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HB 33: "An Act providing for the civil commitment of sexually violent predators."

00 HOUSE BILL NO. 33                                                                                                       
01 "An Act providing for the civil commitment of sexually violent predators."                                              
02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
03    * Section 1.  AS 47.30 is amended by adding new sections to read:                                                    
04 ARTICLE 8A. COMMITMENT OF SEXUALLY VIOLENT PREDATORS.                                                                   
05  Sec. 47.30.816.  FINDINGS.  The legislature finds that a small but extremely                                          
06 dangerous group of sexually violent predators exist who do not have a mental disease                                    
07 or defect that renders them appropriate for the existing involuntary treatment                                          
08 procedure, AS 47.30.700 - 47.30.815, which is intended to be a short-term civil                                         
09 commitment system primarily designed to provide short-term treatment to individuals                                     
10 with serious mental disorders and then return them to the community. In contrast to                                     
11 persons appropriate for civil commitment under AS 47.30.700 - 47.30.815, sexually                                       
12 violent predators generally have antisocial personality features that are not amenable                                  
13 to existing mental illness treatment methods, and those features render them likely to                                  
14 engage in sexually violent behavior.  The legislature further finds that the likelihood                                 
01 of engaging in repeat acts of predatory sexual violence is high among this group.  The                                  
02 existing involuntary treatment procedure, AS 47.30.700 - 47.30.815, is inadequate to                                    
03 address the risk to reoffend because during confinement these offenders do not have                                     
04 access to potential victims and, therefore, will not engage in specific overt acts                                      
05 evidencing their risk of harm to others during confinement as required by the                                           
06 involuntary treatment procedure for continued confinement.  The legislature further                                     
07 finds that the prognosis for curing this group of sexually violent offenders is poor, the                               
08 treatment needs of this population are very long term, and the treatment methods for                                    
09 this population are very different than the traditional treatment methods for people                                    
10 appropriate for commitment under the involuntary treatment procedures.                                                  
11  Sec. 47.30.817. NOTICE TO ATTORNEY GENERAL PRIOR TO RELEASE.                                                          
12 (a) When it appears that a person may meet the criteria for a sexually violent predator,                                
13 the agency with jurisdiction shall give written notice to the attorney general three                                    
14 months before the                                                                                                       
15   (1)  anticipated release from total confinement of a person who has been                                             
16 convicted of a sexually violent offense;                                                                                
17   (2)  anticipated release from total confinement of a person found to have                                            
18 committed a sexually violent offense as a juvenile;                                                                     
19   (3)  release of a person who has been charged with a sexually violent                                                
20 offense and who has been determined to be incompetent to stand trial under                                              
21 AS 12.47.100; or                                                                                                        
22   (4)  release of a person who has been found not guilty by reason of                                                  
23 insanity of a sexually violent offense under AS 12.47.040.                                                              
24  (b)  The written notice must contain the following:                                                                   
25   (1)  the person's name, identifying factors, anticipated future residence,                                           
26 and offense history; and                                                                                                
27   (2)  documentation of institutional adjustment and treatment received.                                               
28  (c) In this section, "agency with jurisdiction" means the department with the                                         
29 authority to direct the release of a person serving a sentence or term or period of                                     
30 confinement.                                                                                                            
31   Sec. 47.30.818.  SEXUALLY VIOLENT PREDATOR PETITION; FILING;                                                         
01 JUDICIAL DETERMINATION; EVALUATION.  (a)  The attorney general may file                                                 
02 a petition in the superior court alleging that a person is a sexually violent predator and                              
03 stating sufficient facts to support the allegation when it appears that the person may                                  
04 be a sexually violent predator and it appears that                                                                      
05   (1)  the term of total confinement of a person who has been convicted                                                
06 of a sexually violent offense is about to expire or has expired;                                                        
07   (2)  the term of total confinement of a person found to have committed                                               
08 a sexually violent offense as a juvenile is about to expire or has expired;                                             
09   (3)  a person who has been charged with a sexually violent offense and                                               
10 who has been determined to be incompetent to stand trial is about to be released or has                                 
11 been released; or                                                                                                       
12   (4)  a person who has been found not guilty by reason of insanity of a                                               
13 sexually violent offense is about to be released or has been released.                                                  
14  (b)  Upon the filing of a petition, notice shall be provided to the person and the                                    
15 court shall schedule a hearing within 72 hours at which the person has a right to                                       
16 appear.  At the hearing, the judge shall determine whether probable cause exists to                                     
17 believe that the person named in the petition is a sexually violent predator.  If probable                              
18 cause is found, the judge shall direct that the person be taken into custody and the                                    
19 person shall be transferred to an appropriate facility for an evaluation as to whether                                  
20 the person is a sexually violent predator.  The evaluation shall be conducted by a                                      
21 person professionally qualified to conduct the examination under regulations adopted                                    
22 by the department.  In adopting the regulations under this subsection, the department                                   
23 shall consult with the Department of Corrections and the Council on Domestic                                            
24 Violence and Sexual Assault.  The results of the examination conducted under this                                       
25 section are admissible in all further proceedings conducted under AS 47.30.816 -                                        
26 47.30.824.                                                                                                              
27  Sec. 47.30.819.  TRIAL; RIGHTS OF PARTIES; DETERMINATION;                                                             
28 COMMITMENT PROCEDURES.  (a)  Within 45 days after the filing of a petition                                              
29 under AS 47.30.818 and following a judicial determination of probable cause, the court                                  
30 shall conduct a trial to determine whether the person is a sexually violent predator.                                   
