2006 -- S 2795

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LC02003

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2006

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A N A C T

RELATING TO CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS

     Introduced By: Senators Algiere, Blais, Breene, and Polisena

     Date Introduced: February 14, 2006

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 40.1 of the General Laws entitled "MENTAL HEALTH,

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RETARDATION AND HOSPITALS" is hereby amended by adding thereto the following

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chapter:

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     CHAPTER 30

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CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT

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     40.1-30-1. Short title. – This chapter shall be known and may be cited as the "Civil

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Commitment of Sexually Violent Predators Act."

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     40.1-30-2. Legislative findings. – The legislature finds that there exists an extremely

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dangerous group of sexually violent predators that are highly likely to engage in repeat acts of

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sexually violent offenses or criminal offenses against victims who are minors as defined in

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section 11-37.1-2.

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     The prognosis for rehabilitating sexually violent predators in a prison setting is poor due

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to the nature of the mental abnormality or personality disorders from which sexually violent

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predators suffer. The treatment needs and modalities for sexually violent predators are long-term,

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substantially different from traditional treatment modalities and, thus, require that the sexually

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violent predator be subject to a separate commitment scheme.

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     Therefore, a civil commitment procedure for the long-term care, treatment or housing of

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the sexually violent predator is necessary.

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     40.1-30-3. Definitions. -- (a) "Agency with jurisdiction" means the agency that releases

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upon lawful order or authority a person serving a sentence or term of confinement and includes

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the department of corrections, the state department of mental health, retardation and hospitals,

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and the Rhode Island parole board.

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     (b) "Person" means an individual who is a potential or actual subject of proceedings

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under this Act.

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     (c) "Treatment staff" means individuals, agencies or firms retained by the department of

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mental health retardation and hospitals to provide treatment, supervision or other services.

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     (d) "Multidisciplinary team" means a body established by the director of the department

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of corrections, which may include other state agencies to review records of each person, assess

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whether the person is a sexually violent predatory and submit such findings to the prosecution

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review committee.

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     (e) "Prosecution review committee" means a body established by the attorney general to

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review the findings of the multidisciplinary team.

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     (f) "Transitional release" means any halfway house, work release or other placement

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designed to assist the person’s adjustment and reintegration into the community upon release.

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     40.1-30-4. Notice of release. -- (a) Ninety (90) days prior to the release of a sexually

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violent predator as defined in section 11-37.1-2 the agency with jurisdiction shall give written

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notice of the pending release to the prosecution review committee and the multidisciplinary team.

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     (b) The multidisciplinary team shall submit its assessment findings to the prosecution

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review committee no more than forty (40) days after receiving notice of release.

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     40.1-30-5. Petition. -- (a) After review of the multidisciplinary team assessment findings

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and upon determination that the person meets the definition of a sexually violent predator; the

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prosecution review committee shall, within seventy-five (75) days of receipt of the

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multidisciplinary team assessment findings, have petitioned a court of competent jurisdiction that

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the person be taken into or remain in custody. The petition shall allege that the person is a

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sexually violent predator, and state sufficient facts to support such allegations.

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     Nothing in this subsection shall be construed as limiting the discretion of the attorney

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general from proceeding against a person otherwise subject to the provisions of section 11-1 et

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seq.

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     40.1-30-6. Determination of probable cause. -- (a) Upon the filing of a petition, the

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judge shall determine whether probable cause exists to believe that the person named in the

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petition is a sexually violent predator. Upon determination that the person is a sexually violent

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predator, the judge shall direct that the person be taken into or remain in custody.

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     (b) Within seventy-two (72) hours after a person is taken into or ordered to remain in

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custody, such person shall be provided with notice of and an opportunity to appear at a hearing to

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contest probable cause as to whether he or she is a sexually violent predator. At this hearing, the

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court shall verify the person’s identity, and determine whether probable cause exists to believe

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that the person is a sexually violent predator. The state may rely upon the petition and

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supplement the petition with additional documentary evidence and live testimony.

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     (c) At the probable cause hearing the person shall have the right to be represented by

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counsel, to present evidence on such person’s behalf; to cross-examine witnesses who testify

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against such persons; and to view and copy all petitions and reports in the court file.

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     (d) If a probable cause determination is made, the court shall direct that the person be

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transferred to an appropriate secure facility for an evaluation as to whether the person is a

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sexually violent predator. The evaluation shall be conducted by a person deemed to be

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professionally qualified to conduct such an examination.

