LRB-2215/1
MGD&CMH:lmk:pg
2005 - 2006 LEGISLATURE
September 7, 2005 - Introduced by Joint Legislative Council. Referred to
Committee on Judiciary, Corrections and Privacy.
SB318,2,14
1An Act to repeal 980.02 (2) (ag), 980.03 (5), 980.05 (1m), 980.09 (1) (title), 980.09
2(2) and 980.10;
to renumber 978.13 (2) and 980.01 (1);
to renumber and
3amend 938.396 (2) (e), 978.043, 980.015 (1), 980.015 (4), 980.03 (4), 980.04 (2),
4980.07 (1), 980.09 (1) (a), 980.09 (1) (b) and 980.09 (1) (c);
to amend 20.435 (2)
5(bj), 46.10 (2), 48.396 (1), 48.396 (5) (a) (intro.), 51.30 (3) (a), 51.30 (3) (b), 51.30
6(4) (b) 8m., 51.30 (4) (b) 10m., 51.30 (4) (b) 11., 51.375 (1) (a), 51.375 (2) (b), 51.42
7(3) (aw) 1. d., 109.09 (1), 146.82 (2) (c), 301.03 (19), 301.45 (1g) (dt), 301.45 (3)
8(a) 3r., 301.45 (3) (b) 3., 301.45 (5) (b) 2., 756.06 (2) (b), 801.52, 808.04 (3), 808.04
9(4), 808.075 (4) (h), 809.10 (1) (d), 809.30 (1) (c), 809.30 (1) (f), 905.04 (4) (a),
10911.01 (4) (c), 938.396 (1), 938.396 (5) (a) (intro.), 938.78 (2) (e), 946.42 (1) (a),
11950.04 (1v) (xm), 967.03, 972.15 (4), 978.03 (3), 978.04, 978.045 (1r) (intro.),
12978.05 (6) (a), 978.05 (8) (b), 980.01 (5), 980.01 (6) (a), 980.01 (6) (b), 980.01 (6)
13(c), 980.01 (7), 980.015 (2) (intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2)
14(c), 980.02 (1) (a), 980.02 (4) (intro.), 980.03 (2) (intro.), 980.03 (3), 980.04 (1),
1980.04 (3), 980.04 (5), 980.05 (1), 980.05 (2), 980.05 (3) (a), 980.05 (3) (b), 980.07
2(2), 980.07 (3), 980.09 (title), 980.101 (2) (a), 980.11 (2) (intro.) and 980.12 (1);
3to repeal and recreate 980.08; and
to create 48.396 (6), 48.78 (2) (e), 48.981
4(7) (a) 8s., 51.30 (3) (bm), 51.30 (4) (b) 8s., 118.125 (2) (ck), 146.82 (2) (cm), 814.61
5(1) (c) 6., 938.35 (1) (e), 940.20 (1g), 946.42 (3m), 972.15 (6), 973.155 (1) (c),
6978.043 (2), 978.13 (2) (a), 980.01 (1b), 980.01 (1j), 980.01 (3), 980.01 (6) (am),
7980.01 (6) (bm), 980.015 (2) (d), 980.02 (1) (b) 3., 980.02 (1m), 980.02 (6), 980.031
8(title), 980.031 (1) and (2), 980.034, 980.036, 980.038, 980.04 (2) (b) 2., 980.05
9(2m), 980.07 (1) (b), 980.07 (1g), 980.07 (1m), 980.07 (4) to (7), 980.093, 980.095,
10980.14 (title) and 980.14 (1) of the statutes;
relating to: the definition of
11sexually violent person, sexually violent person commitment proceedings,
12criteria for supervised release, battery by certain committed persons, escape
13from custody by a person who is subject to a sexually violent person
14commitment proceeding, and providing penalties.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's special committee on sexually violent person (SVP) commitments.
The bill makes various changes to current law (particularly ch. 980, stats.), relating to
the commitment, periodic reexamination, supervised release, and discharge of SVPs. The
bill makes the following changes in current law:
Definitions
The bill revises the definition of "sexually violent person," and related definitions,
for purposes of ch. 980 as follows:
1. Defines "act of sexual violence" (a term found in the definition of "sexually
violent person") to mean conduct that constitutes the commission of a sexually violent
offense (SVO).
2. Adds third-degree sexual assault to the list of SVOs covered by the definition.
3. Adds felony murder, administering a dangerous or stupefying drug, robbery, and
physical abuse of a child to the list of SVOs if such an offense is determined to be sexually
motivated.
4. Expands the list of SVOs to include comparable crimes committed prior to June
2, 1994.
