PRINTER'S NO. 465
No. 454 Session of 1999
INTRODUCED BY GREENLEAF, O'PAKE, LEMMOND, WAGNER, MUSTO, SALVATORE, SCHWARTZ, SLOCUM, STOUT, THOMPSON AND TILGHMAN, FEBRUARY 23, 1999
REFERRED TO JUDICIARY, FEBRUARY 23, 1999
AN ACT 1 Establishing a civil procedure for the involuntary commitment of 2 sexually violent predators. 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 Section 1. Short title. 6 This act shall be known and may be cited as the Sexually 7 Violent Predators Act. 8 Section 2. Legislative findings. 9 The General Assembly finds that a civil involuntary 10 commitment procedure for the long-term care and treatment of 11 sexually violent predators is necessary for the following 12 reasons: 13 (1) Sexually violent predators generally have 14 personality features which are unamenable to existing mental 15 illness treatment modalities, and those features render them 16 highly likely to engage in repeat acts of predatory sexual 17 violence.
1 (2) Sexually violent predators do not have a mental 2 disease or defect that renders them appropriate for 3 involuntary treatment pursuant to the provisions of the act 4 of July 9, 1976 (P.L.817, No.143), known as the Mental Health 5 Procedures Act. 6 (3) The treatment modalities for sexually violent 7 predators are very different from the traditional modalities 8 for people appropriate for commitment under the Mental Health 9 Procedures Act. 10 (4) The involuntary commitment procedure provided for in 11 the Mental Health Procedures Act is inadequate to address the 12 risks sexually violent predators pose to society. 13 (5) The prognosis for rehabilitating sexually violent 14 predators in a prison setting is poor. 15 Section 3. Definitions. 16 The following words and phrases when used in this act shall 17 have the meanings given to them in this section unless the 18 context clearly indicates otherwise: 19 "Agency with jurisdiction." The agency which releases upon 20 lawful order or authority a person who is serving a sentence or 21 term of confinement, or is otherwise being detained. This term 22 includes the Department of Corrections or a county correctional 23 facility. 24 "Mental abnormality." A congenital or acquired condition of 25 a person that affects the emotional or volitional capacity of 26 the person in a manner that predisposes that person to the 27 commission of criminal sexual acts to a degree that makes the 28 person a menace to the health and safety of other persons. 29 "Predatory act." An act directed at a person for the primary 30 purpose of victimization. 19990S0454B0465 - 2 -
1 "Prosecuting attorney." The district attorney of the county 2 which prosecuted the case or the Attorney General if the 3 Attorney General originally prosecuted the case or if the 4 Attorney General agrees to handle the proceeding under this act 5 at the request of the district attorney. 6 "Sexually violent offense." 7 (1) Any of the following offenses that is classified as 8 a felony and involves a victim who is a minor: 9 18 Pa.C.S. § 2901 (relating to kidnapping) except by 10 a parent. 11 18 Pa.C.S. § 5902(a) (relating to prostitution and 12 related offenses). 13 18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to 14 obscene and other sexual materials and performances). 15 (2) Any of the following offenses regardless of the age 16 of the victim: 17 18 Pa.C.S. § 3121 (relating to rape). 18 18 Pa.C.S. § 3123 (relating to involuntary deviate 19 sexual intercourse). 20 18 Pa.C.S. § 3125 (relating to aggravated indecent 21 assault). 22 (3) Any of the following offenses when the offense is a 23 misdemeanor of the first degree: 24 18 Pa.C.S. § 3126 (relating to indecent assault). 25 "Sexually violent predator." A person who has been convicted 26 of a sexually violent offense or who has been charged with a 27 sexually violent offense but found to be incompetent to stand 28 trial and who is determined to be a sexually violent predator 29 under this act because of a mental abnormality or personality 30 disorder that makes the person likely to engage in predatory 19990S0454B0465 - 3 -
1 sexually violent offenses. 2 Section 4. Preliminary assessment and notice. 3 (a) Preliminary assessment by multidisciplinary team.--The 4 Department of Corrections shall establish a multidisciplinary 5 team of criminal justice and mental health experts, including 6 persons expert in the field of sexual violence or abuse, that 7 shall review available records of each person eligible for 8 release who has been convicted of a sexually violent offense or 9 who has been charged with a sexually violent offense but found 10 to be incompetent to stand trial. If the agency with 11 jurisdiction is not the Department of Corrections, the agency 12 with jurisdiction shall provide the department with the records 13 which are necessary for the review by the multidisciplinary 14 team. The multidisciplinary team shall make a preliminary 15 assessment of whether or not the person meets the definition of 16 a sexually violent predator. The multidisciplinary team shall 17 review the records and make the preliminary assessment no 18 earlier than 120 days prior to release. The multidisciplinary 19 team shall notify the Department of Corrections in writing of 20 its preliminary assessment. If the agency with jurisdiction is 21 not the Department of Corrections, the department shall forward 22 the multidisciplinary team's preliminary assessment to the 23 agency with jurisdiction, and the agency with jurisdiction shall 24 reimburse the department for its use of the multidisciplinary 25 team. For purposes of this subsection, the term "eligible for 26 release" means that the person is near the end of his maximum 27 sentence or has been granted parole. 