31 At all stages of the proceedings under AS 47.30.816 - 47.30.824, a person who is the                                    
01 subject of a petition filed under AS 47.30.818 is entitled to the assistance of counsel                                 
02 and, if the person is indigent, the court shall appoint the office of public advocacy to                                
03 assist the person.  When a person is subjected to an examination under                                                  
04 AS 47.30.818(b), the person may retain experts or professionals to perform an                                           
05 examination on the person's behalf.  When the person wishes to be examined by a                                         
06 qualified expert or professional of the person's choice, the expert or professional shall                               
07 be permitted reasonable access to the person for the purpose of an examination, as well                                 
08 as to all relevant medical and psychological records and reports. If the person is                                      
09 indigent, the office of public advocacy shall, upon the person's request, assist the                                    
10 person in obtaining an expert or professional to perform an examination or participate                                  
11 in the trial on the person's behalf.  Upon motion of the person or the attorney general,                                
12 or  on the court's own motion, the trial shall be before a jury.  If no motion is made,                                 
13 the trial shall be before the court.                                                                                    
14  (b)  The court or jury shall determine, beyond a reasonable doubt, whether the                                        
15 person is a sexually violent predator.  If the state alleges in the petition that the term                              
16 of total confinement has expired for a person who has been convicted of a sexually                                      
17 violent offense or who has been found to have committed a sexually violent offense                                      
18 as a juvenile, the state shall prove beyond a reasonable doubt that the person has                                      
19 engaged in a recent act demonstrating dangerousness.   If trial is to a jury, the jury                                  
20 must make the determination required by this subsection unanimously.  Upon a                                            
21 determination that the person is a sexually violent predator, the court shall consider                                  
22 less restrictive alternatives to confinement and whether these alternatives, if any, will                               
23 adequately protect the public so it is safe for the person not to be confined and will                                  
24 prevent the person from committing a sexually violent predatory offense.  If the court                                  
25 determines that the less restrictive alternatives will not (1) adequately protect the                                   
26 public so it would be safe for the person to be at large, or (2) prevent the person from                                
27 committing a sexually violent predatory offense, the court shall order the person                                       
28 committed to the custody of the department for control, care, and treatment until the                                   
29 person's mental abnormality or personality disorder has so changed that the person is                                   
30 safe to be at large.  If the court or jury is not satisfied beyond a reasonable doubt that                              
31 the person is a sexually violent predator, the court shall direct the person's release                                  
01 from the custody of the department.                                                                                     
02  (c)  If the person charged with a sexually violent offense has been found                                             
03 incompetent to stand trial, is about to or has been released, and the person's                                          
04 commitment is sought under this section, the court shall first hear evidence and                                        
05 determine whether the person committed the act or acts charged.  The hearing on this                                    
06 issue must comply with the procedures specified in this section.  In addition, the rules                                
07 of evidence applicable in criminal trials and all constitutional rights available to                                    
08 defendants at criminal trials, other than the right to a jury trial and right not to be tried                           
09 while incompetent, shall apply.  After hearing evidence under this subsection, the court                                
10 shall make specific findings on whether the person committed the act or acts charged,                                   
11 the extent to which the person's incompetence affected the outcome of the hearing,                                      
12 including its effect on the person's ability to consult with and assist counsel and to                                  
13 testify on the person's own behalf, the extent to which the evidence could be                                           
14 reconstructed without the assistance of the person, and the strength of the state's case.                               
15 If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person      
16 committed the act or acts charged, it shall enter an order,                                                             
17 appealable by the person, on that issue and may proceed to consider whether the                                         
18 person should be committed under this section.  A finding under this subsection that                                    
19 the person committed the act or acts charged is not a conviction or a finding of guilt                                  
20 for any purpose other than for consideration of commitment.                                                             
21  (d)  The department shall confine a person who is ordered committed under                                             
22 AS 47.30.818(b) in a secure mental health facility operated by the department.  The                                     
23 department may not confine a person committed under AS 47.30.816 - 47.30.824 in                                         
24 a correctional facility or institution operated by the Department of Corrections.  This                                 
25 subsection does not prohibit the department from confining a person committed under                                     
26 AS 47.30.816 - 47.30.824 in a mental health facility operated by the department and                                     
27 located within or on the grounds of a correctional facility.  Following confinement of                                  
28 the committed person, the department shall inform the person of the person's rights                                     
29 under AS 47.30.821.  The involuntary detention or commitment of a person under                                          
30 AS 47.30.816 - 47.30.824 shall conform to the constitutional requirements for care and                                  
31 treatment.                                                                                                              
01  Sec. 47.30.820.  ANNUAL EXAMINATION.  The department shall provide                                                    
02 an examination of the current mental condition of a person committed under                                              
03 AS 47.30.816 - 47.30.824 at least once each year.  In addition to the annual                                            
04 examination provided by the department, the person may retain or, if the person is                                      
05 indigent and so requests, the office of public advocacy may retain a qualified expert                                   
06 or a professional to examine the person, and the expert or professional shall have                                      
07 access to all records concerning the person.  The results of the examinations shall be                                  
08 provided to the court that committed the person.                                                                        
09  Sec. 47.30.821.  PETITION FOR RELEASE.  (a)  If the commissioner                                                      
10 determines that the person's mental abnormality or personality disorder has so changed                                  
11 that the person is safe to be at large and is not likely to commit a sexually violent                                   
12 predatory offense if released, the commissioner shall authorize the person to petition                                  
13 the court for release.  The petition shall be served upon the attorney general as the                                   
14 attorney for the state.  The court, upon receipt of the petition for release, shall order                               
15 a hearing within 45 days.  The state has the right to have the petitioner examined by                                   
16 an expert or professional person of their choice.  The hearing shall be before a jury if                                
17 demanded by either the petitioner or the state.  The burden of proof is upon the state                                  
18 to show beyond a reasonable doubt that the petitioner's mental abnormality or                                           
19 personality disorder remains such that the petitioner is not safe to be at large and that,                              
20 if discharged, is likely to commit a sexually violent predatory offense.  If the hearing                                
21 is before a jury, the jury must make this determination unanimously.                                                    
22  (b)  This section does not prohibit the person from otherwise petitioning the                                         
23 court for discharge without the commissioner's approval. The commissioner shall                                         
24 provide the committed person with an annual written notice of the person's right to                                     
25 petition the court for release over the commissioner's objection. The notice must                                       
26 contain a waiver of rights. The commissioner shall forward the notice and waiver form                                   
27 to the court with the annual examination.  If the person does not affirmatively waive                                   
28 the right to petition, the court shall hold a show cause hearing to determine whether                                   
29 facts exist that warrant a hearing on whether the person's condition has so changed                                     
30 that the person is safe to be at large and is not likely to commit a sexually violent                                   
31 predatory offense if discharged.  The committed person has the right to have an                                         
01 attorney represent the person at the show cause hearing and, if the person is indigent,                                 
02 the court shall appoint the office of public advocacy to represent the person.  The                                     
03 committed person is not entitled to be present at the show cause hearing.  If the court                                 
04 at the show cause hearing determines that probable cause exists to believe that the                                     
05 person's mental abnormality or personality disorder has so changed that the person is                                   
06 safe to be at large and is not likely to commit a sexually violent predatory offense if                                 
07 discharged, the court shall set a hearing on the issue.  At the hearing, the committed                                  
08 person is entitled to be present and to the benefit of all constitutional protections that                              
09 were afforded to the person at the initial commitment proceeding.  The attorney                                         
10 general shall represent the state and has the right to a jury trial and to have the                                     
11 committed person evaluated by experts chosen by the state.  The committed person                                        
12 may also have experts evaluate the person on the person's behalf, and the office of                                     
13 public advocacy shall retain an expert if the person is indigent and requests an                                        
