PRINTER'S NO. 3624
No. 2541 Session of 2002
INTRODUCED BY EGOLF, SAYLOR, ARMSTRONG, M. BAKER, BARRAR,
BASTIAN, BENNINGHOFF, BIRMELIN, CAPPELLI, CIVERA, CLARK,
CREIGHTON, DALEY, DALLY, DeLUCA, FLEAGLE, FORCIER, GABIG,
GEIST, GRUCELA, HARHART, HERSHEY, HESS, HORSEY, HUTCHINSON,
JADLOWIEC, KREBS, LEDERER, LEH, LYNCH, MAITLAND, MARSICO,
McGEEHAN, McILHATTAN, MELIO, R. MILLER, MUNDY, NAILOR,
PALLONE, PICKETT, ROHRER, SHANER, STABACK, STEELMAN, STERN,
R. STEVENSON, E. Z. TAYLOR, J. TAYLOR, TULLI, WILT AND
YOUNGBLOOD, APRIL 9, 2002
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 9, 2002
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, adding provisions
3 relating to child molester control; and providing for
4 sentencing for certain sexual offense convictions, for
5 restrictions on parole or release, for treatment and for
6 voluntary treatment for first offenders.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Chapter 97 of Title 42 of the Pennsylvania
10 Consolidated Statutes is amended by adding a subchapter to read:
11 SUBCHAPTER I
12 CHILD MOLESTER CONTROL
13 Sec.
14 9799.21. Short title of subchapter.
15 9799.22. Definitions.
16 9799.23. Sentencing for certain sexual offense convictions.
1 9799.24. Restrictions on parole or release.
2 9799.25. Treatment.
3 9799.26. Voluntary treatment for first offenders.
4 9799.27. Regulation.
5 § 9799.21. Short title of subchapter.
6 This subchapter shall be known and may be cited as the Child
7 Molester Control Act.
8 § 9799.22. Definitions.
9 The following words and phrases when used in this subchapter
10 shall have the meanings given to them in this section unless the
11 context clearly indicates otherwise:
12 "Department." The Department of Corrections of the
13 Commonwealth.
14 "Serial child molester." A person who has been sentenced
15 pursuant to section 9799.23 (relating to sentencing for certain
16 sexual offense convictions).
17 "Sexual offense." A violation of any of the following:
18 18 Pa.C.S. § 3121 (relating to rape).
19 18 Pa.C.S. § 3122.1 (relating to statutory sexual
20 assault).
21 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
22 intercourse).
23 18 Pa.C.S. § 3124.1 (relating to sexual assault).
24 18 Pa.C.S. § 3124.2 (relating to institutional sexual
25 assault).
26 18 Pa.C.S. § 3125 (relating to aggravated indecent
27 assault).
28 18 Pa.C.S. § 3126 (relating to indecent assault).
29 "Testosterone-lowering treatment." The use of leuprolide
30 acetate to reduce the capacity of a serial child molester to
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1 commit a sexual offense in which the victim is a child under 13
2 years of age or the use of any other drug for this purpose that
3 the department, in consultation with the Department of Health,
4 determines is equivalent to or more effective than leuprolide
5 acetate.
6 "Treatment." This term includes:
7 (1) Testosterone-lowering treatment.
8 (2) Weekly psychotherapy or at such other intervals as
9 may be designated by regulation of the department.
10 (3) A polygraph examination relating to the purposes of
11 this subchapter at least once every four months.
12 "Trier of fact." The jury or, if the defendant waives his
13 right to a jury determination, the court.
14 § 9799.23. Sentencing for certain sexual offense convictions.
15 (a) Life sentence.--Notwithstanding any other provision of
16 this title or other statute to the contrary, a person who is
17 convicted in a court of this Commonwealth of a sexual offense in
18 which the victim was a child under 13 years of age shall be
19 sentenced to life imprisonment at total confinement if, at the
20 time of the commission of the current sexual offense, the person
21 had been previously convicted of a sexual offense in which the
22 victim was a child under 13 years of age.
23 (b) Mandatory minimum term of confinement.--Notwithstanding
24 any other provision of this title or other statute to the
25 contrary:
26 (1) Upon conviction of an offender in a court of this
27 Commonwealth of a sexual offense in which the victim was
28 under 13 years of age the court shall issue an order
29 directing that the offender serve a mandatory minimum prison
30 term of:
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1 (i) Not less than ten years at total confinement if,
2 at the time of the commission of the current sexual
3 offense, the offender had been previously convicted of a
4 sexual offense in which the victim as a child under 13
5 years of age.
