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H.108

Introduced by Representatives Kainen of Hartford, Emmons of Springfield, Martin of Springfield, Metzger of Milton, Obuchowski of Rockingham and Wright of Burlington

Referred to Committee on

Date:

Subject:  Health; civil commitment of sexually violent predators

Statement of purpose:  This bill proposes to repeal the existing procedures for designating a person a sexually violent predator and replace them with a procedure whereby the state may civilly commit a sexually violent predator to state custody for the purpose of involuntary mental health treatment after his or her release from prison. 

AN ACT RELATING TO CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS

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


Sec. 1.  18 V.S.A. chapter 201 is added to read:

Chapter 201.  civil commitment of

Sexually violent predators

§ 8601.  LEGISLATIVE FINDINGS AND INTENT

(a)  The general assembly finds that there exists a small but extremely dangerous group of sexually violent predators who have a mental abnormality or personality disorder and who are likely to engage in repeated acts of sexual violence if not treated for their mental abnormality or personality disorder. Because the existing civil commitment procedures under Vermont law are inadequate to address the special needs of sexually violent predators and the risks they present to society, the general assembly determines that a separate involuntary civil commitment process for the potentially long-term control, care, and treatment of sexually violent predators is necessary.  The general assembly also finds that because of the nature of the mental abnormalities or personality disorders from which sexually violent predators suffer and the dangers they present, it is necessary to house involuntarily committed sexually violent predators in an environment separate from persons otherwise involuntarily committed under Vermont law.

(b)  It is the intent of the general assembly that the civil commitment proceedings in this act be used infrequently, and only in cases in which the state believes that a sex offender’s mental condition makes the person a real and substantial threat to the community.  Civil commitment should not be a substitute for proper investigation, prosecution, sentencing, incarceration, and in-prison treatment for sex offenders.  Civil commitment is not intended to be punitive, but rather an effort to provide appropriate mental health treatment to sex offenders who suffer from a mental abnormality or personality disorder which makes such persons likely to engage in repeated acts of sexual violence.  The general assembly hopes that such treatment will prove successful for offenders, and that many will be able to return safely to the community.    

§ 8602.  DEFINITIONS

As used in this chapter:

(1)  “Agency with jurisdiction” means that agency which releases upon lawful order or authority a person serving a sentence or term of confinement and includes the department of corrections, the department of developmental and mental health services, and the Vermont parole board.

(2)  “Commissioner” means the commissioner of the department of developmental and mental health services.

(3)  “Likely to engage in repeated acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

(4)  “Mental abnormality” means a congenital or acquired condition that affects the emotional or volitional capacity of a person in a manner that predisposes the person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

(5)  “Person” means an individual who is a potential or actual subject of proceedings under this chapter.

(6)  “Sexually motivated” means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.

(7)  “Sexually violent offense” means aggravated sexual assault as defined in 13 V.S.A. § 3253, sexual assault as defined in 13 V.S.A. § 3252, or lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, or a comparable offense in another jurisdiction of the United States.

(8)  “Sexually violent predator” means a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeated acts of sexual violence.

(9)  “Transitional release” means any halfway house, work release, or other placement designed to assist the person’s adjustment and reintegration into the community once released from commitment.

(10)  “Treatment staff” means the persons, agencies, or firms employed by or contracted with the commissioner to provide treatment, supervision, or other services at the sexually violent predator facility.

§ 8603.  NOTICE OF RELEASE OF SEXUALLY VIOLENT PREDATOR

(a)  When it appears that a person may meet the criteria of a sexually violent predator as defined in this chapter, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in this section 90 days prior to:

(1)  The anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to prison for no more than 90 days as a result of revocation of post-release supervision, written notice shall be given as soon as practicable following the person’s readmission to prison.

(2)  The release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to 13 V.S.A. § 4817.

(3)  The release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to 13 V.S.A. § 4819.

(b)  The commissioner of the department of corrections shall establish a multidisciplinary team for the purpose of assessing whether a person meets the criteria for a sexually violent predator.  The team may include individuals from other state agencies.  The team shall review the available records of a person referred to such team pursuant to subsection (a) of this section within 30 days of receiving notice and expeditiously notify the attorney general of its assessment. 

(c)  The agency with jurisdiction shall inform the attorney general and the multidisciplinary team of the following:

(1)  The person’s name, identifying factors, anticipated future residence, and offense history.

(2)  Documentation of institutional adjustment and any treatment received.

(d)  The attorney general shall appoint a committee to review the records of each person referred to the attorney general pursuant to subsection (a) of this section.  The attorney general’s review committee shall assist the attorney general in the determination of whether the person meets the definition of a sexually violent predator.  The assessment of the multidisciplinary team shall be made available to the attorney general and the review committee.

(e)  The agency with jurisdiction, its employees, officials, members of the multidisciplinary team, members of the attorney general’s review committee, and individuals contracting, appointed, or volunteering to perform services under this chapter shall be immune from liability for any good-faith conduct under this section.


§ 8604.  PETITION

(a)  When the attorney general’s review committee determines that a person meets the definition of a sexually violent predator, the attorney general may file a petition in the district court in the county where the person was convicted of or charged with a sexually violent offense alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation.

(b)  The district court shall have jurisdiction of actions involving the civil commitment of sex offenders under this chapter, unless otherwise noted.

§ 8605.  PROBABLE CAUSE HEARING

(a)  Upon filing of a petition under section 8604 of this title, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator.  If such determination is made, the court shall direct that person be taken into custody.

(b)  Within 72 hours after a person is taken into custody pursuant to subsection (a) of this section, such person shall be provided with notice of and an opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator.  At this hearing, the court shall:

(1)  verify the detained person’s identity; and

(2)  determine whether probable cause exists to believe that the person is a sexually violent predator.

(c)  The detained person shall have the following rights:

(1)  to be represented by counsel;

(2)  to present evidence on his or her behalf;

(3)  to cross-examine witnesses who testify against such person; and

(4)  to view and copy all petitions and reports in the court file.

(d)  The attorney general may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(e)  If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility for an evaluation as to whether the person is a sexually violent predator.  The evaluation shall be conducted by an individual deemed to be professionally qualified to conduct such an examination.

§ 8606.  TRIAL

(a)  Within 60 days after the completion of a probable cause hearing held pursuant to section 8605 of this title, the court shall conduct a trial to determine whether the person is a sexually violent predator.  The trial may be continued upon the request of either party and a showing of good cause or by the court on its own motion in the interest of justice, and when the respondent will not be substantially prejudiced.

(b)  At all stages of proceedings under this chapter, a person subject to this chapter shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person.  Whenever any person is subjected to an examination under this chapter, such person may retain experts or professional individuals to perform an examination on such person’s behalf.  When the person wishes to be examined by a qualified expert or professional individual of such person’s own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports.  In the case of a person who is indigent, the court, upon the person’s request, shall determine whether the services are necessary and reasonable compensation for such services.  If the court determines that the services are necessary and the expert or professional individual’s requested compensation for such services is reasonable, the court shall assist the person in obtaining an expert or professional individual to perform an examination or participate in the trial on the person’s behalf.  The court shall approve payment for such services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the same case or for the same services from any other source.

(c)  The person shall have the right to demand that the trial be before a jury.  If no demand is made, the trial shall be before the court.

§ 8607.  DETERMINATION

(a)  The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.  A jury determination that the person is a sexually violent predator shall require a unanimous verdict.  If the court or jury is not convinced beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct the person’s release.  If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the commissioner for control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.  Such control, care, and treatment shall be provided at a facility operated by the department of developmental and mental health services.  The person shall have the right to appeal the commitment decision to the supreme court.

(b)  At all times, persons committed for control, care, and treatment by the department of developmental and mental health services pursuant to this chapter shall be kept in a secure facility, and such persons shall be segregated at all times from any other patient under the supervision of the commissioner.  As of July 1, 2008, such persons shall be kept in a facility or building separate from any other patient under the supervision of the commissioner.

(c)  The department of developmental and mental health services is authorized to enter into an interagency agreement with the department of corrections for the confinement of such persons.  Such persons who are in the confinement of the commissioner of corrections pursuant to an interagency agreement shall be housed and managed separately from offenders in the custody of the commissioner of corrections and except for occasional instances of supervised incidental contact, shall be segregated from such offenders.

(d)  If any person while committed to the custody of the commissioner pursuant to this chapter is taken into custody by any law enforcement officer pursuant to any parole revocation proceeding or any arrest or conviction for a criminal offense of any nature, upon the person’s release from the custody of law enforcement, the person shall be returned to the custody of the commissioner for further treatment pursuant to this chapter.  During any such period of time a person is not in the actual custody or supervision of the commissioner, the commissioner shall be excused from the provisions of section 8609 of this title, with regard to providing that person an annual examination, annual notice, and annual report to the court, except that the commissioner shall give notice to the court as soon as reasonably possible after the taking of the person into custody that the person is no longer in treatment and notice to the court when the person is returned to the custody of the commissioner for further treatment.

(e)  Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility until another trial is conducted.  Any subsequent trial following a mistrial shall be held within 90 days of the previous trial, unless such subsequent trial is continued as provided in this section.

(f)  If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released from state custody, and such person’s commitment is sought pursuant to this chapter, the court shall first hear evidence and determine whether the person did commit the act or acts charged.  In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply.  After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person’s incompetence or developmental disability affected the outcome of the hearing, including its effect on the person’s ability to consult with and assist counsel and to testify on such person’s own behalf, and the extent to which the evidence could be reconstructed without the assistance of the person and the strength of the prosecution’s case.  If after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person did commit the act or acts charged, the court shall enter a final order appealable by the person on that issue and may proceed to consider whether the person should be committed pursuant to this section.

§ 8608.  ANNUAL EXAMINATIONS; TRANSITIONAL RELEASE

(a)  Each person committed under this chapter shall have an examination of the person’s mental condition once every year.  The commissioner shall provide the committed person with an annual written notice of the person’s right to petition the court for release over the commissioner’s objection.  The notice shall contain a waiver of rights.  The commissioner shall also forward the annual report, as well as the annual notice and waiver form, to the court that committed the person.  The person may retain or if the person is indigent and so requests the court may appoint a qualified professional individual to examine such person, and such expert or professional individual shall have access to all records concerning the person.  The court that committed the person shall then conduct an annual review of the status of the committed person’s mental condition.  The committed person shall have a right to have an attorney represent the person at the hearing, but the person is not entitled to be present at the hearing.

(b)  Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court at this hearing for discharge.

(c)  If the court at the hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, the court shall set a hearing on the issue.  At the hearing, the committed person shall be entitled to be present and entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding.  The attorney general shall represent the state and have the committed person evaluated by experts chosen by the state.  The committed person shall also have the right to have experts evaluate the person on the person’s behalf and the court shall appoint an expert if the person is indigent and requests an appointment.  The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.  The person shall the right to have the matter tried before a jury.

(d)  If, after the hearing, the court or jury is convinced beyond a reasonable doubt that the person is not appropriate for transitional release, the court shall order that the person remain in secure commitment.  Otherwise, the court shall order that the person be placed in transitional release.

(e)  If the court determines that the person should be placed in transitional release, the commissioner shall transfer the person to the transitional release program.  The commissioner may contract for services to be provided in the transitional release program.  During any period the person is in transitional release, that person shall comply with any rules the commissioner may establish for this program and every directive of the treatment staff of the transitional release program.

(f)  At any time during which the person is in the transitional release program and the treatment staff determines that the person has violated any rule, directive, or condition associated with the transitional release program, the treatment staff may remove the person from the transitional release program and return the person to the secure commitment facility, or may request the court to issue an emergency ex parte order directing a law enforcement officer to take the person into custody and return the person to the secure commitment facility.  Any such request may be made verbally or by telephone, but shall be followed in written or facsimile form delivered to the court by not later than 5:00 p.m. of the first day the court is open for the transaction of business after the verbal or telephonic request was made.

(g)  Upon the person having been returned to the secure commitment facility from the transitional release program, notice thereof shall be given by the commissioner to the court.  The court shall set the matter for a hearing within two days of receipt of notice of the person having been returned to the secure commitment facility and cause notice thereof to be given to the attorney general, the person, and the commissioner.  The attorney general shall have the burden of proof to show probable cause that the person violated conditions of transitional release.  The hearing shall be to the court.  At the conclusion of the hearing, the court shall issue an order returning the person to the secure commitment facility or to the transitional release program and may order such other further conditions with which the person must comply if the person is returned to the transitional release program.

§ 8609.  PETITION FOR TRANSITIONAL RELEASE; HEARING

(a)  If the commissioner determines that the person’s mental abnormality or personality disorder has so changed that the person is not likely to engage in repeated acts of sexual violence if placed in transitional release, the commissioner shall authorize the person to petition the court for transitional release.  The petition shall be served upon the court and the attorney general. The court, upon receipt of the petition for transitional release, shall order a hearing within 30 days.  The attorney general shall represent the state and shall have the right to have the petitioner examined by an expert or professional individual of such attorney’s choice.  The hearing shall be before the court. The burden of proof shall be upon the attorney general to show beyond a reasonable doubt that the petitioner’s mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that if placed in transitional release is likely to engage in repeated acts of sexual violence.

(b)  If, after the hearing, the court is convinced beyond a reasonable doubt that the person is not appropriate for transitional release, the court shall order that the person remain in secure commitment.  Otherwise, the court shall order that the person be placed in transitional release.

(c)  The provisions of subsections 8608(e), (f), and (g) of this title shall apply to a transitional release pursuant to this section.

(d)  Nothing in this act shall prohibit a person from filing a petition for transitional release, conditional release, or final discharge pursuant to this chapter.  However, if a person has previously filed a petition for transitional release, conditional release, or final discharge without the commissioner’s approval, and if the court determined either upon review of the petition or following a hearing that the petitioner’s petition was frivolous or that the petitioner’s condition had not so changed that the person was safe to be at large, the court shall deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted.  Upon receipt of a first or subsequent petition from committed persons without the commissioner’s approval, the court shall endeavor whenever possible to review the petition and determine whether the petition is based upon frivolous grounds and if so shall deny the petition without a hearing.

§ 8610.  CONDITIONAL RELEASE HEARING

(a)  During any period the person is in transitional release, the person at least annually, and at any other time deemed appropriate by the treatment staff, shall be examined by the treatment staff to determine if the person’s mental abnormality or personality disorder has so changed as to warrant such person being considered for conditional release.  The treatment staff shall forward a report of its examination to the court for review.  If the court determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in conditional release, the court shall set a hearing on the issue.  The attorney general shall have the burden of proof to show beyond a reasonable doubt that the person’s mental abnormality or personality disorder remains such that the person is not safe to be at large and that if placed on conditional release is likely to engage in repeated acts of sexual violence.  The person shall have the same rights as enumerated in section 8606 of this title, except the right to a jury trial.  Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact.  The order of the court shall be provided to the attorney general, the person, and the commissioner.

(b)  If, after the hearing, the court is convinced beyond a reasonable doubt that the person is not appropriate for conditional release, the court shall order that the person remain either in secure commitment or in transitional release. Otherwise, the court shall order that the person be placed on conditional release.

§ 8611.  CONDITIONAL RELEASE PLAN OF TREATMENT

(a)  If the court determines that the person should be placed on conditional release, the court, based upon the recommendation of the treatment staff, shall establish a plan of treatment which the person shall be ordered to follow.  This plan of treatment may include provisions such as:

(1)  where the person shall reside and with whom;

(2)  requirements for taking prescribed medications;

(3)  attending individual and group counseling;

(4)  abstinence from illegal drugs and alcohol;

(5)  maintaining employment;

(6)  having no contact with children; and  

(7)  not frequenting facilities, locations, or events in which children are likely to be present and not engaging in activities in which contact with children is likely.

(b)  Upon a showing by the person that the person accepts the plan of treatment and is prepared to follow it, the court shall release the person from the transitional release program.

§ 8612.  FINAL RELEASE HEARING

(a)  After a minimum of five years have passed in which the person has been free of violations of conditions of such person’s treatment plan, the treatment staff or other professionals directed by the court may examine such person to determine if the person’s mental abnormality or personality disorder has changed so as to warrant such person being considered for final discharge. The individual preparing the report shall forward the report to the court for review.  If the court determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be entitled to final discharge, the court shall set a formal hearing on the issue.  The attorney general shall have the burden of proof to show beyond a reasonable doubt that the person’s mental abnormality or personality disorder remains such that the person is not appropriate for final discharge.  The person shall have the same rights as enumerated in section 8606 of this title, except the right to a jury trial.  Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact.  The order of the court shall be provided to the attorney general, the person, and the commissioner.

(b)  If, after a hearing, the court is convinced beyond a reasonable doubt that the person is not appropriate for final discharge, the court shall continue the commissioner’s custody of the person in a secure facility, transitional release program, or conditional release program.  Otherwise, the court shall order the person finally discharged.  In the event the court does not order final discharge of the person, the person still retains the right to annual reviews.

(c)  At any time during which the person is on conditional release and the professional individual designated by the court in the treatment plan to monitor the person’s compliance with it determines that the person has violated any material condition of that plan, that professional individual may request the district court to issue an emergency ex parte order directing a law enforcement officer to take the person into custody and return the person to the secure commitment facility.  Any such request may be made verbally or by telephone, but shall be followed in written or facsimile form delivered to the court not later than 5:00 p.m. of the first day the district court is open for the transaction of business after the verbal or telephonic request was made.

(d)  Upon the person being returned to the secure commitment facility from conditional release, notice thereof shall be given by the commissioner to the court.  The court shall set the matter for a hearing within two days of receipt of notice of the person’s having been returned to the secure commitment facility and cause notice thereof to be given to the attorney general, the person, and the commissioner.  The attorney general shall have the burden of proof to show probable cause that the person violated conditions of conditional release.  The hearing shall be to the court.  At the conclusion of the hearing, the court shall issue an order returning the person to the secure commitment facility, to the transitional release program, or to conditional release, and may order such other further conditions with which the person must comply if the person is returned to either the transitional release program or to conditional release.

(e)  The final discharge shall not prevent the person from being prosecuted for any criminal acts which the person is alleged to have committed or from being subject in the future to a subsequent commitment under this chapter.

§ 8613.  NOTICE TO VICTIMS OF RELEASE OF SEX OFFENDERS

A victim of a person committed under this chapter shall have the right to request notification by the commissioner before the person is released from a secure facility.  If such notice is requested, the commissioner shall give written notice to the victim of such placement or release as expeditiously as possible at the address or telephone number provided to the commissioner by the victim.  Any address or telephone number so provided shall be kept confidential.  Failure to notify shall not be a reason for postponement of release.  Nothing in this section shall create a cause of action against the state or an employee of the state acting within the scope of the employee’s employment as a result of the failure to notify pursuant to this action.  The victim shall be given the committed person’s town and street of residence.

§ 8614.  CONFIDENTIAL OR PRIVILEGED INFORMATION AND

               RECORDS

Relevant information and records which are otherwise confidential or privileged shall be released to the agency with jurisdiction or the attorney general for the purpose of meeting the notice requirement provided in section 8603 of this title and amendments thereto and determining whether a person is or continues to be a sexually violent predator.

§ 8615.  COURT RECORDS

Any psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter shall be part of the record but shall be sealed and opened only on order of the court or as provided in this chapter.

§ 8616.  INELIGIBILITY FOR BAIL, BOND, OR HOUSE ARREST 

Any person for whom a petition pursuant to this chapter has been filed and is in the secure confinement of the state shall not be eligible for bail, bond, house arrest, or any other measures releasing the person from the physical protective custody of the state.

§ 8617.  COSTS

The commissioner shall be responsible for all costs relating to the evaluation and treatment of persons committed to the commissioner’s custody under any provision of this chapter.

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

§ 5401.  DEFINITIONS

As used in this subchapter:

* * *

(4)  “Mental abnormality” means a congenital or acquired condition that affects the emotional or volitional capacity of a person in a manner that predisposes the person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

* * *

(6)  “Personality disorder” means a condition where a person exhibits personality traits which are inflexible and maladaptive and cause either significant functional impairment or subjective distress.

(7)  “Predatory” means an act directed at a stranger, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.

(8)  “Release” means release from confinement or custody or placement into the community for any reason, including release on bail pending appeal, probation, parole, furlough, work release, early release, alternative sanctions, house arrest, daily interrupt, community placement, or completion of sentence. It shall also mean probation or parole supervision of an out-of-state sex offender under an interstate agreement or compact.

