PRINTER'S NO. 1400
No. 1223 Session of 1999
INTRODUCED BY ORIE, MARSICO, PRESTON, STABACK, TIGUE, HARHAI,
HERMAN, PLATTS, METCALFE, STERN, SAYLOR, EGOLF, MELIO,
SEYFERT, WOGAN, READSHAW, E. Z. TAYLOR, KENNEY, CORRIGAN,
WOJNAROSKI, BASTIAN, HENNESSEY, McILHATTAN, STEELMAN, CIVERA,
YOUNGBLOOD AND MAHER, APRIL 13, 1999
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 13, 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
1 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 the county
3 which prosecuted a case or the Attorney General if the Attorney
4 General originally prosecuted the case or if the Attorney
5 General agrees to handle the proceeding under this act at the
6 request of the 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) Indecent assault under 18 Pa.C.S. § 3126 (relating
24 to indecent assault) when the offense is a misdemeanor of the
25 first degree.
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 a mental abnormality or personality
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1 disorder that makes the person likely to engage in predatory
2 sexually violent offenses.
3 Section 4. Preliminary assessment and notice.
4 (a) Preliminary assessment by multidisciplinary team.--
5 (1) The Department of Corrections shall establish a
6 multidisciplinary team of criminal justice and mental health
7 experts, including persons expert in the field of sexual
8 violence or abuse, that shall review available records of
9 each person eligible for release who has been convicted of a
10 sexually violent offense or who has been charged with a
11 sexually violent offense but found to be incompetent to stand
12 trial.
13 (2) If the agency with jurisdiction is not the
14 Department of Corrections, the agency with jurisdiction shall
15 provide the department with the records which are necessary
16 for the review by the multidisciplinary team.
17 (3) The multidisciplinary team shall make a preliminary
18 assessment of whether or not the person meets the definition
19 of a sexually violent predator. The multidisciplinary team
20 shall review the records and make the preliminary assessment
21 no earlier than 120 days prior to release. The
22 multidisciplinary team shall notify the Department of
23 Corrections in writing of its preliminary assessment.
24 (4) If the agency with jurisdiction is not the
25 Department of Corrections, the department shall forward the
26 multidisciplinary team's preliminary assessment to the agency
27 with jurisdiction, and the agency with jurisdiction shall
28 reimburse the department for its use of the multidisciplinary
29 team.
30 (5) For purposes of this subsection, the term "eligible
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1 for release" means that the person is near the end of his
2 maximum sentence or has been granted parole.
3 (b) Notice to be given to prosecuting attorney.--If the
4 multidisciplinary team's preliminary assessment is that the
5 person meets the definition of a sexually violent predator, the
6 agency with jurisdiction shall give written notice of the
7 preliminary assessment to the prosecuting attorney 90 days prior
8 to either of the following:
9 (1) The anticipated release from confinement of a person
10 who has been convicted of a sexually violent offense, except
11 that in the case of a person who is returned to prison for no
12 more than 90 days as a result of revocation of post-release
13 supervision, written notice shall be given as soon as
14 practicable following the person's return to prison.
15 (2) The release of a person who has been charged with a
16 sexually violent offense but who has been found to be
17 incompetent to stand trial.
18 (c) Information to be provided to prosecuting attorney.--The
19 agency with jurisdiction shall provide the prosecuting attorney
20 with the following information:
21 (1) The person's name, identifying factors, anticipated
22 future residence and offense history.
23 (2) Documentation of institutional adjustment and any
24 treatment received.
25 (d) Notice to authorizing agency or official.--At the same
26 time that the agency with jurisdiction gives notice to the
27 prosecuting attorney, the agency with jurisdiction shall, if
28 applicable, provide written notice to the agency or official who
29 authorized the person's parole. This notice suspends the parole
30 authorization until any proceedings under this act have been
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1 concluded, including any period of involuntary commitment.
2 Section 5. Probable cause hearing.
3 (a) Petition.--Within 75 days after receiving notice from
4 the agency with jurisdiction, the prosecuting attorney may file
5 a petition for civil commitment alleging that the person is a
6 sexually violent predator and stating sufficient facts to
7 support the allegation.
8 (b) Notice.--Within 72 hours after a petition is filed, the
9 court shall provide the person with notice of and an opportunity
10 to appear in person at a hearing to contest probable cause as to
11 whether the person is a sexually violent predator.
12 (c) Hearing.--
13 (1) At the probable cause hearing, the court shall
14 verify the person's identity and determine whether probable
15 cause exists to believe that the person is a sexually violent
16 predator. The prosecuting attorney may rely upon the petition
17 and supplement the petition with additional documentary
18 evidence or live testimony.
19 (2) The person shall have the following rights in
20 addition to rights specified in this act:
21 (i) To be represented by counsel.
22 (ii) To present evidence on the person's behalf.
23 (iii) To cross-examine witnesses who testify against
24 the person.
25 (iv) To view and copy all petitions and reports in
26 the court file.
27 (d) Transfer to appropriate facility.--
28 (1) If the court determines that there is probable
29 cause, the court shall direct that the person be transferred
30 to an appropriate secure facility, including, but not limited
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1 to, a county jail, for an evaluation as to whether the person
2 is a sexually violent predator. The person shall not be held
3 in a regional forensic unit at a State hospital and in no
4 event shall the person be released from confinement prior to
5 trial.
6 (2) The evaluation shall be conducted by a
7 professionally qualified expert in the field of sexual
8 violence or abuse.
9 (e) Notice to agency with jurisdiction.--If the prosecuting
10 attorney chooses not to file a petition pursuant to subsection
11 (a) or, following the hearing, if the court finds that probable
12 cause does not exist, the prosecuting attorney shall provide
13 written notice of the decision to the agency with jurisdiction
14 which, in turn, shall, if applicable, provide written notice to
15 the agency or official who authorized parole, and the person's
16 release or parole may proceed.
17 Section 6. Trial, counsel and examination.
18 (a) Time of trial.--Within 60 days after the completion of
19 the probable cause hearing, the court shall conduct a trial to
20 determine whether the person is a sexually violent predator. The
21 trial may be continued upon the request of either party and a
22 showing of good cause or by the court on its own motion in the
23 due administration of justice and when the person who is the
24 subject of the proceeding will not be substantially prejudiced.
25 (b) Jury trial.--The person who is the subject of the
26 proceeding or the prosecuting attorney shall have the right to
27 demand that the trial be before a jury. The demand for the trial
28 to be before a jury shall be filed in writing at least four days
29 prior to trial. The number and selection of jurors shall be as
30 provided by law for civil cases and the Pennsylvania Rules of
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1 Civil Procedure. If no demand is made, the trial shall be held
2 before the judge.
3 (c) Counsel.--At all stages of the proceedings under this
4 act, any person who is subject to this act shall be entitled to
5 the assistance of counsel and, if the person is indigent, the
6 court shall appoint counsel to assist the person.
7 (d) Examination.--Whenever any person is subjected to an
8 examination under this act, the person may retain professionally
9 qualified experts in the field of sexual violence or abuse to
10 perform an examination of the person on the person's behalf.
11 When the person wishes to be examined by a qualified expert of
12 the person's own choice, the examiner shall be permitted to have
13 reasonable access to the person for the purpose of the
14 examination, as well as to relevant medical and psychological
15 records and reports.
16 (e) Indigent persons.--
17 (1) In the case of a person who is indigent, the court,
18 upon the person's request, shall determine whether the
19 services are necessary and reasonable compensation for the
20 services. The court shall assist the person in obtaining a
21 professionally qualified expert in the field of sexual
22 violence or abuse to perform an examination or participate in
23 the trial on the person's behalf.
24 (2) The court shall approve payment for the services
25 upon the filing of a certified claim for compensation
26 supported by a written statement specifying the time
27 expended, services rendered, expenses incurred on behalf of
28 the person and compensation received in the same case or for
29 the same services from any other source.
30 Section 7. Determination and commitment.
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1 (a) Determination.--The court or jury shall determine
2 whether, beyond a reasonable doubt, the person is a sexually
3 violent predator. If the determination that the person is a
4 sexually violent predator is made by a jury, the determination
5 shall be by unanimous verdict of the jury.
6 (b) Appeal.--The determination by the court or jury may be
7 appealed.
8 (c) Commitment.--
9 (1) If the court or jury determines that the person is a
10 sexually violent predator, the person shall be committed to
11 the custody of the Department of Public Welfare for control,
12 care and treatment until the person's mental abnormality or
13 personality disorder has so changed that the person is safe
14 to be at large. The control, care and treatment shall be
15 provided at a facility operated by the department subject to
16 the provisions of subsection (e). The person shall not be
17 held in a regional forensic unit at a State hospital.
18 (2) The court shall provide written notice of the
19 commitment to the agency with jurisdiction which in turn
20 shall, if applicable, provide written notice to the agency or
21 official who authorized the person's parole.
22 (d) Secure facility.--At all times, persons committed for
23 control, care and treatment by the Department of Public Welfare
24 pursuant to this act shall be kept in a secure facility and
25 shall be segregated at all times from any other patient under
26 the supervision of the department. The Department of Public
27 Welfare shall be responsible for all costs relating to the
28 control, care and treatment of persons committed to the
29 department's custody pursuant to the provisions of this act.
30 (e) Interagency agreements.--The Department of Public
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1 Welfare may enter into an interagency agreement with the
2 Department of Corrections for the confinement of persons
3 committed under this act. The persons who are in the confinement
4 of the Department of Corrections pursuant to an interagency
5 agreement shall be housed and managed separately from offenders
6 in the custody of the Department of Corrections and, except for
7 occasional instances of supervised incidental contact, shall be
8 segregated from the offenders.
9 (f) Release.--If the court or jury is not satisfied beyond a
10 reasonable doubt that the person is a sexually violent predator,
11 the court shall provide written notice to the agency with
12 jurisdiction which in turn shall, if applicable, provide written
13 notice to the agency or official who authorized the person's
14 parole, and the person's release or parole may proceed.
15 (g) Mistrial.--Upon a mistrial, the court shall direct that
16 the person be held at an appropriate secure facility, including,
17 but not limited to, a county jail, until another trial is
18 conducted. The person shall not be held at a regional forensic
19 unit at a State hospital. Any subsequent trial following a
20 mistrial shall be held within 90 days of the previous trial,
21 unless the subsequent trial is continued as provided for in
22 section 6(a).
23 Section 8. Incompetent to stand trial.
24 (a) Hearing.--If the person who has been charged with a
25 sexually violent offense has been found to be incompetent to
26 stand trial and is about to be released, and the person's
27 involuntary commitment is sought pursuant to this act, the court
28 shall first hear evidence and determine whether the person
29 committed the act or acts charged. The hearing on this issue
30 shall comply with all the procedures specified in sections 6 and
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1 7.
2 (b) Evidence and constitutional rights.--The rules of
3 evidence applicable in criminal cases shall apply, and all
4 constitutional rights available to defendants at criminal
5 trials, other than the right not to be tried while incompetent,
6 shall apply.
7 (c) Findings.--After hearing evidence on this issue, the
8 court shall make specific findings:
9 (1) On whether the person committed the act or acts
10 charged.
11 (2) The extent to which the person's incompetence or
12 developmental disability affected the outcome of the hearing,
13 including its effect on the person's ability to consult with
14 and assist counsel and to testify on the person's own behalf.
15 (3) The extent to which the evidence could be
16 reconstructed without the assistance of the person.
17 (4) The strength of the prosecution's case.
18 (d) Final order.--If after the conclusion of the hearing on
19 this issue the court finds beyond a reasonable doubt that the
20 person committed the act or acts charged, the court shall enter
21 a final order, appealable by the person, on that issue and may
22 proceed to consider whether the person should be committed
23 pursuant to this act.
24 Section 9. Detention and commitment.
25 The involuntary detention and commitment of persons under
26 this act shall conform to constitutional requirements for
27 control, care and treatment.
28 Section 10. Annual examinations; procedure.
29 (a) Examination.--Each person committed under this act shall
30 have a current examination of the person's mental condition once
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1 each year. The person may retain or, if the person is indigent
2 and so requests, the court may appoint a professionally
3 qualified expert in the field of sexual violence or abuse to
4 examine the person, and the expert shall have access to all
5 records concerning the person.
6 (b) Report to the court.--
7 (1) The annual report shall be provided to the court
8 that committed the person under this act. The court shall
9 conduct an annual review of the status of the committed
10 person.
11 (2) Nothing contained in this act shall prohibit the
12 person from otherwise petitioning the court for release at
13 this hearing.
14 (3) The Department of Public Welfare shall provide the
15 committed person with an annual written notice of the
16 person's right to petition the court for release over the
17 department's objection. The notice shall contain a waiver of
18 rights. The Department of Public Welfare shall forward the
19 notice and waiver form to the court with the annual report.
20 (c) Counsel.--The committed person shall have the right to
21 have an attorney represent the person at the hearing, but the
22 committed person shall not have the right to be present at the
23 hearing.
24 (d) Probable cause.--If the court at the hearing determines
25 that probable cause exists to believe that the person's mental
26 abnormality or personality disorder has so changed that the
27 person is safe to be at large and will not engage in acts of
28 sexual violence if discharged, then the court shall conduct a
29 hearing on the issue.
30 (e) Hearing.--
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1 (1) At the hearing, the committed person shall be
2 entitled to be present and entitled to the benefit of all
3 constitutional protections that were afforded the person at
4 the initial commitment proceeding. The committed person shall
5 also have the right to have professional experts in the field
6 of sexual violence or abuse evaluate the person on the
7 person's behalf, and the court shall appoint an expert if the
8 person is indigent and requests an appointment.
9 (2) The prosecuting attorney shall represent the
10 Commonwealth and shall have the right to a jury trial and to
11 have the committed person evaluated by professionally
12 qualified experts in the field of sexual violence or abuse.
13 (f) Burden of proof.--The burden of proof at the hearing
14 shall be upon the prosecuting attorney to show beyond a
15 reasonable doubt that the committed person's mental abnormality
16 or personality disorder remains such that the person is not safe
17 to be at large and, if released, is likely to engage in acts of
18 sexual violence.
19 Section 11. Petition for release; procedure.
20 (a) Department authorization.--If the Department of Public
21 Welfare determines that the person's mental abnormality or
22 personality disorder has so changed that the person is not
23 likely to commit predatory acts of sexual violence if released,
24 the department shall authorize the person to petition the court
25 for release.
26 (b) Petition.--The petition shall be served upon the court
27 and the prosecuting attorney. The court, upon receipt of the
28 petition for release, shall order a hearing within 30 days.
29 (c) Hearing.--The prosecuting attorney shall represent the
30 Commonwealth and shall have the right to have the committed
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1 person examined by a professionally qualified expert in the
2 field of sexual violence or abuse. The hearing shall be held
3 before a jury if demanded by either the committed person or the
4 prosecuting attorney.
5 (d) Burden of proof.--The burden of proof shall be upon the
6 prosecuting attorney to show beyond a reasonable doubt that the
7 committed person's mental abnormality or personality disorder
8 remains such that the person is not safe to be at large and, if
9 released, is likely to engage in acts of sexual violence.
10 (e) Subsequent petitions.--
11 (1) Nothing in this act shall prohibit a person from
12 filing a petition for release pursuant to this act. However,
13 if a person has previously filed a petition for release and
14 the court has determined either upon review of the petition
15 or following a hearing that the person's condition had not
16 changed so that the person was safe to be at large, then the
17 court shall deny the subsequent petition unless the petition
18 contains facts upon which the court could find the condition
19 of the person had so changed that a hearing was warranted.
20 (2) Upon receipt of a petition from a committed person,
21 the court shall endeavor whenever possible to review the
22 petition and determine if the petition is based upon
23 frivolous grounds and, if so, shall deny the petition without
24 a hearing.
25 (f) Notice to agency with jurisdiction.--
26 (1) If a person is eligible for release from involuntary
27 commitment pursuant to section 10 or this section, the
28 Department of Public Welfare shall provide written notice to
29 the agency with jurisdiction which in turn shall, if
30 applicable, provide written notice to the agency or official
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1 who authorized the person's parole.
2 (2) If within 30 days of the notice to the agency with
3 jurisdiction or the agency or official who authorized the
4 person's parole does not respond to the Department of Public
5 Welfare with a written notice objecting to the release, the
6 department may proceed with the person's release from
7 involuntary commitment.
8 (3) If the agency with jurisdiction or the agency or
9 official who authorized the person's parole responds within
10 30 days and objects to the person's release because the
11 person has time remaining to serve in confinement or on
12 parole, the person shall be transferred to the agency with
13 jurisdiction to complete the sentence of confinement or to be
14 paroled.
15 (g) Notice to victims.--
16 (1) In addition to any other information required to be
17 released under this act, prior to the release of a person
18 committed under this act, the Department of Public Welfare
19 shall give written notice of the release to the Office of
20 Victim Advocate, which shall provide written notice under the
21 act of March 21, 1995 (1st Sp.Sess., P.L.980, No.8), known as
22 the Victim Advocate Law, to any victim of the person's
23 activities or crime who is alive and whose address is known
24 to the Pennsylvania Board of Probation and Parole's Office of
25 Victim Advocate or, if the victim is deceased, to the
26 victim's family if the family's address is known to the
27 Office of Victim Advocate.
28 (2) This subsection shall not apply to any victim or
29 victim's family that has notified the Office of Victim
30 Advocate that the victim or the victim's family does not wish
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1 to be notified of the release.
2 (3) Failure to notify shall not operate to postpone
3 release. Nothing in this subsection shall create a cause of
4 action against the Commonwealth or any employee of the
5 Commonwealth acting within the scope of the employee's
6 employment as a result of the failure to notify under this
7 act.
8 Section 12. Records.
9 (a) Confidentiality.--In order to protect the public,
10 relevant information and records which are otherwise
11 confidential or privileged shall be released to the agency with
12 jurisdiction or, if different, to the Department of Corrections
13 or the prosecuting attorney for the purpose of meeting the
14 notice requirement of section 4 and determining whether a person
15 is or continues to be a sexually violent predator.
16 (b) Court order.--Any psychological reports, drug and
17 alcohol reports, treatment records, reports of the diagnostic
18 center, medical records or victim impact statements which have
19 been submitted to the court or admitted into evidence under this
20 act shall be part of the record but shall be sealed and opened
21 only on order of the court.
22 Section 13. Regulations.
23 The Department of Corrections, the Department of Public
24 Welfare and the Pennsylvania Board of Probation and Parole may
25 issue regulations necessary for the implementation of this act.
26 Section 14. Effective date.
27 This act shall take effect as follows:
28 (1) Section 13 and this section shall take effect
29 immediately.
30 (2) The remainder of this act shall take effect in 180
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1 days.
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