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     40.1-30-7. Trial – Counsel and experts – Indigent person -- Jury. -- Within sixty (60)

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days after the completion of any hearing held pursuant to this section, the court shall conduct

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a trial to determine whether the person is a sexually violent predator. The trial may be

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continued upon the request of either party, and a showing of good cause, or by the court on

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its own motion in the due administration of justice, and when the respondent will not be

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substantially prejudiced. At all stages of the proceedings under this chapter, any person

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subject to this act shall be entitled to the assistance of counsel, and if the person is indigent,

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the court shall appoint counsel to assist such person. Whenever any person is subjected to an

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examination under this chapter, such person may retain experts or professional persons to

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perform an examination on such person's behalf. When the person wishes to be examined by

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a qualified expert or professional person of such person's own choice, such examiner shall be

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permitted to have reasonable access to the person for the purpose of such examination, as

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well as to all relevant medical and psychological records and reports. In the case of a person

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who is indigent, the court, upon the person's request, shall determine whether the services are

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necessary and reasonable compensation for such services. If the court determines that the

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services are necessary and the expert or professional person's requested compensation for

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such services is reasonable, the court shall assist the person in obtaining an expert or

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professional person to perform an examination or participate in the trial on the person's

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behalf. The court shall approve payment for such services upon the filing of a certified claim

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for compensation supported by a written statement specifying the time expended, services

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rendered, expenses incurred on behalf of the person and compensation received in the same

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case or for the same services from any other source. The person and the attorney general shall

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have the right to demand that the trial be before a jury. Such demand for the trial to be before

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a jury shall be filed, in writing, at least four (4) days prior to trial. If no demand is made, the

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trial shall be before the court.

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     40.1-30-8. Determination – Commitment procedure – Interagency agreements --

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Mistrials. -- (a) The court or jury shall determine whether, beyond a reasonable doubt, the person

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is a sexually violent predator. If such determination that the person is a sexually violent predator

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is made by a jury, such determination shall be made by unanimous verdict of such jury. Such

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determination may be appealed. If the court or jury determines that the person is a sexually

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violent predator, the person shall be committed to the custody of the director of the state

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department of mental health, retardation and hospitals for control, care and treatment until such

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time as the person's mental abnormality or personality disorder has so changed that the person is

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safe to be at large. Such control, care and treatment shall be provided at a facility operated by the

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department of mental health, retardation and hospitals. At all times, persons committed for

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control, care and treatment by the department of mental health, retardation and hospitals pursuant

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to this chapter shall be kept in a secure facility and such persons shall be segregated at all times

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from any other patient under the supervision of the department of mental health, retardation and

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hospitals. The department of mental health, retardation and hospitals is authorized to enter into

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an interagency agreement with the department of corrections for the confinement of such persons.

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Such persons who are in the confinement of the department of corrections pursuant to an

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interagency agreement shall be housed and managed separately from offenders in the custody of

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the department of corrections, and except for occasional instances of supervised incidental

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contact, shall be segregated from such offenders. If the court or jury is not satisfied beyond a

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reasonable doubt that the person is a sexually violent predator, the court shall direct the person's

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release. Upon a mistrial, the court shall direct that the person be held at an appropriate secure

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facility, including, but not limited to, a county jail, until another trial is conducted. Any

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subsequent trial following a mistrial shall be held within ninety (90) days of the previous trial,

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unless such subsequent trial is continued as provided by the Rhode Island Rules of Civil or

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Criminal Procedure.

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     (b) If the person charged with a sexually violent offense has been found incompetent to

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stand trial, and is about to be released pursuant to section 40.1-5.3-3 of the Rhode Island general

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laws, and such person's commitment is sought pursuant to subsection (a), the court shall first hear

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evidence and determine whether the person did commit the act or acts charged. The hearing on

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this issue must comply with all the procedures specified in this section. In addition, the rules of

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evidence applicable in criminal cases shall apply, and all constitutional rights available to

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defendants at criminal trials, other than the right not to be tried while incompetent, shall apply.

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After hearing evidence on this issue, the court shall make specific findings on whether the person

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did commit the act or acts charged, the extent to which the person's mental abnormality or

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personality disorder affected the outcome of the hearing, including its effect on the person's

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ability to consult with and assist counsel and to testify on such person's own behalf, the extent to

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which the evidence could be reconstructed without the assistance of the person and the strength of

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the prosecution's case. If after the conclusion of the hearing on the issue, the court finds, beyond a

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reasonable doubt, that the person did commit the act or acts charged, the court shall enter a final

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order, appealable by the person, on that issue, and may proceed to consider whether the person

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should be committed pursuant to this section.

