REPORT TITLE:
Sexually Violent Predator


DESCRIPTION:
Creates a new law relating to sexually violent predators.
Provides for commitment and annual examinations.  Allows petition
for conditional release to less restrictive alternative or
unconditional discharge.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            787         
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO SEXUALLY VIOLENT PREDATORS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5                    SEXUALLY VIOLENT PREDATORS
 
 6      §   -1 Definitions.  As used in this chapter, unless the
 
 7 context clearly requires otherwise:
 
 8      "Director" refers to the director of health.
 
 9      "Less restrictive alternative" means court-ordered treatment
 
10 in a setting less restrictive than total confinement.
 
11      "Likely to engage in predatory acts of sexual violence"
 
12 means that the person more probably than not will engage in such
 
13 acts as evidenced by a recent overt act if the person is not
 
14 totally confined at the time the petition is filed under section
 
15    -3.
 
16      "Mental abnormality" means a congenital or acquired
 
17 condition affecting the emotional or volitional capacity that
 
18 predisposes the person to the commission of criminal sexual acts
 
19 in a degree constituting the person a menace to the health and
 

 
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 1 safety of others.
 
 2      "Predatory" means acts directed towards strangers or
 
 3 individuals with whom a relationship has been established or
 
 4 promoted for the primary purpose of victimization.
 
 5      "Recent overt act" means any act that has either caused harm
 
 6 of a sexually violent nature or creates a reasonable apprehension
 
 7 of such harm.
 
 8      "Sexually motivated" or "sexual motivation" means that one
 
 9 of the purposes for which a person committed an act was for the
 
10 purpose of the person's sexual gratification.
 
11      "Sexually violent offense" means an act committed on,
 
12 before, or after July 1, 1999, that is:
 
13      (1)  An act defined in section 707-730, 707-731, 707-732 if
 
14           the victim is under the age of fourteen, 707-733.5,
 
15           707-741 if the victim is under the age of fourteen,
 
16           707-750, or 707-751;
 
17      (2)  A felony offense in effect at any time prior to the
 
18           effective date of this Act that is comparable to a
 
19           sexually violent offense as defined in paragraph (1),
 
20           or any federal or out-of-state conviction for a felony
 
21           offense that under the laws of this State would be a
 
22           sexually violent offense as defined in paragraph (1);
 
23      (3)  An act defined in section 707-701, 707-701.5, 707-710,
 

 
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 1           707-711, 707-720, 707-721, or 708-810, which act,
 
 2           either at the time of sentencing for the offense or at
 
 3           a subsequent hearing, has been determined beyond a
 
 4           reasonable doubt to have been sexually motivated; or
 
 5      (4)  An act, as described in chapter 705, that is an
 
 6           attempt, criminal solicitation, or criminal conspiracy
 
 7           to commit one of the felonies designated in paragraph
 
 8           (1), (2), or (3).
 
 9      "Sexually violent predator" means any person who has been
 
10 convicted of or charged with a sexually violent offense and who
 
11 suffers from a mental abnormality or personality disorder that
 
12 makes the person likely to engage in future predatory acts of
 
13 sexual violence if not confined in a secure facility.
 
14      §   -2 Notice to prosecuting attorney prior to release.
 
15 (1)  When it appears that a person may meet the criteria of a
 
16 sexually violent predator as defined in section    -1, the agency
 
17 having jurisdiction shall refer the person in writing to the
 
18 prosecuting attorney of the county where that person was
 
19 convicted or charged, ninety days prior to:
 
20      (a)  The anticipated release from total confinement of a
 
21           person who has been convicted of a sexually violent
 
22           offense;
 
23      (b)  The anticipated release from total confinement of a
 

 
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 1           person found to have committed a sexually violent
 
 2           offense as a minor;
 
 3      (c)  The release of a person who has been charged with a
 
 4           sexually violent offense and who has been determined to
 
 5           be unfit to stand trial pursuant to section 704-406 or
 
 6           704-407; or
 
 7      (d)  The release of a person who has been acquitted pursuant
 
 8           to section 704-411 or 704-412.
 
 9      (2)  The agency shall provide the prosecutor with all
 
10 relevant information, including but not limited to the following
 
11 information:
 
12      (a)  A complete copy of the institutional records compiled
 
13           by the department of public safety relating to the
 
14           person, and any such out-of-state department of
 
15           corrections' records, if available;
 
16      (b)  A complete copy, if applicable, of any file compiled by
 
17           the Hawaii paroling authority relating to the person;
 
18      (c)  All records relating to the psychological or
 
19           psychiatric evaluation or treatment of the person;
 
20      (d)  A current record of all prior arrests and convictions,
 
21           and full police case reports relating to those arrests
 
22           and convictions; and
 
23      (e)  A current mental health evaluation or mental health
 

 
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 1           records review.
 
 2      (3)  This section applies to acts committed before, on, or
 
 3 after the effective date of this Act.
 
 4      (4)  The agency, its employees, and officials shall be
 
 5 immune from liability for any good-faith conduct under this
 
 6 section.
 
 7      (5)  As used in this section, "agency with jurisdiction"
 
 8 means that agency with the authority to direct the release of a
 
 9 person serving a sentence or term of confinement and includes the
 
10 department of public safety, the Hawaii paroling authority, the
 
11 office of youth services, and the department of health.
 
12      §   -3 Sexually violent predator petition; filing of.  When
 
13 the county prosecutor has been notified:
 
14      (a)  Of the impending release of a person, as provided in
 
15           section    -2; or
 
16      (b)  If a person, who at any time previously has been
 
17           convicted of a sexually violent offense and has since
 
18           been released from total confinement, has committed a
 
19           recent overt act,
 
20 and it appears that the person may be a sexually violent
 
21 predator, the prosecuting attorney of the county where the person
 
22 was convicted or charged, or the attorney general if requested by
 
23 the prosecuting attorney, may file a petition in circuit court
 

 
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 1 alleging that the person is a "sexually violent predator" and
 
 2 stating sufficient facts to support the allegation.
 
 3      §   -4 Probable cause hearing; determination; transfer for
 
 4 evaluation.(1)  Upon the filing of a petition under section
 
 5    -3, the judge shall determine whether probable cause exists to
 
 6 believe that the person named in the petition is a sexually
 
 7 violent predator.  If such a determination is made, the judge
 
 8 shall direct that the person be taken into custody.
 
 9      (2)  Within seventy-two hours after a person is taken into
 
10 custody pursuant to subsection (1), the court shall provide the
 
11 person with notice of, and an opportunity to appear in person at,
 
12 a hearing to contest probable cause as to whether the person is a
 
13 sexually violent predator.  At this hearing, the court shall:
 
14      (a)  Verify the person's identity; and
 
15      (b)  Determine whether probable cause exists to believe that
 
16           the person is a sexually violent predator.  At the
 
17           probable cause hearing, the State may rely upon the
 
18           petition and certification for determination of
 
19           probable cause filed pursuant to section    -3.  The
 
20           State may supplement this with additional documentary
 
21           evidence or live testimony.
 
22      (3)  At the probable cause hearing, the person shall have
 
23 the following rights in addition to the rights previously
 

 
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 1 specified:
 
 2      (a)  To be represented by counsel;
 
 3      (b)  To present evidence on the person's behalf;
 
 4      (c)  To cross-examine witnesses who testify against the
 
 5           person; and
 
 6      (d)  To view and copy all petitions and reports in the court
 
 7           file.
 
 8      (4)  If the probable cause determination is made, the judge
 
 9 shall direct that the person be transferred to an appropriate
 
10 facility for an evaluation as to whether the person is a sexually
 
11 violent predator.  The evaluation shall be conducted by a person
 
12 professionally qualified to conduct the examination pursuant to
 
13 rules adopted by the department of health.  In adopting the
 
14 rules, the department of health shall consult with the department
 
15 of public safety.  In no event shall the person be released from
 
16 confinement prior to trial.
 
