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:
1. DHFS must conduct the examination within 12 months after the date of the
initial commitment order and every 12 months thereafter. [Section 104]
2. At the time of the examination, DHFS must prepare a treatment report based
on its treating professionals' evaluation of: (a) the specific factors associated with the
person's risk for committing another sexually violent offense; (b) whether the person has
made significant progress in treatment or has refused treatment; (c) the ongoing
treatment needs of the person; and (d) any specialized needs or conditions associated with
the person that must be considered in future treatment planning.
3. The examiner's report must include an assessment of the risk that the person
will reoffend, whether the risk can be safely managed in the community if reasonable
conditions of supervision and security are imposed, and whether the treatment that the
person needs is available in the community. The report must be prepared no later than
30 days after the date of the examination and must be provided to DHFS. [Section 108
]
4. DHFS must send the treatment report, the written examination report, and a
written statement from DHFS recommending either continued institutional care,
supervised release, or discharge to the court, with copies to the DA or DOJ and to the
person's attorney. [Section 108
]
5. If the report concludes that the person does not meet the criteria for commitment
as an SVP, DHFS must petition for discharge. [Section 108]
Requests for Supervised Release
Under current law:
1. A person who is committed as an SVP may petition the committing court to
authorize supervised release 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.
The director of the facility at which the person is placed may petition on the person's
behalf at any time.
2. Within 20 days after receiving the petition, the court must appoint one or more
examiners who have specialized knowledge determined by the court to be appropriate,
who must examine the person and furnish a written report to the court within 30 days
after the appointment. If any examiner believes that the person is appropriate for
supervised release, the examiner must report on the type of treatment and services that
the person may need while in the community on supervised release.
3. The court, without a jury, must hear the petition within 30 days after the
examiner's report is filed, unless the time limit is waived by the petitioner. The court
must grant the petition unless the state proves by clear and convincing evidence that:
(a) it is still likely that the person will engage in acts of sexual violence if the person is
not continued in institutional care; or (b) the person has not demonstrated significant
progress in his or her treatment or the person has refused treatment. In making this
decision, the court may consider the nature and circumstances of the behavior that was
the basis of the allegation in the petition to commit the person; 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 if the person is a serious child sex offender.
4. If the court finds that the person is appropriate for supervised release, the court
must notify DHFS. DHFS must 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.
5. DHFS and the county department in the county of residence must prepare a plan
that does all of the following: (a) identifies the treatment and services, if any, that the
person will receive in the community; (b) addresses the person's need, if any, for
supervision, counseling, medication, community support services, residential services,
vocational services, and alcohol and other drug abuse (AODA) treatment; and (c) specifies
who will be responsible for providing the treatment and services identified in the plan.
The plan must be presented to the court for its approval within 60 days after the court
finding that the person is appropriate for supervised release, unless DHFS, the county
department, and the person request additional time to develop the plan.
The bill creates a new process for granting supervised release. As noted above,
DHFS must recommend continued institutional care, supervised release, or discharge
through the reexamination process. The new process in the bill is as follows:
1. Within 30 days after the filing of the reexamination report, treatment report,
and DHFS recommendation, the person subject to the commitment, the DA, or DOJ, may
object to the recommendation by filing a written objection with the court.
2. If DHFS's recommendation is continued institutional care, and there is no
objection, the recommendation is implemented without a hearing. If DHFS recommends
discharge or the person files an objection requesting discharge, the court shall proceed
with determining whether discharge is appropriate. Otherwise the court, without a jury,
must hold a hearing to determine whether to authorize supervised release within 30 days
after the date on which objections are due, unless the time limit is waived by the
petitioner.
3. The court must determine from all of the evidence whether to continue
institutional care and, if not, what the appropriate placement would be for the person
while on supervised release. In making this decision, the court may consider the same
items as under current law, except that the person's progress in treatment or refusal to
participate in treatment is added.
4. The court must select a county to prepare a report on the person's prospective
residential options. Unless the court has good cause to select another county, the court
must select the person's county of residence. The court must order the county department
in the county of intended placement to prepare the report, either independently or with
DHFS, identifying prospective residential options. In identifying options, the county
department must 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 DOC and regarding whom a sex offender notification bulletin has been issued. If the
court determines that the options identified in the report are inadequate, the court must
select another county to prepare a report. The county must report within 30 days of the
court order.
