AB738: Bill Text

AB738, s. 14 Section 14. 971.17 (1b) of the statutes is created to read:

AB738,6,15 971.17 (1b) In this section, "child sex offender" means a person who has been found not guilty by reason of mental disease or defect of any of the following:

AB738,6,17 (a) A violation of s. 948.07 or a solicitation or conspiracy to commit a violation of s. 948.07.

AB738,6,20 (b) Any other serious sex offense, if the victim or the intended victim of the serious sex offense was a person who had not attained the age of 18 years at the time of the offense.

AB738, s. 15 Section 15. 971.17 (1g) of the statutes is amended to read:

AB738,6,24 971.17 (1g) If the defendant under sub. (1) (1d) is found not guilty of a felony by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.29.

AB738, s. 16 Section 16. 971.17 (1j) (b) of the statutes is amended to read:

AB738,7,6 971.17 (1j) (b) If a person is found not guilty by reason of mental disease or defect of a serious sex offense, the court may, in addition to committing the person to the department of health and family services under sub. (1) (1d), place the person on lifetime supervision under s. 939.615 if notice concerning lifetime supervision was given to the person under s. 973.125 and if the court determines that lifetime supervision of the person is necessary to protect the public.

AB738, s. 17 Section 17. 971.17 (1m) (a) of the statutes is amended to read:

AB738,7,11 971.17 (1m) (a) If the defendant under sub. (1) (1d) is found not guilty by reason of mental disease or defect for a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), or 948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

AB738, s. 18 Section 18. 971.17 (1m) (b) 1m. of the statutes is amended to read:

AB738,7,20 971.17 (1m) (b) 1m. Except as provided in subd.2m., if the defendant under sub. (1) (1d) is found not guilty by reason of mental disease or defect for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, of ch. 940, 944, or 948 or ss. 943.01 to 943.15, the court may require the defendant 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 defendant report under s. 301.45.

AB738, s. 19 Section 19. 971.17 (1m) (b) 2m. of the statutes is amended to read:

AB738,8,5 971.17 (1m) (b) 2m. If the defendant under sub. (1) (1d) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 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, 948.095, 948.11 (2) (a) or (am), 948.12, 948.13, or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the defendant was not the victim's parent, the court shall require the defendant to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the defendant, that the defendant is not required to comply under s. 301.45 (1m).

AB738, s. 20 Section 20. 971.17 (3) (a) of the statutes is amended to read:

AB738,8,20 971.17 (3) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If or that the person is a child sex offender who refuses to comply with sub. (4f). Otherwise, the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

AB738, s. 21 Section 21. 971.17 (3) (e) of the statutes is amended to read:

AB738,9,24 971.17 (3) (e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and , to the rules of the department of health and family services, and, if applicable, to sub. (4f). Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health and family services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.

AB738, s. 22 Section 22. 971.17 (4) (d) of the statutes is amended to read:

AB738,10,15 971.17 (4) (d) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18). The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination or that the person is a child sex offender who refuses to comply with sub. (4f). In determining whether the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

AB738, s. 23 Section 23. 971.17 (4f) of the statutes is created to read:

AB738,10,22 971.17 (4f) Residency of child sex offenders on conditional release. A child sex offender who is conditionally released under sub. (3) or (4) (e) may not, as a condition of the person's release, reside within 1,000 feet of any state, county, city, village, or town park, a multiunit public housing project, a swimming pool open to members of the public, a child care facility, as defined in s. 302.116 (1) (ad), a youth center, a community center, or any private or public school premises.

AB738, s. 24 Section 24. 971.17 (6) (a) (intro.) of the statutes is amended to read:

AB738,11,3 971.17 (6) (a) (intro.) At least 60 days prior to the expiration of a commitment order under sub. (1) (1d), the department of health and family services shall notify all of the following:

AB738, s. 25 Section 25. 971.17 (6) (b) of the statutes is amended to read:

AB738,11,9 971.17 (6) (b) Upon the expiration of a commitment order under sub. (1) (1d), the court shall discharge the person, subject to the right of the department of health and family services or the appropriate county department under s. 51.42 or 51.437 to proceed against the person under ch. 51 or 55. If none of those departments proceeds against the person under ch. 51 or 55, the court may order the proceeding.

AB738, s. 26 Section 26. 973.09 (8) of the statutes is created to read:

AB738,11,16 973.09 (8) If the court places a child sex offender, as defined in s. 302.116 (1) (af), on probation, the court shall prohibit the probationer, as a condition of probation, from residing within 1,000 feet of any state, county, city, village, or town park, a multiunit public housing project, a swimming pool open to members of the public, a child care facility, as defined in s. 302.116 (1) (ad), a youth center, a community center, or any private or public school premises.