28 (b) Notice to be given to prosecuting attorney.--If the 29 multidisciplinary team's preliminary assessment is that the 30 person meets the definition of a sexually violent predator, the 19990S0454B0465 - 4 -
1 agency with jurisdiction shall give written notice of the 2 preliminary assessment to the prosecuting attorney 90 days prior 3 to: 4 (1) The anticipated release from confinement of a person 5 who has been convicted of a sexually violent offense, except 6 that in the case of a person who is returned to prison for no 7 more than 90 days as a result of revocation of post-release 8 supervision, written notice shall be given as soon as 9 practicable following the person's return to prison. 10 (2) The release of a person who has been charged with a 11 sexually violent offense but who has been found to be 12 incompetent to stand trial. 13 (c) Information to be provided to prosecuting attorney.--The 14 agency with jurisdiction shall provide the prosecuting attorney 15 with the following information: 16 (1) The person's name, identifying factors, anticipated 17 future residence and offense history. 18 (2) Documentation of institutional adjustment and any 19 treatment received. 20 (d) Notice to authorizing agency or official.--At the same 21 time that the agency with jurisdiction gives notice to the 22 prosecuting attorney, the agency with jurisdiction shall, if 23 applicable, provide written notice to the agency or official who 24 authorized the person's parole. This notice shall serve to 25 suspend the parole authorization until any proceedings under 26 this act have been concluded, including any period of 27 involuntary commitment. 28 Section 5. Probable cause hearing. 29 (a) Petition.--Within 75 days after receiving notice from 30 the agency with jurisdiction, the prosecuting attorney may file 19990S0454B0465 - 5 -
1 a petition for civil commitment alleging that the person is a 2 sexually violent predator and stating sufficient facts to 3 support the allegation. 4 (b) Notice.--Within 72 hours after a petition is filed, the 5 court shall provide the person with notice of and an opportunity 6 to appear in person at a hearing to contest probable cause as to 7 whether the person is a sexually violent predator. 8 (c) Hearing.--At the probable cause hearing, the court shall 9 verify the person's identity and determine whether probable 10 cause exists to believe that the person is a sexually violent 11 predator. The prosecuting attorney may rely upon the petition 12 and supplement the petition with additional documentary evidence 13 or live testimony. The person shall have the following rights in 14 addition to rights specified in this act: 15 (1) To be represented by counsel. 16 (2) To present evidence on the person's behalf. 17 (3) To cross-examine witnesses who testify against the 18 person. 19 (4) To view and copy all petitions and reports in the 20 court file. 21 (d) Transfer to appropriate facility.--If the court 22 determines that there is probable cause, the court shall direct 23 that the person be transferred to an appropriate secure 24 facility, including, but not limited to, a county jail, for an 25 evaluation as to whether the person is a sexually violent 26 predator. The person shall not be held in a regional forensic 27 unit at a State hospital. The evaluation shall be conducted by a 28 professionally qualified expert in the field of sexual violence 29 or abuse. In no event shall the person be released from 30 confinement prior to trial. 19990S0454B0465 - 6 -
1 (e) Notice to agency with jurisdiction.--If the prosecuting 2 attorney chooses not to file a petition pursuant to subsection 3 (a) or, following the hearing, if the court finds that probable 4 cause does not exist, the prosecuting attorney shall provide 5 written notice of the decision to the agency with jurisdiction 6 which, in turn, shall, if applicable, provide written notice to 7 the agency or official who authorized parole, and the person's 8 release or parole may proceed. 9 Section 6. Trial, counsel and examination. 10 (a) Time of trial.--Within 60 days after the completion of 11 the probable cause hearing, the court shall conduct a trial to 12 determine whether the person is a sexually violent predator. The 13 trial may be continued upon the request of either party and a 14 showing of good cause or by the court on its own motion in the 15 due administration of justice and when the person who is the 16 subject of the proceeding will not be substantially prejudiced. 17 (b) Jury trial.--The person who is the subject of the 18 proceeding or the prosecuting attorney shall have the right to 19 demand that the trial be before a jury. The demand for the trial 20 to be before a jury shall be filed in writing at least four days 21 prior to trial. The number and selection of jurors shall be as 22 provided by law for civil cases and the Pennsylvania Rules of 23 Civil Procedure. If no demand is made, the trial shall be held 24 before the judge. 25 (c) Counsel.--At all stages of the proceedings under this 26 act, any person who is subject to this act shall be entitled to 27 the assistance of counsel and, if the person is indigent, the 28 court shall appoint counsel to assist the person. 29 (d) Examination.--Whenever any person is subjected to an 30 examination under this act, the person may retain professionally 19990S0454B0465 - 7 -
1 qualified experts in the field of sexual violence or abuse to 2 perform an examination of the person on the person's behalf. 3 When the person wishes to be examined by a qualified expert of 4 the person's own choice, the examiner shall be permitted to have 5 reasonable access to the person for the purpose of the 6 examination, as well as to relevant medical and psychological 7 records and reports. 8 (e) Indigent persons.--In the case of a person who is 9 indigent, the court, upon the person's request, shall determine 10 whether the services are necessary and reasonable compensation 11 for the services. The court shall assist the person in obtaining 12 a professionally qualified expert in the field of sexual 13 violence or abuse to perform an examination or participate in 14 the trial on the person's behalf. The court shall approve 15 payment for the services upon the filing of a certified claim 16 for compensation supported by a written statement specifying the 17 time expended, services rendered, expenses incurred on behalf of 18 the person and compensation received in the same case or for the 19 same services from any other source. 20 Section 7. Determination and commitment. 21 (a) Determination.--The court or jury shall determine 22 whether, beyond a reasonable doubt, the person is a sexually 23 violent predator. If the determination that the person is a 24 sexually violent predator is made by a jury, the determination 25 shall be by unanimous verdict of the jury. 26 (b) Appeal.--The determination by the court or jury may be 27 appealed. 28 (c) Commitment.--If the court or jury determines that the 29 person is a sexually violent predator, the person shall be 30 committed to the custody of the Department of Public Welfare for 19990S0454B0465 - 8 -
1 control, care and treatment until the person's mental 2 abnormality or personality disorder has so changed that the 3 person is safe to be at large. The control, care and treatment 4 shall be provided at a facility operated by the department 5 subject to the provisions of subsection (e). The person shall 6 not be held in a regional forensic unit at a State hospital. The 7 court shall provide written notice of the commitment to the 8 agency with jurisdiction which in turn shall, if applicable, 9 provide written notice to the agency or official who authorized 10 the person's parole. 11 (d) Secure facility.--At all times, persons committed for 12 control, care and treatment by the Department of Public Welfare 13 pursuant to this act shall be kept in a secure facility and 14 shall be segregated at all times from any other patient under 15 the supervision of the department. The Department of Public 16 Welfare shall be responsible for all costs relating to the 17 control, care and treatment of persons committed to the 18 department's custody pursuant to the provisions of this act. 19 (e) Interagency agreements.--The Department of Public 20 Welfare is authorized to enter into an interagency agreement 21 with the Department of Corrections for the confinement of 22 persons committed under this act. The persons who are in the 23 confinement of the Department of Corrections pursuant to an 24 interagency agreement shall be housed and managed separately 25 from offenders in the custody of the Department of Corrections 26 and, except for occasional instances of supervised incidental 27 contact, shall be segregated from the offenders. 28 (f) Release.--If the court or jury is not satisfied beyond a 29 reasonable doubt that the person is a sexually violent predator, 30 the court shall provide written notice to the agency with 19990S0454B0465 - 9 -
1 jurisdiction which in turn shall, if applicable, provide written 2 notice to the agency or official who authorized the person's 3 parole, and the person's release or parole may proceed. 4 (g) Mistrial.--Upon a mistrial, the court shall direct that 5 the person be held at an appropriate secure facility, including, 6 but not limited to, a county jail, until another trial is 7 conducted. The person shall not be held at a regional forensic 8 unit at a State hospital. Any subsequent trial following a 9 mistrial shall be held within 90 days of the previous trial, 10 unless the subsequent trial is continued as provided for in 11 section 6(a). 12 Section 8. Incompetent to stand trial. 13 (a) Hearing.--If the person who has been charged with a 14 sexually violent offense has been found to be incompetent to 15 stand trial and is about to be released, and the person's 16 involuntary commitment is sought pursuant to this act, the court 17 shall first hear evidence and determine whether the person did 18 commit the act or acts charged. The hearing on this issue must 19 comply with all the procedures specified in sections 6 and 7. 20 (b) Evidence; constitutional rights.--The rules of evidence 21 applicable in criminal cases shall apply, and all constitutional 22 rights available to defendants at criminal trials, other than 23 the right not to be tried while incompetent, shall apply. 24 (c) Findings.--After hearing evidence on this issue, the 25 court shall make specific findings on whether the person did 26 commit the act or acts charged, the extent to which the person's 27 incompetence or developmental disability affected the outcome of 28 the hearing, including its effect on the person's ability to 29 consult with and assist counsel and to testify on the person's 30 own behalf, the extent to which the evidence could be 19990S0454B0465 - 10 -
1 reconstructed without the assistance of the person and the 2 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 did commit 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. Detention and commitment. 10 The involuntary detention and commitment of persons under 11 this act shall conform to constitutional requirements for 12 control, care and treatment. 13 Section 10. Annual examinations; procedure. 14 (a) Examination.--Each person committed under this act shall 15 have a current examination of the person's mental condition once 16 each year. The person may retain or, if the person is indigent 17 and so requests, the court may appoint a professionally 18 qualified expert in the field of sexual violence or abuse to 19 examine the person, and the expert shall have access to all 20 records concerning the person. 21 (b) Report to the court.--The yearly report shall be 22 provided to the court that committed the person under this act. 23 The court shall conduct an annual review of the status of the 24 committed person. Nothing contained in this act shall prohibit 25 the person from otherwise petitioning the court for release at 26 this hearing. The Department of Public Welfare shall provide the 27 committed person with an annual written notice of the person's 28 right to petition the court for release over the department's 29 objection. The notice shall contain a waiver of rights. The 30 Department of Public Welfare shall forward the notice and waiver 19990S0454B0465 - 11 -
1 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 discharged, then the court shall set a 11 hearing on the issue. 12 (e) Hearing.--At the hearing, the committed person shall be 13 entitled to be present and entitled to the benefit of all 14 constitutional protections that were afforded the person at the 15 initial commitment proceeding. The prosecuting attorney shall 16 represent the Commonwealth and shall have the right to a jury 17 trial and to have the committed person evaluated by 18 professionally qualified experts in the field of sexual violence 19 or abuse. The committed person shall also have the right to have 20 professional experts in the field of sexual violence or abuse 21 evaluate the person on the person's behalf, and the court shall 22 appoint an expert if the person is indigent and requests an 23 appointment. 24 (f) Burden of proof.--The burden of proof at the hearing 25 shall be upon the prosecuting attorney to show beyond a 26 reasonable doubt that the committed person's mental abnormality 27 or personality disorder remains such that the person is not safe 28 to be at large and, if released, is likely to engage in acts of 29 sexual violence. 30 Section 11. Petition for release; procedure. 19990S0454B0465 - 12 -
1 (a) Department authorization.--If the Department of Public 2 Welfare determines that the person's mental abnormality or 3 personality disorder has so changed that the person is not 4 likely to commit predatory acts of sexual violence if released, 5 the department shall authorize the person to petition the court 6 for release. 7 (b) Petition.--The petition shall be served upon the court 8 and the prosecuting attorney. The court, upon receipt of the 9 petition for release, shall order a hearing within 30 days. 10 (c) Hearing.--The prosecuting attorney shall represent the 11 Commonwealth and shall have the right to have the committed 12 person examined by a professionally qualified expert in the 13 field of sexual violence or abuse. The hearing shall be held 14 before a jury if demanded by either the committed person or the 15 prosecuting attorney. 16 (d) Burden of proof.--The burden of proof shall be upon the 17 prosecuting attorney to show beyond a reasonable doubt that the 18 committed person's mental abnormality or personality disorder 19 remains such that the person is not safe to be at large and, if 20 released, is likely to engage in acts of sexual violence. 21 (e) Subsequent petitions.--Nothing in this act shall 22 prohibit a person from filing a petition for release pursuant to 23 this act. However, if a person has previously filed a petition 24 for release and the court has determined either upon review of 25 the petition or following a hearing that the person's condition 26 had not changed so that the person was safe to be at large, then 27 the court shall deny the subsequent petition unless the petition 28 contains facts upon which the court could find the condition of 29 the person had so changed that a hearing was warranted. Upon 30 receipt of a petition from a committed person, the court shall 19990S0454B0465 - 13 -
1 endeavor whenever possible to review the petition and determine 2 if the petition is based upon frivolous grounds and, if so, 3 shall deny the petition without a hearing. 4 (f) Notice to agency with jurisdiction.--If a person is 5 eligible for release from involuntary commitment pursuant to 6 section 10 or this section, the Department of Public Welfare 7 shall provide written notice to the agency with jurisdiction 8 which in turn shall, if applicable, provide written notice to 9 the agency or official who authorized the person's parole. If 10 within 30 days of the notice to the agency with jurisdiction or 11 the agency or official who authorized the person's parole does 12 not respond to the Department of Public Welfare with a written 13 notice objecting to the release, the department may proceed with 14 the person's release from involuntary commitment. If the agency 15 with jurisdiction or the agency or official who authorized the 16 person's parole does respond within 30 days objecting to the 17 person's release because the person has time remaining to serve 18 in confinement or on parole, the person shall be transferred to 19 the agency with jurisdiction to complete the sentence of 20 confinement or to be paroled. 21 (g) Notice to victims.--In addition to any other information 22 required to be released under this act, prior to the release of 23 a person committed under this act, the Department of Public 24 Welfare shall give written notice of the release to the Office 25 of Victim Advocate, which shall provide written notice under the 26 act of March 21, 1995 (1st Sp.Sess., P.L.980, No.8), known as 27 the Victim Advocate Law, to any victim of the person's 28 activities or crime who is alive and whose address is known to 29 the Pennsylvania Board of Probation and Parole's Office of 30 Victim Advocate or, if the victim is deceased, to the victim's 19990S0454B0465 - 14 -
1 family if the family's address is known to the Office of Victim 2 Advocate. This notice requirement shall not apply to any victim 3 or victim's family that has notified the Office of Victim 4 Advocate that they do not wish to be notified of the release. 5 Failure to notify shall not be a reason for postponement of 6 release. Nothing in this subsection shall create a cause of 7 action against the Commonwealth or any employee of the 8 Commonwealth acting within the scope of the employee's 9 employment as a result of the failure to notify under this act. 10 Section 12. Records. 11 (a) Confidentiality.--In order to protect the public, 12 relevant information and records which are otherwise 13 confidential or privileged shall be released to the agency with 14 jurisdiction or, if different, to the Department of Corrections 15 or the prosecuting attorney for the purpose of meeting the 16 notice requirement of section 4 and determining whether a person 17 is or continues to be a sexually violent predator. 18 (b) Court order.--Any psychological reports, drug and 19 alcohol reports, treatment records, reports of the diagnostic 20 center, medical records or victim impact statements which have 21 been submitted to the court or admitted into evidence under this 22 act shall be part of the record but shall be sealed and opened 23 only on order of the court. 24 Section 13. Regulations. 25 The Department of Corrections, the Department of Public 26 Welfare and the Pennsylvania Board of Probation and Parole may 27 issue regulations necessary for the implementation of this act. 28 Section 14. Effective date. 29 This act shall take effect as follows: 30 (1) Section 13 and this section shall take effect 19990S0454B0465 - 15 -
1 immediately. 2 (2) The remainder of this act shall take effect in 180 3 days. B1L42JS/19990S0454B0465 - 16 -