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     40.1-30-9. Annual examinations – Discharge by persons committed under this

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section over the director's objection at time of annual examination -- Procedure. -- Each

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person committed under this section shall have a current examination of the person's mental

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abnormality or personality disorder made once every year. The person may retain, or if the

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person is indigent and so requests the court may appoint a qualified professional person to

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examine such person, and such experts or professional person shall have access to all records

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concerning the person. The yearly report shall be provided to the court that committed the person

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under this chapter. The court shall conduct an annual review of the status of the committed

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person. Nothing contained in this chapter shall prohibit the person from otherwise petitioning the

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court for discharge at this hearing. The director of the state department of mental health,

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retardation and hospitals shall provide the committed person with an annual written notice of the

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person's right to petition the court for release over the director's objection. The notice shall

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contain a waiver of rights. The director shall forward the notice and waiver form to the court with

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the annual report. The committed person shall have a right to have an attorney represent the

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person at the hearing. If the court at the hearing determines that probable cause exists to believe

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that the person's mental abnormality or personality disorder has so changed that the person is not

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likely to commit a sexually violent offense if released, then the court shall set a hearing on the

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issue. At the hearing, the committed person shall be entitled to be present and entitled to benefit

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of all the constitutional protections that were afforded the person at the initial commitment

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proceeding. The attorney general shall represent the state at the hearing and shall have the

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opportunity to have the committed person evaluated by the experts chosen by the state. The

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committed person shall also have the right to have experts evaluate the person on the person's

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behalf and the court shall appoint an expert if the person is indigent and requests an appointment.

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The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that

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the committed person's mental abnormality or personality disorder remains such that the person is

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not safe to be at-large and if released is likely to engage in acts of sexual violence.

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     40.1-30-10. Petition for release -- Procedure. -- If the director of the state department

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of mental health, retardation and hospitals determines that the person's mental abnormality or

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personality disorder has so changed that the person is not likely to a commit sexually violent

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offense if released, the director shall authorize the person to petition the court for release. The

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petition shall be served upon the court and the attorney general. The court, upon receipt of the

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petition of release, shall order a hearing within thirty (30) days. The attorney general shall

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represent the state, and shall have the right to have the petitioner examined by an expert or

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professional person of such attorney's choice. The hearing shall be before a jury if demanded

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by either the petitioner or the attorney general. The burden of proof shall be upon the attorney

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general to show beyond a reasonable doubt that the petitioner's mental abnormality or

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personality disorder remains such that the petitioner is not safe to be at-large and that if

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discharged is likely to commit predatory acts of sexual violence.

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     40.1-30-11. Bail. -- Notwithstanding any law to the contrary, any person for whom a

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petition pursuant to this section has been filed and is in the secure confinement of the state

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shall not be eligible for bail, bond, community confinement or any other measures releasing

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the person from the physical protective custody of the state.

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     40.1-30-12. Jurisdiction. -- Nothing in this subsection shall be construed as limiting the

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discretion of the attorney general from proceeding against a person otherwise subject to the

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provisions of section 11-1 et seq.

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     40.1-30-13. Confidential or privileged information and records. -- Notwithstanding

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any law to the contrary, in order to protect the public, relevant information and records which

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are otherwise confidential or privileged shall be released to the agency with jurisdiction or

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the attorney general for the purpose of meeting any pertinent notice requirement in an effort

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to determine whether a person is or continues to be a sexually violent predator.

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     40.1-30-14. Court records – Sealed and opened by court order. -- Any psychological

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reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical

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records or victim impact statements which have been submitted to the court or admitted into

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evidence under this chapter shall be part of the record but shall be sealed and opened only on

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order of the court.

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     SECTION 2. Section 11-37.1-2 of the General Laws in Chapter 11-37.1 entitled "Sexual

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Offender Registration and Community Notification" is hereby amended to read as follows:

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     11-37.1-2. Definitions. -- (a) "Aggravated offense" means and includes offenses

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involving sexual penetration of victims of any age through the use of force or the threat of use of

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force or offenses involving sexual penetration of victims who are fourteen (14) years of age or

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under.

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      (b) "Board", "board of review", or "sex offender board of review" means the sex

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offender board of review appointed by governor pursuant to section 11-37.1-6.

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      (c) (1) "Conviction" or "convicted" means and includes any instance where:

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      (i) A judgment of conviction has been entered against any person for any offense

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specified in subsection (e) or (k) of this section, regardless of whether an appeal is pending; or

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      (ii) There has been a finding of guilty for any offense specified in subsection (e) or (k) of

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this section, regardless of whether an appeal is pending; or

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      (iii) There has been a plea of guilty or nolo contendere for any offense specified in

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subsection (e) or (k) of this section, regardless of whether an appeal is pending; or

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      (iv) There has been an admission of sufficient facts or a finding of delinquency for any

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offense specified in subsection (e) or (k) of this section, regardless of whether or not an appeal is

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pending.

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      (2) Provided, in the event that a conviction, as defined in this subsection, has been

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overturned, reversed, or otherwise vacated, the person who was the subject of the conviction shall

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no longer be required to register as required by this chapter and any records of a registration shall

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be destroyed. Provided, further that nothing in this section shall be construed to eliminate a

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registration requirement of a person who is again convicted of an offense for which registration is

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required by this chapter.

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      (d) [Deleted by P.L. 2003, ch. 162, section 1 and by P.L. 2003, ch. 170, section 1_.

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      (e) "Criminal offense against a victim who is a minor" means and includes any of the

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following offenses or any offense in another jurisdiction which is substantially the equivalent of

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the following or for which the person is or would be required to register under 42 U.S.C. section

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14071 or 18 U.S.C. section 4042(c):

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      (1) Kidnapping or false imprisonment of a minor, in violation of section 11-26-1.4, 11-

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26-1 or 11-26-2, where the victim of the offense is sixteen (16) years of age or older and under

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the age of eighteen (18) years;

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      (2) Any violation of section 11-37-6, 11-37-8, 11-37-8.1, or 11-37-8.3;

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      (3) Any violation of section 11-1-10, where the underlying offense is a violation of

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chapter 34 of this title and the victim or person solicited to commit the offense is under the age of

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eighteen (18) years;

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      (4) Any violation of section 11-9-1(b) or (c); or

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      (5) Murder in violation of section 11-23-1 where the murder was committed in the

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perpetration of, or attempted perpetration of, kidnapping and where the victim of the offense is

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under eighteen (18) years of age.

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      (f) "Designated state law enforcement agency" means the attorney general or his or her

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designee.

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      (g) "Employed, carries on a vocation" means and includes the definition of "employed,

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carries on a vocation" under 42 U.S.C. section 14071.

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      (h) "Institutions of higher education" means any university, two (2) or four (4) year

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college or community college.

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      (i) "Mental abnormality" means a congenital or acquired condition of a person that

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affects the emotional or volitional capacity of the person in a manner that predisposes that person

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to the commission of criminal sexual acts sexually violent offenses to a degree that makes the

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person a menace to the health and safety of other persons.

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      (j) "Predator" means a person whose act(s) is (are) or was (were) directed at a stranger,

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or at a person with whom a relationship has been established or promoted at any person for the

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primary purpose of victimization.

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      (k) "Sexually violent offense" means and includes any violation of section 11-37-2, 11-

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37-4, 11-37-6, 11-37-8, 11-37-8.1, 11-37-8.3, or 11-5-1 where the specified felony is sexual

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assault, or section 11-23-1 where the murder was committed in the perpetration of, or attempted

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perpetration of, rape or any degree of sexual assault or child molestation, or any offense in

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another jurisdiction which is substantially the equivalent of any offense listed in this subsection or

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for which the person is or would be required to register under 42 U.S.C. section 14071 or 18

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U.S.C. section 4042(c).

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      (l) "Sexually violent predator" means a person who has been convicted of a sexually

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violent offense or acquitted of a sexually violent offense on the grounds of insanity or adjudicated

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not guilty of a sexually violent offense by reason of insanity and who has a mental abnormality or

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personality disorder that makes the person likely to engage in predatory sexually violent offenses.

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      (m) "Student" means and includes the definition of "student" under 42 U.S.C. section

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14071.

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      (n) "Parole board" means the parole board or its designee.