6 (ii) Not less than 25 years of total confinement if,
7 at the time of the commission of the sexual offense, the
8 offender had been previously convicted of two or more
9 sexual offenses in which the victims were children under
10 13 years of age.
11 (2) Upon conviction of an offender in a court of this
12 Commonwealth of a sexual offense in which the victim was
13 under 13 years of age, the court may issue an order directing
14 that the offender serve a mandatory minimum prison term of
15 life imprisonment without parole and without release from
16 total confinement, if at the time of the commission of the
17 sexual offense, the offender had been previously convicted of
18 three or more sexual offenses in which the victims were
19 children under 13 years of age and the court determines that
20 25 years of confinement is insufficient to protect the safety
21 of children.
22 (c) Mistake of age no defense.--It shall not be a defense in
23 any sentencing proceeding subject to this section that the
24 offender who committed the sexual offense believed that the
25 victim was 13 years of age or older.
26 (d) Equivalent convictions in other jurisdictions.--A
27 conviction for a criminal offense committed in another state or
28 criminal jurisdiction that is substantially equivalent to a
29 sexual offense shall be considered a conviction for a sexual
30 offense for purposes of determining whether the offender is
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1 subject to sentencing pursuant to this section if the trier of
2 fact, in the sentencing proceeding prescribed in this section,
3 determines that the victim was under 13 years of age at the time
4 of such offense in the other state or jurisdiction.
5 (e) Proof at sentencing.--The provisions of this section
6 shall not be an element of the crime. Notice of the
7 Commonwealth's intention to proceed under this section shall be
8 provided to the offender prior to the trial. If the Commonwealth
9 provides notice to the offender and the court of its intent to
10 proceed under this section prior to the trial and the trier of
11 fact returns a guilty verdict against the offender on the
12 underlying sexual offense, or the offender pleads guilty or nolo
13 contendere to such offense, the court shall conduct an immediate
14 hearing on the applicability of this section. The offender shall
15 be sentenced in accordance with subsections (a) and (b) if the
16 trier of fact finds, by proof beyond a reasonable doubt, that
17 each of the following elements exist:
18 (1) The offender was found guilty of the underlying
19 sexual offense or pleaded guilty or nolo contendere to the
20 underlying sexual offense.
21 (2) The victim of the underlying sexual offense was a
22 child under 13 years of age.
23 (3) The offender, at the time of the commission of the
24 current sexual offense, has a previous conviction or
25 convictions for a sexual offense in which the victim was a
26 child under 13 years of age, regardless of whether any such
27 previous conviction occurred on, before or after the
28 effective date of this section.
29 Should a previous conviction be vacated and an acquittal or
30 final discharge entered subsequent to imposition of sentence
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1 under this section, the serial child molester shall have the
2 right to petition the sentencing court for reconsideration of
3 sentence if this section would not have been applicable except
4 for the conviction which was vacated.
5 (f) Application of other sentencing provisions.--Nothing in
6 this subchapter shall preclude the Commonwealth, in its
7 discretion, from proceeding under section 9714 (relating to
8 sentences for second and subsequent offenses), if applicable,
9 rather than this subchapter.
10 (g) Authority of court in sentencing.--There shall be no
11 authority in any court to impose on an offender to which this
12 section is applicable any lesser sentence than provided for in
13 this section or to place the offender on probation or to suspend
14 sentence. Sentencing guidelines promulgated by the Pennsylvania
15 Commission on Sentencing shall not supersede the mandatory
16 sentence provided in this section.
17 (h) Appeal by Commonwealth.--If a sentencing court shall
18 refuse to apply this section where applicable, the Commonwealth
19 shall have the right to appellate review of the action of the
20 sentencing court. The appellate court shall vacate the sentence
21 and remand the case to the sentencing court for the imposition
22 of a sentence in accordance with this section if it finds that
23 the sentence was imposed in violation of this section.
24 § 9799.24. Restrictions on parole or release.
25 (a) General rule.--No serial child molester shall be
26 eligible for parole or other release from total confinement
27 before the expiration of the life imprisonment term prescribed
28 by section 9799.23(a) (relating to sentencing for certain sexual
29 offense convictions) unless:
30 (1) the serial child molester qualifies for release
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1 under this section and section 9799.25 (relating to
2 treatment); or
3 (2) the department determines, on the basis of clear and
4 convincing evidence, that the serial child molester no longer
5 presents a danger to children.
