SB318: Bill Text

LRB-2215/1

MGD&CMH:lmk:pg

2005 - 2006 LEGISLATURE

2005 Senate BILL 318

September 7, 2005 - Introduced by Joint Legislative Council. Referred to Committee on Judiciary, Corrections and Privacy.

SB318,2,14 An Act to repeal 980.02 (2) (ag), 980.03 (5), 980.05 (1m), 980.09 (1) (title), 980.09 (2) and 980.10; to renumber 978.13 (2) and 980.01 (1); to renumber and amend 938.396 (2) (e), 978.043, 980.015 (1), 980.015 (4), 980.03 (4), 980.04 (2), 980.07 (1), 980.09 (1) (a), 980.09 (1) (b) and 980.09 (1) (c); to amend 20.435 (2) (bj), 46.10 (2), 48.396 (1), 48.396 (5) (a) (intro.), 51.30 (3) (a), 51.30 (3) (b), 51.30 (4) (b) 8m., 51.30 (4) (b) 10m., 51.30 (4) (b) 11., 51.375 (1) (a), 51.375 (2) (b), 51.42 (3) (aw) 1. d., 109.09 (1), 146.82 (2) (c), 301.03 (19), 301.45 (1g) (dt), 301.45 (3) (a) 3r., 301.45 (3) (b) 3., 301.45 (5) (b) 2., 756.06 (2) (b), 801.52, 808.04 (3), 808.04 (4), 808.075 (4) (h), 809.10 (1) (d), 809.30 (1) (c), 809.30 (1) (f), 905.04 (4) (a), 911.01 (4) (c), 938.396 (1), 938.396 (5) (a) (intro.), 938.78 (2) (e), 946.42 (1) (a), 950.04 (1v) (xm), 967.03, 972.15 (4), 978.03 (3), 978.04, 978.045 (1r) (intro.), 978.05 (6) (a), 978.05 (8) (b), 980.01 (5), 980.01 (6) (a), 980.01 (6) (b), 980.01 (6) (c), 980.01 (7), 980.015 (2) (intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2) (c), 980.02 (1) (a), 980.02 (4) (intro.), 980.03 (2) (intro.), 980.03 (3), 980.04 (1), 980.04 (3), 980.04 (5), 980.05 (1), 980.05 (2), 980.05 (3) (a), 980.05 (3) (b), 980.07 (2), 980.07 (3), 980.09 (title), 980.101 (2) (a), 980.11 (2) (intro.) and 980.12 (1); to repeal and recreate 980.08; and to create 48.396 (6), 48.78 (2) (e), 48.981 (7) (a) 8s., 51.30 (3) (bm), 51.30 (4) (b) 8s., 118.125 (2) (ck), 146.82 (2) (cm), 814.61 (1) (c) 6., 938.35 (1) (e), 940.20 (1g), 946.42 (3m), 972.15 (6), 973.155 (1) (c), 978.043 (2), 978.13 (2) (a), 980.01 (1b), 980.01 (1j), 980.01 (3), 980.01 (6) (am), 980.01 (6) (bm), 980.015 (2) (d), 980.02 (1) (b) 3., 980.02 (1m), 980.02 (6), 980.031 (title), 980.031 (1) and (2), 980.034, 980.036, 980.038, 980.04 (2) (b) 2., 980.05 (2m), 980.07 (1) (b), 980.07 (1g), 980.07 (1m), 980.07 (4) to (7), 980.093, 980.095, 980.14 (title) and 980.14 (1) of the statutes; relating to: the definition of sexually violent person, sexually violent person commitment proceedings, criteria for supervised release, battery by certain committed persons, escape from custody by a person who is subject to a sexually violent person commitment 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.