AB738, s. 27 Section 27. 975.10 (1m) of the statutes is created to read:

AB738,11,22 975.10 (1m) A person may not be released on parole under sub. (1) unless he or she agrees, as a condition of parole, not to reside within 1,000 feet of any state, county, city, village, or town park, a multiunit public housing project, a swimming pool open to members of the public, a child care facility, as defined in s. 302.116 (1) (ad), a youth center, a community center, or any private or public school premises.

AB738, s. 28 Section 28. 980.08 (3) of the statutes is amended to read:

AB738,12,10 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for supervised release under the criterion criteria specified in sub. (4) (a) 1., the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

AB738, s. 29 Section 29. 980.08 (4) of the statutes is renumbered 980.08 (4) (a) 1. (intro.) and amended to read:

AB738,12,18 980.08 (4) (a) 1. (intro.) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c) and (d). The court shall grant the petition unless the state proves one of the following by clear and convincing evidence that:

AB738,12,22 a. That the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. In making a decision under this subsection

AB738,13,11 2. In deciding whether to make a finding under subd. 1. a., the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under this subsection subd. 1. a. on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

AB738, s. 30 Section 30. 980.08 (4) (a) 1. b. of the statutes is created to read:

AB738,13,14 980.08 (4) (a) 1. b. That the person who is the subject of the petition refuses to comply with sub. (5) (a) 2.

AB738, s. 31 Section 31. 980.08 (5) of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 980.08 (5) (a) 1. and amended to read:

AB738,14,6 980.08 (5) (a) 1. If the court finds that the person is appropriate for supervised release, the court shall notify the department. The Subject to subd. 2., the department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am).

AB738,14,15 (c) The plan prepared under par. (b) shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan.

AB738,15,3 (d) The plan prepared under par. (b) shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department, and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB738, s. 32 Section 32. 980.08 (5) (a) 2. of the statutes is created to read:

AB738,15,9 980.08 (5) (a) 2. A person committed under s. 980.06 may not, as a condition of supervised release, reside within 1,000 feet of any state, county, city, village, or town park, a multiunit public housing project, a swimming pool open to members of the public, a child care facility, as defined in s. 302.116 (1) (ad), a youth center, a community center, or any private or public school premises.

AB738, s. 33 Section 33. 980.08 (5) (b) of the statutes is created to read:

AB738,15,23 980.08 (5) (b) If the person will be living in his or her county of residence, the department and the county department under s. 51.42 in that county shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan, and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB738, s. 34 Section 34. 980.08 (6m) of the statutes is amended to read:

AB738,17,4 980.08 (6m) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care, and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5) (d). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center, or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

AB738, s. 35 Section 35. Initial applicability.

AB738,17,8 (1) The treatment of section 302.11 (1) and (4m) (b) of the statutes first applies to persons reaching their mandatory release date on the effective date of this subsection.

AB738,17,11 (2) The treatment of section 302.11 (1g) (b) 3. of the statutes first applies to persons whose cases are considered by the parole commission under section 302.11 (1g) (b) (intro.) of the statutes on the effective date of this subsection.

AB738,17,13 (3) The treatment of sections 302.116 (3) of the statutes first applies to persons released to extended supervision on the effective date of this subsection.

AB738,17,16 (4) The treatment of section 304.02 (4t) of the statutes first applies to persons serving the confinement portion of any sentence on the effective date of this subsection.

AB738,17,20 (5) The treatment of section 304.06 (2m) (af) of the statutes first applies to persons in whose cases the department of corrections or the parole commission conducts an interview or a hearing regarding whether to grant the person parole under section 304.06 of the statutes on the effective date of this subsection.

AB738,17,23 (6) The treatment of section 971.17 (3) (a) and (e), (4) (d), and (4f) of the statutes first applies to persons released on conditions under section 971.17 of the statutes on the effective date of this subsection.

AB738,17,25 (7) The treatment of section 973.09 (8) of the statutes first applies to persons placed on probation on the effective date of this subsection.

AB738,18,3 (8) The treatment of section 975.10 (1m) of the statutes first applies to persons released on parole under section 975.10 of the statutes on the effective date of this subsection.

AB738,18,8 (9) The treatment of section 980.08 (3) and (6m) of the statutes, the renumbering and amendment of section 980.08 (4) and (5) of the statutes, and the creation of section 980.08 (4) (a) 1. b. and (5) (a) 2. and (b) of the statutes first apply to persons placed on supervised release under section 980.08 of the statutes on the effective date of this subsection.

AB738,18,9 (End)