PRINTER'S NO. 751
No. 657 Session of 2005
INTRODUCED BY ORIE, BOSCOLA, TARTAGLIONE, VANCE, COSTA, KITCHEN,
O'PAKE, RAFFERTY, LEMMOND, STACK, PIPPY, GREENLEAF, WOZNIAK
AND MUSTO, APRIL 28, 2005
REFERRED TO JUDICIARY, APRIL 28, 2005
AN ACT
1 Establishing a civil procedure for the involuntary out-patient
2 commitment of sexually violent predators with the
3 installation of a permanent tracking device upon their
4 person.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Sexually
9 Violent Predators Act.
10 Section 2. Legislative findings.
11 The General Assembly finds that a civil involuntary
12 commitment procedure for the long-term care and treatment of
13 sexually violent predators is necessary for the following
14 reasons:
15 (1) Sexually violent predators generally have
16 personality features which are not amenable to existing
17 mental illness treatment modalities, and those features
18 render them highly likely to engage in repeat acts of
1 predatory sexual violence.
2 (2) Sexually violent predators do not have a mental
3 disease or defect that renders them appropriate for
4 involuntary treatment pursuant to the provisions of the act
5 of July 9, 1976 (P.L.817, No.143), known as the Mental Health
6 Procedures Act.
7 (3) The treatment modalities for sexually violent
8 predators are very different from the traditional modalities
9 for people appropriate for commitment under the Mental Health
10 Procedures Act.
11 (4) The involuntary commitment procedure provided for in
12 the Mental Health Procedures Act is inadequate to address the
13 risks sexually violent predators pose to society.
14 (5) The prognosis for rehabilitating sexually violent
15 predators in a prison setting is poor.
16 Section 3. Definitions.
17 The following words and phrases when used in this act shall
18 have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Agency with jurisdiction." An agency which releases upon
21 lawful order or authority a person who is serving a sentence or
22 term of confinement, or is otherwise being detained. This term
23 includes the Department of Corrections or a county correctional
24 facility.
25 "Mental abnormality." A congenital or acquired condition of
26 a person that affects the emotional or volitional capacity of
27 the person in a manner that predisposes that person to the
28 commission of criminal sexual acts to a degree that makes the
29 person a menace to the health and safety of other persons.
30 "Predatory act." An act directed at a person for the primary
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1 purpose of victimization.
2 "Prosecuting attorney." The district attorney of a county
3 which prosecutes a case or the Attorney General, if either the
4 Attorney General originally prosecutes a case, or agrees to
5 handle a proceeding under this act at the request of the
6 district attorney.
7 "Sexually violent offense."
8 (1) Any of the following offenses that is classified as
9 a felony and involves a victim who is a minor:
10 18 Pa.C.S. § 2901 (relating to kidnapping) except by
11 a parent.
12 18 Pa.C.S. § 5902(a) (relating to prostitution and
13 related offenses).
14 18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to
15 obscene and other sexual materials and performances).
16 (2) Any of the following offenses regardless of the age
17 of the victim:
18 18 Pa.C.S. § 3121 (relating to rape).
19 18 Pa.C.S. § 3123 (relating to involuntary deviate
20 sexual intercourse).
21 18 Pa.C.S. § 3125 (relating to aggravated indecent
22 assault).
23 (3) Any of the following offenses when the offense is a
24 misdemeanor of the first degree:
25 18 Pa.C.S. § 3126 (relating to indecent assault).
26 "Sexually violent predator." A person who has been convicted
27 of a sexually violent offense or who has been charged with a
28 sexually violent offense but found to be incompetent to stand
29 trial and who is determined to be a sexually violent predator
30 under this act because of:
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1 (1) a mental abnormality or personality disorder that
2 makes the person likely to engage in predatory sexually
3 violent offenses; and
4 (2) an inability or serious difficulty in controlling
5 behavior.
6 "Tracking service." An electronic monitoring service, global
7 positioning satellite service or other appropriate technological
8 service that is designed to monitor a person's physical location
9 24 hours a day, 7 days a week.
10 Section 4. Preliminary assessment and notice.
11 (a) Preliminary assessment by multidisciplinary team.--
12 (1) The Department of Corrections shall establish a
13 multidisciplinary team of criminal justice and mental health
14 experts, including persons expert in the field of sexual
15 violence or abuse, that shall review available records of
16 each person eligible for release who has been convicted of a
17 sexually violent offense or who has been charged with a
18 sexually violent offense but found to be incompetent to stand
19 trial. If the agency with jurisdiction is not the Department
20 of Corrections, the agency with jurisdiction shall provide
21 the department with the records which are necessary for the
22 review by the multidisciplinary team.
23 (2) The multidisciplinary team shall make a preliminary
24 assessment of whether or not the person meets the definition
25 of a sexually violent predator. The multidisciplinary team
26 shall review the records and make the preliminary assessment
27 no earlier than 120 days prior to release. The
28 multidisciplinary team shall notify the Department of
29 Corrections in writing of its preliminary assessment. If the
30 agency with jurisdiction is not the Department of
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1 Corrections, the department shall forward the
2 multidisciplinary team's preliminary assessment to the agency
3 with jurisdiction, and the agency with jurisdiction shall
4 reimburse the department for its use of the multidisciplinary
5 team.
6 (3) For purposes of this subsection, the term "eligible
7 for release" means that the person is near the end of his
8 maximum sentence or has been granted parole.
9 (b) Notice to be given to prosecuting attorney.--If the
10 multidisciplinary team's preliminary assessment is that the
11 person meets the definition of a sexually violent predator, the
12 agency with jurisdiction shall give written notice of the
13 preliminary assessment to the prosecuting attorney 90 days prior
14 to:
15 (1) The anticipated release from confinement of a person
16 who has been convicted of a sexually violent offense, except
17 that in the case of a person who is returned to prison for no
18 more than 90 days as a result of revocation of post-release
19 supervision, written notice shall be given as soon as
20 practicable following the person's return to prison.
21 (2) The release of a person who has been charged with a
22 sexually violent offense but who has been found to be
23 incompetent to stand trial.
24 (c) Information to be provided to prosecuting attorney.--The
25 agency with jurisdiction shall provide the prosecuting attorney
26 with the following information:
27 (1) The person's name, identifying factors, anticipated
28 future residence and offense history.
29 (2) Documentation of institutional adjustment and any
30 treatment received.
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1 (d) Notice to authorizing agency or official.--At the same
2 time that the agency with jurisdiction gives notice to the
3 prosecuting attorney, the agency with jurisdiction shall, if
4 applicable, provide written notice to the agency or official who
5 authorized the person's parole. This notice shall serve to
6 suspend the parole authorization until any proceedings under
7 this act have been concluded, including any period of
8 involuntary commitment.
9 Section 5. Probable cause hearing.
10 (a) Petition.--Within 75 days after receiving notice from
11 the agency with jurisdiction, the prosecuting attorney may file
12 a petition for civil commitment alleging that the person is a
13 sexually violent predator and stating sufficient facts to
14 support the allegation.
15 (b) Notice.--Within 72 hours after a petition is filed, the
16 court shall provide the person with notice of and an opportunity
17 to appear in person at a hearing to contest probable cause as to
18 whether the person is a sexually violent predator.
19 (c) Hearing.--
20 (1) At the probable cause hearing, the court shall
21 verify the person's identity and determine whether probable
22 cause exists to believe that the person is a sexually violent
23 predator. The prosecuting attorney may rely upon the petition
24 and supplement the petition with additional documentary
25 evidence or live testimony.
26 (2) The person shall have the following rights in
27 addition to rights specified in this act:
28 (i) To be represented by counsel.
29 (ii) To present evidence on the person's behalf.
30 (iii) To cross-examine witnesses who testify against
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1 the person.
2 (iv) To view and copy all petitions and reports in
3 the court file.
4 (d) Transfer to appropriate facility.--
5 (1) If the court determines that there is probable
6 cause, the court shall direct that the person be transferred
7 to an appropriate secure facility, including, but not limited
8 to, a county jail, for an evaluation as to whether the person
9 is a sexually violent predator. The person shall not be held
10 in a regional forensic unit at a State hospital.
11 (2) The evaluation shall be conducted by a
12 professionally qualified expert in the field of sexual
13 violence or abuse.
14 (3) In no event shall the person be released from
15 confinement prior to trial.
16 (e) Notice to agency with jurisdiction.--If the prosecuting
17 attorney chooses not to file a petition pursuant to subsection
18 (a) or, following the hearing, if the court finds that probable
19 cause does not exist, the prosecuting attorney shall provide
20 written notice of the decision to the agency with jurisdiction
21 which, in turn, shall, if applicable, provide written notice to
22 the agency or official who authorized parole, and the person's
23 release or parole may proceed.
24 Section 6. Trial, counsel and examination.
25 (a) Time of trial.--Within 60 days after the completion of
26 the probable cause hearing, the court shall conduct a trial to
27 determine whether the person is a sexually violent predator. The
28 trial may be continued:
29 (1) upon the request of either party and a showing of
30 good cause; or
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1 (2) by the court on its own motion in the due
2 administration of justice and when the person who is the
3 subject of the proceeding will not be substantially
4 prejudiced.
5 (b) Jury trial.--The person who is the subject of the
6 proceeding or the prosecuting attorney shall have the right to
7 demand that the trial be before a jury. The demand for the trial
8 to be before a jury shall be filed in writing at least four days
9 prior to trial. The number and selection of jurors shall be as
10 provided by law for civil cases and the Pennsylvania Rules of
11 Civil Procedure. If no demand is made, the trial shall be held
12 before the judge.
13 (c) Counsel.--At all stages of the proceedings under this
14 act, any person who is subject to this act shall be entitled to
15 the assistance of counsel and, if the person is indigent, the
16 court shall appoint counsel to assist the person.
17 (d) Examination.--
18 (1) Whenever any person is subjected to an examination
19 under this act, the person may retain professionally
20 qualified experts in the field of sexual violence or abuse to
21 perform an examination of the person on the person's behalf.
22 (2) When the person wishes to be examined by a qualified
23 expert of the person's own choice, the examiner shall be
24 permitted to have reasonable access to the person for the
25 purpose of the examination, as well as to relevant medical
26 and psychological records and reports.
27 (e) Indigent persons.--
28 (1) In the case of a person who is indigent, the court,
29 upon the person's request, shall determine whether the
30 services are necessary and reasonable compensation for the
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1 services. The court shall assist the person in obtaining a
2 professionally qualified expert in the field of sexual
3 violence or abuse to perform an examination or participate in
4 the trial on the person's behalf.
5 (2) The court shall approve payment for the services
6 upon the filing of a certified claim for compensation
7 supported by a written statement specifying the time
8 expended, services rendered, expenses incurred on behalf of
9 the person and compensation received in the same case or for
10 the same services from any other source.
11 Section 7. Determination and out-patient civil commitment.
12 (a) Determination.--The court or jury shall determine
13 whether, beyond a reasonable doubt, the person is a sexually
14 violent predator. If the determination that the person is a
15 sexually violent predator is made by a jury, the determination
16 shall be by unanimous verdict of the jury.
17 (b) Appeal.--The determination by the court or jury may be
18 appealed.
19 (c) Out-patient civil commitment.--
20 (1) If the court or jury determines that the person is a
21 sexually violent predator, the person shall be committed for
22 out-patient treatment and supervision to be coordinated by
23 the Department of Public Welfare until the person's mental
24 abnormality or personality disorder has so changed that the
25 person is safe to be at large. The commitment order shall be
26 effective immediately upon entry of the order, except that
27 the out-patient treatment and supervision shall begin on the
28 person's parole or release date from a secure correctional
29 facility or discharge from a State hospital.
30 (2) The court shall provide written notice of the out-
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1 patient commitment to the agency with jurisdiction which in
2 turn shall, if applicable, provide written notice to the
3 agency or official who authorized the person's parole or
4 release.
5 (d) Out-patient commitment requirements.--
6 (1) Before entering an order directing a person's out-
7 patient civil commitment, the judge shall impose on the
8 person requirements necessary to ensure the person's
9 compliance with treatment and supervision, and to protect the
10 community. The requirements shall include:
11 (i) Requiring the person to reside in a particular
12 location.
13 (ii) Prohibiting the person from contacting a former
14 victim or any potential future victim.
15 (iii) Prohibiting the person from using alcohol,
16 inhalants or any type of controlled substance, except as
17 prescribed by a physician after notice to and the consent
18 of the Department of Public Welfare.
19 (iv) Requiring the person to participate in and
20 comply with a specific course of treatment.
21 (v) Requiring the person to:
22 (A) Submit to 24-hour-per-day, 7-day-per-week
23 monitored tracking of the location of his physical
24 person under a particular type of tracking service
25 and to any other additional supervision deemed
26 appropriate by the Department of Public Welfare.
27 (B) Refrain from tampering with, altering,
28 modifying, obstructing or manipulating the tracking
29 device by any means or method.
30 (vi) Prohibiting the person from changing his
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1 residence, or moving out of the Commonwealth, without
2 prior authorization from the judge.
3 (vii) If determined appropriate by the judge,
4 establishing a child safety zone around the residence of
5 the person, according to procedures developed by the
6 Department of Public Welfare, in consultation with the
7 Pennsylvania State Police or local police agency with
8 jurisdiction within the municipality in which the person
9 resides.
10 (viii) Requiring the person to notify his case
11 manager within the Department of Public Welfare within 24
12 hours of any change in his status which affects the plan
13 for his treatment and supervision, including a change in
14 his physical health or job status, and including his
15 incarceration.
16 (ix) Any other requirements determined by the judge
17 to be material, pertinent and necessary.
18 (2) The Department of Public Welfare shall be
19 responsible for all costs relating to the treatment and
20 supervision of persons committed pursuant to the provisions
21 of this act.
22 (e) Release.--If the court or jury is not satisfied beyond a
23 reasonable doubt that the person is a sexually violent predator,
24 the court shall provide written notice to the agency with
25 jurisdiction which in turn shall, if applicable, provide written
26 notice to the agency or official who authorized the person's
27 parole, and the person's release or parole may proceed.
28 (f) Mistrial.--
29 (1) Upon a mistrial, the court shall direct that the
30 person be held at an appropriate secure facility, including,
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1 but not limited to, a county jail, until another trial is
2 conducted. The person shall not be held at a regional
3 forensic unit at a State hospital.
4 (2) Any subsequent trial following a mistrial shall be
5 held within 90 days of the previous trial, unless the
6 subsequent trial is continued as provided for in section 6(a)
7 (relating to trial, counsel and examination).
8 Section 8. Incompetent to stand trial.
9 (a) Hearing.--If the person who has been charged with a
10 sexually violent offense has been found to be incompetent to
11 stand trial and is about to be released, and the person's
12 involuntary out-patient commitment is sought pursuant to this
13 act, the court shall first hear evidence and determine whether
14 the person did commit the act or acts charged. The hearing on
15 this issue must comply with all procedures specified in sections
16 6 (relating to trial, counsel and examination) and 7 (relating
17 to determination and out-patient civil commitment).
18 (b) Evidence; constitutional rights.--The rules of evidence
19 applicable in criminal cases shall apply, and all constitutional
20 rights available to defendants at criminal trials, other than
21 the right not to be tried while incompetent, shall apply.
22 (c) Findings.--After hearing evidence on this issue, the
23 court shall make specific findings:
24 (1) On whether the person committed the act or acts
25 charged.
