AB738: Bill Text

LRB-3423/1

MGD:kmg:jf

2001 - 2002 LEGISLATURE

2001 Assembly BILL 738

January 16, 2002 - Introduced by Representatives Johnsrud, Hines, Loeffelholz, Gundrum, Gronemus, Olsen, Ryba, Leibham, Kaufert, Stone, Turner, D. Meyer, McCormick, Starzyk, Hoven, Huebsch, Musser, Ott, Krawczyk, Pettis, Nass, Freese, Gunderson, Seratti, Vrakas, Grothman, Lassa, Townsend, Wasserman, Petrowski and Plale, cosponsored by Senators M. Meyer, Burke, Kanavas, S. Fitzgerald, Darling, Cowles, Schultz and Hansen. Referred to Committee on Corrections and the Courts.

AB738,1,9 An Act to renumber 302.11 (4m), 302.116 (1) (a) and 971.17 (1); to renumber and amend 980.08 (4) and 980.08 (5); to amend 46.10 (2), 51.42 (3) (aw) 1. d., 302.11 (1), 971.17 (1g), 971.17 (1j) (b), 971.17 (1m) (a), 971.17 (1m) (b) 1m., 971.17 (1m) (b) 2m., 971.17 (3) (a), 971.17 (3) (e), 971.17 (4) (d), 971.17 (6) (a) (intro.), 971.17 (6) (b), 980.08 (3) and 980.08 (6m); and to create 302.11 (1g) (b) 3., 302.11 (4m) (b), 302.116 (1) (ad), 302.116 (1) (af), 302.116 (3), 304.02 (4t), 304.06 (2m) (af), 971.17 (1b), 971.17 (4f), 973.09 (8), 975.10 (1m), 980.08 (4) (a) 1. b., 980.08 (5) (a) 2. and 980.08 (5) (b) of the statutes; relating to: the residence of child sex offenders.

Analysis by the Legislative Reference Bureau

Current law restricts where certain persons who have been convicted of first or second degree sexual assault, first or second degree sexual assault of a child, repeated sexual assault of a child, incest with a child, or child enticement (a "serious sex offense") may reside if they are living in the community. First, no person who has been convicted of a serious sex offense (a "sex offender") may be paroled to any county where there is a correctional institution that has a specialized sex offender treatment program, unless that county was the person's county of residence at the time of the person's offense. (Presently, this provision only applies to Winnebago County.) Second, any sex offender who is released to extended supervision must agree, as a condition of extended supervision, to live in a residence that the department of corrections (DOC) has approved. Current law also imposes certain obligations on DOC with respect to where sex offenders reside. DOC must work to minimize, to the greatest extent possible, the residential population density of sex offenders who are on probation, parole, or extended supervision or who are placed on supervised release after having been committed for treatment as sexually violent persons.

This bill places additional restrictions on where child sex offenders -- defined as a person who has been convicted of child enticement, attempted child enticement, or, if the victim or the intended victim was under 18, any other serious sex offense -- may reside. Under the bill, a child sex offender who is being placed in the community under the supervision of DOC (through parole, extended supervision, or probation) may not reside within 1,000 feet of any of the following places: 1) a state, county, city, village, or town park; 2) a multiunit public housing project; 3) a public swimming pool; 4) a child care facility; 5) a youth center; 6) a community center; or 7) any private or public school premises. The bill imposes the same restriction on: 1) any person being placed in the community on conditional release after having been found not guilty by reason of mental disease or defect of child enticement, attempted child enticement, or, if the victim or the intended victim was under 18, any other serious sex offense; and 2) any person placed on supervised release after having been committed for treatment as a sexually violent person, regardless of the offense or offenses that provided a basis for his or her commitment.

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:

AB738, s. 1 Section 1. 46.10 (2) of the statutes is amended to read:

AB738,3,20 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12), and (13), 55.05, 55.06, 971.14 (2) and (5), 971.17 (1) (1d), 975.06 , and 980.06, receiving care, maintenance, services, and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services, and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) (c) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services, and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow, or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

AB738, s. 2 Section 2. 51.42 (3) (aw) 1. d. of the statutes is amended to read:

AB738,4,4 51.42 (3) (aw) 1. d. Provide treatment and services that are specified in a conditional release plan approved by a court for a person who is a county resident and is conditionally released under s. 971.17 (3) or (4) or that are specified in a supervised release plan approved by a court under s. 980.06 (2) (c), 1997 stats., or s. 980.08 (5) (d). If the county department provides treatment and services under this subdivision, the department of health and family services shall, from the appropriation under s. 20.435 (2) (bj), pay the county department for the costs of the treatment and services.

AB738, s. 3 Section 3. 302.11 (1) of the statutes is amended to read:

AB738,4,12 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (1z), (4m) (b), (7), and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

AB738, s. 4 Section 4. 302.11 (1g) (b) 3. of the statutes is created to read:

AB738,4,19 302.11 (1g) (b) 3. Refusal by the inmate, if the inmate is a child sex offender, as defined in s. 302.116 (1) (af), to reside, as a condition of parole, in a residence that is not 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. 5 Section 5. 302.11 (4m) of the statutes is renumbered 302.11 (4m) (a).

AB738, s. 6 Section 6. 302.11 (4m) (b) of the statutes is created to read:

AB738,5,2 302.11 (4m) (b) A child sex offender, as defined in s. 302.116 (1) (af), is not entitled to mandatory release on parole under this section 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. 7 Section 7. 302.116 (1) (a) of the statutes, as created by 2001 Wisconsin Act 16, is renumbered 302.116 (1) (at).

AB738, s. 8 Section 8. 302.116 (1) (ad) of the statutes is created to read:

AB738,5,8 302.116 (1) (ad) "Child care facility" means a child care facility that is operated by a person licensed under s. 48.65 or 48.69 or certified under s. 48.651 or that is established or contracted for under s. 120.13 (14).

AB738, s. 9 Section 9. 302.116 (1) (af) of the statutes is created to read:

AB738,5,11 302.116 (1) (af) "Child sex offender" means a person serving a sentence for any of the following:

AB738,5,13 1. A violation of s. 948.07 or a solicitation or conspiracy to commit a violation of s. 948.07.

AB738,5,16 2. 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. 10 Section 10. 302.116 (3) of the statutes is created to read:

AB738,5,22 302.116 (3) As a condition of extended supervision, a child sex offender shall live in a residence that is not 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, a youth center, a community center, or any private or public school premises.

AB738, s. 11 Section 11. 304.02 (4t) of the statutes is created to read:

AB738,6,4 304.02 (4t) Notwithstanding subs. (1) to (3), a child sex offender, as defined in s. 302.116 (1) (af), may not be paroled under this section 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. 12 Section 12. 304.06 (2m) (af) of the statutes is created to read:

AB738,6,11 304.06 (2m) (af) Neither the parole commission nor the department may parole a child sex offender, as defined in s. 302.116 (1) (af), 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. 13 Section 13. 971.17 (1) of the statutes is renumbered 971.17 (1d).

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.