5. Revises the term "sexually motivated" to mean that one of the purposes for an
act is for the actor's sexual arousal or gratification (current law)
or for the sexual
humiliation or degradation of the victim. [Sections 61 to 70
]
Commencement of Commitment Proceedings
Under current law, if an agency with jurisdiction (the agency with the authority
or duty to release or discharge the person) has control or custody over a person who may
meet the criteria for commitment as an SVP, the agency must inform each appropriate
district attorney (DA) and the Department of Justice (DOJ) regarding the person as soon
as possible beginning three months prior to the applicable date of the following: (1) the
anticipated discharge from a sentence, anticipated release on parole or extended
supervision, or anticipated release from imprisonment of a person who has been
convicted of an SVO; (2) the anticipated release from a secure juvenile facility of a person
adjudicated delinquent on the basis of an SVO; or (3) the termination or discharge of a
person who has been found not guilty of an SVO by reason of mental disease or defect.
Under the bill, for persons under a sentence, the agency must inform the DA and
DOJ regarding the person as soon as possible beginning 90 days before the date of the
anticipated discharge or release on parole or extended supervision, or otherwise, from a
sentence of imprisonment or term of confinement in prison that was imposed for a
conviction for an SVO, from a continuous term of incarceration, any part of which was
imposed for an SVO, or from a prison placement under the intensive sanctions program,
any part of which was imposed for an SVO. [Sections 72 and 73
] ("Continuous term of
incarceration, any part of which was imposed for a sexually violent offense" is defined to
include confinement in a juvenile facility if the person was placed in the facility for being
adjudicated delinquent on the basis of an SVO.) [Section 62] The DA and DOJ must also
be notified of the anticipated release on parole or discharge of a person committed under
ch. 975, stats. (the sex crimes chapter in effect prior to the creation of ch. 980, stats.), for
an SVO. [Section 76
]
Filing a Commitment Petition
Under current law, DOJ may file a petition to commit a person as an SVP at the
request of the agency with the authority or duty to release or discharge the person. If DOJ
does not file a petition, the DA for the county in which the person was convicted,
adjudicated delinquent, or found not guilty by reason of insanity or mental disease,
defect, or illness, or the county in which the person will reside, may file the petition.
Under the bill: (1) the DA of the county in which the person is in custody may also
file the petition; (2) a juvenile court does not have jurisdiction over a petition involving
a child; and (3) filing fees are eliminated. [Sections 35, 79
, and 83]
Probable Cause Hearing
Under current law, whenever a commitment petition is filed, the court must hold
a hearing to determine whether there is probable cause to believe that the person named
in the petition is an SVP. If the person is in custody, the court must hold the probable
cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays,
and legal holidays. If the person is not in custody, the court must hold the hearing within
a reasonable time after the filing of the petition.
Under the bill, generally, the court must hold the probable cause hearing within
30 days, excluding Saturdays, Sundays, and legal holidays, after the filing of the petition,
unless that time is extended by the court for good cause shown. If the person named in
the petition is in custody and the probable cause hearing will be held after the date on
which the person is scheduled to be released or discharged, the hearing must be held no
later than 10 days after the person's scheduled release or discharge date, excluding
Saturdays, Sundays, and legal holidays, unless that time is extended by the court for good
cause. [Section 95
]
Commencement of Trial on Commitment Petition
Current law specifies that a trial to determine whether the person who is the
subject of a commitment petition is an SVP must commence no later than 45 days after
the date of the probable cause hearing. The court may grant a continuance of the trial
date for good cause.
Under the bill: (1) the trial must commence no later than 90 days after the probable
cause hearing; and (2) the court may grant one or more continuances for good cause.
[Section 98]
Change of Venue
Under current law, in most civil actions, 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.
The bill specifies that the general statutory provision does not apply to SVP
proceedings. Instead, the bill creates a change of venue procedure specific to SVP
proceedings. The person who is the subject of a commitment petition or who has been
committed as an SVP may move for a change of the place of a jury trial on the ground that
an impartial jury cannot be had in the county in which the trial is set to be held. If the
court determines that there exists in the county such prejudice that a fair trial cannot be
had, it must, with one exception, order that the trial be held in any county where an
impartial trial can be had. Only one change may be granted and the judge who orders
the change in the place of trial must preside over the trial.
Alternatively, the definition provides that instead of changing the place of the trial,
the court may order that the jury be selected in another county if all of the following apply:
(1) the court has decided to sequester jurors after the commencement of the trial; (2) there
are grounds for changing the place of the trial; and (3) the estimated costs to the county
appear to be less using an alternate jury rather than changing the place of the trial.
