980.11 Notice concerning supervised release or discharge.
980.12 Department duties; costs.
980.01
980.01
Definitions. In this chapter:
980.01(1)
(1) "Department" means the department of health and family services.
980.01(2)
(2) "Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.
980.01(4)
(4) "Secretary" means the secretary of health and family services.
980.01(4m)
(4m) "Serious child sex offender" means a person who has been convicted, adjudicated delinquent or found not guilty or not responsible by reason of insanity or mental disease, defect or illness for committing a violation of a crime specified in
s. 948.02 (1) or
(2) or
948.025 (1) against a child who had not attained the age of 13 years.
980.01(5)
(5) "Sexually motivated" means that one of the purposes for an act is for the actor's sexual arousal or gratification.
980.01(6)
(6) "Sexually violent offense" means any of the following:
980.01(6)(b)
(b) Any crime specified in
s. 940.01,
940.02,
940.05,
940.06,
940.19 (4) or
(5),
940.195 (4) or
(5),
940.30,
940.305,
940.31 or
943.10 that is determined, in a proceeding under
s. 980.05 (3) (b), to have been sexually motivated.
980.01(6)(c)
(c) Any solicitation, conspiracy or attempt to commit a crime under
par. (a) or
(b).
980.01(7)
(7) "Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.
980.01 Annotation
Chapter 980 creates a civil commitment procedure primarily intended to provide treatment and protect the public, not to punish the offender. As such the chapter does not provide for "punishment" in violation of the constitutional prohibitions against double jeopardy or ex post facto laws. State v. Carpenter,
197 Wis. 2d 252,
541 N.W. 2d 105 (1995).
980.01 Annotation
Chapter 980 does not violate substantive due process guarantees. The definitions of "mental disorder" and "dangerous" are not overbroad. The treatment obligations under ch. 980 are consistent with the nature and duration of commitments under the chapter and the lack of a precommitment finding of treatability is not offensive to due process requirements. State v. Post,
197 Wis. 2d 279,
541 N.W. 2d 115 (1995).
980.01 Annotation
Chapter 980 does not violate equal protection guarantees. The state's compelling interest in protecting the public justifies the differential treatment of the sexually violent persons subject to the chapter. State v. Post,
197 Wis. 2d 279,
541 N.W. 2d 115 (1995).
980.01 Annotation
A child enticement conviction under a statute that had been repealed and recreated under a new statute number was a sexually violent offense under sub. (6) although the former number was not listed therein. State v. Irish,
210 Wis. 2d 107,
565 N.W. 2d 161 (Ct. App. 1997).
980.01 Annotation
Under sub. (7), a "mental disorder that makes it substantially probable that the person will engage in acts of sexual violence" is a disorder that predisposes the affected person to sexual violence. A person diagnosed with "antisocial personality disorder" coupled with another disorder may be found to be sexually violent. State v. Adams,
223 Wis. 2d 60,
588 N.W.2d 336 (Ct. App. 1998).
980.01 Annotation
Definitions in ch. 980 serve a legal, and not medical, function. The court will not adopt a definition of pedophilia for ch. 980 purposes. State v. Zanelli,
223 Wis. 2d 545,
589 N.W.2d 687 (Ct. App. 1998).
980.01 Annotation
That the state's expert's opined that pedophilia is a lifelong disorder did not mean that commitment was based solely on prior bad acts rather than a present condition. Jury instructions are discussed. State v. Matek,
223 Wis. 2d 611,
589 N.W.2d 441 (Ct. App. 1998).
980.01 Annotation
As used in this chapter, "substantial probability" and "substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel,
227 Wis. 2d 389,
597 N.W.2d 697 (1999).
980.01 Annotation
The constitutionality of Wisconsin's Sexual Predator Law. Straub & Kachelski. Wis. Law. July, 1995.
980.015
980.015
Notice to the department of justice and district attorney. 980.015(1)(1) In this section, "agency with jurisdiction" means the agency with the authority or duty to release or discharge the person.
980.015(2)
(2) If an agency with jurisdiction has control or custody over a person who may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 3 months prior to the applicable date of the following:
980.015(2)(a)
(a) 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 a sexually violent offense.
980.015(2)(b)
(b) The anticipated release from a secured correctional facility, as defined in
s. 938.02 (15m), or a secured child caring institution, as defined in
s. 938.02 (15g), or a secured group home, as defined in
s. 938.02 (15p), of a person adjudicated delinquent under
s. 938.183 or
938.34 on the basis of a sexually violent offense.
980.015(2)(c)
(c) The termination or discharge of a person who has been found not guilty of a sexually violent offense by reason of mental disease or defect under
s. 971.17.
