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S1450.................................................by HEALTH AND WELFARE SEX OFFENDERS - Adds to existing law to enact the "Civil Commitment of Habitual Sexual Offenders Act," to provide legislative findings, to provide rights of the individual in civil commitment proceedings, to provide for a petition and finding of probable cause, to provide for an evaluation, to provide a judicial procedure, to provide for annual review, to provide for a petition for release, to provide for subsequent discharge petitions, and to provide exemptions from liability. 02/13 Senate intro - 1st rdg - to printing 02/16 Rpt prt - to Health/Wel
S1450|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1450 BY HEALTH AND WELFARE COMMITTEE 1 AN ACT 2 RELATING TO CIVIL COMMITMENT OF HABITUAL SEXUAL OFFENDERS; AMENDING TITLE 66, 3 IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 14, TITLE 66, IDAHO CODE, TO 4 PROVIDE FOR CIVIL COMMITMENT OF HABITUAL SEXUAL OFFENDERS, TO PROVIDE A 5 SHORT TITLE, TO PROVIDE FINDINGS, TO PROVIDE DEFINITIONS, TO PROVIDE 6 RIGHTS OF THE INDIVIDUAL IN CIVIL COMMITMENT PROCEEDINGS, TO PROVIDE FOR A 7 PETITION AND FINDING OF PROBABLE CAUSE, TO PROVIDE FOR AN EVALUATION, TO 8 PROVIDE A JUDICIAL PROCEDURE, TO PROVIDE FOR ANNUAL REVIEW, TO PROVIDE FOR 9 A PETITION FOR RELEASE, TO PROVIDE FOR SUBSEQUENT DISCHARGE PETITIONS, TO 10 PROVIDE FOR COSTS, TO PROVIDE EXEMPTIONS FROM LIABILITY AND TO PROVIDE 11 SEVERABILITY. 12 Be It Enacted by the Legislature of the State of Idaho: 13 SECTION 1. That Title 66, Idaho Code, be, and the same is hereby amended 14 by the addition thereto of a NEW CHAPTER , to be known and desig- 15 nated as Chapter 14, Title 66, Idaho Code, and to read as follows: 16 CHAPTER 14 17 CIVIL COMMITMENT OF HABITUAL SEXUAL OFFENDERS 18 66-1401. SHORT TITLE. This chapter shall be known and may be cited as the 19 "Civil Commitment of Habitual Sexual Offenders Act." 20 66-1402. FINDINGS. The legislature finds that a small but extremely dan- 21 gerous group of habitual sexual offenders exists who are not mentally ill as 22 defined in section 66-317(m), Idaho Code. In contrast to individuals appropri- 23 ate for involuntary civil commitment for mental illness, habitual sexual 24 offenders generally have personality features which are not amenable to exist- 25 ing mental illness treatments, and those features render them likely to commit 26 a sexual offense. The legislature further finds that habitual sexual offend- 27 ers' likelihood of engaging in repeat sexual offenses is high. Finally, the 28 legislature finds that the prognosis for rehabilitating habitual sexual 29 offenders in a prison setting is poor, the treatment needs of this population 30 are long-term and the types of treatment necessary for this population are 31 different from the traditional treatments for individuals appropriate for 32 involuntary commitment for the mentally ill. Therefore, a civil commitment 33 procedure for the long-term care and treatment of the habitual sexual offender 34 is found to be necessary by the legislature. 35 66-1403. DEFINITIONS. As used in this chapter: 36 (1) "Court-appointed evaluator" means an individual who is either a psy- 37 chiatrist or a licensed doctoral level mental health therapist licensed by the 38 state pursuant to chapter 18, title 54 and chapter 23, title 54, Idaho Code, 39 respectively, who has, by education, experience and training, expertise in the 40 assessment and treatment of sexual offenders. 2 1 (2) "Department" means the Idaho department of health and welfare. 2 (3) "Habitual sexual offender" means an individual who has committed a 3 sexual offense and who suffers from a personality disorder which makes the 4 individual likely to commit a sexual offense if not confined to a secure 5 facility. 6 (4) "Personality disorder" means a congenital or acquired condition of an 7 individual that affects the emotional or volitional capacity of the individual 8 in a manner that predisposes that individual to the commission of sexual 9 offenses to a degree that makes the individual a menace to the health and 10 safety of other persons. Individuals who meet the definition of mentally ill 11 as specified in section 66-317(m), Idaho Code, or the definition of develop- 12 mentally disabled as specified in section 66-402(4), Idaho Code, are specifi- 13 cally excluded under this definition. 14 (5) "Psychosexual evaluation" means an evaluation which specifically 15 addresses sexual development, sexual deviancy, sexual history, and risk of 16 reoffense for those who have committed a sexual offense, and which determines 17 whether an individual is a habitual sexual offender. 