Current Status Introducing Body:House Bill Number:3193 Primary Sponsor:Snow Committee Number:25 Type of Legislation:GB Subject:Sexually violent predators Residing Body:House Current Committee:Judiciary Computer Document Number:CYY/15026SD.93 Introduced Date:19930120 Last History Body:House Last History Date:19930120 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Snow Kelley G. Brown Stone McLeod Byrd Chamblee Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
____ ______ ____________ ______________________________ ___ ____________
3176 House 19930119 Introduced, read first time, 20
referred to Committee
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TO AMEND TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 109 SO AS TO PROVIDE FOR CERTAIN PROCEDURES FOR THE CONFINEMENT AND COMMITMENT OR CONTINUED CONFINEMENT AND COMMITMENT OF PERSONS DETERMINED TO BE SEXUALLY VIOLENT PREDATORS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
Section 44-109-10. The General Assembly finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment laws which are intended to be a short term civil commitment system that is primarily designed to provide short term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The General Assembly further finds that sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. Existing involuntary commitment laws are inadequate to address the risk to reoffend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement. The General Assembly further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under involuntary treatment provisions of law.
Section 44-109-20. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) `Sexually violent predator' means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.
(2) `Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.
(3) `Predatory' means acts directed towards strangers or individuals with whom a relationship has been established or promoted for the primary purpose of victimization.
(4) `Sexually violent offense' means an act committed that is:
(a) criminal sexual conduct of any degree which is a felony as defined by the laws of this State;
(b) any comparable federal or out of state conviction for an offense that under the laws of this State would be criminal sexual conduct of any degree which is a felony;
(c) an act of murder, assault, kidnapping, burglary, or unlawful imprisonment, which act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings has been determined beyond a reasonable doubt to have been sexually motivated, or
(d) an act that is an attempt or conspiracy to commit one of the felonies designated in (a), (b), or (c) of this section.
Section 44-109-30. (1)(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in Section 44-109-20(1), the agency with jurisdiction over the person shall refer the person in writing to the solicitor of the county where that person was charged, three months prior to:
(i) the anticipated release from total confinement of a person who has been convicted of a sexually violent offense;
(ii) the anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;
(iii) release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial; or
(iv) release of a person who has been found not guilty by reason of insanity of a sexually violent offense.
(b) The agency shall inform the solicitor of the following:
(i) the person's name, identifying factors, anticipated future residence, and offense history; and
(ii) documentation of institutional adjustment and any treatment received.
(2) The agency, its employees, and officials are immune from liability for any good faith conduct under this section.
Section 44-109-40. When it appears that:
(1) the term of total confinement of a person who has been convicted of a sexually violent offense is about to expire, or has expired;
(2) the term of total confinement of a person found to have committed a sexually violent offense as a juvenile is about to expire, or has expired;
(3) a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is about to be released, or has been released; or
(4) a person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, or has been released, and it appears that the person may be a sexually violent predator, the solicitor of the county where the person was convicted or charged may file a petition alleging that the person is a `sexually violent predator' and stating sufficient facts to support such allegation.
Section 44-109-50. Upon the filing of a petition under Section 44-109-40, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If this determination is made, the judge shall direct that the person be taken into custody and the person must be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to regulations promulgated by the Department of Mental Health. In developing these regulations, the Department of Mental Health shall consult with the Department of Corrections.
Section 44-109-60. Within forty-five days after the filing of a petition pursuant to Section 44-109-40, the court shall conduct a trial to determine whether the person is a sexually violent predator. At all stages of the proceedings under this chapter, any 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 him. Whenever any person is subjected to an examination under this chapter, he may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his own choice, the examiner must be permitted to have reasonable access to the person for the purpose of the examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. The person, solicitor, or the judge shall have the right to demand that the trial be before a jury. If no demand is made, the trial must be before the court.
Section 44-109-70. (1) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the State alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated as provided in Section 44-109-20(4)(c), the State must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated. 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 in a secure facility for control, care, and treatment until that time as the person's mental abnormality or personalized disorder has so changed that the person is safe to be at large. The control, care, and treatment must be provided at a facility operated by the department. 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.
(2) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released, and his commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal that the person committed the act or acts 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 shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his 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 did commit the act or acts charged, it 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 44-109-80. Each person committed under this chapter shall have a current examination of his mental condition made at least once every year. The person may retain, or if he is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him, and this expert or professional person shall have access to all records concerning the person. The periodic report must be provided to the court that committed the person under this chapter.
Section 44-109-90. The involuntary detention or commitment of persons under this chapter shall conform to constitutional requirements for care and treatment.
Section 44-109-100. (1) If the commissioner of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if released, the commissioner shall authorize the person to petition the court for release. The petition must be served upon the court and solicitor. The court, upon receipt of the petition for release, shall within forty-five days order a hearing. The solicitor shall represent the State, and shall have the right to have the petitioner examined by an expert or professional person of his choice. The hearing must be before a jury if demanded by either the petitioner or the solicitor. The burden of proof is upon the solicitor 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 discharged is likely to engage in predatory acts of sexual violence.
(2) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for discharge without the commissioner's approval. The commissioner shall provide the committed person with an annual written notice of the person's right to petition the court for release over the commissioner's objection. The notice shall contain a waiver of rights. The commissioner shall forward the notice and waiver form to the court with the annual report. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person's condition has so changed that he is safe to be at large. The committed person shall have a right to have an attorney represent him at the show cause hearing but the person is not entitled to be present at the show cause hearing. If the court at the show cause hearing determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and is not likely to engage in predatory acts of sexual violence if discharged, then the court shall set a hearing on the issue. At the hearing, the committed person is entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment's proceeding. The solicitor shall represent the State and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the State. The committed person shall also have the right to have experts evaluate him on his behalf and the court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing 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 predatory acts of sexual violence.
Section 44-109-110. Nothing in this chapter shall prohibit a person from filing a petition for discharge pursuant to this chapter. However, if a person has previously filed a petition for discharge without the commissioner's approval 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 so changed that he was safe to be at large, then the court shall deny the subsequent petition unless the petition contains facts upon which a court could find that the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from committed persons without the commissioner's approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based upon frivolous grounds and if so shall deny the petition without a hearing.
Section 44-109-120. The Department of Mental Health is responsible for all costs relating to the evaluation and treatment of persons committed to their custody under any provision of this chapter. Reimbursement may be obtained by the department for the cost of care and treatment of persons committed to its custody, and the department is authorized to take whatever actions it considers ncessary, including the instigation of legal action, to obtain this reimbursement.
Section 44-109-130. In addition to any other information required to be released under this chapter, the department is authorized to release relevant information that is necessary to protect the public, concerning a specific sexually violent predator committed under this chapter."
SECTION 2. This act takes effect upon approval by the Governor.