H*4360 Session 112 (1997-1998)
H*4360(Rat #0453, Act #0321 of 1998) General Bill, By Limehouse, Altman,
Bailey, Barfield, Barrett, Bauer, H. Brown, Campsen, Cato, Cotty, Dantzler,
Davenport, Delleney, Easterday, J.G. Felder, Fleming, Gamble, Harrell, Harrison,
Haskins, Hawkins, Hinson, B.L. Jordan, Keegan, Kelley, M.H. Kinon, Klauber,
Knotts, Law, Leach, Littlejohn, Lloyd, Maddox, Mason, J.D. McMaster, Meacham,
Rice, Riser, Robinson, Rodgers, Sandifer, Seithel, D. Smith, F. Smith, J. Smith,
R. Smith, Stille, Tripp, Trotter, Vaughn, Whatley, Wilkins, Witherspoon,
W.J. Young and Young-Brickell
Similar(S 860, S 969, H 3315, H 4411)
A BILL TO AMEND TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
HEALTH, BY ADDING CHAPTER 48 SO AS TO ENACT THE "SEXUALLY VIOLENT PREDATOR
ACT" INCLUDING PROVISIONS TO ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON
IS A SEXUALLY VIOLENT PREDATOR, TO PROVIDE FOR THE RIGHTS OF SUCH PERSONS IN
THIS PROCESS, AND TO AUTHORIZE THE COMMITMENT OF SUCH PERSON TO THE DEPARTMENT
OF MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION UNTIL THE
PERSON IS SAFE TO BE AT LARGE AND IF RELEASED NOT LIKELY TO COMMIT ACTS OF
SEXUAL VIOLENCE, TO PROVIDE FOR RELEASE PROCEDURES, AND TO PROVIDE FOR THE USE
AND CONFIDENTIALITY OF CERTAIN RECORDS AND REPORTS; TO AMEND SECTION
16-3-1110, RELATING TO DEFINITIONS IN REGARD TO COMPENSATION OF VICTIMS OF
CRIME AND TOLLING THE STATUTE OF LIMITATIONS FOR VICTIMS OF CRIME WHO HAVE A
CAUSE OF ACTION AGAINST AN INCARCERATED OFFENDER, SO AS TO FURTHER PROVIDE FOR
THE TOLLING OF THE STATUTE OF LIMITATIONS FOR VICTIMS OF CRIME IN REGARD TO
PERSONS RELEASED FROM COMMITMENT PURSUANT TO CHAPTER 48 OF TITLE 44; TO AMEND
SECTION 16-3-1560, AS AMENDED, RELATING TO NOTIFICATION TO VICTIMS OF
POST-CONVICTION PROCEEDINGS AFFECTING PROBATION, PAROLE, OR RELEASE OF THE
OFFENDER, SO AS TO INCLUDE PROCEEDINGS UNDER THE SEXUALLY VIOLENT PREDATOR
ACT; TO AMEND CHAPTER 3, TITLE 24, RELATING TO THE STATE PRISON SYSTEM, BY
ADDING SECTION 24-3-85 SO AS TO AUTHORIZE THE DIRECTOR OF THE DEPARTMENT OF
CORRECTIONS TO ADMIT AND DETAIN PERSONS TRANSFERRED PURSUANT TO AN INTERAGENCY
AGREEMENT AUTHORIZED BY CHAPTER 48 OF TITLE 44; AND TO AMEND SECTION 44-22-10,
AS AMENDED, RELATING TO DEFINITIONS IN REGARD TO THE RIGHTS OF MENTAL HEALTH
PATIENTS, SO AS TO EXCLUDE FROM THE DEFINITION OF "PATIENT" A PERSON COMMITTED
TO THE DEPARTMENT PURSUANT TO CHAPTER 48 OF TITLE 44.-AMENDED TITLE
12/10/97 House Prefiled
12/10/97 House Referred to Committee on Judiciary
01/13/98 House Introduced and read first time HJ-27
01/13/98 House Referred to Committee on Judiciary HJ-28
02/25/98 House Committee report: Favorable with amendment
Judiciary HJ-10
03/02/98 House Debate adjourned until Tuesday, March 3, 1998 HJ-10
03/10/98 House Member(s) added as co-sponsor(s): Rep(s) J. Smith HJ-11
03/10/98 House Requests for debate-Rep(s). Harrison, D. Smith,
Allison, Seithel, Littlejohn, Young, J. Smith,
Limehouse, Hawkins, Bauer, Sharpe, Leach, F.
Smith, Davenport, Whatley, Mack, Moody-Lawrence
& Knotts HJ-16
03/11/98 House Member(s) request name removed as sponsor:
Allison HJ-16, Walker HJ-16
03/12/98 House Debate interrupted HJ-29
03/17/98 House Amended HJ-38
03/17/98 House Debate interrupted HJ-46
03/18/98 House Debate interrupted HJ-41
03/19/98 House Requests for debate removed-Rep(s). Knotts &
Leach HJ-41
03/19/98 House Read second time HJ-70
03/19/98 House Roll call Yeas-91 Nays-18 HJ-87
03/24/98 House Read third time and sent to Senate HJ-39
03/25/98 Senate Introduced and read first time SJ-4
03/25/98 Senate Referred to Committee on Judiciary SJ-4
05/20/98 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-27
05/26/98 Senate Read second time SJ-45
05/26/98 Senate Ordered to third reading with notice of
amendments SJ-45
05/28/98 Senate Amended SJ-26
05/28/98 Senate Read third time and returned to House with
amendments SJ-26
06/03/98 House Concurred in Senate amendment and enrolled HJ-24
06/04/98 Ratified R 453
06/05/98 Signed By Governor
06/05/98 Effective date 06/05/98
06/05/98 See act for exception to or explanation of
effective date
06/17/98 Copies available
06/17/98 Act No. 321
(A321, R453, H4360)
AN ACT TO AMEND TITLE 44, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO HEALTH, BY ADDING CHAPTER
48 SO AS TO ENACT THE SEXUALLY VIOLENT PREDATOR ACT
INCLUDING PROVISIONS TO ESTABLISH PROCEDURES FOR
DETERMINING IF A PERSON IS A SEXUALLY VIOLENT
PREDATOR, TO PROVIDE FOR THE RIGHTS OF SUCH PERSONS
IN THIS PROCESS, TO AUTHORIZE THE COMMITMENT OF SUCH
PERSON TO THE DEPARTMENT OF MENTAL HEALTH UPON
ANTICIPATION OF RELEASE FROM INCARCERATION UNTIL
THE PERSON IS SAFE TO BE AT LARGE AND IF RELEASED NOT
LIKELY TO COMMIT ACTS OF SEXUAL VIOLENCE, TO PROVIDE
FOR RELEASE PROCEDURES, AND TO PROVIDE FOR THE USE
AND CONFIDENTIALITY OF CERTAIN RECORDS AND REPORTS;
TO AMEND SECTION 16-3-1110, RELATING TO DEFINITIONS IN
REGARD TO COMPENSATION OF VICTIMS OF CRIME AND
TOLLING THE STATUTE OF LIMITATIONS FOR VICTIMS OF
CRIME WHO HAVE A CAUSE OF ACTION AGAINST AN
INCARCERATED OFFENDER, SO AS TO FURTHER PROVIDE FOR
THE TOLLING OF THE STATUTE OF LIMITATIONS FOR VICTIMS
OF CRIME IN REGARD TO PERSONS RELEASED FROM
COMMITMENT PURSUANT TO CHAPTER 48 OF TITLE 44; TO
AMEND SECTION 16-3-1560, AS AMENDED, RELATING TO
NOTIFICATION TO VICTIMS OF POST-CONVICTION
PROCEEDINGS AFFECTING PROBATION, PAROLE, OR RELEASE
OF THE OFFENDER, SO AS TO INCLUDE PROCEEDINGS UNDER
THE SEXUALLY VIOLENT PREDATOR ACT; TO AMEND
CHAPTER 3, TITLE 24, RELATING TO THE STATE PRISON
SYSTEM, BY ADDING SECTION 24-3-85 SO AS TO AUTHORIZE
THE DIRECTOR OF THE PRISON SYSTEM TO ADMIT AND
DETAIN PERSONS TRANSFERRED PURSUANT TO AN
INTERAGENCY AGREEMENT AUTHORIZED BY CHAPTER 48 OF
TITLE 44; AND TO AMEND SECTION 44-22-10, AS AMENDED,
RELATING TO DEFINITIONS IN REGARD TO THE RIGHTS OF
MENTAL HEALTH PATIENTS, SO AS TO EXCLUDE FROM THE
DEFINITION OF "PATIENT" A PERSON COMMITTED TO THE
DEPARTMENT PURSUANT TO CHAPTER 48 OF TITLE 44.
Be it enacted by the General Assembly of the State of South Carolina:
Sexually violent predator act
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 48
Sexually Violent Predator Act
Section 44-48-10. This chapter is known and may be cited as the
'Sexually Violent Predator Act'.
Section 44-48-20. The General Assembly finds that a mentally
abnormal and extremely dangerous group of sexually violent predators
exists who require involuntary civil commitment in a secure facility for
long-term control, care, and treatment. The General Assembly further
finds that the likelihood these sexually violent predators will engage in
repeat acts of sexual violence if not treated for their mental conditions is
significant. Because the existing civil commitment process is inadequate
to address the special needs of sexually violent predators and the risks that
they present to society, the General Assembly determines that a separate,
involuntary civil commitment process for the long-term control, care, and
treatment of sexually violent predators is necessary. The General
Assembly also determines that, because of the nature of the mental
conditions from which sexually violent predators suffer and the dangers
they present, it is necessary to house involuntarily committed sexually
violent predators in secure facilities separated from persons involuntarily
committed under traditional civil commitment statutes. The civil
commitment of sexually violent predators is not intended to stigmatize the
mentally ill community.
Section 44-48-30. For purposes of this chapter:
(1) 'Sexually violent predator' means a person who:
(a) has been convicted of a sexually violent offense; and
(b) suffers from a mental abnormality or personality disorder that
makes the person likely to engage in acts of sexual violence if not
confined in a secure facility for long-term control, care, and treatment.
(2) 'Sexually violent offense' means:
(a) criminal sexual conduct in the first degree, as provided in
Section 16-3-652;
(b) criminal sexual conduct in the second degree, as provided in
Section 16-3-653;
(c) criminal sexual conduct in the third degree, as provided in
Section 16-3-654;
(d) criminal sexual conduct with minors in the first degree, as
provided in Section 16-3-655(1);
(e) criminal sexual conduct with minors in the second degree, as
provided in Section 16-3-655(2) and (3);
(f) engaging a child for a sexual performance, as provided in
Section 16-3-810;
(g) producing, directing, or promoting sexual performance by a
child, as provided in Section 16-3-820;
(h) assault with intent to commit criminal sexual conduct, as
provided in Section 16-3-656;
(i) incest, as provided in Section 16-15-20;
(j) buggery, as provided in Section 16-15-120;
(k) committing or attempting lewd act upon child under sixteen, as
provided in Section 16-15-140;
(l) violations of Article 3, Chapter 15 of Title 16 involving a minor
when the violations are felonies;
(m) accessory before the fact to commit an offense enumerated in
this item and as provided for in Section 16-1-40;
(n) attempt to commit an offense enumerated in this item as
provided by Section 16-1-80;
(o) any offense for which the judge makes a specific finding on the
record that based on the circumstances of the case, the person's offense
should be considered a sexually violent offense.
(3) 'Mental abnormality' means a mental condition affecting a person's
emotional or volitional capacity that predisposes the person to commit
sexually violent offenses.
(4) 'Sexually motivated' means that one of the purposes for which the
person committed the crime was for the purpose of the person's sexual
gratification.
(5) 'Agency with jurisdiction' means that agency which, upon lawful
order or authority, releases a person serving a sentence or term of
confinement and includes the South Carolina Department of Corrections,
the South Carolina Department of Probation, Parole, and Pardon Services,
the Board of Probation, Parole, and Pardon Services, the Department of
Juvenile Justice, the Juvenile Parole Board, and the Department of Mental
Health.
(6) 'Convicted of a sexually violent offense' means a person has:
(a) pled guilty to, pled nolo contendere to, or been convicted of;
(b) been adjudicated delinquent as a result of the commission of;
(c) been charged but determined to be incompetent to stand trial
for;
(d) been found not guilty by reason of insanity of; or
(e) been found guilty but mentally ill of a sexually violent offense.
(7) 'Court' means the court of common pleas.
(8) 'Total confinement' means incarceration in a secure state or local
correctional facility and does not mean any type of community
supervision.
(9) 'Likely to engage in acts of sexual violence' means the person's
propensity to commit acts of sexual violence is of such a degree as to pose
a menace to the health and safety of others.
(10) 'Person' means an individual who is a potential or actual subject of
proceedings under this act and includes a child under seventeen years of
age.
Section 44-48-40. (A) When a person has been convicted of a
sexually violent offense, the agency with jurisdiction shall give written
notice to the multidisciplinary team established in Section 44-48-50 and
the Attorney General at least ninety days before:
(1) the anticipated release from total confinement of a person who
has been convicted of a sexually violent offense, except that in the case
of a person who is returned to prison for no more than ninety days as a
result of a revocation of any type of community supervision program,
written notice must be given as soon as practicable following the person's
readmission to prison;
(2) the anticipated hearing on fitness to stand trial following notice
under Section 44-23-460 of a person who has been charged with a
sexually violent offense but who was found unfit to stand trial for the
reasons set forth in Section 44-23-410 following a hearing held pursuant
to Section 44-23-430;
(3) the anticipated hearing pursuant to Section 17-24-40(C) of a
person who has been found not guilty by reason of insanity of a sexually
violent offense; or
(4) release of a person who has been found guilty of a sexually
violent offense but mentally ill pursuant to Section 17-24-20.
(B) When a person has been convicted of a sexually violent offense
and the Board of Probation, Parole, and Pardon Services or the Board of
Juvenile Parole intends to grant the person a parole or the South Carolina
Department of Corrections or the Board of Juvenile Parole intends to
grant the person a conditional release, the parole or the conditional release
shall be granted to be effective ninety days after the date of the order of
parole or conditional release. The Board of Probation, Parole, and Pardon
Services, the Juvenile Parole Board, or the South Carolina Department of
Corrections shall immediately send notice of the parole or conditional
release of the person to the multidisciplinary team and the Attorney
General. If the person is determined to be a sexually violent predator
pursuant to this chapter, the person shall be subject to the provisions of
this chapter even though the person has been released on parole or
conditional release.
(C) The agency with jurisdiction shall inform the multidisciplinary
team and the Attorney General of:
(1) the person's name, identifying factors, anticipated future
residence, and offense history; and
(2) documentation of institutional adjustment and any treatment
received.
(D) The agency with jurisdiction, its employees, officials, individuals
contracting, appointed, or volunteering to perform services under this
chapter, the multidisciplinary team, and the prosecutor's review committee
established in Section 44-48-60 are immune from civil or criminal
liability for any good-faith conduct under this act.
Section 44-48-50. The Director of the Department of Corrections shall
appoint a multidisciplinary team to review the records of each person
referred to the team pursuant to Section 44-48-40. These records may
include, but are not limited to, the person's criminal offense record, any
relevant medical and psychological records, treatment records, and any
disciplinary or other records formulated during confinement or
supervision. The team, within thirty days of receiving notice as provided
for in Section 44-48-40, shall assess whether or not the person satisfies
the definition of a sexually violent predator. If it is determined that the
person satisfies the definition of a sexually violent predator, the
multidisciplinary team must forward a report of the assessment to the
prosecutor's review committee. The assessment must be accompanied by
all records relevant to the assessment. Membership of the team must
include:
(1) a representative from the Department of Corrections;
(2) a representative from the Department of Probation, Parole, and
Pardon Services;
(3) a representative from the Department of Mental Health who is a
trained, qualified mental health clinician with expertise in treating
sexually violent offenders;
(4) a retired judge appointed by the Chief Justice who is eligible for
continued judicial service pursuant to Section 2-19-100; and
(5) the Chief Attorney of the Office of Appellate Defense or his
designee.
The Director of the Department of Corrections or his designee shall be the
chairman of the team.
Section 44-48-60. The Attorney General shall appoint a prosecutor's
review committee to review the report and records of each person referred
to the committee by the multidisciplinary team. The prosecutor's review
committee shall determine whether or not probable cause exists to believe
the person is a sexually violent predator. The prosecutor's review
committee shall make the probable cause determination within thirty days
of receiving the report and records from the multidisciplinary team. The
prosecutor's review committee shall include, but not be limited to, a
member of the staff of the Attorney General, an elected circuit solicitor,
and a victim's representative. The Attorney General or his designee shall
be the chairman of the committee. In addition to the records and reports
considered pursuant to Section 44-48-50, the committee shall also
consider information provided by the circuit solicitor who prosecuted the
person.