(9)(8)  “Registry” means the sex offender registry maintained by the department of public safety.

(10)(9)  “Sex offender” means:

(A)  A person who is convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court of any of the following offenses:

(i)  sexual assault as defined in 13 V.S.A. § 3252;

(ii)  aggravated sexual assault as defined in 13 V.S.A. § 3253;

(iii)  lewd and lascivious conduct as defined in 13 V.S.A. § 2601;

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d);

(v)  an attempt to commit any offense listed in this subdivision.

(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) of this subdivision (9);

(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;

(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.

(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) (9)(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.

(11)(10)  “Sexually violent offense” means sexual assault or aggravated sexual assault, as described in 13 V.S.A. §§ 3252 and 3253 aggravated sexual assault as defined in 13 V.S.A. § 3253, sexual assault as defined in 13 V.S.A. § 3252, or lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, or a comparable offense in another jurisdiction of the United States, or any attempt to commit sexual assault, aggravated sexual assault, or a comparable offense in another jurisdiction of the United States.

(12)(11)  “Sexually violent predator” means a person who is a sex offender, who has been convicted of a sexually violent offense, as defined in subdivision (11) of this section, and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses has been civilly committed under chapter 201 of Title 18 because the person has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeated acts of sexual violence.  

(13)(12)  “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)(13)  “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)(14)  “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)(15)  “Risk” means the degree of dangerousness that a sex offender poses to others.  “High-risk” means a high degree of dangerousness that a sex offender poses to others.  Dangerousness includes the probability of a sexual reoffense.

Sec. 3.  REPEAL

13 V.S.A. § 5405 is repealed.

Sec. 4.  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 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 5403(a) of this title;

(2)  annually within 10 days after the registrant’s birthday, or if a person is determined to be a sexually violent predator pursuant to chapter 201 of Title 18, that person shall report to the department every 90 days;

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

(4)  within three days after the registrant enrolls in or separates from any postsecondary educational institution; and

(5)  within three days after any change in place of employment.

* * *

(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) 5401(9) 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 chapter 201 of Title 18.

(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. 5.  13 V.S.A. § 5411(c)(1) is amended to read:

(c)(1)  Except as provided for in subsection (e) of this section, upon request of a member of the public about a specific person, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information on the following registrants:

(A)  Sex offenders who have been convicted of section 3253 of this title (aggravated sexual assault), subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child), or 33 V.S.A. § 6913(d)(sexual activity with a vulnerable adult).

(B)  Sex offenders who have at least one prior conviction for an offense described in subdivision 5401(10) 5401(9) of this subchapter or a comparable offense in another jurisdiction.

(C)  Sex offenders who have failed to comply with sex offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.

(D)  Sex offenders who have been designated as sexual sexually violent predators pursuant to section 5405 of this title chapter 201 of Title 18.

(E)  Sex offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high risk.


Sec. 6.  13 V.S.A. § 5411a(a) is amended to read:

(a)  Notwithstanding sections 2056a-2056e of Title 20, the department shall electronically post information on the internet in accordance with subsection (b) of this section regarding the following sex offenders, upon their release from confinement:

(1)  Sex offenders who have been convicted of a violation of section 3253 of this title (aggravated sexual assault) or subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child).

(2)  Sex offenders who are convicted of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title, and who have a prior conviction of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title.  Comparable offenses in another jurisdiction shall be included in this subsection.

(3)  Sex offenders who have failed to comply with sex offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.  Information on offenders shall remain on the internet only while the warrant is outstanding.

(4)  Sex offenders who have been designated as sexual sexually violent predators pursuant to section 5405 of this title chapter 201 of Title 18.

(5)  Sex offenders who have not complied with sex offender treatment recommended by the department of corrections or who are ineligible for sex offender treatment.  The department of corrections shall establish rules for the administration of this subdivision and shall specify what circumstances constitute noncompliance with treatment and criteria for ineligibility to participate in treatment.  Offenders subject to this provision shall have the right to appeal the department of corrections’ determination in superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure.  This subdivision shall apply prospectively and shall not apply to those sex offenders who did not comply with treatment or were ineligible for treatment prior to March 1, 2005.

(6)  Sex offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high-risk.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us