980.015(3)
(3) The agency with jurisdiction shall provide the district attorney and department of justice with all of the following:
980.015(3)(a)
(a) The person's name, identifying factors, anticipated future residence and offense history.
980.015(3)(b)
(b) If applicable, documentation of any treatment and the person's adjustment to any institutional placement.
980.015(4)
(4) Any agency or officer, employee or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with this section.
980.015 Annotation
The "appropriate district attorney" under sub. (2) is the district attorney in the county of conviction or the county to which prison officials propose to release the person. In re Commitment of Goodson,
199 Wis. 2d 426,
544 N.W. 2d 611 (Ct. App. 1996).
980.02
980.02
Sexually violent person petition; contents; filing. 980.02(1)(1) A petition alleging that a person is a sexually violent person may be filed by one of the following:
980.02(1)(a)
(a) The department of justice at the request of the agency with jurisdiction, as defined in
s. 980.015 (1), over the person. If the department of justice decides to file a petition under this paragraph, it shall file the petition before the date of the release or discharge of the person.
980.02(1)(b)
(b) If the department of justice does not file a petition under
par. (a), the district attorney for one of the following:
980.02(1)(b)1.
1. The county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness.
980.02(1)(b)2.
2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a secured correctional facility, as defined in
s. 938.02 (15m), from a secured child caring institution, as defined in
s. 938.02 (15g), from a secured group home, as defined in
s. 938.02 (15p), or from a commitment order.
980.02(2)
(2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
980.02(2)(a)
(a) The person satisfies any of the following criteria:
980.02(2)(a)1.
1. The person has been convicted of a sexually violent offense.
980.02(2)(a)2.
2. The person has been found delinquent for a sexually violent offense.
980.02(2)(a)3.
3. The person has been found not guilty of a sexually violent offense by reason of mental disease or defect.
980.02(2)(ag)
(ag) The person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in
s. 938.02 (15m), from a secured child caring institution, as defined in
s. 938.02 (15g), or from a secured group home, as defined in
s. 938.02 (15p), if the person was placed in the facility for being adjudicated delinquent under
s. 938.183 or
938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.
980.02(2)(c)
(c) The person is dangerous to others because the person's mental disorder creates a substantial probability that he or she will engage in acts of sexual violence.
980.02(3)
(3) A petition filed under this section shall state with particularity essential facts to establish probable cause to believe the person is a sexually violent person. If the petition alleges that a sexually violent offense or act that is a basis for the allegation under
sub. (2) (a) was an act that was sexually motivated as provided under
s. 980.01 (6) (b), the petition shall state the grounds on which the offense or act is alleged to be sexually motivated.
980.02(4)
(4) A petition under this section shall be filed in any of the following:
980.02(4)(a)
(a) The circuit court for the county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of a sexually violent offense by reason of mental disease or defect.
980.02(4)(am)
(am) The circuit court for the county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision or release from imprisonment, from a secured correctional facility, as defined in
s. 938.02 (15m), from a secured child caring institution, as defined in
s. 938.02 (15g), from a secured group home, as defined in
s. 938.02 (15p), or from a commitment order.
980.02(4)(b)
(b) The circuit court for the county in which the person is in custody under a sentence, a placement to a secured correctional facility, as defined in
s. 938.02 (15m), a secured child caring institution, as defined in
s. 938.02 (15g), or a secured group home, as defined in
s. 938.02 (15p), or a commitment order.
980.02(5)
(5) Notwithstanding
sub. (4), if the department of justice decides to file a petition under
sub. (1) (a), it may file the petition in the circuit court for Dane County.
980.02 Annotation
A ch. 980 commitment is not an extension of a commitment under ch. 975, and s. 975.12 does not limit the state's ability to seek a separate commitment under ch. 980 of a person originally committed under ch. 975. State v. Post,
197 Wis. 2d 279,
541 N.W. 2d 115 (1995).
980.02 Annotation
For purposes of determining the proper time to file a ch. 980 petition under sub. (2) (ag), a sentence imposed for a sexually violent offense includes a sentence imposed consecutively to any sentence for a sexually violent offense. State v. Keith,
216 Wis. 2d 61,
573 N.W. 2d 888 (Ct. App. 1997).
980.02 Annotation
As used in this chapter, "substantial probability" and "substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel,
227 Wis. 2d 389,
597 N.W.2d 697 (1999).
980.02 Annotation
In deciding whether there is a substantial probability that the subject will commit future acts of sexual violence, the trier of fact is free to weigh expert testimony that conflicts and decide which is more reliable, to accept or reject an expert's testimony, including accepting only parts of the testimony, and to consider all non-expert testimony. State v. Kienitz,
227 Wis. 2d 423,
597 N.W. 2d 712 (1999).
980.02 Annotation
To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999)
980.02 Annotation
In a trial on a petition filed under sub. (2), the state has the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject's release or discharge based on a sexually violent offense. State v. Theil, 2000 WI 67,
235 Wis. 2d 823,
612 N.W.2d 94.
980.03
980.03
Rights of persons subject to petition. 980.03(1)
(1) The circuit court in which a petition under
s. 980.02 is filed shall conduct all hearings under this chapter. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.
980.03(2)
(2) Except as provided in
ss. 980.09 (2) (a) and
980.10 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:
980.03(2)(a)
(a) Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under
s. 977.07 (1) and, if applicable, the appointment of counsel.
980.03(2)(d)
(d) Have the hearing recorded by a court reporter.
980.03(3)
(3) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney may request that a trial under
s. 980.05 be to a jury of 12. A request for a jury trial shall be made as provided under
s. 980.05. Notwithstanding
s. 980.05 (2), if the person, the person's attorney, the department of justice or the district attorney does not request a jury trial, the court may on its own motion require that the trial be to a jury of 12. A verdict of a jury under this chapter is not valid unless it is unanimous.
980.03(4)
(4) Whenever a person who is the subject of a petition filed under
s. 980.02 or who has been committed under
s. 980.06 is required to submit to an examination under this chapter, he or she may retain experts or professional persons to perform an examination. If the person retains a qualified expert or professional person of his or her own choice to conduct an examination, the examiner shall have reasonable access to the person for the purpose of the examination, as well as 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 the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination and participate in the trial or other proceeding on the person's behalf. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of an expert or professional person appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person. An expert or professional person appointed to assist an indigent person who is subject to a petition may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter.
980.03(5)
(5) Upon a showing by the proponent of good cause under
s. 807.13 (2) (c), testimony may be received into the record of a hearing under this section by telephone or live audiovisual means.
980.03 Annotation
There are circumstances when comment on the defendant's silence is permitted. If a defendant refuses to be interviewed by the state's psychologist and the defense attorney challenges the psychologist's findings based on the lack of an interview, it is appropriate for the psychologist to testify about the refusal. State v. Adams,
223 Wis. 2d 60,
588 N.W.2d 336 (Ct. App. 1998).
980.04
980.04
Detention; probable cause hearing; transfer for examination. 980.04(1)(1) Upon the filing of a petition under
s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is cause to believe that the person is eligible for commitment under
s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a secured correctional facility, as defined in
s. 938.02 (15m), a secured child caring institution, as defined in
s. 938.02 (15g), or a secured group home, as defined in
s. 938.02 (15p), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the person is discharged after a trial under
s. 980.05 or until the effective date of a commitment order under
s. 980.06, whichever is applicable.
980.04(2)
(2) Whenever a petition is filed under
s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person. If the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays and legal holidays. If the person named in the petition is not in custody, the court shall hold the probable cause hearing within a reasonable time after the filing of the petition.
980.04(3)
(3) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person. If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.
980.04(4)
(4) The department shall promulgate rules that provide the qualifications for persons conducting evaluations under
sub. (3).
980.04(5)
(5) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under
sub. (2), refer the person to the authority for indigency determinations under
s. 977.07 (1) and, if applicable, the appointment of counsel.
980.04 Annotation
The rules of evidence apply to probable cause hearings under ch. 980. The exceptions to the rules for preliminary examinations also apply. Although s. 907.03 allows an expert to base an opinion on hearsay, an expert's opinion based solely on hearsay cannot constitute probable cause. State v. Watson,
227 Wis. 2d 167,
595 N.W.2d 403 (1999).
980.04 Annotation
In sub. (2), "in custody" means in custody pursuant to ch. 980 and does not apply to custody under a previously imposed sentence. State v. Brissette,
230 Wis. 2d 82,
601 N.W.2d 678 (Ct. App. 1999).
980.05(1)(1) A trial to determine whether the person who is the subject of a petition under
s. 980.02 is a sexually violent person shall commence no later than 45 days after the date of the probable cause hearing under
s. 980.04. The court may grant a continuance of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.
980.05(1m)
(1m) At the trial to determine whether the person who is the subject of a petition under
s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.
980.05(2)
(2) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under
s. 980.04. If no request is made, the trial shall be to the court. The person, the person's attorney or the district attorney or department of justice, whichever is applicable, may withdraw his, her or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.
