LRB-4105/1
JEO:kmg:kjf
1999 - 2000 LEGISLATURE
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
1An Act to repeal 51.30 (4) (b) 10m., 980.02 (2) (ag), 980.05 (1m) and 980.07 (3);
2to renumber 980.01 (1);
to renumber and amend 938.396 (2) (e), 939.623 (1),
3939.624 (1), 980.015 (4), 980.03 (4), 980.03 (5) and 980.04 (2);
to amend 48.396
4(1), 48.396 (5) (a) (intro.), 48.78 (1), 51.20 (13) (ct) 1m., 51.30 (3) (a), 51.30 (4)
5(b) 8m., 146.82 (2) (c), 756.06 (2) (b), 801.52, 808.04 (3), 808.04 (4), 809.10 (1) (a),
6809.30 (1) (a), 809.30 (1) (b), 809.40 (1), 905.04 (4) (a), 911.01 (4) (c), 938.34
7(15m) (am), 938.396 (1), 938.396 (5) (a) (intro.), 938.78 (2) (e), 946.42 (1) (a),
8971.17 (1m) (b) 1m., 972.15 (4), 973.048 (1m), 978.045 (1r) (intro.), 980.01 (2),
9980.01 (5), 980.01 (6) (a), 980.01 (6) (b), 980.01 (6) (c), 980.01 (7), 980.015 (2)
10(intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2) (c), 980.02 (1) (a), 980.02 (4)
11(intro.), 980.03 (2) (intro.), 980.03 (3), 980.04 (1), 980.04 (3), 980.05 (1), 980.05
12(3) (a), 980.05 (3) (b), 980.07 (1), 980.08 (3), 980.08 (4), 980.09 (1) (b), 980.09 (2)
13(a), 980.09 (2) (b) and 980.12 (1); and
to create 48.396 (6), 48.78 (2) (e), 48.981
14(7) (a) 8s., 51.30 (3) (bm), 51.30 (4) (b) 8s., 118.125 (2) (ck), 146.82 (2) (cm), 756.06
1(2) (cm), 814.61 (1) (c) 6., 938.35 (1) (e), 939.623 (1) (b), 939.624 (1) (b), 946.42
2(3m), 972.15 (6), 980.01 (1g), 980.01 (6) (am), 980.01 (6) (bm), 980.01 (6) (d),
3980.015 (2) (d), 980.02 (1) (b) 3., 980.02 (1m), 980.02 (6), 980.031 (title), 980.031
4(1) and (2), 980.034, 980.035, 980.036, 980.038, 980.04 (2) (b), 980.05 (2m),
5980.09 (3), 980.14 (title) and 980.14 (1) of the statutes;
relating to: sexually
6violent person commitment proceedings, escape from custody by a person who
7is subject to a sexually violent person commitment proceeding, sentencing of
8persons who have prior convictions for certain crimes, requiring persons who
9commit 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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB404, s. 1
1Section
1. 48.396 (1) of the statutes is amended to read:
SB404,9,72
48.396
(1) Law enforcement officers' records of children shall be kept separate
3from records of adults. Law enforcement officers' records of the adult expectant
4mothers of unborn children shall be kept separate from records of other adults. Law
5enforcement officers' records of children and the adult expectant mothers of unborn
6children shall not be open to inspection or their contents disclosed except under sub.
7(1b), (1d)
or, (5)
or (6) or s. 48.293 or by order of the court. This subsection does not
8apply to the representatives of newspapers or other reporters of news who wish to
9obtain information for the purpose of reporting news without revealing the identity
10of the child involved, to the confidential exchange of information between the police
11and officials of the school attended by the child or other law enforcement or social
12welfare agencies or to children 10 years of age or older who are subject to the
13jurisdiction of the court of criminal jurisdiction. A public school official who obtains
14information under this subsection shall keep the information confidential as
1required under s. 118.125 and a private school official who obtains information under
2this subsection shall keep the information confidential in the same manner as is
3required of a public school official under s. 118.125. A law enforcement agency that
4obtains information under this subsection shall keep the information confidential as
5required under this subsection and s. 938.396 (1). A social welfare agency that
6obtains information under this subsection shall keep the information confidential as
7required under ss. 48.78 and 938.78.
SB404, s. 2
8Section
2. 48.396 (5) (a) (intro.) of the statutes is amended to read: