1998 Legislation
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SENATE BILL NO. 1450 – Sex offenders/habitual/commitment


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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

Bill Text


 ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
Fifty-fourth Legislature                 Second Regular Session - 1998

                                      IN THE SENATE

                                   SENATE BILL NO. 1450

                             BY HEALTH AND WELFARE COMMITTEE

 1                                        AN ACT

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

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.


 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.

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


 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


 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.


 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 / Fiscal Impact


                              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