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NO. 49. AN ACT RELATING TO SEX OFFENDERS.

(H.144)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. LEGISLATIVE INTENT

It is not the intention of the general assembly that this act create any new duty for a member of the public to disclose any knowledge of information contained in the sex offender registry.

Sec. 2. 13 V.S.A. § 5401 is amended to read:

§ 5401. DEFINITIONS

As used in this subchapter:

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(10) "Sex offender" means:

* * *

(B) A person who is convicted of any of the following offenses against a victim who is a minor, except that, for purposes of this subdivision, conduct which is criminal only because of the age of the victim shall not be considered an offense for purposes of the registry if the perpetrator is under the age of 18:

(i) any offense listed in subdivision (A);

(ii) kidnapping as defined in 13 V.S.A. § 2405(a)(1)(D);

(iii) lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602;

(iv) white slave traffic as defined in 13 V.S.A. § 2635;

(v) sexual exploitation of children as defined in 13 V.S.A. chapter 64; *[or]*

(vi) or procurement or solicitation as defined in 13 V.S.A. § 2632(a)(6);

(vii) an attempt to commit any offense listed in this subdivision*[;]* *[except that, for purposes of this subdivision, conduct which is criminal only because of the age of the victim shall not be considered a criminal offense if the perpetrator is under the age of 18]*.

(C) A person who takes up residence within this state, other than within a correctional facility, and who has been convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court, for a sex crime the elements of which would constitute a crime under subdivision (10)(A) or (B) of this section if committed in this state.

(D) A nonresident sex offender who crosses into Vermont and who is employed, carries on a vocation, or is a student.

* * *

(13) "Employed, carries on a vocation" includes employment that is full-time or part-time for a period of time exceeding 14 days or for an aggregate period of time exceeding 30 days during any calendar year, whether financially compensated, volunteered, or for the purpose of governmental or educational benefit.

(14) "Student" means a person who is enrolled on a full-time or

part-time basis in any public or private educational institution in Vermont, including any secondary school, trade or professional institution, or institution of higher learning.

(15) "Conviction" means a judgment of guilt following a verdict or finding of guilt, a plea of guilty, a plea of nolo contendere, an Alford Plea, or a judgment of guilt pursuant to a deferred sentence. A sex offender whose sentence is deferred shall have no duty to register after successful completion of the terms of the deferred sentence agreement for the duration specified in the agreement.

(16) "Risk" means the degree of dangerousness that a sex offender poses to others. Dangerousness includes the probability of a sexual reoffense.

Sec. 3. 13 V.S.A. § 5402 is amended to read:

§ 5402. SEX OFFENDER REGISTRY

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(b) All information contained in the registry may be disclosed for any purpose permitted under the law of the state, including the use by:

(1) local, state and federal law enforcement agencies exclusively for lawful law enforcement *[purposes]* activities;

(2) state and federal governmental agencies for the exclusive purpose of conducting confidential background checks;

(3) any employer, including a school district, who is authorized by law to request records and information from the Vermont criminal information center, where such disclosure is necessary to protect the public concerning persons required to register under this subchapter. The identity of a victim of an offense that requires registration shall not be released; and

(4) a person identified as a sex offender in the registry for the purpose of reviewing the accuracy of any record relating to him or her. The identity of a victim of an offense that requires registration shall not be released.

* * *

Sec. 4. 13 V.S.A. § 5404 is amended to read:

§ 5404. REPORTING UPON RELEASE FROM CONFINEMENT OR SUPERVISION

(a) *[Prior]* Upon receiving a sex offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or prior to releasing a sex offender from confinement or supervision, the department of corrections shall forward to the department the following information concerning the sex offender:

(1) an update of the information listed in subsection (a) of section 5403 of this title;

(2) the address upon release;

(3) *[conditions of release;

(4)]* name, address, and telephone number of *[any supervisory person]* the local department of corrections office in charge of monitoring the sex offender*[, including the sex offender’s probation or parole officer]*; and

*[

(5) name, address, name of program and telephone number of any counselor or therapist who will provide outpatient counseling to the sex offender; and

(6)]*(4) documentation of any treatment or counseling received.

(b) The department of corrections shall notify the department within 24 hours of the time a sex offender changes his or her address and shall provide the department with any updated information requested by the department.

(c) The information required to be provided by subsection (a) of this section shall also be provided by the department of corrections to a sex offender’s parole or probation officer within three days of the time a sex offender is placed on probation or parole by the court or parole board.

(d) *[Upon]* If it has not been previously submitted, upon receipt of the information to be provided to the department pursuant to subsection (a) of this section, the department shall immediately transmit the conviction data and fingerprints to the Federal Bureau of Investigation.

Sec. 5. 13 V.S.A. § 5405 is amended to read:

§ 5405. COURT DETERMINATION OF SEXUALLY VIOLENT PREDATORS

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(e) After making a determination, the court shall issue a written decision

explaining the reasons for its determination and provide a copy of the decision to the department within 10 days.

*[

(f) After a period of ten years has passed from the date the person is no longer under corrections supervision, a person designated as a sexually violent predator may petition the court to remove the designation. If the court finds that the petitioner has shown by clear and convincing evidence that he or she is no longer a sexually violent predator, the court shall order the termination of the designation. If the court does not order the termination of the designation, the person may not petition the court again for removal of the designation for a period of five years from the date of the last request.

]*

Sec. 6. 13 V.S.A. § 5406 is amended to read:

§ 5406. DEPARTMENT OF CORRECTIONS DUTY TO PROVIDE NOTICE

Upon receiving a sex offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or upon the release of a sex offender from *[prison]* a correctional facility, the department of corrections shall do each of the following:

(1) inform the sex offender of the duty to register and keep the registration current as provided in section 5407 of this title;

(2) inform the sex offender that if the sex offender changes residence to another state, the sex offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement; *[and]*

(3) require the sex offender to read and sign a form stating that the duty of the sex offender to register under this section has been explained and is understood. The registration form shall be sent to the department without delay; and

(4) inform the sex offender that if he or she crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender must notify the department of the new address, and shall register with the designated law enforcement agency in the other state, if the other state has a registration requirement.

Sec. 7. 13 V.S.A. § 5407 is amended to read:

§ 5407. SEX OFFENDER’S DUTY TO REPORT

(a) A sex offender shall report to the department as follows:

(1) if convicted of a registry offense in another state, within 10 days after either establishing residence in this state*[, if convicted in another state]* or crossing into this state for purposes of employment, carrying on a vocation, or being a student, the sex offender shall provide the information listed in subsection (a) of section 5403 of this title;

(2) annually within 10 days after each anniversary of the person’s date of release, or within 10 days after the anniversary of the person’s date of establishment of residence in Vermont, or crossing into this state for purposes of employment, carrying on a vocation, or being a student, if convicted elsewhere, except, if a person is determined to be a sexually violent predator, that person shall report to the department every 90 days; and

(3) within three days after any change of address.

(b) If a sex offender changes residence to another state, or crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement.

(c) Upon a sex offender’s change of residence to another state, the department shall immediately notify the designated law enforcement agency in the new state, if the new state has a registration requirement.

(d) The report required by this section shall include the information required by sections *[5303]* 5403 and *[5304]* 5404 of this chapter.

(e) *[All reporting requirements under this section, except for sexually violent predators, shall cease 10 years after the sex offender is released from prison or discharged from probation or parole, whichever is later. The 10-year period shall not be affected or reduced in any way by the actual duration of the offender’s sentence as imposed by the court, nor shall it be reduced by the sex offender’s release on parole or ending of probation or other early release.]* Except as provided for in subsection (f) of this section, a person required to register as a sex offender under this subchapter shall continue to comply with this section, except during periods of incarceration, until 10 years have elapsed since the person was released from prison or discharged from parole, supervised release, or probation, whichever is later. The 10-year period shall not be affected or reduced in any way by the actual duration of the offender’s sentence as imposed by the court, nor shall it be reduced by the sex offender’s release on parole or ending of probation or other early release.

(f) A person required to register as a sex offender under this subchapter shall continue to comply with this section for the life of that person, except during periods of incarceration, if that person:

(1) has at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter or a comparable offense in another jurisdiction of the United States;

(2) has been convicted of a sexual assault as defined in section 3252 of this title or aggravated sexual assault as defined in section 3253 of this title; however, if a person convicted under section 3252 is not more than six years older than the victim of the assault and if the victim is 14 years or older, then the offender shall not be required to register for life if the age of the victim was the basis for the conviction; or

(3) has been determined to be a sexually violent predator pursuant to section 5405 of this subchapter.

(g) The department shall adopt forms and procedures for the purpose of verifying the addresses of persons required to register under this subchapter in accordance with the requirements set forth in section (b)(3) of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. Every 90 days for sexually violent predators and annually for other registrants, the department shall verify addresses of registrants by sending a nonforwardable address verification form to each registrant at the address last reported by the registrant. The registrant shall be required to sign and return the form to the department within 10 days of receipt.

Sec. 8. 13 V.S.A. § 5409 is amended to read:

§ 5409. PENALTIES

A sex offender who knowingly fails to comply with any provision of this subchapter shall:

(1) *[For the offense of failure to submit to the identification, registration, or notification provisions of this subchapter, be]* Be imprisoned for not more than two years or fined not more than $1,000.00, or both. A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender at the time of sentencing.

(2) For the second or subsequent offense *[of failure, by a sexually violent predator, to submit to the identification, registration, or notification provisions of this subchapter]*, be imprisoned not more than three years or fined not more than $5,000.00, or both. A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender at the time of sentencing.

Sec. 9. 13 V.S.A. § 5411 is amended to read:

§ 5411. NOTIFICATION TO LOCAL LAW ENFORCEMENT AND LOCAL COMMUNITY

(a) Upon receiving a sex offender’s registration materials from the department of corrections, notification that a nonresident sex offender has crossed into Vermont for the purpose of employment, carrying on a vocation, or being a student, or a sex offender’s release or change of address, including changes of address which involve taking up residence in this state, the department shall immediately notify the local law enforcement agency of the following information, which may be used only for lawful law enforcement *[purposes]* activities:

(1) name;

(2) general physical description;

(3) nature of offense;

(4) sentence;

(5) *[conditions of release;

(6)]* the fact that the registry has on file additional information, including the sex offender’s photograph and fingerprints; and

*[

(7)]*(6) current employment.

(b) *[The]* Except as provided for in subsection (c) of this section, the department of public safety, the department of corrections and any local law enforcement agency authorized by the department of public safety, shall release relevant registry information necessary to protect the public concerning persons required to register under state law if the requestor can articulate a specific concern about the requestor’s personal safety or the safety of the requestor’s family. However, the identity of a victim of an offense shall not be released.

(c) After 10 years have elapsed from the completion of the sentence, a person required to register as a sex offender for life pursuant to section 5407 of this title may petition the district court for a termination of notification. The state shall make a reasonable attempt to notify the victim of the proceeding, and consider victim testimony regarding the petition. If the registrant was convicted of a crime which requires lifetime registration, there shall be a rebuttable presumption that the person is a high-risk sex offender. Should the registrant present evidence that he or she is not a high-risk offender, the state shall have the burden of proof to establish by a preponderance of the evidence that the person remains a high risk to reoffend. The court shall consider whether the offender has successfully completed sex offender treatment. The court may require the offender to submit to a psychosexual evaluation. If the court finds that there is a high risk of reoffense, notification shall continue. The Vermont District Court Civil Rules shall apply to these proceedings. A registrant may petition the court to be removed from the registry once every 60 months.

Sec. 10. 4 V.S.A. § 437 is amended to read:

§ 437. CIVIL JURISDICTION OF DISTRICT COURT

The district court shall have jurisdiction of the following actions:

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(9) Sex offender notification proceedings pursuant to 13 V.S.A. § 5411(c).

Sec. 11. 13 V.S.A. § 5414 is added to read:

§ 5414. PARTICIPATION IN NATIONAL SEX OFFENDER REGISTRATION

The department shall participate in the National Sex Offender Registry Program managed by the Federal Bureau of Investigation in accordance with guidelines issued by the U.S. Attorney General, including transmission of current address information and other information on registrants to the extent provided by the guidelines.