6 The department shall notify the district attorney of the county
7 in which the serial child molester was sentenced pursuant to
8 section 9799.23(a), who shall have standing to be a party in the
9 determination proceeding and to appeal any adverse decision.
10 (b) Minimum period of incarceration.--A serial child
11 molester shall be ineligible for release or parole until the
12 serial child molester has been incarcerated for the minimum
13 period of imprisonment at total confinement prescribed in
14 section 9799.23(b).
15 (c) Restriction on parole.--No parole or other release shall
16 be authorized by this subchapter if, at the time of the request
17 for such parole or release, there are other reasonable grounds
18 for denying parole or release.
19 § 9799.25. Treatment.
20 (a) General rule.--In any case where parole or release is
21 based upon receiving treatment under this section, continuing
22 compliance with the requirements of this subchapter shall be a
23 condition for continued release or parole. Testosterone-lowering
24 treatment administered pursuant to this subchapter shall be
25 contingent upon a determination by the court after receiving a
26 recommendation from a court appointed medical expert that the
27 serial child molester is an appropriate candidate for treatment
28 and upon receipt of a written agreement by the serial child
29 molester to undergo treatment in accordance with this section.
30 (b) Duration of treatment.--A serial child molester
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1 receiving treatment pursuant to this section shall begin
2 testosterone-lowering treatment at least two months prior to
3 that serial child molester's release from confinement and
4 continue in treatment after release from confinement until the
5 department determines, by clear and convincing evidence, that
6 treatment is no longer necessary or appropriate.
7 (c) Failure or refusal to continue treatment.--
8 (1) If after release from confinement a serial child
9 molester subject to this section willfully fails or refuses
10 to appear for treatment as required by the department or
11 willfully fails or refuses to allow the administration of
12 treatment, the serial child molester shall be arrested and
13 returned to incarceration where the serial child molester
14 shall remain in confinement unless the serial child molester
15 subsequently becomes eligible for release pursuant to this
16 subchapter.
17 (2) In no case shall the serial child molester be
18 eligible for release for a period of at least two years
19 following incarceration pursuant to this subsection.
20 (d) Random testing of testosterone levels.--A serial child
21 molester receiving treatment pursuant to this section shall be
22 required to undergo random testing at least three times during
23 each 12-month period at the direction of the department in order
24 to determine the serial child molester's testosterone level.
25 (e) Voluntary surgical castration.--A serial child molester
26 may voluntarily choose to undergo surgical castration to
27 permanently reduce the serial child molester's testosterone
28 level as an alternative to testosterone-lowering treatment. The
29 serial child molester must also satisfy the psychotherapy and
30 polygraph examination requirements of treatment.
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1 (f) Information on treatment.--Prior to the commencement of
2 any testosterone lowering treatment or surgical castration under
3 subsection (e), the department shall inform the serial child
4 molester about the effect of treatment and any side effects that
5 may result from treatment. The serial child molester subject to
6 treatment shall acknowledge receipt of this information in
7 writing.
8 (g) Payment of treatment costs.--A serial child molester who
9 is required to undergo treatment pursuant to this section shall
10 be required to pay a reasonable fee to cover the costs of
11 providing treatment. The department, at the expense of the
12 Commonwealth, may provide for the reduction, deferral or waiver
13 of payment if the serial child molester is financially unable to
14 pay the fee.
15 (h) Conscience clause.--No State employee who is a physician
16 or other professional medical person may be compelled against
17 the employee's conscience to administer treatment under this
18 section.
19 (i) Immunity.--A physician or qualified mental health
20 professional who acts in good faith in compliance with the
21 provisions of this section shall be immune from civil or
22 criminal liability for his actions in connection with such good
23 faith compliance.
24 § 9799.26. Voluntary treatment for first offenders.
25 (a) General rule.--A person convicted of a sexual offense in
26 which the victim is a child under 16 years of age may
27 voluntarily seek and receive treatment as defined in this
28 subchapter upon release from incarceration if the department
29 determines that the person is an appropriate candidate for
30 treatment.
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1 (b) Applicability.--This section shall not apply to a serial
2 child molester.
3 § 9799.27. Regulation.
4 The department may adopt any rules, regulations and
5 guidelines necessary and proper for the administration of this
6 subchapter.
7 Section 2. This act shall take effect in 60 days.
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