shall be released to appropriate examiners and facilities in accordance with ss. s. 971.17 (2) (e), (4) (c) and (7) (c), 980.03 (4) and 980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17 or ch. 980.

SB404, s. 15 Section 15. 146.82 (2) (cm) of the statutes is created to read:

SB404,14,11 146.82 (2) (cm) Notwithstanding sub. (1), patient health care records shall be released to appropriate persons in accordance with s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney for use in the evaluation or prosecution of any proceeding under ch. 980, if the treatment records involve or relate to an individual who is the subject of or who is being evaluated for a proceeding under ch. 980. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning records made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

SB404, s. 16 Section 16. 756.06 (2) (b) of the statutes is amended to read:

SB404,14,15 756.06 (2) (b) Except as provided in par. pars. (c) and (cm), a jury in a civil case shall consist of 6 persons unless a party requests a greater number, not to exceed 12. The court, on its own motion, may require a greater number, not to exceed 12.

SB404, s. 17 Section 17. 756.06 (2) (cm) of the statutes is created to read:

SB404,14,22 756.06 (2) (cm) A jury in a trial under s. 980.05 shall consist of the number of persons specified in s. 980.05 (2) unless a lesser number has been stipulated to and approved under s. 980.05 (2m) (c). A jury in a hearing under s. 980.09 (1) (b) or (2) (b) shall consist of the number of persons specified in s. 980.09 (1) (b) or (2) (b), whichever is applicable, unless a lesser number has been stipulated to and approved under s. 980.09 (3) (c).

SB404, s. 18 Section 18. 801.52 of the statutes is amended to read:

SB404,15,2 801.52 Discretionary change of venue. The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses. This section does not apply to proceedings under ch. 980.

SB404, s. 19 Section 19. 808.04 (3) of the statutes is amended to read:

SB404,15,6 808.04 (3) Except as provided in subs. (4) and (7), an appeal in a criminal case or a case under ch. 48, 51, 55 or, 938 or 980 shall be initiated within the time period specified in s. 809.30.

SB404, s. 20 Section 20. 808.04 (4) of the statutes is amended to read:

SB404,15,10 808.04 (4) Except as provided in sub. (7m), an appeal by the state in either a criminal case under s. 974.05 or a case under ch. 48 or , 938 or 980 shall be initiated within 45 days of entry of the judgment or order appealed from.

SB404, s. 21 Section 21. 809.10 (1) (a) of the statutes is amended to read:

SB404,15,24 809.10 (1) (a) Filing. A person shall initiate an appeal by filing a notice of appeal with the clerk of the trial court in which the judgment or order appealed from was entered and shall specify in the notice of appeal the judgment or order appealed from, whether the appeal is in one of the types of cases specified in s. 752.31 (2), and whether the appeal is one of those to be given preference in the circuit court or court of appeals pursuant to statute. The person at the same time shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court. The person shall also send the court of appeals an original and one copy of a completed docketing statement on a form prescribed by the court of appeals. The statement shall accompany the court of appeals' copy of the notice of appeal. The person shall also send a copy of the completed docketing statement to opposing counsel. Docketing statements need not be filed in criminal cases , in cases under ch. 980 or in cases in which a party appears pro se.

SB404, s. 22 Section 22. 809.30 (1) (a) of the statutes is amended to read:

SB404,16,8 809.30 (1) (a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under s. 973.19 or 974.06. In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief. In a ch. 980 case, it means an appeal or a motion for postcommitment relief under s. 980.038 (4).

SB404, s. 23 Section 23. 809.30 (1) (b) of the statutes is amended to read:

SB404,16,14 809.30 (1) (b) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, fine or probation. In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means the entry of the trial court's final judgment or order. In a ch. 980 case, it means the entry of an order under s. 980.06.

SB404, s. 24 Section 24. 809.40 (1) of the statutes is amended to read:

SB404,16,20 809.40 (1) An appeal to the court of appeals from a judgment or order in a misdemeanor case or a ch. 48, 51, 55 or, 938 or 980 case, or a motion for postconviction relief in a misdemeanor case or a motion for postcommitment relief under s. 980.038 (4) must be initiated within the time periods specified in s. 808.04 and is governed by the procedures specified in ss. 809.30 to 809.32.

SB404, s. 25 Section 25. 814.61 (1) (c) 6. of the statutes is created to read:

SB404,16,22 814.61 (1) (c) 6. An action for civil commitment under ch. 51, 55 or 980.

SB404, s. 26 Section 26. 905.04 (4) (a) of the statutes is amended to read:

SB404,17,10 905.04 (4) (a) Proceedings for hospitalization, control, care and treatment of a sexually violent person, guardianship, protective services or protective placement. There is no privilege under this rule as to communications and information relevant to an issue in proceedings to hospitalize the patient for mental illness, to appoint a guardian under s. 880.33, for control, care and treatment of a sexually violent person under ch. 980, for court-ordered protective services or protective placement or for review of guardianship, protective services or protective placement orders, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of hospitalization, control, care and treatment as a sexually violent person, guardianship, protective services or protective placement.

SB404, s. 27 Section 27. 911.01 (4) (c) of the statutes is amended to read:

SB404,17,17 911.01 (4) (c) Miscellaneous proceedings. Proceedings for extradition or rendition; sentencing, or granting or revoking probation, issuance of arrest warrants, criminal summonses and search warrants; hearings under s. 980.08 or 980.09; proceedings under s. 971.14 (1) (c); proceedings with respect to pretrial release under ch. 969 except where habeas corpus is utilized with respect to release on bail or as otherwise provided in ch. 969.

SB404, s. 28 Section 28. 938.34 (15m) (am) of the statutes is amended to read:

SB404,17,25 938.34 (15m) (am) Except as provided in par. (bm), if the juvenile is adjudicated delinquent on the basis of any violation, or the solicitation, conspiracy or attempt to commit any violation, under ch. 940, 944 or 948 or ss. 941.32, 941.38 or 943.01 to 943.15, the court may require the juvenile 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 juvenile report under s. 301.45.

SB404, s. 29 Section 29. 938.35 (1) (e) of the statutes is created to read:

SB404,18,3 938.35 (1) (e) In a hearing, trial or other proceeding under ch. 980 relating to a juvenile.