26 (2) The extent to which the person's incompetence or
27 developmental disability affected the outcome of the hearing,
28 including its effect on the person's ability to consult with
29 and assist counsel and to testify on the person's own behalf.
30 (3) The extent to which the evidence could be
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1 reconstructed without the assistance of the person.
2 (4) The strength of the prosecution's case.
3 (d) Final order.--If after the conclusion of the hearing on
4 this issue the court finds beyond a reasonable doubt that the
5 person committed the act or acts charged, the court shall enter
6 a final order, appealable by the person, on that issue and may
7 proceed to consider whether the person should be committed
8 pursuant to this act.
9 Section 9. Annual examinations; procedure.
10 (a) Examination.--
11 (1) Each person committed for treatment and supervision
12 under this act shall have a current examination of the
13 person's mental condition once each year.
14 (2) The person may retain or, if the person is indigent
15 and so requests, the court may appoint a professionally
16 qualified expert in the field of sexual violence or abuse to
17 examine the person, and the expert shall have access to all
18 records concerning the person.
19 (b) Report to the court.--
20 (1) The yearly report shall be provided to the court
21 that committed the person under this act. The court shall
22 conduct an annual review of the status of the committed
23 person. Nothing contained in this act shall prohibit the
24 person from otherwise petitioning the court for release at
25 this hearing.
26 (2) The Department of Public Welfare shall provide the
27 committed person with an annual written notice of the
28 person's right to petition the court for release over the
29 department's objection. The notice shall contain a waiver of
30 rights. The Department of Public Welfare shall forward the
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1 notice and waiver form to the court with the annual report.
2 (c) Counsel.--The committed person shall have the right to
3 have an attorney represent the person at the hearing, but the
4 committed person shall not have the right to be present at the
5 hearing.
6 (d) Probable cause.--If the court at the hearing determines
7 that probable cause exists to believe that the person's mental
8 abnormality or personality disorder has so changed that the
9 person is safe to be at large and will not engage in acts of
10 sexual violence if released from the terms and conditions of his
11 out-patient commitment and supervision, then the court shall set
12 a hearing on the issue.
13 (e) Hearing.--
14 (1) At the hearing, the committed person shall be
15 entitled to be present and entitled to the benefit of all
16 constitutional protections that were afforded the person at
17 the initial commitment proceeding.
18 (2) The prosecuting attorney shall represent the
19 Commonwealth and shall have the right to a jury trial and to
20 have the committed person evaluated by professionally
21 qualified experts in the field of sexual violence or abuse.
22 (3) The committed person shall have the right to have
23 professional experts in the field of sexual violence or abuse
24 evaluate the person on the person's behalf, and the court
25 shall appoint an expert if the person is indigent and
26 requests an appointment.
27 (f) Burden of proof.--The burden of proof at the hearing
28 shall be upon the prosecuting attorney to show beyond a
29 reasonable doubt that the committed person's mental abnormality
30 or personality disorder remains such that the person is not safe
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1 to be at large without further treatment and supervision and is
2 likely to engage in acts of sexual violence.
3 Section 10. Petition for release and procedure.
4 (a) Department authorization.--If the Department of Public
5 Welfare determines that the person's mental abnormality or
6 personality disorder has so changed that the person is not
7 likely to commit predatory acts of sexual violence if released
8 from the terms of monitored treatment and supervision, the
9 department shall authorize the person to petition the court for
10 release.
11 (b) Petition.--The petition shall be served upon the court
12 and the prosecuting attorney. The court, upon receipt of the
13 petition for release, shall order a hearing within 30 days.
14 (c) Hearing.--The prosecuting attorney shall represent the
15 Commonwealth and shall have the right to have the committed
16 person examined by a professionally qualified expert in the
17 field of sexual violence or abuse. The hearing shall be held
18 before a jury if demanded by either the committed person or the
19 prosecuting attorney.
