Bill Text: VA HB1271 | 2012 | Regular Session | Comm Sub
Bill Title: Sexually violent predators; Director of DOC shall develop protocol for assessing prisoner, etc.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2012-04-18 - Governor: Acts of Assembly Chapter text (CHAP0800) [HB1271 Detail]
Download: Virginia-2012-HB1271-Comm_Sub.html
12105221D
Be it enacted by the General Assembly of Virginia: 1. That §§18.2-61, 18.2-67.1, 18.2-67.2, 18.2-67.5:3, 19.2-169.3, 37.2-903, and 37.2-904 of the Code of Virginia are amended and reenacted as follows: §18.2-61. Rape. A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape. B. A violation of this section shall be punishable, in the
discretion of the court or jury, by confinement in a state correctional
facility for life or for any term not less than five years There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness. C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under §19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under §19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. §18.2-67.1. Forcible sodomy. A. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and 1. The complaining witness is less than 13 years of age 2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness. B. Forcible sodomy is a felony punishable by confinement in a
state correctional facility for life or for any term not less than five years.
The penalty for a violation of subdivision A 1, where it is alleged in the
indictment that the offender In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under §19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness. C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under §19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under §19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. §18.2-67.2. Object sexual penetration; penalty. A. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and 1. The complaining witness is less than 13 years of age 2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness. B. Inanimate or animate object sexual penetration is a felony
punishable by confinement in the state correctional facility for life or for
any term not less than five years. The penalty for a violation of subdivision A
1, where it is alleged in the indictment that the offender In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under §19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness. C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under §19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under §19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. §18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault. A. Any person convicted of B. The 1. Rape in violation of §18.2-61; 2. Forcible sodomy in violation of §18.2-67.1; 3. Object sexual penetration in violation of §18.2-67.2; 4. Abduction with intent to defile in violation of §18.2-48; or 5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to §18.2-22. B1. The offenses included in this subsection are as follows: 1. Rape in violation of clause (i) or (ii) of subsection A of §18.2-61; 2. Forcible sodomy in violation of subdivision A 2 of § 18.2-67.1; 3. Object sexual penetration in violation of subdivision A 2 of §18.2-67.2; 4. Abduction with intent to defile in violation of § 18.2-48; or 5. Conspiracy to commit any offense listed in subdivisions B 1 through 4 pursuant to §18.2-22. C. For purposes of this section, The Commonwealth shall notify the defendant in the indictment,
information, or warrant, at least §19.2-169.3. Disposition of the unrestorably incompetent defendant; capital murder charge; referral to Commitment Review Committee. A. If, at any time after the defendant is ordered to undergo
treatment pursuant to subsection A of §19.2-169.2, the director of the
community services board or behavioral health authority or his designee or the
director of the treating inpatient facility or his designee concludes that the
defendant is likely to remain incompetent for the foreseeable future, he shall
send a report to the court so stating. The report shall also indicate whether,
in the board, authority, or inpatient facility director's or his designee's
opinion, the defendant should be released, committed pursuant to Article 5 (§
37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9
(§37.2-900 et seq.) of Title 37.2, or certified pursuant to §37.2-806 in the
event he is found to be unrestorably incompetent. Upon receipt of the report,
the court shall make a competency determination according to the procedures
specified in subsection E of §19.2-169.1. If the court finds that the defendant
is incompetent and is likely to remain so for the foreseeable future, it shall
order that he be (i) released, (ii) committed pursuant to Article 5 (§37.2-814
et seq.) of Chapter 8 of Title 37.2, or (iii) certified pursuant to §37.2-806.
However, if the court finds that the defendant is incompetent and is likely to
remain so for the foreseeable future and the defendant has been charged with a
sexually violent offense, as defined in §37.2-900, he shall be B. At the end of six months from the date of the defendant's initial admission under subsection A of §19.2-169.2 if the defendant remains incompetent in the opinion of the board, authority, or inpatient facility director or his designee, the director or his designee shall so notify the court and make recommendations concerning disposition of the defendant as described in subsection A. The court shall hold a hearing according to the procedures specified in subsection E of §19.2-169.1 and, if it finds the defendant unrestorably incompetent, shall order one of the dispositions described in subsection A. If the court finds the defendant incompetent but restorable to competency, it may order continued treatment under subsection A of §19.2-169.2 for additional six-month periods, provided a hearing pursuant to subsection E of §19.2-169.1 is held at the completion of each such period and the defendant continues to be incompetent but restorable to competency in the foreseeable future. C. If any defendant has been charged with a misdemeanor in violation of Article 3 (§18.2-95 et seq.) of Chapter 5 of Title 18.2 or Article 5 (§18.2-119 et seq.) of Chapter 5 of Title 18.2, other than a misdemeanor charge pursuant to §18.2-130 or Article 2 (§18.2-415 et seq.) of Chapter 9 of Title 18.2, and is being treated pursuant to subsection A of § 19.2-169.2, and after 45 days has not been restored to competency, the director of the community service board, behavioral health authority, or the director of the treating inpatient facility, or any of their designees, shall send a report indicating the defendant's status to the court. The report shall also indicate whether the defendant should be released or committed pursuant to §37.2-817 or certified pursuant to §37.2-806. Upon receipt of the report, if the court determines that the defendant is still incompetent, the court shall order that the defendant be released, committed, or certified, and may dismiss the charges against the defendant. D. Unless an incompetent defendant is charged with capital murder or the charges against an incompetent criminal defendant have been previously dismissed, charges against an unrestorably incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner. E. If the court orders an unrestorably incompetent defendant
to be reviewed for commitment pursuant to §37.2-904, it shall order the