Sec. 12. 13 V.S.A. § 3256 is added to read:

§ 3256. TESTING FOR INFECTIOUS DISEASES

(a) The victim of an offense involving a sexual act may obtain an order from the district or family court in which the offender was convicted of the offense, or was adjudicated delinquent, requiring that the offender be tested for the presence of the etiologic agent for acquired immune deficiency syndrome (AIDS) and other sexually-transmitted diseases, including gonorrhea, herpes, chlamydia, and syphilis. If requested by the victim, the state’s attorney shall petition the court on behalf of the victim for an order under this section. For the purposes of this section, "offender" includes a juvenile adjudicated a delinquent.

(b) For purposes of this section, "sexual act" means a criminal offense:

(1) where the underlying conduct of the offender constitutes a sexual act as defined in section 3251 of this title; and

(2) which creates a risk of transmission of the etiologic agent for AIDS to the victim as determined by the federal Centers for Disease Control and Prevention.

(c) If the court determines that the offender was convicted or adjudicated of a crime involving a sexual act with the victim, the court shall order the test to be administered by the department of health in accordance with applicable law. If appropriate under the circumstances, the court may include in its order a requirement for follow-up testing of the offender. An order for follow-up testing shall be terminated if the offender’s conviction is overturned. A sample taken pursuant to this section shall be used solely for purposes of this section. All costs of testing the offender shall, if not otherwise funded, be paid by the department of public safety.

(d) The results of the offender’s test shall be disclosed only to the offender and the victim.

(e) If an offender who is subject to an order pursuant to subsection (c) of this section refuses to comply with the order, the victim, or state’s attorney on behalf of the victim, may seek a civil contempt order pursuant to chapter 5 of Title 12.

(f) After arraignment, a defendant who is charged with an offense involving a sexual act may offer to be tested for the presence of the etiologic agent for acquired immune deficiency syndrome (AIDS) and other

sexually-transmitted diseases, including gonorrhea, herpes, chlamydia, and syphilis. Such testing shall follow the same procedures set forth for testing an offender who is subject to an order pursuant to subsection (c) of this section. The defendant’s offer to be tested after arraignment shall not be used as evidence at the defendant’s trial. If the defendant is subsequently convicted of an offense involving a sexual act, the court may consider the offender’s offer for testing as a mitigating factor.

(g) Upon request of the victim at any time after the commission of a crime involving a sexual act under subsection (b) of this section, the state shall provide any of the following services to the victim:

(1) counseling regarding human immunodeficiency virus (HIV);

(2) testing, which shall remain confidential unless otherwise provided by law, for HIV and other sexually-transmitted diseases, including gonorrhea, herpes, chlamydia, and syphilis;

(3) counseling by a medically-trained professional on the accuracy of the testing, and the risk of transmitting HIV and other sexually-transmitted diseases to the victim as a result of the crime involving a sexual act; and

(4) prophylaxis treatment, crisis counseling, and support services.

(h) A victim who so requests shall receive monthly follow-up HIV testing for six months after the initial test.

(i) The state shall provide funding for HIV or AIDS, or both, and sexual assault cross-training between sexual assault programs and HIV and AIDS service organizations.

(j) The record of the court proceedings and test results pursuant to this section shall be sealed.

(k) The court administrator’s office shall develop and distribute forms to implement this section in connection with a criminal conviction or adjudication of delinquency.

(l) The center for crime victims services shall be the primary coordinating agent for the services to be provided in subsections (g), (h) and (i) of this section.

Sec. 13. FUNDING

Beginning in state fiscal year 2002, and continuing annually, the department of public safety shall reimburse the center for crime victims services for costs of any services under 13 V.S.A. § 3256(e), (f) and (g) in an amount up to $175,000.00, exclusive of any general funds or federal funds specifically appropriated for HIV and AIDS services and prevention. The center for crime victims services shall use these funds in accordance with a plan developed by a committee consisting of a representative each from the Vermont center for crime victims services, the Vermont network against domestic violence and sexual assault, and the HIV-positive public policy project, with the cooperation and advice of the department of public safety and the department of health. In the event that the cost of such services exceeds $175,000.00, the department of public safety shall continue to provide funding support and present any resulting funding shortfall to the general assembly as part of the budget adjustment process.

Sec. 14. 13 V.S.A. § 2632(a) is amended to read:

§ 2632. PROHIBITED ACTS

(a) A person shall not:

* * *

(6) Procure or solicit or offer to procure or solicit a *[female]* person for the purpose of prostitution, lewdness or assignation;

* * *

Sec. 15. 13 V.S.A. § 2635 is amended to read:

§ 2635. *[WHITE]* SLAVE TRAFFIC

(a) A person shall not:

(1) Induce, entice or procure a *[female]* person to come into the state or to go from the state for the purpose of prostitution or for any immoral purpose or to enter a house of prostitution in the state;

(2) Wilfully or knowingly aid such *[female]* person in obtaining transportation to or within the state for such purposes;

(3) Place a *[female]* person in the charge or custody of another person for immoral purposes or in a house of prostitution;

(4) Induce, entice, procure or compel such *[female]* person to reside in a house of prostitution; or

(5) Induce, entice, procure or compel such *[female]* person to live a life of prostitution.

Sec. 16. 13 V.S.A. § 2636(a) is amended to read:

§ 2636. UNLAWFUL PROCUREMENT

(a) A person shall not:

(1) Induce, entice, procure or compel a *[female]* person, for the purpose of prostitution or for any other immoral purpose, to enter a house of prostitution;

(2) Receive money or other valuable consideration for or on account of placing a *[female]* person in a house of prostitution *[for the purpose of causing her to cohabit with a male person to whom she is not married]*;

(3) Pay money or other valuable consideration to procure a *[female]* person for the purpose of placing *[her]* such person for immoral purposes in a house of prostitution, with or without *[her]* the person’s consent; or

(4) Knowingly receive money or other valuable thing for or on account of procuring or placing a *[female]* person in a house of prostitution for immoral purposes, with or without *[her]* the person’s consent.

Sec. 17. 13 V.S.A. § 2637(a) is amended to read:

§ 2637. APPROPRIATING OR LEVYING UPON EARNINGS OF PROSTITUTE

(a) A person shall not:

(1) Hold, detain or restrain a *[female]* person in a house of prostitution for the purpose of compelling such *[female]* person, directly or indirectly, by *[her]* the person’s voluntary or involuntary service or labor, to pay, liquidate, or cancel a debt, dues or obligations incurred or claimed to have been incurred in such house of prostitution; or

(2) Accept, receive, levy or appropriate money or other valuable thing from the proceeds or earnings of a *[female]* person engaged in prostitution.

Sec. 18. REPORTS

(a) On or before January 31 each year, the commissioner of the department of public safety shall report to the Senate and House Committees on Judiciary and on Appropriations the identity of each Byrne Grant recipient and the amount distributed to each one. The report shall specify the identity of and the amount received by each Byrne Grant recipient who was awarded funds as a consequence of Sec. 12 of this act.

(b) On or before January 31, 2002, the executive director of the center for crime victims services shall report to the Senate and House Committees on Judiciary and on Appropriations an analysis of the programmatic and fiscal impacts of Secs. 12 and 13 of this act. This report shall include the following:

(1) The number of victims of an offense involving a sexual act:

(A) who are referred for HIV testing;

(B) who are tested for HIV;

(C) who seek related benefits through the victim’s compensation program;

(D) who request preventative treatment or other related health services; and

(2) The cost of providing the services described in subdivisions (1)(A), (B), (C) and (D) of this subsection.

(c) On or before January 15, 2003, the commissioner of the department of corrections shall report to the Senate and House Committees on Judiciary any findings, conclusions, or recommendations regarding the department’s and offenders’ compliance with this section and Secs. 11 and 12 of this act.

Sec. 19. EFFECTIVE DATE

(a) Sections 1 through 11 of this act shall take effect on September 1, 2001 and shall not have any retroactive application.

(b) Sections 12 through 18 and this section shall take effect on passage.

Approved: June 12, 2001