14 appointment.  The burden of proof at the hearing is upon the state to prove beyond a                                    
15 reasonable doubt that the committed person's mental abnormality or personality                                          
16 disorder remains such that the person is not safe to be at large and, if released, is                                   
17 likely to commit a sexually violent predatory offense.                                                                  
18  (c)  If a person has previously filed a petition for discharge without the                                            
19 commissioner's approval and the court determined, either upon review of the petition                                    
20 or following a hearing, that the petitioner's petition was frivolous or that the                                        
21 petitioner's condition had not so changed that the person was safe to be at large and                                   
22 was not likely to commit a sexually violent predatory offense if discharged, the court                                  
23 shall deny the subsequent petition unless the petition contains facts upon which a court                                
24 could find that the condition of the petitioner has so changed that a hearing is                                        
25 warranted.  Upon receipt of a second or subsequent petition from a committed person                                     
26 without the commissioner's approval, the court shall review the petition and determine                                  
27 if the petition is based upon frivolous grounds and if so shall deny the petition without                               
28 a hearing.                                                                                                              
29  Sec. 47.30.822.  DUTIES OF DEPARTMENT; IMMUNITY.  (a)  The                                                            
30 department is responsible for costs relating to the evaluation and treatment of persons                                 
31 committed to its custody under the provisions of AS 47.30.816 - 47.30.824.                                              
01 Reimbursement may be obtained by the department for the cost of care and treatment                                      
02 of persons committed to its custody under AS 47.30.819.                                                                 
03  (b)  The state, agencies of the state, employees of agencies of the state, and                                        
04 officials are immune from liability for conduct under AS 47.30.816 - 47.30.824 except                                   
05 that this subsection does not preclude liability for civil damages as a result of gross                                 
06 negligence or reckless or intentional misconduct.                                                                       
07  Sec. 47.30.823.  RELEASE OF INFORMATION AUTHORIZED.                                                                   
08 Notwithstanding any other provision of law and in addition to any other information                                     
09 required to be released under AS 47.30.816 - 47.30.824, the department may release                                      
10 relevant information that is necessary to protect the public concerning a specific                                      
11 sexually violent predator committed under AS 47.30.816 - 47.30.824.                                                     
12  Sec. 47.30.824.  DEFINITIONS.  In AS 47.30.816 - 47.30.824,                                                           
13   (1)  "mental abnormality" means a congenital or acquired condition                                                   
14 affecting the emotional or volitional capacity that predisposes the person to the                                       
15 commission of criminal sexual acts in a degree that makes the person a menace to the                                    
16 health and safety of others;                                                                                            
17   (2)  "predatory" means that acts are directed towards strangers or                                                   
18 towards individuals with whom a relationship has been established or promoted for the                                   
19 primary purpose of victimization;                                                                                       
20   (3)  "sexually violent offense" means an act that is:                                                                
21   (A)  a violation of AS 11.41.410 - 11.41.420(a)(1), 11.41.434 -                                                     
22 11.41.438, or 11.41.450 or a felony offense in this or another jurisdiction                                             
23 formerly, or currently, having elements similar to AS 11.41.410 -                                                       
24 11.41.420(a)(1), 11.41.434 - 11.41.438, or 11.41.450;                                                                   
25   (B)  a violation of AS 11.41.100 - 11.41.110, 11.41.200 -                                                           
26 11.41.210, 11.41.300, or AS 11.46.300 or a felony offense in this or another                                            
27 jurisdiction formerly, or currently, having elements similar to AS 11.41.100 -                                          
28 11.41.110, 11.41.200 - 11.41.210, 11.41.300, or AS 11.46.300, if the state                                              
29 proves beyond a reasonable doubt, in civil commitment proceedings under                                                 
30 AS 47.30.816 - 47.30.824, that during the course of the offense the person                                              
31 engaged in or intended to engage in sexual penetration, sexual contact, or                                              
01 sexually gratifying conduct; or                                                                                         
02   (C)  a violation of AS 11.31.100 - 11.31.110, or a felony offense                                                   
03 in this or another jurisdiction formerly, or currently, having elements similar                                         
04 to AS 11.31.100 - 11.31.110, that is an attempt or criminal solicitation to                                             
05 commit one of the felonies designated in (A) or (B) of this paragraph;                                                  
06   (4)  "sexually violent predator" means a person who has been convicted                                               
07 of or charged with a sexually violent offense, or has otherwise been found to have                                      
08 committed a sexually violent offense as a juvenile, and who suffers from a mental                                       
09 abnormality or personality disorder that makes the person likely to commit a sexually                                   
10 violent predatory offense.                                                                                              
11    * Sec. 2.  APPLICABILITY.  This Act applies to all acts committed before, on, or after the                           
12 effective date of this Act.