Section 44-48-70. When the prosecutor's review committee has
determined that probable cause exists to support the allegation that the
person is a sexually violent predator, the Attorney General may file a
petition with the court in the jurisdiction where the person committed the
offense. The petition, which must be filed within thirty days of the
probable cause determination by the prosecutor's review committee, shall
request that the court make a probable cause determination as to whether
the person is a sexually violent predator. The petition must allege that the
person is a sexually violent predator and must state sufficient facts that
would support a probable cause allegation.
Section 44-48-80. (A) Upon filing of a petition, the court shall
determine whether probable cause exists to believe that the person named
in the petition is a sexually violent predator. If the court determines that
probable cause exists to believe that the person is a sexually violent
predator, the person must be taken into custody if he is not already
confined in a secure facility.
(B) Immediately upon being taken into custody pursuant to subsection
(A), the person must be provided with notice of the opportunity to appear
in person at a hearing to contest probable cause as to whether the detained
person is a sexually violent predator. This hearing must be held within
seventy-two hours after a person is taken into custody pursuant to
subsection (A). At this hearing the court shall:
(1) verify the detainee's identity;
(2) receive evidence and hear argument from the person and the
Attorney General; and
(3) determine whether probable cause exists to believe that the
person is a sexually violent predator.
The State may rely upon the petition and supplement the petition with
additional documentary evidence or live testimony.
(C) At the probable cause hearing as provided in subsection (B), the
detained person has the following rights in addition to any rights
previously specified:
(1) to be represented by counsel;
(2) to present evidence on the person's behalf;
(3) to cross-examine witnesses who testify against the person; and
(4) to view and copy all petitions and reports in the court file.
(D) If the probable cause determination is made, the court shall direct
that the person be transferred to an appropriate secure facility including,
but not limited to, a local or regional detention facility for an evaluation
as to whether the person is a sexually violent predator. The evaluation
must be conducted by a qualified expert approved by the court at the
probable cause hearing.
Section 44-48-90. Within sixty days after the completion of a hearing
held pursuant to Section 44-48-80, the court shall conduct a trial to
determine whether the person is a sexually violent predator. Within thirty
days after the determination of probable cause by the court pursuant to
Section 44-48-80, the person or the Attorney General may request, in
writing, that the trial be before a jury. If such a request is made, the court
shall schedule a trial before a jury at the next available date in the court
of common pleas in the county where the offense was committed. If no
request is made, the trial must be before a judge in the county where the
offense was committed. 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 due administration of justice, and only if the respondent will
not be substantially prejudiced. At all stages of the proceedings under this
chapter, a person subject to this chapter is entitled to the assistance of
counsel, and if the person is indigent, the court shall appoint counsel to
assist the person. If a person is subjected to an examination under this
chapter, the person may retain a qualified expert of his own choosing to
perform the examination. All examiners are permitted to have reasonable
access to the person for the purpose of the examination, as well as access
to all relevant medical, psychological, criminal offense, and disciplinary
records and reports. In the case of an indigent person who would like an
expert of his own choosing, the court shall determine whether the services
are necessary. If the court determines that the services are necessary and
the expert's requested compensation for the services is reasonable, the
court shall assist the person in obtaining the expert 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 case or for the same services from any
other source.
Section 44-48-100. (A) The court or jury shall determine whether,
beyond a reasonable doubt, the person is a sexually violent predator. If
a jury determines that the person is a sexually violent predator, the
determination must be by unanimous verdict. If the court or jury
determines that the person is a sexually violent predator, the person must
be committed to the custody of the Department of Mental Health 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 and has been released pursuant to this chapter. The control,
care, and treatment must be provided at a facility operated by the
Department of Mental Health. At all times, a person committed for
control, care, and treatment by the Department of Mental Health pursuant
to this chapter must be kept in a secure facility, and the person must be
segregated at all times from other patients under the supervision of the
Department of Mental Health. The Department of Mental Health may
enter into an interagency agreement with the Department of Corrections
for the control, care, and treatment of these persons. A person who is in
the confinement of the Department of Corrections pursuant to an
interagency agreement authorized by this chapter must be kept in a secure
facility and must, if practical and to the degree possible, be housed and
managed separately from offenders in the custody of the Department of
Corrections. If the court or jury is not satisfied beyond a reasonable doubt
that the person is a sexually violent predator, the court shall direct the
person's release. Upon a mistrial, the court shall direct that the person be
held at an appropriate secure facility including, but not limited to, a local
or regional detention facility until another trial is conducted. A
subsequent trial following a mistrial must be held within ninety days of
the previous trial, unless the subsequent trial is continued. The court or
jury's determination that a person is a sexually violent predator may be
appealed. The person must be committed to the custody of the
Department of Mental Health pending his appeal.
(B) If the person charged with a sexually violent offense has been
found incompetent to stand trial and is about to be released and the
person's commitment is sought pursuant to subsection (A), the court first
shall hear evidence and determine whether the person committed the act
or acts with which he is charged. The hearing on this issue must comply
with all the procedures specified in this section. In addition, the rules of
evidence applicable in criminal cases apply, and all constitutional rights
available to defendants at criminal trials, other than the right not to be
tried while incompetent, apply. After hearing evidence on this issue, the
court shall make specific findings on whether the person committed the
act or acts with which he is charged; the extent to which the person's
incompetence or developmental disability affected the outcome of the
hearing, including its effect on the person's ability to consult with and
assist counsel and to testify on the person's own behalf; 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 committed the act or acts with which he is 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 chapter.
Section 44-48-110. A person committed pursuant to this chapter shall
have an examination of his mental condition performed once every year.
The person may retain or, if the person is indigent and so requests, the
court may appoint a qualified expert to examine the person, and the expert
shall have access to all medical, psychological, criminal offense, and
disciplinary records and reports concerning the person. The annual report
must be provided to the court which committed the person pursuant to this
chapter, the Attorney General, the solicitor who prosecuted the person,
and the multidisciplinary team. The court shall conduct an annual hearing
to review the status of the committed person. The committed person shall
not be prohibited from petitioning the court for release at this hearing.
The Director of the Department of Mental Health shall provide the
committed person with an annual written notice of the person's right to
petition the court for release over the director's objection; the notice shall
contain a waiver of rights. The director shall forward the notice and
waiver form to the court with the annual report. The committed person
has a right to have an attorney represent him at the hearing, but the
committed person is not entitled to be present at the hearing. 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 at large and, if released, is not likely to commit acts of sexual
violence, the court shall schedule a trial on the issue. At the trial, the
committed person is entitled to be present and is 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 has the right to have the committed person evaluated by qualified
experts chosen by the State. The trial must be before a jury if requested
by either the person, the Attorney General, or the solicitor. The committed
person also has the right to have qualified experts evaluate the person on
the person's behalf, and the court shall appoint an expert if the person is
indigent and requests the appointment. The burden of proof at the trial is
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 at large and, if released, is likely to engage in acts
of sexual violence.
Section 44-48-120. If the Director of the Department of Mental
Health determines that the person's mental abnormality or personality
disorder has so changed that the person is safe to be at large and, if
released, is not likely to commit acts of sexual violence, the director shall
authorize the person to petition the court for release. The petition shall be
served upon the court and the Attorney General. The court, upon receipt
of the petition for release, shall order a hearing within thirty days. The
Attorney General shall represent the State, and has the right to have the
petitioner examined by experts chosen by the State. The hearing must be
before a jury if requested by either the petitioner or the Attorney General.
The burden of proof is 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 released, is likely to commit acts of sexual violence.
Section 44-48-130. Nothing in this chapter shall prohibit a person
from filing a petition for release pursuant to this chapter. However, if a
person has previously filed a petition for release without the approval of
the Director of the Department of Mental Health and 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
changed so that the petitioner was not safe to be at large and, if released,
would commit acts of sexual violence, then 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 a
committed person without the director's approval, the court shall,
whenever possible, review the petition and determine if the petition is
based upon frivolous grounds and, if so, shall deny the petition without
a hearing.