[Section 90]
Experts for Examinations
Under current law, whenever a person who is the subject of a commitment petition
or who has been committed as an SVP is required to submit to an examination, he or she
may retain experts or professional persons to perform an examination.
The bill provides that, in addition to current law, if a person who is the subject of
a commitment petition denies the facts alleged in the petition, the court may appoint at
least one qualified physician, psychologist, or other mental health professional to conduct
an examination of the person's mental condition and testify at trial. The state may retain
a physician, psychologist, or other mental health professional to examine the mental
condition of a person who is the subject of a petition or who has been committed and to
testify at the trial or any other SVP proceeding at which testimony is authorized.
[Section 89]
Right to Remain Silent
In general, under current law, at any hearing relating to an SVP commitment, the
person who is the subject of the petition has the right to remain silent.
The bill does not affect the person's right to remain silent. However, the bill
provides that the state may present evidence or comment on evidence that a person who
is the subject of a commitment petition or a person who has been committed refused to
participate in an examination of his or her mental condition that was being conducted as
part of an SVP proceeding or that was conducted before the commitment petition was
filed for the purpose of evaluating whether to file a petition. [
Section 92]
Hearings to Juries
Under current law, the person who is the subject of a commitment petition, the
person's attorney, DOJ, or the DA may request that the trial be to a jury of 12 in order
to determine whether the person who is the subject of the petition is an SVP. The court
may also, on its own motion, require that the trial be to a jury of 12. A verdict of a jury
is not valid unless it is unanimous.
The bill: (1) provides for a jury of 12, but the parties may stipulate to a smaller
number of jurors [Section 102
]; and (2) specifies that juries must be selected and treated
in the same manner as they are selected and treated in civil actions in circuit court, except
that each party is entitled to four peremptory challenges (instead of three, as for other
civil actions), unless fewer jurors are to serve on the jury. [Section 101]
The bill also provides a separate jury requirement for discharge hearings.
Specifically, the DA or DOJ, whichever filed the original petition, or the petitioner may
request that the discharge hearing be to a jury of six. A jury trial is deemed waived unless
it is demanded within 10 days after the filing of the petition for discharge. No verdict is
valid unless it is agreed to by at least five of the jurors. [Section 119
]
Discovery
In general, under current law, in civil proceedings, parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved in
the pending action. Failure to comply with discovery requests may result in payment of
expenses, evidentiary punishment, or contempt findings.
The bill includes provisions that are specific to discovery in proceedings relating
to SVPs and specifically provides that the general discovery process does not apply in ch.
980, stats., proceedings.
Under the bill, upon demand, a prosecuting attorney (PA) must disclose and permit
the person or the person's attorney to inspect and copy or photograph all of the following
if it is in the possession, custody, or control of the state: (1) any written or recorded
statement made by the person concerning the allegations in a petition to commit the
person as an SVP or concerning other matters at issue in the trial or proceeding; (2) a
written summary of all oral statements of the person that the PA plans to use in the course
of the trial or proceeding; (3) evidence obtained by intercepting any oral communication
that the PA intends to use as evidence; (4) a copy of the person's criminal record; (5) a list
of all witnesses whom the PA intends to call, except rebuttal or impeachment witnesses;
(6) any relevant written or recorded statements of a witness; (7) the results of any
physical or mental examination or any scientific or psychological test or instrument,
experiment, or comparison that the PA intends to offer in evidence and any raw data that
were collected, used, or considered in any manner as part of the examination, test,
experiment, or comparison; (8) the criminal record of a witness for the state that is known
to the PA; (9) any physical or documentary evidence that the PA intends to offer as
evidence; and (10) any exculpatory evidence.
Under the bill, upon demand, the person who is subject to SVP proceedings must
disclose all of the following: (1) a list of all witnesses whom the person intends to call; (2)
any relevant written or recorded statements of a witness, except rebuttal or impeachment
witnesses; (3) the results of any physical or mental examination or any scientific or
psychological test or instrument, experiment, or comparison that the person intends to
offer as evidence and any raw data that were collected, used, or considered in any manner
as part of the examination, test, experiment, or comparison; (4) the criminal record of a
witness for the person that is known to the person's attorney; and (5) any physical or
documentary evidence that the person intends to offer as evidence. If, subsequent to
compliance with these requirements, and prior to or during trial, a party discovers
additional material or witness names, the party must promptly notify the other party of
the existence of the materials or names.