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     SECTION 3. Sections 40.1-5.3-3, 40.1-5.3-4 and 40.1-5.3-7 of the General Laws in

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Chapter 40.1-5.3 entitled "Incompetency to Stand Trial and Persons Adjudged Not Guilty by

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Reason of Insanity" are hereby amended to read as follows:

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     40.1-5.3-3. Competency to stand trial. -- (a) Definitions. - As used in this section:

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      (1) "Attorney for the state" means the attorney general, an authorized assistant attorney

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general, or such other person as may be authorized by law to act as a representative of the state in

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a criminal proceeding;

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      (2) "Competent" or "competency" means mental ability to stand trial. A person is

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mentally competent to stand trial if he or she is able to understand the character and consequences

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of the proceedings against him or her and is able properly to assist in his or her defense;

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      (3) "Department" means the state department of mental health, retardation, and hospitals.

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      (4) "Director" means the director of the state department of mental health, retardation,

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and hospitals;

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      (5) "Incompetent" or "incompetency" means mentally incompetent to stand trial. A

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person is mentally incompetent to stand trial if he or she is unable to understand the character and

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consequences of the proceedings against him or her or is unable properly to assist in his or her

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defense;

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      (b) Presumption of competency. - A defendant is presumed competent. The burden of

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proving that the defendant is not competent shall be by a preponderance of the evidence, and the

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burden of going forward with the evidence shall be on the party raising the issue. The burden of

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going forward shall be on the state if the court raises the issue.

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      (c) Request for examination. - If at any time during a criminal proceeding, prior to the

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imposition of sentence, it appears that the defendant is not competent, counsel for the defendant

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or the state, or the court, on its own motion, may request an examination to determine the

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defendant's competency.

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      (d) Examination of defendant. - (1) If the court finds that the request for examination is

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justified, the court shall order an examination of the defendant. The scope of the examination

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shall be limited to the question of whether the defendant is competent.

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      (2) The examination shall take place on an outpatient basis if the defendant is to be

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released on bail or recognizance. If the defendant is ordered confined at the adult correctional

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institution, the examination shall take place at that facility. The department shall appoint or

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designate the physician(s) who will conduct the examinations.

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      (3) If the defendant is ordered confined to the adult correctional institution, the physician

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shall complete the examination within five (5) days. If the physician determines that the

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defendant is incompetent to stand trial, the defendant shall be immediately transferred to the

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institute of mental health's forensic unit pending the hearing provided for in subsection (g).

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      (e) Bail or recognizance during examination. - (1) A defendant for whom a competency

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examination has been ordered shall be entitled to release on bail or recognizance to the same

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extent and on the same terms and conditions as if the issue of competency had not been raised.

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      (2) The court may order the defendant to appear at a designated time and place for

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outpatient examination, and such an appearance may be made a condition of pretrial release.

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      (f) Reports of examining physicians. - Each examining physician shall prepare a report

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in writing in which he or she shall state his or her findings concerning the defendant's

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competency together with the medical and other data upon which his or her findings are based.

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The report shall be filed with the court within ten (10) days if the defendant was ordered confined

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at the adult correctional institution and as soon as practicable if the defendant was released on bail

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or recognizance and copies given to the attorney for the state and to the defendant or his or her

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counsel.

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      (g) Hearing. - Upon receipt of the report and appropriate notice to the parties, the court

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shall hold a hearing unless the report concludes that the defendant is competent and the defendant

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and the attorney for the state in open court state in writing their assent to the findings. At the

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hearing, the report shall be introduced, other evidence bearing on the defendant's competence

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may be introduced by the parties, and the defendant may testify, confront witnesses, and present

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evidence on the issue of his or her competency. On the basis of the evidence introduced at the

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hearing, the court shall decide if the defendant is competent.

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      (h) Commitment of the defendant. - (1) If the court finds, after the hearing, that a

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defendant is competent it shall proceed with the criminal case.

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      (2) If the court finds that a defendant is incompetent, it shall commit him or her to the

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custody of the director for the purpose of determining whether or not the defendant is likely to

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imperil the peace and safety of the people of the state or the safety of himself or herself and

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whether the defendant will regain competency within the maximum period of any placement

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under this chapter.

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      (3) Not Except where the provisions of section 40.1-30-1 et seq., apply, not later than

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fifteen (15) days from the date of the order of commitment, the director shall prepare and file with

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the court a written report in which he or she shall state his or her opinion regarding the

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defendant's dangerousness, the likelihood of the defendant becoming competent to stand trial

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within the maximum period of any placement order and the recommendations of the department

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regarding appropriate care and treatment of the defendant.

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      (4) In Except where the provisions of section 40.1-30-1 et seq., apply, in the event the

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director is unable to complete the examination of the person in time to render his or her report

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within the fifteen (15) day period, he or she shall report that fact in writing to the court with a

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statement of the reasons why the examination and report could not be completed within the

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prescribed period. A copy of the director's statement shall be given to the attorney general and to

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the defendant or his or her counsel, any of whom may respond in writing, or if the court deems it

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appropriate, orally, to the director's statement. The court may thereupon enter an order extending

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for an additional twenty (20) days the time in which the director is to file his or her report.

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      (i) Hearing. - (1) Upon receipt of the report and appropriate notice to the director, the

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attorney general and the defendant or his or her counsel, the court shall hold a hearing at which

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the report shall be introduced, other evidence bearing on the question of the mental condition of

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the person may be introduced by the parties, and the person may testify, confront witnesses, and

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present evidence.

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      (2) If the court finds that a defendant who is incompetent may be placed on outpatient

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status without imperiling the peace or safety of the public or the safety of himself or herself, it

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may commit the defendant to an appropriate outpatient facility which agrees to provide treatment

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to the defendant and to adhere to the requirements of this section, in order that the defendant may

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receive treatment to restore or establish his or her competency.

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      (3) If Except where the provisions of section 40.1-30-1 et seq., apply, if the court finds

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that a defendant who is incompetent is likely to imperil the peace or safety of the people of the

11-19

state or the peace and safety of himself or herself, it may order the defendant to the facility

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established pursuant to section 40.1-5.3-1 or to the general wards of the institute of mental health,

11-21

if the director agrees that the defendant should be placed on the general wards. A person who is

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ordered to be treated on inpatient status shall not be paroled, furloughed, placed on outpatient

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status or removed from a locked facility or otherwise released from the institution where he or she

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is being treated except upon petition to the court by the director, on notice to the attorney general

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and the defendant or his or her counsel, and after hearing thereon and entry of an order by a judge

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of the court authorizing such release. The commitment ordered pursuant to this section shall

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terminate upon the occurrence of any of the following:

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      (i) The defendant is determined by the court to be competent; or

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      (ii) The charges against the defendant are dismissed pursuant to subsection (j); or

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      (iii) The charges against the defendant are dismissed or a nolle prosequi is entered; or

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      (iv) The defendant is civilly committed pursuant to section 40.1-5-8; or

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      (v) The court finds there is no reasonable likelihood that in the foreseeable future the

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defendant will become competent and his or her condition is such that he or she cannot properly

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be committed under section 40.1-5-8.

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      (j) Period of commitment. - When a court commits a defendant pursuant to subsection

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(i)(2) or (i)(3) it shall compute, counting from the date of entry to the order of commitment, the

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date of the expiration of the period of time equal to two thirds ( 2/3) of the maximum term of

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imprisonment for the most serious offense with which the defendant is charged. If the maximum

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term for the most serious offense charged is life imprisonment or death, the court shall for the

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purpose of computation deem such offense to be punishable by a maximum term of thirty (30)

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years. In the order of commitment, the court shall provide that if, on the date so computed, the

12-8

defendant is still committed under the order, the charges against him or her shall be dismissed.

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      (k) Periodic review. - The Except where the provisions of section 40.1-30-1 et seq.,

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apply, the director shall petition the court to review the state of competency of a defendant

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committed pursuant to subsection (i)(2) or (i)(3) not later than six (6) months from the date of the

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order of commitment and every six (6) months thereafter, or when the director believes the

12-13

defendant is no longer incompetent, whichever occurs first. Outpatient facilities which are

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providing treatment to defendants in accordance with subsection (i)(2) shall prepare reports to be

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submitted to the director in accordance with the requirements of this section. The director shall

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attach to the petition a report on the condition of the defendant. If the report indicates that the

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defendant remains incompetent, it shall include a prognosis regarding the likelihood that he or she

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will become competent prior to the dismissal of the charges pursuant to subsection (j). Copies of

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the report shall be given to the attorney for the state and to the defendant or his or her counsel.

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      (l) Defendant's right to petition. - A Except where the provisions of section 40.1-30-1 et

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seq., apply, a defendant committed pursuant to subsection (i)(2) or (i)(3) may at any time petition

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the court to review the state of his or her competency.