18 (6) "Sexual offense" means a crime as set forth in sections 18-1506, 19 18-1506A, 18-1508, 18-4003(d), 18-4502, 18-6101, 18-6108, 18-6602, 18-6605 and 20 18-6608, Idaho Code; or any crime, attempt, solicitation or conspiracy to com- 21 mit a crime in another state, territory, commonwealth, or other jurisdiction 22 of the United States, including tribal courts and military courts, that is 23 substantially similar to the above-enumerated offenses. 24 66-1404. RIGHTS OF THE INDIVIDUAL IN CIVIL COMMITMENT PROCEEDINGS. At all 25 stages of the proceedings under this chapter, an individual detained pursuant 26 to this chapter shall be entitled to the assistance of counsel, and if neither 27 the individual nor others provide counsel, the court shall appoint counsel in 28 accordance with chapter 8, title 19, Idaho Code. The individual shall have the 29 following rights in addition to the right to be represented by counsel: 30 (1) To present evidence on their own behalf; 31 (2) To cross-examine witnesses who testify against them; and 32 (3) To view and copy all petitions and reports in the court file. 33 66-1405. PETITION, FINDING OF PROBABLE CAUSE. (1) When it appears that an 34 individual meets the definition of a habitual sexual offender as specified in 35 section 66-1403(3), Idaho Code, the prosecuting attorney or the office of the 36 attorney general may file a petition for civil commitment alleging that the 37 individual is a habitual sexual offender and stating sufficient facts to sup- 38 port the allegation. Upon the filing of a petition, the court shall determine 39 whether probable cause exists to believe that the individual named in the 40 petition is a habitual sexual offender. If such determination is made, the 41 court shall direct that the individual be taken into custody. 42 (2) Within seventy-two (72) hours thereafter, the court shall provide the 43 individual with notice of and an opportunity to appear in person at a hearing 44 to contest whether probable cause exists to believe the person is a habitual 45 sexual offender. At the probable cause hearing, the state may supplement the 46 petition with additional documentary evidence or live testimony. 47 (3) If the probable cause determination is made, the court shall direct 48 that the individual be transferred to an appropriate secure facility to 49 undergo a psychosexual evaluation. 50 66-1406. EVALUATION. (1) Upon finding that probable cause exists to 51 believe that an individual is a habitual sexual offender, the court shall 52 appoint an evaluator as defined in section 66-1403(1), Idaho Code, to conduct 3 1 a psychosexual evaluation of the individual within thirty (30) days. Any 2 psychosexual evaluation conducted pursuant to this chapter shall be done in 3 accordance with the standards established by the sex offender classification 4 board in section 18-8312, Idaho Code. The court-appointed evaluator shall 5 report the result of the evaluation to the court, the prosecuting attorney and 6 the individual subject to evaluation or his attorney. This report shall be in 7 the form of a written certificate filed with the court and served upon both 8 the prosecuting attorney and the individual subject to evaluation or his 9 attorney. 10 (2) Whenever an individual is subject to an evaluation under this chap- 11 ter, such individual may retain an expert or professional individual to per- 12 form an independent evaluation on such individual's behalf. This evaluator 13 shall be permitted to have reasonable access to the individual for the purpose 14 of such evaluation, as well as to all relevant medical and psychological 15 records and reports. In the case of an individual who is indigent, the court, 16 upon the individual's request, shall assist the individual in obtaining an 17 expert or professional individual to perform an evaluation on the individual's 18 behalf. The court shall approve payment for such services upon the filing of a 19 certified claim for compensation supported by a written statement specifying 20 the time expended, services rendered, expenses incurred on behalf of the indi- 21 vidual and compensation received in the same case or for the same services 22 from any other source. 23 66-1407. JUDICIAL PROCEDURE. (1) Within forty-five (45) days after the 24 completion of the probable cause hearing, the court shall conduct a civil com- 25 mitment hearing to determine whether the individual should be committed as a 26 habitual sexual offender. The hearing may be continued upon the request of 27 either party or by the court on its own motion upon a showing of: 28 (a) Good cause; and 29 (b) That the rights of the respondent will not be substantially preju- 30 diced by a continuance. 