The bill specifies that the court: (1) must exclude any witness not listed or evidence
not presented for inspection unless good cause is shown for failure to comply; and (2) may
advise the jury of the nonresponsiveness of a party. [Section 91]
Confidential Juvenile, Pupil, Mental Health Commitment, and Patient Health Care
Records
Under current law, the following records are confidential and may be disclosed only
to persons and entities specified in the statutes: juvenile court records; law enforcement
records relating to juveniles; pupil records; and reports of child abuse and neglect. In
addition, the files and records of mental health court proceedings are closed but are
accessible to any person who is the subject of a petition for involuntary commitment or
other petition under ch. 51, stats. (the Mental Health Act). Patient health care records
are confidential and may be released upon request without informed consent only under
specified conditions.
Under the bill, such records are open for inspection by and production to authorized
representatives of the Department of Corrections (DOC), the Department of Health and
Family Services (DHFS), DOJ, or a DA for use in the evaluation or prosecution of any SVP
proceeding, if the records involve or relate to an individual who is the subject of or who
is being evaluated for an SVP proceeding. The court in which the proceeding is pending
may issue any protective orders that it determines are appropriate concerning
information that is made available or disclosed under this provision. Any representative
of DOC, DHFS, DOJ, or a DA may disclose information obtained under this provision for
any purpose consistent with any SVP proceeding. [See, for example,
Sections 5, 6, 7
, 10,
19, 21
, 40, 42
, and 86]
Mental Health Registration and Treatment Records
Under current law, treatment records of an individual may be released without
informed consent under specified circumstances. Regarding SVP proceedings, such
records may be released to appropriate examiners and facilities for the examination of
an individual who is the subject of a petition for commitment or for supervised release.
The recipient of any information from the records must keep the information confidential
except as necessary to comply with the provisions of the chapter relating to SVP
commitments. In addition, such records may be released to DOJ or a DA for a
commitment petition if the treatment records are maintained by the agency that has
custody or control over the person who is the subject of the petition.
Under the bill, treatment records may be disclosed to a physician, psychologist, or
other mental health professional retained by a party or appointed by the court to examine
a person under the chapter relating to SVP commitments or to authorized
representatives of DOC, DHFS, DOJ, or a DA for use in the evaluation or prosecution of
any SVP proceeding, with the same limitations as provided for other confidential records,
as described above. [Section 12
]
Admissibility of Juvenile Delinquency Dispositions
Under current law, the disposition of a juvenile, and any record of evidence given
in a hearing in juvenile court, is not admissible as evidence against the juvenile in any
case or proceeding in any other court except as specified under the statutes.
The bill creates an exception [i.e., such dispositions are admissible] for a hearing,
trial, or other SVP proceeding relating to a person. [Section 38]
Privileged Communications With Health Care Providers
Under current law, generally, a patient has a privilege to refuse to disclose, and to
prevent any other person from disclosing, confidential communications made or
information obtained or disseminated for purposes of diagnosis or treatment of the
patient's physical, mental, or emotional condition, between the patient and a health care
provider. There is no privilege as to communications and information relevant to an issue
in proceedings to hospitalize the patient for mental illness, to appoint a guardian, for
court-ordered protective services, or for protective placement if the health care provider
in the course of diagnosis or treatment has determined that the patient is in need of
hospitalization, guardianship, protective services, or protective placement.
The bill includes in the privilege exception communications and information
relevant to an issue in proceedings for control, care, and treatment of an SVP. [Section
36]
Presentence Reports
Under current law, after a conviction, the court may order a presentence
investigation, which must be disclosed to the defendant's attorney (or the defendant, if
unrepresented) and the DA prior to sentencing. The DOC may use the investigation
report for correctional programming, parole consideration, or care and treatment.
The bill specifies that the presentence investigation report and any information
contained in it or upon which it is based may be used by any of the following persons in
any evaluation, examination, referral, hearing, trial, post commitment relief proceeding,
appeal, or other SVP proceeding: DOC and DHFS; the person who is the subject of the
report and his or her attorney; the attorney representing the state or an agent or
employee of the attorney; a physician, psychologist, or other mental health professional
who is examining the subject of the report; and the court and, if applicable, the jury
hearing the case. [Section 49
]
Periodic Reexamination
Under current law, DHFS must conduct an examination of the mental condition
of each person who has been committed as an SVP within six months of the initial
commitment and every 12 months thereafter to determine whether the person has made
sufficient progress for the court to consider whether the person should be placed on
supervised release or discharged. The examiner conducting an examination must
prepare a written report of the examination no later than 30 days after the date of the
examination. The report must be placed in the person's medical records and a copy must
be given to the court.
Under the bill: