980.05 Annotation
This section does not confine expert testimony to any specific standard nor mandate the type or character of relevant evidence that the state may choose to meet its burden of proof. State v. Zanelli,
223 Wis. 2d 545,
589 N.W.2d 687 (Ct. App. 1998).
980.05 Annotation
The standard of review for commitments under ch. 980 is the standard applicable to the review of criminal cases--whether the evidence could have led the trier of fact to find beyond a reasonable doubt that the person subject to commitment is a sexually violent person. State v. Curiel,
227 Wis. 2d 389, 597 N.W.2d (1999).
980.05 Annotation
Sub. (1m) provides a respondent with a statutory right to be competent at trial. The procedure to effect that right should adhere to ss. 971.13 and 971.14. State v. Smith,
229 Wis. 2d 720,
600 N.W.2d 258 (Ct. App. 1999).
980.05 Annotation
The right to a jury trial under ch. 980 is governed by sub. (2) rather than case law governing the right to a jury trial in criminal proceedings. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999).
980.05 Annotation
The sub. (2) requirement that the 2 persons who did not request the withdrawal of a request for a jury trial consent to the withdrawal does not require a personal statement from the person subject to the commitment proceeding. Consent be granted by defense counsel. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999).
980.05 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To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication.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)
980.06
980.06
Commitment. If a court or jury determines that the person who is the subject of a petition under
s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person. A commitment order under this section shall specify that the person be placed in institutional care.
980.06 Annotation
The failure of the trial court to follow the notice requirements of sub. (2) (c) resulted in the court being incompetent to order community release. In re Commitment of Goodson,
199 Wis. 2d 426,
544 N.W. 2d 611 (Ct. App. 1996).
980.06 Annotation
Sub. (2) (d) requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson,
199 Wis. 2d 426,
544 N.W. 2d 611 (Ct. App. 1996).
980.06 Annotation
Under sub. (2) (c), treatment and services "in the community" does not mean treatment and services in the county of residence. A court may consider treatment options in any community in the state. Once the court determines supervised release is appropriate it is the state's duty to arrange for the appropriate placement. State v. Keding,
214 Wis. 2d 362,
571 N.W. 2d 450 (Ct. App. 1997).
980.06 Annotation
In the event that there is a failure to develop an appropriate treatment program, the remedy is to obtain appropriate treatment and not supervised release. State v. Seibert,
220 Wis. 2d 308,
582 N.W. 2d 745 (Ct. App. 1998).
980.06 Annotation
There is no exception under sub. (2) for a court to refuse to order release after it determines under sub. (2) (b) that release is appropriate. If treatment programs are unavailable, the court shall order a county through DHFS to prepare a plan, and place the person on supervised release in that county The court may order the county to create whatever programs or facilities are necessary to accommodate the supervised release. State v. Sprosty,
227 Wis. 2d 316,
595 N.W. 2d 692 (1999).
980.063
980.063
Deoxyribonucleic acid analysis requirements. 980.063(1)(a)(a) If a person is found to be a sexually violent person under this chapter, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
980.063(1)(b)
(b) The results from deoxyribonucleic acid analysis of a specimen under
par. (a) may be used only as authorized under
s. 165.77 (3). The state crime laboratories shall destroy any such specimen in accordance with
s. 165.77 (3).
980.063(2)
(2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens under
sub. (1) and for the transportation of those specimens to the state crime laboratories for analysis under
s. 165.77.
980.063 History
History: 1995 a. 440.
980.065
980.065
Institutional care for sexually violent persons. 980.065(1m)(1m) The department shall place a person committed under
s. 980.06 at the secure mental health facility established under
s. 46.055, the Wisconsin resource center established under
s. 46.056 or a secure mental health unit or facility provided by the department of corrections under
sub. (2).
980.065(2)
(2) The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under
s. 980.06. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection.
980.065 History
History: 1993 a. 479;
1997 a. 27;
1999 a. 9.
980.07
980.07
Periodic reexamination; report. 980.07(1)
(1) If a person has been committed under
s. 980.06 and has not been discharged under
s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under
s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under
s. 980.03 (4).
980.07(2)
(2) Any examiner conducting an examination under this section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under
s. 980.06.
980.07(3)
(3) Notwithstanding
sub. (1), the court that committed a person under
s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order.
980.07 History
History: 1993 a. 479;
1999 a. 9.
980.07 Annotation
The 6-month period under sub. (1) for the 1st reexamination does not begin to run until the court conducts the dispositional hearing and issues an initial commitment order under s. 980.06 (2). State v. Marberry,
231 Wis. 2d 581,
605 N.W.2d 512 (Ct. App. 1999).
980.08
980.08
Petition for supervised release. 980.08(1)
(1) Any person who is committed under
s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 18 months have elapsed since the initial commitment order was entered or at least 6 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 file a petition under this subsection on the person's behalf at any time.
980.08(2)
(2) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney or department of justice, whichever is applicable and, subject to
s. 980.03 (2) (a), refer the matter to the authority for indigency determinations under
s. 977.07 (1) and appointment of counsel under
s. 977.05 (4) (j). If the person petitions through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
980.08(3)
(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 specified in
sub. (4), 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).
980.08(4)
(4) 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 by clear and convincing evidence 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, 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 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.
980.08(5)
(5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department and the county department under
s. 51.42 in the county of residence of the person, as determined under
s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under
s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.
980.08(6m)
(6m) An order for supervised release places the person in the custody and control of the department. The department shall 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 approved by the court under
sub. (5). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released 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 the rules of the department. The department shall 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 in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. 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 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 others requires that supervised release be revoked. If the court determines after hearing 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 released person be placed in an appropriate institution until the person is discharged from the commitment under
s. 980.09 or until again placed on supervised release under this section.
980.08 Annotation
Whether in a proceeding for an initial ch. 980 commitment or a later petition for supervised release, there is no requirement that the state prove the person is treatable. State v. Seibert,
220 Wis. 2d 308,
582 N.W. 2d 745 (Ct. App. 1998).
980.08 Annotation
There is no exception under sub. (5) for a court to refuse to order release after it determines under sub. (4) that release is appropriate. If treatment programs are unavailable, the court shall order a county, through DHFS, to prepare a plan and place the person on supervised release in that county The court may order the county to create whatever programs or facilities are necessary to accommodate the supervised release. State v. Sprosty,
227 Wis. 2d 316,
595 N.W. 2d 692 (1999).
980.08 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).
980.09
980.09
Petition for discharge; procedure. 980.09(1)
(1)
Petition with secretary's approval. 980.09(1)(a)(a) If the secretary determines at any time that a person committed under this chapter is no longer a sexually violent person, the secretary shall authorize the person to petition the committing court for discharge. The person shall file the petition with the court and serve a copy upon the department of justice or the district attorney's office that filed the petition under
s. 980.02 (1), whichever is applicable. The court, upon receipt of the petition for discharge, shall order a hearing to be held within 45 days after the date of receipt of the petition.
980.09(1)(b)
(b) At a hearing under this subsection, the district attorney or the department of justice, whichever filed the original petition, shall represent the state and shall have the right to have the petitioner examined by an expert or professional person of his, her or its choice. The hearing shall be before the court without a jury. The state has the burden of proving by clear and convincing evidence that the petitioner is still a sexually violent person.
980.09(1)(c)
(c) If the court is satisfied that the state has not met its burden of proof under
par. (b), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under
par. (b), the court may proceed to determine, using the criterion specified in
s. 980.08 (4), whether to modify the petitioner's existing commitment order by authorizing supervised release.
980.09(2)
(2) Petition without secretary's approval. 980.09(2)(a)(a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under
s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under
s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing.
980.09(2)(b)
(b) If the court determines at the probable cause hearing under
par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under
s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The state has the right to have the committed person evaluated by experts chosen by the state. At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
980.09(2)(c)
(c) If the court is satisfied that the state has not met its burden of proof under
par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under
par. (b), the court may proceed to determine, using the criterion specified in
s. 980.08 (4), whether to modify the person's existing commitment order by authorizing supervised release.
980.09 History
History: 1993 a. 479;
1999 a. 9.
