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H.795

Introduced by Representatives Wright of Burlington, Branagan of Georgia, Bartlett of Dover, Brennan of Colchester, Clark of Vergennes, Dates of Shelburne, Dunsmore of Georgia, Flory of Pittsford, Helm of Castleton, Koch of Barre Town, Krawczyk of Bennington, Obuchowski of Rockingham, Sunderland of Rutland Town and Winters of Williamstown

Referred to Committee on

Date:

Subject:  Public safety; health; civil and involuntary 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 and involuntarily commit a sexually violent predator or violent predator to state custody after his or her release from prison.

AN ACT RELATING TO THE INVOLUNTARY AND CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS AND VIOLENT PREDATORS

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

Sec. 1.  18 V.S.A. chapter 201 is redesignated and §§ 8601-8617 are added to it to read:

Chapter 201. mentally ill criminals involuntary commitment of Sexually violent predators

AND VIOLENT PREDATORS

§ 8601.  LEGISLATIVE FINDINGS AND INTENT

(a)  The general assembly finds that there exists a small but extremely dangerous group of sexually violent and violent predators who have a mental abnormality or personality disorder and who are likely to engage in repeated acts of violence if not treated for their mental abnormality or personality disorder.  Because the existing involuntary commitment procedures under Vermont law are inadequate to address the special needs of sexually violent and 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 and 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 and violent predators suffer and the dangers they present, it is necessary to house involuntarily committed sexually violent and 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 involuntary commitment proceedings in this act be used infrequently and only in cases in which the state believes that an offender’s mental condition makes the person a real and substantial threat to the community.  Involuntary commitment should not be a substitute for proper investigation, prosecution, sentencing, incarceration, and in-prison treatment for sexually violent and violent offenders.  Involuntary commitment is not intended to be punitive, but rather an effort to provide for the public’s safety.  Although treatment is offered to sexually violent and violent predators, the primary purpose of this bill is to provide for the public’s safety.  The general assembly hopes however that such treatment will prove successful for sexually violent and violent offenders, and that they will eventually be able to return to the community without reoffending.

§ 8602.  DEFINITIONS

As used in this chapter:

(1)  “Agency with jurisdiction” means an 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 health, and the Vermont parole board.

(2)  “Attorney general” means the attorney general of the state of Vermont or his or her designee.

(3)  “Commissioner” means the commissioner of health or his or her designee.

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

(5)  “Mental abnormality” means a condition, either congenital or acquired, that affects the emotional or volitional capacity of a person to a degree that makes it difficult or impossible for the person to control his or her violent behavior and in a manner that predisposes the person to the commission of sexually violent offenses or violent offenses.

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

(7)  “Personality disorder” means a condition in which a person exhibits personality traits which are inflexible and maladaptive and cause either significant functional impairment or subjective distress that affects the emotional or volitional capacity of a person to a degree that makes it difficult or impossible for the person to control his or her violent behavior and in a manner that predisposes the person to the commission of sexually violent offenses or violent offenses.

(8)  “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.

(9)  “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, any attempt to commit a crime listed herein, or a comparable offense in another jurisdiction of the United States.

(10)  “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 violence.

(11)  “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.

(12)  “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 or violent predator facility.

(13)  “Violent offense” means murder as defined in 13 V.S.A. § 2301, aggravated murder as defined in 13 V.S.A. § 2311, kidnapping as defined in 13 V.S.A. § 2405, aggravated assault as defined in 13 V.S.A. § 1024, any attempt to commit a crime listed herein, or a comparable offense in another jurisdiction of the United States.

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

§ 8603.  NOTICE OF RELEASE OF SEXUALLY VIOLENT OR VIOLENT

               PREDATOR

(a)  When it appears that a person may meet the criteria of a sexually violent predator or violent predator as defined in this chapter, the agency with jurisdiction shall give written notice 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 or a 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 or a 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 or a violent offense pursuant to 13 V.S.A. § 4819.