5. The court may order that a person be placed on supervised release if it finds that
all of the following apply: (a) the person has made sufficient progress in treatment such
that the risk that the person will reoffend can be safely managed in the community and
the progress can be sustained and the person's risk for reoffense has been reduced to a
level that it is not likely that the person will reoffend if so placed; (b) there is treatment
reasonably available in the community and the person will be treated by a provider who
is qualified to provide the necessary treatment in this state; (c) the provider presents a
specific course of treatment for the person, agrees to assume responsibility for the
person's treatment, agrees to comply with the rules and conditions of supervision imposed
by the court and DHFS, agrees to report on the person's progress to the court on a regular
basis, and agrees to report any violations of supervised release immediately to the court,
DOJ, or the DA, as applicable; (d) the person has housing arrangements that are
sufficiently secure to protect the community, and the person or agency that is providing
the housing to the person agrees in writing to accept the person, provide or allow for the
level of safety the court requires, and, if the person or agency providing the housing is a
state or local government agency or is licensed by DHFS, immediately report to the court
and DOJ or the DA, as applicable, any unauthorized absence of the person from the
housing arrangement; (e) the person will comply with the provider's treatment
requirements and all of the requirements that are imposed by DHFS and the court; (f)
DHFS has made provisions for the necessary services, including sex offender treatment,
other counseling, medication, community support services, residential services,
vocational services, and AODA treatment; and (g) the degree of supervision and ongoing
treatment needs of the person required for the safe management of the person in the
community can be provided through the allocation of a reasonable level of resources.
[Section 110]
Supervision of Persons on Supervised Release
Under current law, an order for supervised release places the person in the custody
and control of DHFS. DHFS must 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. A person on supervised release is subject
to the conditions set by the court and to DHFS' rules. If DHFS alleges that a 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 DHFS' rules. DHFS must 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 for that court's county within 72 hours after the
detention. The court must hear the petition within 30 days, unless the deadline is waived
by the detained person. 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 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
person be placed in an appropriate institution.
The bill modifies current law relating to revocation of supervised release as follows:
1. If DHFS concludes that a person on supervised release, or awaiting placement
on supervised release, violated or threatened to violate a rule of supervised release, it may
petition for revocation of the order granting supervised release.
2. As under current law, DHFS may detain a person for a violation or threatened
violation. In addition, under the bill, if DHFS concludes that such a person is a threat
to the safety of others, it must detain the person and petition for revocation of the order
granting supervised release.
3. If DHFS concludes that the order should be revoked, it must file a statement
alleging the violation and a petition to revoke the order with the committing court and
provide a copy of each to the regional office of the state public defender within 72 hours
after the detention. The court must hear the petition within 30 days, unless the hearing
or time deadline is waived. A final decision on the petition must be made within 90 days
of its filing.
4. If the court finds after a hearing, by clear and convincing evidence, that any rule
has been violated and that the violation merits the revocation of the order granting
supervised release, the court may revoke the order and order that the person be placed
in institutional care. If the court finds by clear and convincing evidence that the safety
of others requires that supervised release be revoked, the court must revoke the order
granting supervised release and order that the person be placed in institutional care.
[Section 111]
Discharge From Commitment
Under current law, if the secretary of DHFS (secretary) determines at any time
that a person is no longer an SVP, the secretary must authorize the person to petition the
committing court for discharge. The court must hold a hearing, before the court without
a jury, within 45 days after receipt of the petition. The state has the burden of proving
by clear and convincing evidence that the person is still an SVP. If the court is satisfied
that the state has not met its burden, the petitioner must be discharged from the custody
and supervision of DHFS. If the court is satisfied that the state has met its burden, the
court may proceed to determine whether to modify the person's existing commitment
order by authorizing supervised release.
Current law also permits a person to petition the court for discharge from custody
or supervision without the approval of the secretary. At the time of the person's
reexamination, the secretary must provide the person with written notice of the person's
right to petition for discharge over the secretary's objections. If the person does not
affirmatively waive the right to petition, the court must set a probable cause hearing to
determine whether facts exist that warrant a hearing on whether the person is still an
SVP. If the court determines at the probable cause hearing that probable cause exists to
believe that the committed person is no longer an SVP, then the court must set a hearing,
to the court, on the issue. The state has the right to have the person evaluated by experts
chosen by the state. The state has the burden of proving by clear and convincing evidence
that the committed person is likely to engage in acts of sexual violence or has not made
significant progress in treatment or has refused treatment. If the court is satisfied that
the state has not met its burden, the petitioner must be discharged from the custody and
supervision of DHFS. If the court is satisfied that the state has met its burden, the court
may proceed to determine whether to modify the person's existing commitment order by
authorizing supervised release.
The bill modifies the provisions relating to petitions for discharge
that do not have
DHFS's approval. The court must deny the petition without a hearing unless the petition
alleges facts from which the court may conclude that the person's condition has changed
so that the person does not meet the criteria for commitment as an SVP. In determining
whether such facts exist, the court must consider any current or past reports filed in
connection with a reexamination, relevant facts and arguments in the petition and in the
state's written response, arguments of counsel, and any supporting documentation
provided by the person or the state.
The court must hold a hearing within 90 days of the determination that the petition
contains facts from which the court may conclude that the person does not meet the
criteria for commitment as an SVP. Upon request, the hearing may be to a jury of six.
A verdict must be agreed to by at least five of the six jurors. The state has the burden of
proving by clear and convincing evidence that the person meets the criteria for
commitment. The general rules of evidence are inapplicable at such hearings. If the court
is satisfied that the state has not met its burden of proof, the petitioner must be
discharged from the custody and supervision of DHFS. If the court is satisfied that the
state has met its burden, the court may proceed to determine whether to modify the
person's existing commitment order by authorizing supervised release. [Sections 118
and 119]