17      §   -5 Trial; rights of parties.(1)  Within forty-five
 
18 days after the completion of any hearing pursuant to section
 
19    -4, the court shall conduct a trial to determine whether the
 
20 person is a sexually violent predator.  The trial may be
 
21 continued upon the request of either party and a showing of good
 
22 cause, or by the court on its own motion in the due
 
23 administration of justice, and when the respondent will not be
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 substantially prejudiced.  At all stages of the proceedings under
 
 2 this chapter, any person subject to this chapter shall be
 
 3 entitled to the assistance of counsel, and if the person is
 
 4 indigent, the court shall appoint counsel to assist the person.
 
 5 The person shall be confined in a secure facility for the
 
 6 duration of the trial.
 
 7      (2)  Whenever any person is subjected to an examination
 
 8 under this chapter, the person may retain experts or professional
 
 9 persons to perform an examination on the person's behalf.  When
 
10 the person wishes to be examined by a qualified expert or
 
11 professional person of the person's own choosing, the examiner
 
12 shall be permitted to have reasonable access to the person for
 
13 the purpose of examination, as well as to all relevant medical
 
14 and psychological records and reports.  In the case of a person
 
15 who is indigent, the court, upon the person's request, shall
 
16 assist the person in obtaining an expert or professional person
 
17 to perform an examination or participate in the trial on the
 
18 person's behalf.
 
19      (3)  The person, the prosecuting attorney or attorney
 
20 general, or the judge shall have the right to demand that the
 
21 trial be before a jury.  If no demand is made, the trial shall be
 
22 before the court.
 
23      §   -6 Trial; determination; commitment procedures.(1)
 

 
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 1 The court or jury shall determine whether, beyond a reasonable
 
 2 doubt, the person is a sexually violent predator.  When the
 
 3 determination is made by a jury, the verdict must be unanimous.
 
 4 If, on the date that the petition is filed, the person was living
 
 5 in the community after release from custody, the State also must
 
 6 prove beyond a reasonable doubt that the person had committed a
 
 7 recent overt act.  If the State alleges that the prior offense
 
 8 that forms the basis for the petition for commitment was an act
 
 9 that falls within paragraph (3) of the definition of sexually
 
10 violent offense, pursuant to section    -1, then the State must
 
11 prove beyond a reasonable doubt that the alleged act was sexually
 
12 motivated as defined in section    -1.  If the court or jury
 
13 determines that the person is a sexually violent predator, the
 
14 person shall be committed to the custody of the department of
 
15 health in a secure facility, operated by the department of
 
16 health, for control, care, and treatment until such time as the
 
17 person's mental abnormality or personality disorder has so
 
18 changed that the person is safe either to be at large or to be
 
19 released to a less restrictive alternative as set forth in
 
20 section    -9.  If the court or jury is not satisfied beyond a
 
21 reasonable doubt that the person is a sexually violent predator,
 
22 the court shall direct the person's release.
 
23      (2)  If the person charged with a sexually violent offense
 

 
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 1 has been found unfit to stand trial and is about to or has been
 
 2 released pursuant to section 704-406 or 704-407, and the person's
 
 3 commitment is sought pursuant to subsection (1), the court first
 
 4 shall hear evidence and determine whether the person did commit
 
 5 the act or acts charged.  The hearing on this issue shall comply
 
 6 with all the procedures specified in this section.  In addition,
 
 7 the rules of evidence applicable in criminal cases shall apply,
 
 8 and all constitutional rights available to defendants at criminal
 
 9 trials, other than the right not to be tried while unfit, shall
 
10 apply.  After hearing evidence on this issue, the court shall
 
11 make specific findings on:
 
12      (a)  Whether the person did commit the act or acts charged;
 
13      (b)  The extent to which the person's lack of fitness to
 
14           proceed or developmental disability affected the
 
15           outcome of the hearing, including its effect on the
 
16           person's ability to consult with and assist counsel and
 
17           to testify on the person's own behalf;
 
18      (c)  The extent to which the evidence could be reconstructed
 
19           without the assistance of the person; and
 
20      (d)  The strength of the prosecution's case.
 
21 If, after the conclusion of the hearing on this issue, the court
 
22 finds, beyond a reasonable doubt, that the person did commit the
 
23 act or acts charged, it shall enter a final order, appealable by
 

 
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 1 the person, on that issue and may proceed to consider whether the
 
 2 person should be committed pursuant to this section.
 
 3      §   -7 Annual examinations of persons committed under
 
 4 chapter.  Each person committed under this chapter shall have a
 
 5 current examination of the person's mental condition made at
 
 6 least once every year.  The annual report shall include
 
 7 consideration of whether conditional release to a less
 
 8 restrictive alternative is in the best interest of the person and
 
 9 will adequately protect the community.  The person may retain or,
 
10 if the person is indigent and so requests, the court may appoint
 
11 a qualified expert or a professional person to examine the
 
12 person, and the expert or professional person shall have access
 
13 to all records concerning the person.  The periodic report shall
 
14 be provided to the court that committed the person under this
 
15 chapter.
 
16      §   -8 Rights of persons committed under this chapter.  (1)
 
17 Any person subjected to restricted liberty as a sexually violent
 
18 predator pursuant to this chapter shall not forfeit any legal
 
19 right or suffer any legal disability as a consequence of any
 
20 actions taken or orders made, other than as specifically provided
 
21 in this chapter.
 
22      (2)  Any person committed pursuant to this chapter has the
 
23 right to adequate care and individualized treatment.  The
 

 
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 1 department of health shall keep records detailing all medical,
 
 2 expert, and professional care and treatment received by a
 
 3 committed person and shall keep copies of all reports of periodic
 
 4 examinations made pursuant to this chapter.  These records and
 
 5 reports shall be made available upon request only to:  the
 
 6 committed person or the person's attorney, the prosecuting
 
 7 attorney, the court, or another expert or professional person
 
 8 who, upon proper showing, demonstrates a need for access to the
 
 9 records.
 
10      (3)  At the time a person is taken into custody or
 
11 transferred into a facility pursuant to a petition under this
 
12 chapter, the professional person in charge of the facility or the
 
13 person's designee shall take reasonable precautions to inventory
 
14 and safeguard the personal property of the person detained or
 
15 transferred.  A copy of the inventory, signed by the staff member
 
16 making it, shall be given to the person detained and shall, in
 
17 addition, be open to inspection to any responsible relative,
 
18 subject to limitations, if any, specifically imposed by the
 
19 detained person.  For purposes of this subsection, "responsible
 
20 relative" includes the guardian, conservator, attorney, spouse,
 
21 parent, adult child, or adult brother or sister of the person.
 
22 The facility shall not otherwise disclose the contents of the
 
23 inventory to another person without consent of the detained
 

 
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 1 person or order of the court.
 
 2      (4)  Nothing in this chapter prohibits a person committed
 
 3 from exercising a right presently available to the person for the
 
 4 purpose of obtaining release from confinement, including the
 
 5 right to petition for a writ of habeas corpus.
 
 6      (5)  No indigent person may be conditionally released or
 
 7 unconditionally discharged under this chapter without suitable
 
 8 clothing, and the director shall furnish the person with the sum
 
 9 of money as is required by section 353-14 for persons without
 
10 ample funds who are released from correctional institutions.
 
11      §   -9 Petition for release; procedures; hearings.(1)  If
 
12 the director of health determines that the person's mental
 
13 abnormality or personality disorder has so changed that the
 
14 person is not likely to engage in predatory acts of sexual
 
15 violence if released, the director shall authorize the person to
 
16 petition the court for conditional release to a less restrictive
 
17 alternative or for unconditional discharge.  The petition shall
 
18 be served upon the court and the prosecuting attorney.  The
 
19 court, within forty-five days of receipt of the petition for
 
20 conditional release to a less restrictive alternative or for
 
21 unconditional discharge, shall order a hearing.  The prosecuting
 
22 attorney, or the attorney general if requested by the prosecuting
 
23 attorney, shall represent the State and shall have the right to
 

 
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 1 have the petitioner examined by an expert or professional person
 
 2 of the prosecuting attorney's or attorney general's own choosing.
 