(b)  The commissioner of corrections shall establish a multidisciplinary team for the purpose of assessing whether a person meets the criteria for a sexually violent predator or a violent predator.  The team may include individuals from other state agencies, but shall include at least one law enforcement officer and one state’s attorney or deputy state’s attorney.  The team shall review the available records of a person referred to the 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 or a 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 or a 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 or violent offense, alleging that the person is a sexually violent predator or violent predator and stating sufficient facts to support the allegation.

(b)  The district court shall have jurisdiction over actions involving the involuntary commitment of violent predators or sexually violent 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 or a violent predator.  If such a determination is made, the court shall direct that the person be placed into the custody of the commissioner upon release of the person from the commissioner of corrections.

(b)  Within 72 hours after a person is taken into custody pursuant to subsection (a) of this section, the person shall be provided with notice and an opportunity to appear in person at a hearing to contest the court’s determination that probable cause exists to believe the detained person is a sexually violent predator or violent predator.  At the 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 or 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 the person;

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

(5)  to view and copy evidence that the attorney general intends to submit to the court, prior to its submission.

(d)  The attorney general may rely upon the petition or supplement the petition with additional evidence or testimony.  The attorney general may view and copy all petitions and reports in the court file, cross examine witnesses, and view and copy evidence that the detained person intends to submit to the court, prior to its submission.

(e)  If the probable cause determination is made following the hearing, 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 or 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 or 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 or upon agreement of the parties.  That the person will not be substantially prejudiced must serve, in whole or in in part, the basis of good cause or interest of justice.

(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 the person.  Whenever any person is subjected to an examination under this chapter, the person may retain experts or professional individuals to perform an examination on the person’s behalf.  When the person wishes to be examined by a qualified expert or professional individual of the person’s own choice, the examiner shall be permitted to have reasonable access to the person for the purpose of the examination, as well as to all relevant medical and psychological records and reports in the possession of the attorney general or agency with jurisdiction.  In the case of a person who is indigent, the court, upon the person’s request, shall determine whether the services are necessary and calculate reasonable compensation for the services.  If the court determines that the services are necessary and the expert or professional individual’s requested compensation for the 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 the 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 45 days from the completion of the probable cause hearing, 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 or violent predator.  A jury determination that the person is a sexually violent predator or 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 or violent predator, the court shall direct the person’s release.  If the court or jury determines that the person is a sexually violent predator or 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 health.  The person shall have the right to appeal the commitment decision to the supreme court.

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

(c)  The department of health is authorized to enter into an interagency agreement with the department of corrections or an agreement with a private facility or private treatment professionals for the confinement or treatment of any person committed pursuant to this chapter.  Persons who are in the confinement of the commissioner of corrections pursuant to an interagency agreement shall be housed and managed separately from other offenders in the custody of the commissioner of corrections, and except for occasional instances of supervised incidental contact, shall be segregated from other offenders.

(d)  If a person while committed to the custody of the commissioner pursuant to this chapter is taken into custody by a law enforcement officer or the commissioner of corrections pursuant to a parole revocation proceeding or an arrest or conviction for a criminal offense, upon the person’s release from the custody of the officer, the commissioner of corrections, or the federal correctional system, the person shall be returned to the custody of the commissioner for further treatment pursuant to this chapter.  If more than a year has passed from the date the person was transferred from the commissioner until the date the person is returned to the commissioner and an examination took place prior to transfer from the commissioner, the person’s last examination shall be updated.  During a period of time that 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 or 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 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 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 that are in the possession of the attorney general or the agency with jurisdiction.  The court that committed the person shall then conduct an annual review of the status of the committed person.  The committed person shall have a right to have an attorney represent the person at the hearing and 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 or 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 or jury 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.  The order to take the person into custody shall be equivalent to an arrest warrant under Rule 4 of the Vermont Rules of Criminal Procedure, including for VCIC and NCIC purposes.  However, the person shall not be placed in a correctional facility as an arrested person, unless the person is also subject to arrest pursuant to an arrest warrant or legally recognized exception to the warrant requirement.

(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 on the first business day after receiving notice that the person has 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 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 the 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 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 or final discharge pursuant to this chapter.  However, if a person has previously filed a petition for transitional 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.  FINAL RELEASE HEARING

(a)  After a minimum of five years has passed in which the person has been free of violations of conditions of the person’s transitional release plan and program rules, the treatment staff or other professionals directed by the court may examine the person to determine if his or her mental abnormality or personality disorder has changed so as to warrant the 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 or transitional 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)  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.


§ 8611.  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, including the committed person’s town and street of residence, 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.   

§ 8612.  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 determining whether a person is or continues to be a sexually violent predator or violent predator.  Relevant information and records which are otherwise confidential or privileged may also be reviewed by the oversight commission on civil commitments, upon request by the commission, provided that the request is authorized by section 8616 of this title.

§ 8613.  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, on mutual agreement of the parties, or as provided in this chapter.  Sealed records may be reviewed by the oversight commission on the involuntary commitment of sexually violent and violent predators, upon request by the commission, provided that the request is authorized by section 8616 of this title.

§ 8614.  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.

§ 8615.  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.

§ 8616.  CREATION OF THE Oversight COMMISSION ON THE                                           INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT                                                AND VIOLENT PREDATORS

(a)  The oversight commission on the involuntary commitment of sexually violent and violent predators is created.  The commission shall be composed of the following members:

(1)  One member appointed by the speaker of the house who shall not be a member of the legislature but shall be an attorney;

(2)  One member appointed by the senate committee on committees who shall not be a member of the legislature but shall be an attorney;

(3)  One member appointed by the defender general who shall not be a member of the office of the defender general but shall be an attorney;

(4)  One member appointed by the American Civil Liberties Union (ACLU) who shall not be a member of the ACLU;

(5)  Two members appointed by the Vermont supreme court who shall be retired judges; and

(6)  Two members appointed by the governor who shall not be employees of the executive branch of the state of Vermont but one of whom shall be an attorney.

(b)  Commission members shall serve for three‑year terms.  Prior to the completion of the three‑year term, members may resign or be replaced by the appointing authority for good cause.  At the end of a three‑year term, the appointing authority may appoint a new member or reappoint the previous member.

§ 8617.  AUTHORITY AND PURPOSE OF THE OVERSIGHT

               COMMISSION ON THE INVOLUNTARY COMMITMENT OF

               SEXUALLY VIOLENT AND VIOLENT PREDATORS

(a)  The commission shall review all involuntary commitment cases pursuant to chapter 201 of this title in which a judge or jury has reached a final determination but shall not review a matter or information that relates to an ongoing investigation, a pending petition, a hearing, a trial, an appeal, or an examination.

(b)  Meetings and discussions of the commission shall not be open to the public whenever information being reviewed or discussed is not a public record or is information acquired pursuant to sections 8611, 8612, and 8613 of this title.  The commission shall treat as confidential all information that is sealed, confidential or privileged as set forth in sections 8611, 8612, and 8613, except as otherwise directed by court order. 

(c)  The review shall be conducted at least annually and with the purpose of assessing involuntary commitment process and practice, determining if it is consistent with section 8601 of this title and if there are any abuses of discretion in connection with it. 

(d)  The commission is directed to prepare a report based upon its review summarizing its findings, recommendations, and conclusions.  The report shall be provided to the members of the house and senate committees on judiciary.  Copies shall be provided to the attorney general, agencies with jurisdiction, and the governor.  The report is due no later than January 30 of each year, beginning January 30, 2007.  Prior to release to the public, the commission’s report shall be redacted of information that is acquired pursuant to sections 8611, 8612, and 8613 of this title, may identify a victim, and is not a public record.  The commission or other person entitled to the full report in connection with this section shall be relieved of all liability in connection with a good faith effort to redact information.  The attorney general shall be responsible for any costs associated with the preparation of the report.

Sec.  2.  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:

* * *

(12)  Involuntary commitment proceedings pursuant to 18 V.S.A. chapter 201.

Sec. 3.  13 V.S.A. § 5401 is amended to read:

§ 5401. DEFINITIONS

As used in this subchapter:

* * *

(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, and a sex offender who is placed on transitional release or who is no longer committed as a result of an order of final discharge pursuant to 18 V.S.A. chapter 201.

* * *

(10)  “Sex offender” means:

* * *

(E)  A person who has been determined to be a sexually violent predator pursuant to chapter 201 of Title 18.

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

§ 5404.  REPORTING UPON RELEASE FROM CONFINEMENT OR

              SUPERVISION

* * *

(e)  The department of health shall forward to the department the following information concerning a sex offender involuntarily committed pursuant to chapter 201 of Title 18:

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

(2)  the address upon transitional release;

(3)  name, address, and telephone number of the local office and persons in charge of monitoring the sex offender; and

(4)  documentation of any treatment or counseling received.

(f)  The department of health shall notify the department within 24 hours of the time a committed sex offender on transitional release changes his or her address or place of employment or enrolls in or separates from any postsecondary educational institution.  In addition, the department of health shall provide the department with any updated information requested by the department.

(g)  The information required to be provided by subsection (e) of this section shall also be provided by the department of health to the caseworkers and monitors of a sex offender placed on transitional release pursuant to chapter 201 of Title 18 prior to the sex offender being released but no later than 24 hours following the transitional release of the sex offender.

Sec. 5.  13 V.S.A. § 5406a is added to read:

§ 5406a.  Department of health duty to provide notice

With respect to a sex offender placed into its custody by order of involuntary commitment pursuant to chapter 201 of Title 18, the department of health shall:

(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;

(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. 6.  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:

* * *

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

(3)  within three days after any change of address, or transitional release or final discharge as set forth in chapter 201 of Title 18;

* * *

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

(6)  Nothing in this section shall prohibit a court or the commissioner of health from requiring a sex offender, prior his of her transitional release or final discharge, to pre-register his or her anticipated new address.  A sex offender who violates such an order of the court or commissioner shall also be in violation of the reporting requirements set forth in this section.

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(e)  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 or secure and total confinement pursuant to chapter 201 of Title 18, until 10 years have elapsed since the person was released from prison or discharged from parole, supervised release, or probation or the sex offender receives a final discharge pursuant to chapter 201 of Title 18, whichever is later.  The 10-year period shall not be affected or reduced in any way by the actual duration of the offender’s term of commitment pursuant to chapter 201 of Title 18 or 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, including transitional release pursuant to chapter 201 of Title 18.

(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 or secure and total confinement pursuant to chapter 201 of Title 18, if that person:

* * *

(3)  has been determined to be a sexually violent predator pursuant to section 5405 of this subchapter or pursuant to chapter 201 of Title 18.

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Sec. 7.  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 activities:

* * *

(8)  whether the offender complied with treatment recommended by the department of corrections or department of health.

(b)(1)  Except as provided for in subsections (c) and (e) of this section, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information concerning persons required to register under state law if the requestor can articulate a concern about the behavior of a specific person regarding the requestor’s personal safety or the safety of another, or the requestor has reason to believe that a specific person may be a registered sex offender and can articulate a concern regarding the requestor’s personal safety or the safety of another.  However, the identity of a victim of an offense shall not be released.

(2)  The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information if the requestor meets the requirements in subdivision (1) of this subsection:

(A)  a general physical description of the offender;

(B)  date of birth;

(C)  the date and nature of the offense;

(D)  whether the offender complied with treatment recommended by the department of corrections or department of health pursuant to chapter 201 of Title 18; and

(E)  whether there is an outstanding warrant for the offender’s arrest.

(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:

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

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(2)  The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information to a requestor in accordance with subdivision (1) of this subsection:

* * *

(E)  the date and nature of the offender’s conviction, and in the case of a sex offender who is involuntarily committed pursuant to chapter 201 of Title 18, the date, nature, and terms of the order of the commitment;

(F)  if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the offender or, if the sex offender is committed to the department of health pursuant to chapter 201 of Title 18, the name and telephone number of the local office and persons in charge of monitoring the sex offender;

(G)  whether the offender complied with treatment recommended by the department of corrections or whether the offender complied with treatment recommended by the department of health in the case of a sex offender involuntarily committed pursuant to chapter 201 of Title 18;

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(e)  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 or the sex offender was involuntarily committed pursuant to chapter 201 of Title 18, 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 Rules of Civil Procedure shall apply to these proceedings.  A registrant may petition the court to be removed from the registry once every 60 months.  The presumption under this section that a lifetime registrant is a high-risk offender shall not automatically subject the offender to increased public access to his or her status as a sex offender and related information under subdivision (c)(1)(E) of this section or section 5411a of this title.

Sec. 8.  13 V.S.A. § 5411a is amended to read:

§ 5411a.  Electronic posting of the sex offender registry

(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:

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

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(b)  The department shall electronically post the following information on sex offenders designated in subsection (a) of this section:

* * *

(6)  the date and nature of the offender’s conviction or in the case of a sex offender who is involuntarily committed pursuant to chapter 201 of Title 18, the date, nature and terms of the order of the commitment;

(7)  if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the sex offender or, in the case of a sex offender who is involuntarily committed pursuant to chapter 201 of Title 18, the name and telephone number of the local office or persons in charge of monitoring the sex offender;

(8)  whether the offender complied with treatment recommended by the department of corrections or, in the case of a sex offender who is involuntarily committed pursuant to chapter 201 of Title 18, whether the offender complied with treatment recommended by the department of health;

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Sec. 9.  13 V.S.A. § 5412 is amended to read:

§ 5412.  ACTIVE COMMUNITY NOTIFICATION BY THE

              DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF

              CORRECTIONS, AND LOCAL LAW ENFORCEMENT;

              IMMUNITY

(a)  The department, the department of corrections, the department of health, any authorized local law enforcement agency and their employees shall be immune from liability in carrying out the provisions under this subchapter except in instances of gross negligence or willful misconduct, provided that the agencies complied with the rules adopted pursuant to this subchapter.

(b)  The department, the department of corrections, the department of health in the case of a person who has been involuntary committed pursuant to chapter 201 of Title 18, and any authorized local law enforcement agency are authorized to notify members of the public who are likely to encounter a sex offender who poses a danger under circumstances that are not enumerated in this subchapter.

(c)  Notification of the community beyond those persons likely to encounter a sex offender shall be authorized only under circumstances which constitute a compelling risk to public safety and only after consultation with the Vermont crime information center and the department of corrections, or in the case of a sex offender who is involuntarily committed pursuant to chapter 201 of Title 18, the department of health.

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Sec. 10.  Effective Date

Sec. 1 of this act become effective upon passage, and it shall apply to all sexually violent predators or violent predators confined by the commissioner of corrections under sentence or pursuant to pre-trial detention as of January 1, 2005.  With respect to all sexually violent predators or violent predators  confined by the commissioner of corrections under sentence or pursuant to pre‑trial detention on or after January 1, 2005 who are released from the commissioner of corrections on or after January 1, 2005 or within 91 days or less from the date of passage of this act due to completion of their sentence or verdict of insanity or incompetence, the notice requirements in subsection 8603(a) of Title 18 shall be as soon as possible; the petition shall set forth sufficient facts to support a finding of probable cause that the person is presently a sexually violent or violent predator; and in the event probable cause is found pursuant to section 8605 of Title 18 with such a person, the order to be taken into custody set forth in subsection 8605(a) of Title 18 shall be equivalent to an arrest warrant under Rule 4 of the Vermont Rules of Criminal Procedure, including for VCIC and NCIC purposes.  However, the person shall not be placed in a correctional facility as an arrested person unless the person is also subject to arrest pursuant to an arrest warrant or legally recognized exception to the warrant requirement.  Secs. 2 through 10 of this act shall be effective upon passage.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us