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      (m) Hearing on petition. - Upon receipt of a petition pursuant to subsection (k) or (l) and

12-24

appropriate notice to the defendant, the state, and the director, the court shall hold a hearing at

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which the parties may introduce evidence as to the defendant's competency, including any reports

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of the director, and the defendant may testify, confront witnesses, and present evidence as to his

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or her competency and prognosis. On the basis of the evidence, the court shall make a finding as

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to the defendant's competency and, if he or she is found to be incompetent, whether a reasonable

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likelihood exists that he or she will become competent prior to the dismissal of the charges

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pursuant to subsection (j). If the court finds that defendant is competent, it shall enter an order to

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that effect. If the court finds that the defendant is incompetent and that a reasonable likelihood

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exists that he or she will become competent prior to the dismissal of the charges pursuant to

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subsection (j), it shall order continuation of the commitment of the defendant. If the court finds

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that the defendant is incompetent and that a reasonable likelihood does not exist that he or she

13-1

will become competent prior to the dismissal of the charges pursuant to subsection (j), it shall

13-2

order that thirty (30) days thereafter the defendant be discharged from detention under the order

13-3

of commitment. Upon entry of the order the state may commence proceedings seeking to commit

13-4

the defendant pursuant to section 40.1-5-8.

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      (n) Statements inadmissible. - No statements made by a defendant in the course of an

13-6

examination conducted pursuant to subsection (d) or during a hearing conducted pursuant to

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subsection (i) or (m) shall be admissible in evidence against the defendant in any criminal action

13-8

on any issue other than his or her mental condition. The statements shall be admissible on the

13-9

issue of his or her mental condition even though they might otherwise be deemed to be privileged

13-10

communications.

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      (o) Disposition of charges. - The court may, at any time, proceed to a disposition of the

13-12

charges pending against a defendant who has been committed pursuant to subsection (i)(2) or

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(i)(3) if the factual and legal issues involved can be resolved without regard to the competency of

13-14

the defendant.

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     40.1-5.3-4. Commitment of persons acquitted on ground of insanity. -- (a)

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Definitions. - As used in this section:

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      (1) "Court" means the court in which a defendant was adjudged not guilty of a criminal

13-18

offense because he or she was insane at the time of its commission.

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      (2) "Director" means the director of the state department of mental health, retardation,

13-20

and hospitals.

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      (3) "Mental disability" means a mental disorder in which the capacity of a person to

13-22

exercise self control or judgment in the conduct of his or her affairs and social relations or to care

13-23

for his or her own personal needs is significantly impaired.

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     (4) "Mental abnormality" means a congenital or acquired condition of a person that

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affects the emotional or volitional capacity of the person in a manner that predisposes that person

13-26

to the commission of sexually violent offenses as defined in subsection 11-37.1-2(k) to a degree

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that makes the person a menace to the health and safety of other persons.

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      (4) (5) "Likelihood of serious harm" means:

13-29

      (i) A substantial risk of physical harm to the person him or herself as manifested by

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behavior evidencing serious threats of or attempts at suicide or by behavior which will result in

13-31

serious bodily harm; or

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      (ii) A substantial risk of physical harm to other persons as manifested by behavior or

13-33

threats evidencing homicidal or other violent behavior.

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      (b) Examination of person found not guilty. - If a person is adjudged not guilty of a

14-1

criminal offense because he or she was insane at the time of its commission, the court shall

14-2

commit him or her to the custody of the director for the purpose of observation and examination

14-3

to determine whether the person is dangerous.

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      (c) (1) Report of director. - Not Except where the provisions of section 40.1-30-1 et seq.,

14-5

apply, not later than twenty (20) days from the date of the order of commitment, the director shall

14-6

prepare and file with the court a report in writing in which he or she shall state his or her opinion

14-7

as to whether by reason of mental disability the person's unsupervised presence in the community

14-8

will create a likelihood of serious harm, together with the medical and other data upon which his

14-9

or her opinion is based. A copy of the report shall be given to the attorney general and to the

14-10

person or his or her counsel.

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      (2) In the event the director is unable to complete the examination of the person in time

14-12

to render his or her report within the twenty (20) day period, he or she shall report that fact in

14-13

writing to the court with a statement of the reasons why the examination and report could not be

14-14

completed within the prescribed period. A copy of the director's statement shall be given to the

14-15

attorney general and to the person or his or her counsel, any of whom may respond in writing, or

14-16

if the court deems it appropriate, orally, to the director's statement. The court may thereupon enter

14-17

an order extending for an additional twenty (20) days the time in which the director is to file his

14-18

or her report.