attorney for the Commonwealth in the jurisdiction wherein the defendant was
charged and the Commissioner of Behavioral Health and Developmental Services to
provide the F. In any case when an incompetent defendant is charged with capital murder, notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of §19.2-169.2 for additional six-month periods without limitation, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate, and (iv) the defendant presents a danger to himself or others. G. The attorney for the Commonwealth may bring charges that have been dismissed against the defendant when he is restored to competency. §37.2-903. Database of prisoners convicted of sexually violent offenses; maintained by Department of Corrections; notice of pending release to CRC. A. The Director shall establish and maintain a database of each prisoner in his custody who is (i) incarcerated for a sexually violent offense or (ii) serving or will serve concurrent or consecutive time for another offense in addition to time for a sexually violent offense. The database shall include the following information regarding each prisoner: (a) the prisoner's criminal record and (b) the prisoner's sentences and scheduled date of release. A prisoner who is serving or will serve concurrent or consecutive time for other offenses in addition to his time for a sexually violent offense, shall remain in the database until such time as he is released from the custody or supervision of the Department of Corrections or Virginia Parole Board for all of his charges. Prior to the initial assessment of a prisoner under subsection C, the Director shall order a national criminal history records check to be conducted on the prisoner. B. Each month, the Director shall review the database and
identify all such prisoners who are scheduled for release from prison within 10
months from the date of such review or have been referred to the Director by
the Virginia Parole Board under rules adopted by the Board who (i) receive
a score of five or more on the Static-99 or a similar score on a comparable,
scientifically validated instrument designated by the Commissioner, C. If the Director and the Commissioner agree that no specific scientifically validated instrument exists to measure the risk assessment of a prisoner, the prisoner may instead be screened by a licensed psychiatrist, licensed clinical psychologist, or a licensed mental health professional certified by the Board of Psychology as a sex offender treatment provider pursuant to §54.1-3600 for an initial determination of whether or not the prisoner may meet the definition of a sexually violent predator. D. The Commissioner shall forward to the Director the records of all defendants who have been charged with a sexually violent offense and found unrestorably incompetent to stand trial, and ordered to be screened pursuant to §19.2-169.3. The Director, applying the procedure identified in subsection B, shall identify those defendants who shall be referred to the CRC for assessment.
§37.2-904. CRC assessment of prisoners or defendants eligible for commitment as sexually violent predators; mental health examination; recommendation. A. Within B. CRC assessments of eligible prisoners or defendants shall include a mental health examination, including a personal interview, of the prisoner or defendant by a licensed psychiatrist or a licensed clinical psychologist who is designated by the Commissioner, skilled in the diagnosis and risk assessment of sex offenders, knowledgeable about the treatment of sex offenders, and not a member of the CRC. If the prisoner's or defendant's name was forwarded to the CRC based upon an evaluation by a licensed psychiatrist or licensed clinical psychologist, a different licensed psychiatrist or licensed clinical psychologist shall perform the examination for the CRC. The licensed psychiatrist or licensed clinical psychologist shall determine whether the prisoner or defendant is a sexually violent predator, as defined in §37.2-900, and forward the results of this evaluation and any supporting documents to the CRC for its review. The CRC assessment may be based on: An actuarial evaluation, clinical evaluation, or any other information or evaluation determined by the CRC to be relevant, including but not limited to a review of (i) the prisoner's or defendant's institutional history and treatment record, if any; (ii) his criminal background; and (iii) any other factor that is relevant to the determination of whether he is a sexually violent predator. C. Following the examination and review conducted pursuant to subsection B, the CRC shall recommend that the prisoner or defendant (i) be committed as a sexually violent predator pursuant to this chapter; (ii) not be committed, but be placed in a conditional release program as a less restrictive alternative; or (iii) not be committed because he does not meet the definition of a sexually violent predator. To assist the Attorney General in his review, the Department of Corrections, the CRC, and the psychiatrist or psychologist who conducts the mental health examination pursuant to this section shall provide the Attorney General with all evaluation reports, prisoner records, criminal records, medical files, and any other documentation relevant to determining whether a prisoner or defendant is a sexually violent predator. D. Pursuant to clause (ii) of subsection C, the CRC may recommend that a prisoner or defendant enter a conditional release program if it finds that (i) he does not need inpatient treatment, but needs outpatient treatment and monitoring to prevent his condition from deteriorating to a degree that he would need inpatient treatment; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that, if conditionally released, he would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety. E. Notwithstanding any other provision of law, any mental health professional employed or appointed pursuant to subsection B or § 37.2-907 shall be permitted to copy and possess any presentence or postsentence reports and victim impact statements. The mental health professional shall not disseminate the contents of the reports or the actual reports to any person or entity and shall only utilize the reports for use in examinations, creating reports, and testifying in any proceedings pursuant to this article. F. If the CRC deems it necessary to have the services of additional experts in order to complete its review of the prisoner or defendant, the Commissioner shall appoint such qualified experts as are needed. 2. That the Director, in coordination with the Department, shall develop protocols to assess whether the individual meets the definition of a sexually violent predator and shall report to the General Assembly on protocol objectives, design, methodology, statistical considerations, embedded assumptions, risk assessments, and organization of the full assessment process. All measures shall be consistent with evidenced-based best practices. The primary tool of the protocols shall be a risk assessment instrument and corresponding reference score designated by the Commissioner. The Director shall submit the report to the Governor and the General Assembly by December 1, 2013. 3. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 890 of the Acts of Assembly of 2011 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice. 3. That the provisions of this act shall become effective January 1, 2013. |