 3 The hearing shall be before a jury, if demanded by either the
 
 4 petitioner or the prosecuting attorney or attorney general.  The
 
 5 burden of proof shall be upon the prosecuting attorney or
 
 6 attorney general to show beyond a reasonable doubt that the
 
 7 petitioner's mental abnormality or personality disorder remains
 
 8 such that the petitioner is not safe to be at large and that, if
 
 9 conditionally released to a less restrictive alternative or
 
10 unconditionally discharged, is likely to engage in predatory acts
 
11 of sexual violence.
 
12      (2)  Nothing contained in this chapter shall prohibit the
 
13 person from otherwise petitioning the court for discharge without
 
14 the director's approval.  The director shall provide the
 
15 committed person with an annual written notice of the person's
 
16 right to petition the court for release over the director's
 
17 objection.  The notice shall contain a waiver of rights.  The
 
18 director shall forward the notice and waiver form to the court
 
19 with the annual report.  If the person does not affirmatively
 
20 waive the right to petition, the court shall set a show cause
 
21 hearing to determine whether facts exist that warrant a hearing
 
22 on whether the person's condition has so changed that the person
 
23 is safe to be conditionally released to a less restrictive
 

 
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 1 alternative or unconditionally discharged.  The committed person
 
 2 shall have a right to be represented by an attorney at the show
 
 3 cause hearing, but the person is not entitled to be present at
 
 4 the show cause hearing.  If the court, at the show cause hearing,
 
 5 determines that probable cause exists to believe that the
 
 6 person's mental abnormality or personality disorder has so
 
 7 changed that the person is not likely to engage in predatory acts
 
 8 of sexual violence if conditionally released to a less
 
 9 restrictive alternative or unconditionally discharged, then the
 
10 court shall set a hearing on the issue.
 
11      (3)  At the hearing, the committed person shall be entitled
 
12 to be present and to have the benefit of all constitutional
 
13 protections that were afforded to the person at the initial
 
14 commitment proceeding.  The prosecuting attorney, or the attorney
 
15 general if requested by the prosecuting attorney, shall represent
 
16 the State and shall have a right to a jury trial and to have the
 
17 committed person evaluated by experts chosen by the State.  The
 
18 committed person also shall have the right to have experts
 
19 evaluate the person on the person's behalf, and the court shall
 
20 appoint an expert if the person is indigent and requests an
 
21 appointment.  The burden of proof at the hearing shall be upon
 
22 the State to prove beyond a reasonable doubt that the committed
 
23 person's mental abnormality or personality disorder remains such
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 that the person is likely to engage in predatory acts of sexual
 
 2 violence if conditionally released to a less restrictive
 
 3 alternative or unconditionally discharged.
 
 4      (4)  The jurisdiction of the court over a person civilly
 
 5 committed pursuant to this chapter shall continue until such time
 
 6 as the person is unconditionally discharged.
 
 7      §   -10  Conditional release to less restrictive
 
 8 alternative; findings required.  Before the court may enter an
 
 9 order directing conditional release to a less restrictive
 
10 alternative, it must find the following:
 
11      (a)  The person to be conditionally released will be treated
 
12           by a treatment provider who is qualified and licensed
 
13           to provide the treatment in the State;
 
14      (b)  The treatment provider has presented a specific course
 
15           of treatment and has agreed to assume responsibility
 
16           for the treatment, report progress to the court on a
 
17           regular basis, and report violations immediately to the
 
18           court, the prosecutor, the supervising probation
 
19           officer, and the director of health;
 
20      (c)  Housing exists that is sufficiently secure to protect
 
21           the community, and the person or agency providing
 
22           housing to the conditionally released person has agreed
 
23           in writing to accept the person, provide the level of
 

 
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 1           security required by the court, and immediately report
 
 2           to the court, the prosecutor, the supervising probation
 
 3           officer, and the director of health if the person
 
 4           leaves the housing to which the person has been
 
 5           assigned without authorization;
 
 6      (d)  The person to be conditionally released is willing to
 
 7           comply with the treatment provider and all requirements
 
 8           imposed by the treatment provider and by the court; and
 
 9      (e)  The person to be conditionally released is willing to
 
10           comply with supervision requirements imposed by the
 
11           court, the department of public safety, or the director
 
12           of health.
 
13      §   -11  Conditional release to less restrictive
 
14 alternative; verdict.(1)  Upon the conclusion of the evidence
 
15 in a hearing held pursuant to section    -9, if the court finds
 
16 that there is no legally sufficient evidentiary basis for a
 
17 reasonable jury to find that the conditions set forth in section
 
18    -10 have been met, the court shall grant a motion by the State
 
19 for a judgment as a matter of law on the issue of conditional
 
20 release to a less restrictive alternative.
 
21      (2)  Whenever the issue of conditional release to a less
 
22 restrictive alternative is submitted to the jury, the court shall
 
23 instruct the jury to return a verdict in substantially the
 

 
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 1 following form:  Has the State proved beyond a reasonable doubt
 
 2 that the proposed less restrictive alternative is not in the best
 
 3 interests of respondent or will not adequately protect the
 
 4 community?  Answer:  Yes or No.
 
 5      §   -12  Conditional release to less restrictive
 
 6 environment; judgment; conditions; annual review.(1)  If the
 
 7 court or jury determines that conditional release to a less
 
 8 restrictive alternative is in the best interest of the person and
 
 9 will adequately protect the community, and the court determines
 
10 that the minimum conditions set forth in section    -10 are met,
 
11 the court shall enter judgment and direct a conditional release.
 
12      (2)  The court shall impose any additional conditions
 
13 necessary to ensure compliance with treatment and to protect the
 
14 community.  If the court finds that conditions do not exist that
 
15 will both ensure the person's compliance with treatment and
 
16 protect the community, then the person shall be remanded to the
 
17 custody of the department of health for control, care, and
 
18 treatment in a security facility.
 
19      (3)  If the service provider designated to provide inpatient
 
20 or outpatient treatment or to monitor or supervise any other
 
21 terms and conditions of a person's placement in a less
 
22 restrictive alternative is other than the department of health or
 
23 the department of public safety, then the service provider so
 

 
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 1 designated must agree in writing to provide the treatment.
 
 2      (4)  Prior to authorizing any release to a less restrictive
 
 3 alternative, the court shall impose such conditions upon the
 
 4 person as are necessary to ensure the safety of the community.
 
 5 The court shall order the department of public safety to
 
 6 investigate the less restrictive alternative and recommend any
 
 7 additional conditions to the court.  These conditions shall
 
 8 include, but are not limited to the following:
 
 9      (a)  Specification of residence;
 
10      (b)  Prohibition of contact with potential or past victims;
 
11      (c)  Prohibition of alcohol and illegal drug use;
 
12      (d)  Participation in a specific course of inpatient or
 
13           outpatient treatment that may include monitoring by the
 
14           use of polygraph and plethysmograph;
 
15      (e)  Supervision by a probation officer;
 
16      (f)  A requirement that the person remain within the State
 
17           unless the person receives prior authorization by the
 
18           court; and
 
19      (g)  Any other conditions that the court determines are in
 
20           the best interest of the person or others.  A copy of
 
21           the conditions of release shall be given to the person
 
22           and to any designated service provider.
 
23      (5)  Any service provider designated to provide inpatient or
 

 
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 1 outpatient treatment shall submit a report monthly, or as
 
 2 otherwise directed by the court, to the court, to the director of
 
 3 health, to the prosecutor of the county in which the person was
 
 4 found to be a sexually violent predator, and to the supervising
 
 5 probation officer, stating whether the person is complying with
 
 6 the terms and conditions of the conditional release to a less
 
 7 restrictive alternative.
 
 8      (6)  Each person released to a less restrictive alternative
 
 9 shall have the person's case reviewed by the court that released
 
10 the person no later than one year after the release and annually
 
11 thereafter until the person is unconditionally discharged.
 
12 Review may occur in a shorter time or more frequently, if the
 
13 court, in its discretion and on its own motion or on motion of
 
14 the person, the director, or the prosecuting attorney, so
 
15 determines.  The sole question to be determined by the court is
 
16 whether the person should continue to be conditionally released
 
17 to a less restrictive alternative.  The court, in making its
 
18 determination, shall be aided by the periodic reports filed
 
19 pursuant to subsection (5) and the opinions of the director, and
 
20 other experts or professional persons.
 
21      §   -13  Conditional release to less restrictive
 
22 alternative; hearing on revocation or modification; authority to
 
23 apprehend conditionally released person.(1)  Any service
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 provider submitting reports pursuant to section    -12(5), the
 
 2 supervising probation officer, the director, the prosecuting
 
 3 attorney, or the attorney general may petition the court for, or
 
 4 the court on its own motion may schedule, an immediate hearing
 
 5 for the purpose of revoking or modifying the terms of the
 
 6 person's conditional release to a less restrictive alternative,
 
 7 if the petitioner or the court believes the released person is
 
 8 not complying with the terms and conditions of the person's
 
 9 release or is in need of additional care and treatment.
 
10      (2)  If the prosecuting attorney, the supervising probation
 
11 officer, the director, or the court, based upon information
 
12 received, reasonably believes that a conditionally released
 
13 person is not complying with the terms and conditions of the
 
14 person's conditional release to a less restrictive alternative,
 
15 the court or probation officer may order that the conditionally
 
16 released person be apprehended and taken into custody until such
 
17 time as a hearing can be scheduled to determine the facts and
 
18 whether the person's conditional release should be be revoked or
 
19 modified.  The court shall be notified before the close of the
 
20 next judicial day of the person's apprehension.  Both the
 
21 prosecuting attorney and the conditionally released person shall
 
22 have the right to request an immediate mental examination of the
 
23 conditionally released person.  If the conditionally released
 

 
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 1 person is indigent, the court, upon request, shall assist the
 
 2 person in obtaining a qualified expert or professional person to
 
 3 conduct the examination.
 
 4      (3)  The court, upon receiving notification of the person's
 
 5 apprehension, promptly shall schedule a hearing.  The issue to be
 
 6 determined is whether the State has proven by a preponderance of
 
 7 the evidence that the conditionally released person did not
 
 8 comply with the terms and conditions of the person's release.
 
 9 Hearsay evidence is admissible if the court finds it otherwise
 
10 reliable.  At the hearing, the court shall determine whether the
 
11 person shall continue to be conditionally released on the same or
 
12 modified conditions or whether the person's conditional release
 
13 should be revoked and the person committed to total confinement,
 
14 subject to release only in accordance with this chapter.
 
15      §   -14  Department of health; duties; reimbursement.  The
 
16 department of health shall be responsible for all costs relating
 
17 to the evaluation and treatment of persons committed to its
 
18 custody under this chapter.  Reimbursement may be obtained by the
 
19 director pursuant to section 334-6 for the cost of care and
 
20 treatment of persons committed to its custody.
 
21      §   -15  Release of information authorized.  In addition to
 
22 any other information required to be released under this chapter
 
23 and chapter 846E and notwithstanding any other law to the
 

 
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 1 contrary, the director is authorized to release relevant
 
 2 information that is necessary to protect the public concerning a
 
 3 specific sexually violent predator committed under this chapter."
 
 4      SECTION 2.  If any provision of this Act, or the application
 
 5 thereof to any person or circumstance is held invalid, the
 
 6 invalidity does not affect other provisions or applications of
 
 7 the Act that can be given effect without the invalid provision or
 
 8 application, and to this end the provisions of this Act are
 
 9 severable.
 
10      SECTION 3.  This Act shall apply to any acts committed prior
 
11 to, on, or after its effective date.
 
12      SECTION 4.  This Act shall take effect upon its approval.
 
13 
 
14                              INTRODUCED BY:______________________