H 4411 Session 112 (1997-1998)
H 4411 General Bill, By Meacham, Bailey, Battle, H. Brown, Campsen, Canty,
Cotty, Davenport, Hinson, B.L. Jordan, Keegan, Kennedy, Leach, Littlejohn,
Martin, Mason, V.T. Mullen, Neilson, Rice, Riser, Rodgers, Sandifer, Stille,
E.C. Stoddard, Trotter, Vaughn, Walker and Whatley
Similar(S 860, S 969, H 3315, H 4360)
A BILL TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
CRIMINAL PROCEDURES, BY ADDING CHAPTER 30 SO AS TO ENACT THE "SEXUALLY VIOLENT
PREDATOR ACT" AND TO ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON IS A
SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE RIGHTS OF SUCH PERSONS IN THIS
PROCESS; AND TO AUTHORIZE THE COMMITMENT OF SUCH PERSONS TO THE DEPARTMENT OF
MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION AND UNTIL THE
PERSON IS SAFE TO BE AT LARGE.
01/14/98 House Introduced and read first time HJ-32
01/14/98 House Referred to Committee on Judiciary HJ-32
A BILL
TO AMEND TITLE 17, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO CRIMINAL PROCEDURES,
BY ADDING CHAPTER 30 SO AS TO ENACT THE "SEXUALLY
VIOLENT PREDATOR ACT" AND TO ESTABLISH
PROCEDURES FOR DETERMINING IF A PERSON IS A
SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE
RIGHTS OF SUCH PERSONS IN THIS PROCESS; AND TO
AUTHORIZE THE COMMITMENT OF SUCH PERSONS TO THE
DEPARTMENT OF MENTAL HEALTH UPON ANTICIPATION
OF RELEASE FROM INCARCERATION AND UNTIL THE
PERSON IS SAFE TO BE AT LARGE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
"CHAPTER 30
Sexually Violent Predator Act
Section 17-30-10. This chapter may be cited as the 'Sexually
Violent Predator Act'.
Section 17-30-20. For purposes of this chapter:
(1) 'Sexually violent predator' means a person who has been
convicted or charged with a sexually violent offense and who suffers
from a mental abnormality or personality disorder which makes the
person likely to engage in the predatory acts of sexual violence, if not
confined in a secure facility.
(2) 'Sexually violent offense' means:
(a) criminal sexual conduct in the first and second degrees, as
provided for in Sections 16-3-652 and 16-3-653;
(b) assault with intent to commit criminal sexual conduct, first
and second degree, as provided for in Section 16-3-656;
(c) engaging a child for a sexual performance, as provided for
in Section 16-3-810;
(d) accessory before the fact to commit an offense enumerated
in this item and as provided for in Section 16-1-40;
(e) attempt to commit an offense enumerated in this item, as
provided for in Section 16-1-80.
Section 17-30-30. (A) When it appears that a person may meet the
criteria of a sexually violent predator, the agency with jurisdiction
shall give written notice of this to the Attorney General and the
multidisciplinary team established in subsection (C), ninety days
before:
(1) the anticipated release from total confinement of a person
who has been convicted of a sexually violent offense, except that in
the case of persons who are returned to prison for no more than
ninety days as a result of revocation of postrelease supervision,
written notice must be given as soon as practicable following the
person's readmission to prison;
(2) release of a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to
stand trial;
(3) release of a person who has been found not guilty by reason
of insanity of a sexually violent offense; or
(4) release of a person who has been found guilty of a sexually
violent offense but mentally ill.
(B) The agency with jurisdiction shall provide the Attorney
General and the multidisciplinary team established in subsection (D)
with:
(1) the person's name, identifying factors, anticipated future
residence, and offense history;
(2) documentation of institutional adjustment and any treatment
received;
(3) information and records.
(C) The director of the Department of Corrections shall establish
a multidisciplinary team which may include individuals from other
state agencies to review available records of each person referred to
the team pursuant to subsection (A). The team, within thirty days of
receiving notice, shall assess whether or not the person meets the
definition of a sexually violent predator. The team shall notify the
Attorney General of its assessment.
(D) The Attorney General shall appoint a prosecutor's review
committee to review the records of each person referred to the
Attorney General pursuant to subsection (A). The prosecutor's
review committee shall assist the Attorney General in the
determination of whether or not the person meets the definition of a
sexually violent predator. The assessment of the multidisciplinary
team must be made available to the Attorney General and the
prosecutor's review committee.
Section 17-30-40. When it appears that the person presently
confined may be a sexually violent predator and the prosecutor's
review committee appointed as provided in Section 17-30-30(D) has
determined that the person meets the definition of a sexually violent
predator, the Attorney General may file a petition, within
seventy-five days of the date the Attorney General received the
written notice by the agency of jurisdiction as provided in Section
17-30-30(A), alleging that the person is a sexually violent predator
and stating sufficient facts to support the allegation.
Section 17-30-50. (A) Upon filing of a petition, the judge shall
determine whether probable cause exists to believe that the person
named in the petition is a sexually violent predator, and if the judge
determines the person is a sexually violent predator, the judge shall
direct that the person be detained in custody.
(B) Within seventy-two hours after a person is detained in custody
pursuant to subsection (A), the person must be provided with notice
of, and an opportunity to appear in person at, a hearing to contest
probable cause as to whether the detained person is a sexually violent
predator. At this hearing the court shall:
(1) verify the person's identity and facility at which the person
is detained;
(2) determine whether probable cause exists to believe that the
person is a sexually violent predator.