31 (2) In all proceedings under this chapter, any existing provision of the 32 law prohibiting the disclosure of confidential communications between a court- 33 appointed evaluator and an individual subject to this chapter shall not apply. 34 Any evaluator who conducted a psychosexual evaluation of the individual sub- 35 ject to this chapter shall be a competent witness to testify as to the condi- 36 tion of that individual. 37 (3) If, upon completion of the hearing and consideration of the evidence, 38 the court finds by clear and convincing evidence that the individual: 39 (a) Has previously committed a sexual offense as defined in section 40 66-1403, Idaho Code; and 41 (b) Suffers from a personality disorder which makes the individual likely 42 to commit a sexual offense if not confined to a secure facility; 43 the court shall order that the individual be committed to the joint custody of 44 the department of correction and the department of health and welfare for con- 45 trol, care and treatment. Such order may be appealed. This commitment shall 46 last until such time as the individual's personality disorder has so changed 47 that the individual is safe to be released. Such control, care and treatment 48 shall be provided at a facility operated by the department of correction and 49 staffed by members of the department of health and welfare. At all times, 50 individuals committed for control, care and treatment pursuant to this chapter 51 shall be kept in a secure facility and such individuals, except for occasional 52 instances of supervised incidental contact, shall be separated at all times 53 from any other offenders in the custody of the department of correction. In 54 addition, males and females committed pursuant to this chapter shall be housed 4 1 separately. 2 (4) Upon a mistrial, the court shall direct that the individual be held 3 at an appropriate secure facility until another hearing is conducted. Any 4 subsequent hearing following a mistrial shall be held within ninety (90) days 5 of the previous hearing, unless such subsequent hearing is continued as pro- 6 vided in section 66-1407, Idaho Code. 7 66-1408. ANNUAL REVIEW. (1) Each individual committed under this chapter 8 shall have the right to an annual review of their habitual sexual offender 9 status. The court which committed the individual pursuant to section 66-1407, 10 Idaho Code, shall conduct the annual review. The committed individual shall 11 have a right to have an attorney represent the individual at the review hear- 12 ing but the individual is not entitled to be present. 13 (2) If during this review, the court determines that probable cause 14 exists to believe that the individual's personality disorder has so changed 15 that the individual is safe to be at large and will not commit a sexual 16 offense if discharged, then the court shall set a hearing on the issue. The 17 prosecuting attorney or the office of the attorney general shall represent the 18 state and shall have the right to have the committed individual evaluated by 19 experts chosen by the state. The burden of proof at the hearing shall be upon 20 the state to prove by clear and convincing evidence that the committed 21 individual's personality disorder remains such that the individual is not safe 22 to be at large and is likely to commit a sexual offense if released. 23 66-1409. PETITION FOR RELEASE. If the department determines that the com- 24 mitted individual's personality disorder has so changed that the individual is 25 not likely to commit a sexual offense if released, the department shall autho- 26 rize the individual to petition the court for release. The petition shall be 27 served upon the court, the prosecuting attorney and the committed individual 28 or their attorney. Upon receipt of the petition for release, the court shall 29 order a hearing within thirty (30) days. The prosecuting attorney or the 30 office of the attorney general shall represent the state, and shall have the 31 right to have the petitioner examined by an expert or professional individual 32 of such attorney's choice. The burden of proof shall be upon the state to show 33 by clear and convincing evidence that the petitioner's personality disorder 34 remains such that the petitioner is not safe to be at large and that if dis- 35 charged is likely to commit a sexual offense. 