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      (d) Hearing. - Upon receipt of the report and appropriate notice to the director, the

14-20

attorney general and the person or his or her counsel, the court shall hold a hearing at which the

14-21

report shall be introduced, other evidence bearing on the question of the mental condition of the

14-22

person may be introduced by the parties, and the person may testify, confront witnesses, and

14-23

present evidence.

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      (e) Commitment of person. - If the court finds that the person is not dangerous it shall

14-25

order that he or she be discharged at once. If the court finds that the person is dangerous it shall

14-26

commit him or her to the custody of the director for care and treatment as an inpatient in a public

14-27

institution. A person committed under this subdivision shall not be paroled, furloughed, placed on

14-28

outpatient status, or released from a locked facility or otherwise released from the institution

14-29

where he or she is being treated except upon petition to the court by the director, on notice to the

14-30

attorney general and the person or his or her counsel, and entry of an order by a judge of the court

14-31

authorizing the release.

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      (f) Periodic review. - The Except where the provisions of section 40.1-30-1 et seq.,

14-33

apply, the director shall petition the court to review the condition of a person committed pursuant

14-34

to subsection (e) not later than six (6) months from the date of the order of commitment and every

15-1

six (6) months thereafter, or when the director no longer believes that the unsupervised presence

15-2

of the person in the community will create a likelihood of serious harm, whichever occurs first.

15-3

The director shall attach to the petition a report on the condition of the person. Copies of the

15-4

report shall be given to the attorney general and to the defendant or his or her counsel.

15-5

      (g) Person's right to petition. - A Except where the provisions of section 40.1-30-1 et

15-6

seq., apply, a person committed pursuant to subsection (e) may at any time petition the court to

15-7

review his or her condition.

15-8

      (h) Hearing on petition. - Upon Except where the provisions of section 40.1-30-1 et seq.,

15-9

apply, upon receipt of a petition pursuant to subsection (f) or (g) and/or appropriate notice to the

15-10

director, the attorney general and the person or his or her counsel, the court shall hold a hearing at

15-11

which the parties may introduce evidence bearing on the mental condition of the person,

15-12

including any reports of the director, and the person may testify, confront witnesses, and present

15-13

evidence. If the court finds by clear and convincing evidence that by reason of mental disability

15-14

the presence of the person in the community will create a likelihood of serious harm, it shall enter

15-15

an order to that effect and he or she shall remain in the custody of the director. If the court does

15-16

not so find, it shall enter an order discharging the person from the custody of the director.

15-17

      (i) Transfer of nonresidents. - In Except where the provisions of section 40.1-30-1 et

15-18

seq., apply, in the case of a person who has been committed pursuant to subsection (e) and who is

15-19

a resident of another state, the director, on notice to the attorney general and the person or his or

15-20

her counsel, may petition the court to transfer the person to the custody of officials of the state in

15-21

which the person ordinarily resides. The court may, in its discretion, order the transfer of the

15-22

person if it finds that appropriate officials of the state in which the person ordinarily resides are

15-23

willing to accept custody of the person and provide care and treatment for him or her on such

15-24

terms and conditions as the court deems to be necessary and proper to the peace and safety of the

15-25

public and to the welfare of the person.

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     40.1-5.3-7. Hearing on petition. -- (a) Upon Except where the provisions of section

15-27

40.1-30-1 et seq., apply, upon receipt of the petition and appropriate notice to the director, the

15-28

attorney general and the person or his or her counsel, the court shall hold a hearing at which the

15-29

parties may introduce evidence bearing on the mental condition of the person. The person who is

15-30

the subject of the petition may testify, confront witnesses, and present evidence.

15-31

      (b) If the court finds by clear and convincing evidence that the person is mentally ill and

15-32

requires specialized mental health care and psychiatric inpatient services which cannot be

15-33

provided in a correctional facility, the court may order the transfer of the prisoner from the adult

15-34

correctional institutions, to be detained in the facility provided for in section 40.1-5.3-1.

16-1

     SECTION 4. This act shall take effect upon passage.

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LC02003

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS

***

17-1

     This act would create a mechanism for the civil commitment of sexually violent

17-2

predators.

17-3

     This act would take effect upon passage.

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LC02003

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