Section 44-48-140. In order to protect the public, relevant
information and records which otherwise are confidential or privileged
must be released to the agency with jurisdiction and the Attorney General
for the purpose of meeting the notice requirements of Section 44-48-40
and determining whether a person is or continues to be a sexually violent
predator.
Section 44-48-150. 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 must be part of the record but
must be sealed and opened only on order of the court.
Section 44-48-160. A person released from commitment pursuant to
this chapter must register pursuant to and comply with the requirements
of Article 7, Chapter 3 of Title 23.
Section 44-48-170. The involuntary detention or commitment of a
person pursuant to this chapter shall conform to constitutional
requirements for care and treatment."
Further tolling of statute of limitations
SECTION 2. The last paragraph of Section 16-3-1110 of the 1976
Code is amended to read:
"Notwithstanding any other provision of law, the applicable statute of
limitations for a crime victim, who has a cause of action against an
incarcerated offender based upon the incident which made the person a
victim, is tolled and does not expire until three years after the offender's
release from the sentence including probation and parole time or three
years after release from commitment pursuant to Chapter 48 of Title 44,
whichever is later. However, this provision shall not shorten any other
tolling period of the statute of limitations which may exist for the crime
victim."
Additional notification to crime victims
SECTION 3. Section 16-3-1560 of the 1976 Code, as last amended by
Act 141 of 1997, is further amended to read:
"Section 16-3-1560. (A) The Department of Corrections, the
Department of Probation, Parole, and Pardon Services, the Board of
Juvenile Parole, or the Department of Juvenile Justice, as appropriate,
reasonably must attempt to notify each victim of post-conviction
proceedings affecting the probation, parole, or release of the offender,
including proceedings brought under Chapter 48 of Title 44, and of the
victim's right to attend and comment at these proceedings. This
notification must be made sufficiently in advance to allow the victim to
exercise his rights as they pertain to post-conviction proceedings.
(B) The Attorney General, upon receiving notice of appeal or other
post-conviction action by an offender convicted of or adjudicated guilty
for committing an offense involving one or more victims, must request
from the Department of Corrections, the Department of Probation, Parole,
and Pardon Services, the Board of Juvenile Parole, or the Department of
Juvenile Justice, as appropriate, the victim's personal information.
(C) The Department of Corrections, the Department of Probation,
Parole, and Pardon Services, the Board of Juvenile Parole, or the
Department of Juvenile Justice, upon receipt of request for the victim's
personal information from the Attorney General in an appeal or
post-conviction proceeding, must supply the requested information within
a reasonable period of time.
(D) The Attorney General must confer with victims regarding the
defendant's appeal and other post-conviction proceedings, including
proceedings brought under Chapter 48 of Title 44.
(E) The Attorney General must keep each victim reasonably informed
of the status and progress of the appeal or other post-conviction
proceedings, including proceedings brought under Chapter 48 of Title 44,
until their resolution.
(F) The Attorney General reasonably must attempt to notify a victim
of all post-conviction proceedings, including proceedings brought under
Chapter 48 of Title 44, and of the victim's right to attend. This
notification must be made sufficiently in advance to allow the victim to
exercise his rights pertaining to post-conviction proceedings."
Admission and detainage
SECTION 4. Chapter 3 of Title 24 of the 1976 Code is amended by
adding:
"Section 24-3-85. The director of the prison system shall admit and
detain in the Department of Corrections for safekeeping a person
transferred to his custody pursuant to an interagency agreement
authorized pursuant to Chapter 48 of Title 44."
Definition revised
SECTION 5. Section 44-22-10(11) of the 1976 Code is amended to
read:
"(11) 'Patient' means an individual undergoing treatment in the
department; however, the term does not include a person committed to the
department pursuant to Chapter 48 of Title 44."
Severability
SECTION 6. If any section, paragraph, provision, or portion of this act
is held to be unconstitutional or invalid by a court of competent
jurisdiction, this holding shall not affect the constitutionality or validity
of the remaining portions of this act, the General Assembly hereby
declares that the provisions of this act are severable from each other.
Time effective; applicability
SECTION 7. This act takes effect upon approval by the Governor and
applies to any person who, on the effective date of the act, is serving a
sentence for any offense set forth in Section 44-48-30(2) as well as to any
person who is convicted of a sexually violent offense on or after the
effective date of this act.
Approved the 5th day of June, 1998. |