36 66-1410. SUBSEQUENT DISCHARGE PETITIONS. Nothing in this chapter shall 37 prohibit an individual from filing a petition for discharge pursuant to this 38 chapter. The department shall provide the committed individual with an annual 39 written notice of the individual's right to petition the court for discharge. 40 However, if an individual has previously filed a petition for discharge with- 41 out the department's authorization pursuant to section 66-1409, Idaho Code, 42 and the court determined, either upon review of the petition or following a 43 hearing, that the petitioner's petition was frivolous or that the petitioner's 44 condition had not so changed that the individual was safe to be at large, then 45 the court shall deny the subsequent petition unless the petition contains 46 facts upon which a court could find the condition of the petitioner had so 47 changed that a hearing was warranted. Upon receipt of a first or subsequent 48 petition from a committed individual without the department's authorization, 49 the court shall endeavor whenever possible to review the petition and may deny 50 the petition if it is frivolous or fails to state facts to show that the 51 individual's condition has so changed that a discharge hearing is warranted. 5 1 66-1411. COSTS. The county where the individual is located shall be 2 responsible for all costs relating to the evaluation of individuals pursuant 3 to this chapter. The department of health and welfare shall be responsible 4 for all costs relating to the treatment of civilly committed individuals. The 5 department of correction shall be responsible for all costs relating to the 6 maintenance of approved secure facilities. 7 66-1412. EXEMPTIONS FROM LIABILITY. No agency, court-appointed evaluator 8 or peace officer shall be civilly or criminally liable for detaining, diagnos- 9 ing, transporting, treating or releasing a person pursuant to this chapter; 10 provided that such duties were performed in good faith and without gross neg- 11 ligence. 12 66-1413. SEVERABILITY. The provisions of this act are hereby declared to 13 be severable and if any provision of this act or the application of such pro- 14 vision to any person or circumstance is declared invalid for any reason, such 15 declaration shall not affect the validity of the remaining portions of this 16 act.
STATEMENT OF PURPOSE
RS 07499C1
The purpose of this proposed legislation is to create a civil
commitment process for habitual sexual offenders. The process is
patterned after the current procedure for the commitment of violent
mentally ill persons. The legislation provides for civil court
determination that a respondent has committed one or more serious
sexual offenses of a predatory nature, and has been medically
determined to have a personality disorder that predisposes the
respondent to the future commission of such offenses. The proposal
was drafted based upon existing laws in Washington and Kansas. It
provides for full due process hearing in a contested judicial
environment, followed by annual reevaluations and the right of the
respondent to request reevaluation at any time. The goal of this
legislation is that through proper medical treatment the respondent
can be determined to be safe to return to a non-custodial
environment as a responsible member of society. A committed
respondent would be segregated from convicted sex offenders serving
a criminal sentence.
FISCAL NOTE
Records of the Idaho Department of Corrections indicate that there
are currently 24 inmates scheduled for release from confinement in
1998 who have the criminal record provided for in the legislation.
Review of the records of these inmates by mental health
professionals at the institutions indicates that one inmate would
clearly meet the personality disorder definition provided for in
this legislation. This matches national statistics suggesting that
5% of sexual offenders may be predisposed to be predatory. Nine
states currently have civil commitment laws. The average cost per
year of commitment has been $65,000. However, the set-up cost for a
segregated facility to house and treat the very first committed
offender is estimated by the Department of Corrections to be
approximately $300,000. It should also be noted that gender
differences will enhance the costs of segregation and housing.
There will be costs to the judicial system and to local governments
depending upon the extent of the hearings and the cost of
evaluations. In some cases, defense counsel will have to be
provided at public expense.CONTACT: Freeman Duncan, Legislative
Liaison Attorney General's Office
208-334-4151
STATEMENT OF PURPOSE/FISCAL NOTE
S1450