20 (d) Burden of proof.--The burden of proof shall be upon the
21 prosecuting attorney to show beyond a reasonable doubt that the
22 committed person's mental abnormality or personality disorder
23 remains such that the person is not safe to be at large without
24 continuing the terms of treatment and supervision and, if
25 released, is likely to engage in acts of sexual violence.
26 (e) Subsequent petitions.--
27 (1) Except as otherwise provided for in paragraph (2),
28 nothing in this act shall prohibit a person from filing a
29 petition for release pursuant to this act.
30 (2) If a person has previously filed a petition for
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1 release and the court has determined either upon review of
2 the petition or following a hearing that the person's
3 condition had not changed so that the person was safe to be
4 at large, then the court shall deny the subsequent petition
5 unless the petition contains facts upon which the court could
6 find the condition of the person had so changed that a
7 hearing was warranted.
8 (3) Upon receipt of a petition from a committed person,
9 the court shall endeavor whenever possible to review the
10 petition and determine if the petition is based upon
11 frivolous grounds and, if so, shall deny the petition without
12 a hearing.
13 (f) Notice to agency with jurisdiction.--
14 (1) If a person is eligible for release from involuntary
15 out-patient commitment pursuant to section 9 (relating to
16 annual examinations; procedure) or this section, the
17 Department of Public Welfare shall provide written notice to
18 the agency with jurisdiction which in turn shall, if
19 applicable, provide written notice to the agency or official
20 who authorized the person's parole.
21 (2) If within 30 days of the notice to the agency with
22 jurisdiction or the agency or official who authorized the
23 person's parole does not respond to the Department of Public
24 Welfare with a written notice objecting to the release, the
25 department may proceed with the person's release from
26 involuntary out-patient commitment.
27 (g) Notice to victims.--
28 (1) In addition to any other information required to be
29 released under this act, prior to the release of a person
30 committed to out-patient treatment and supervision under this
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1 act, the Department of Public Welfare shall give written
2 notice of the release to the Office of Victim Advocate, which
3 shall provide written notice under the act of November 24,
4 1998 (P.L.882, No.111), known as the Crime Victims Act, to
5 any victim of the person's activities or crime who is alive
6 and whose address is known to the Pennsylvania Board of
7 Probation and Parole's Office of Victim Advocate or, if the
8 victim is deceased, to the victim's family if the family's
9 address is known to the Office of Victim Advocate.
10 (2) The notice required by this section shall not apply
11 to any victim or victim's family that has notified the Office
12 of Victim Advocate that they do not wish to be notified of
13 the release. Failure to notify shall not be a reason for
14 postponement of release.
15 (3) Nothing in this subsection shall be construed as
16 establishing a cause of action against the Commonwealth or
17 any employee of the Commonwealth acting within the scope of
18 the employee's employment as a result of the failure to
19 notify under this act.
20 Section 11. Records.
21 (a) Confidentiality.--In order to protect the public,
22 relevant information and records which are otherwise
23 confidential or privileged shall be released to the agency with
24 jurisdiction or, if different, to the Department of Corrections
25 or the prosecuting attorney for the purpose of meeting the
26 notice requirement of section 4 (relating to preliminary
27 assessment and notice) and determining whether a person is or
28 continues to be a sexually violent predator.
29 (b) Court order.--Any psychological reports, drug and
30 alcohol reports, treatment records, reports of the diagnostic
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1 center, medical records or victim impact statements which have
2 been submitted to the court or admitted into evidence under this
3 act shall be part of the record but shall be sealed and opened
4 only on order of the court.
5 Section 12. Regulations.
6 The Department of Corrections, the Department of Public
7 Welfare and the Pennsylvania Board of Probation and Parole may
8 issue regulations necessary for the implementation of this act.
9 Section 13. Effective date.
10 This act shall take effect as follows:
11 (1) Section 12 and this section shall take effect
12 immediately.
13 (2) The remainder of this act shall take effect in 180
14 days.
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