980.09 Annotation
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post,
197 Wis. 2d 279,
541 N.W. 2d 115 (1995).
980.09 Annotation
Sub. (2) (a) does not contemplate an evidentiary hearing as is provided under sub. (2) (b). Under sub. (2) (a), the hearing is a paper review of the reexamination reports that allows the committing court to weed out frivolous petitions. State v. Paulick,
213 Wis. 2d 432,
570 N.W. 2d 626 (Ct. App. 1997).
980.10
980.10
Additional discharge petitions. In addition to the procedures under
s. 980.09, a committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. If the court finds that a hearing is warranted, the court shall set a probable cause hearing in accordance with
s. 980.09 (2) (a) and continue proceedings under
s. 980.09 (2) (b), if appropriate. If the person has not previously filed a petition for discharge without the secretary's approval, the court shall set a probable cause hearing in accordance with
s. 980.09 (2) (a) and continue proceedings under
s. 980.09 (2) (b), if appropriate.
980.10 History
History: 1993 a. 479.
980.10 Annotation
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post,
197 Wis. 2d 279,
541 N.W. 2d 115 (1995).
980.105
980.105
Determination of county of residence. The court shall determine a person's county of residence for the purposes of this chapter by doing all of the following:
980.105(1)
(1) The court shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
980.105(2)
(2) The court shall apply the criteria for consideration of residence and physical presence under
sub. (1) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement or commitment that was in effect when the petition was filed under
s. 980.02.
980.105 History
History: 1995 a. 276.
980.11
980.11
Notice concerning supervised release or discharge. 980.11(1)(a)
(a) "Act of sexual violence" means an act or attempted act that is a basis for an allegation made in a petition under
s. 980.02 (2) (a).
980.11(1)(b)
(b) "Member of the family" means spouse, child, sibling, parent or legal guardian.
980.11(1)(c)
(c) "Victim" means a person against whom an act of sexual violence has been committed.
980.11(2)
(2) If the court places a person on supervised release under
s. 980.08 or discharges a person under
s. 980.09 or
980.10, the department shall do all of the following:
980.11(2)(am)
(am) Make a reasonable attempt to notify whichever of the following persons is appropriate, if he or she can be found, in accordance with
sub. (3):
980.11(2)(am)2.
2. An adult member of the victim's family, if the victim died as a result of the act of sexual violence.
980.11(2)(am)3.
3. The victim's parent or legal guardian, if the victim is younger than 18 years old.
980.11(3)
(3) The notice under
sub. (2) shall inform the department of corrections and the person under
sub. (2) (am) of the name of the person committed under this chapter and the date the person is placed on supervised release or discharged. The department shall send the notice, postmarked at least 7 days before the date the person committed under this chapter is placed on supervised release or discharged, to the department of corrections and to the last-known address of the person under
sub. (2) (am).
980.11(4)
(4) The department shall design and prepare cards for persons specified in
sub. (2) (am) to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the person committed under this chapter and any other information the department determines is necessary. The department shall provide the cards, without charge, to the department of justice and district attorneys. The department of justice and district attorneys shall provide the cards, without charge, to persons specified in
sub. (2) (am). These persons may send completed cards to the department of health and family services. All records or portions of records of the department of health and family services that relate to mailing addresses of these persons are not subject to inspection or copying under
s. 19.35 (1), except as needed to comply with a request by the department of corrections under
s. 301.46 (3) (d).
980.12
980.12
Department duties; costs. 980.12(1)
(1) Except as provided in
ss. 980.03 (4) and
980.08 (3), the department shall pay from the appropriations under
s. 20.435 (2) (a) and
(bm) for all costs relating to the evaluation, treatment and care of persons evaluated or committed under this chapter.
980.12(2)
(2) By February 1, 2002, the department shall submit a report to the legislature under s.
13.172 (2) concerning the extent to which pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen has been required as a condition of supervised release under s.
980.06, 1997 stats., or
s. 980.08 and the effectiveness of the treatment in the cases in which its use has been required.
980.13
980.13
Applicability. This chapter applies to a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2, 1994.
980.13 History
History: 1993 a. 479.