The State may rely upon the petition and supplement the petition
with additional documentary evidence or live testimony.
(C) At the probable cause hearing as provided in subsection (B),
the detained person has the rights in addition to the rights previously
specified to:
(1) be represented by counsel;
(2) present evidence on the person's behalf;
(3) cross-examine witnesses who testify against the person;
(4) view and copy all petitions and reports in the court file.
(D) If the court finds there is probable cause to believe that the
person is a sexually violent predator, the court shall direct the person
to be transferred to an appropriate secure facility including, but not
limited to, a county jail, for an evaluation as to whether the person is
a sexually violent predator. The evaluation must be conducted by a
person professionally qualified to conduct the examination.
Section 17-30-60. Within sixty days after the completion of a
hearing held pursuant to Section 17-30-50, the court shall conduct a
trial to determine whether the person is a sexually violent predator.
The trial may be continued upon the request of either party and a
showing of good cause, or by the court on its own motion in the due
administration of justice, and if the respondent will not be
substantially prejudiced. At all stages of the proceedings under this
chapter, a person subject to this chapter is entitled to the assistance of
counsel, and if the person is indigent, the court shall appoint counsel
to assist the person. If a person is subjected to an examination under
this chapter, the person may retain experts or professional persons to
perform an examination of the person. If the person wishes to be
examined by a qualified expert or professional person of the person's
own choice, the examiner must be permitted to have reasonable
access to the person for the purpose of the examination, and access
to all relevant medical and psychological records and reports. If the
person is indigent, the court, upon the person's request, shall
determine whether the services are necessary and reasonable
compensation for the services. If the court determines that the
services are necessary and the expert or professional person's
requested compensation for the services is reasonable, the court shall
assist the person in obtaining an expert or professional person to
perform an examination or participate in the trial on the person's
behalf. The court shall approve payment for the services upon the
filing of a certified claim for compensation supported by a written
statement specifying the time expended, services rendered, expenses
incurred on behalf of the person, and compensation received in the
same case or for the same services from any other source. The
person, the Attorney General, or the judge has the right to demand
that the trial be before a jury. A demand for the trial to be before a
jury must be filed, in writing, at least four days before trial. If no
demand is made, the trial must be before the court.
Section 17-30-70. (A) The court or jury shall determine whether,
beyond a reasonable doubt, the person is a sexually violent predator.
If a determination that the person is a sexually violent predator is
made by a jury, the determination must be by unanimous verdict of
the jury. This determination may be appealed. If the court or jury
determines that the person is a sexually violent predator, the person
must be committed to the custody of the Department of Mental
Health for control, care, and treatment until such time as the person's
mental abnormality or personality disorder has so changed that the
person is safe to be at large. The control, care, and treatment must be
provided at a secure facility operated by the Department of Mental
Health, and these persons must be segregated at all times from other
patients under the supervision of the Department of Mental Health.
The Department of Mental Health may enter into an interagency
agreement with the Department of Corrections for the confinement
of these persons. Persons who are in the confinement of the
Department of Corrections pursuant to an interagency agreement
must be housed and managed separately from offenders in the
custody of the Department of Corrections and, except for occasional
instances of supervised incidental contact, must be segregated from
these offenders. If the court or jury is not satisfied beyond a
reasonable doubt that the person is a sexually violent predator, the
court shall direct the person's release. Upon a mistrial, the court shall
direct that the person be held at an appropriate secure facility
including, but not limited to, a county jail, until another trial is
conducted. A subsequent trial following a mistrial must be held
within ninety days of the previous trial, unless the subsequent trial is
continued.
(B) If a trial is being held pursuant to Section 17-30-60 and this
section concerning a person charged with a sexually violent offense
who has been found incompetent to stand trial and whose release is
imminent, the court first shall hear evidence and determine whether
the person committed the act or acts charged. The hearing on this
issue must comply with all the procedures specified in this section.
In addition, the rules of evidence applicable in criminal cases apply,
and all constitutional rights available to defendants at criminal trials,
other than the right not to be tried while incompetent, apply. After
hearing evidence on this issue, the court shall make specific findings
on whether the person committed the act or acts charged, the extent
to which the person's incompetence affected the outcome of the
hearing, including its effect on the person's ability to consult with
and assist counsel and to testify on the person's own behalf, the
extent to which the evidence could be reconstructed without the
assistance of the person, and the strength of the prosecution's case.
If after the conclusion of the hearing on this issue, the court finds
beyond a reasonable doubt that the person did commit the act or acts
charged, the court shall enter a final order, appealable by the person,
on that issue, and may proceed to consider whether the person should
be committed pursuant to this chapter.
Section 17-30-80. (A) A person committed under this chapter
annually shall have an examination of the person's mental condition.
The person may retain or, if the person is indigent and so requests,
the court may appoint a qualified professional person to examine the
person, and the expert or professional person shall have access to all
records concerning the person. A report of the annual examination
must be provided to the court that committed the person under this
chapter. The court shall conduct an annual review of the status of the
committed person. Nothing contained in this chapter prohibits the
person from otherwise petitioning the court for discharge at this
hearing.
(B) The director of the Department of Mental Health shall provide
the committed person with an annual written notice of the person's
right to petition the court for release over the director's objection.
The notice shall contain a waiver of rights. The director shall
forward the notice and waiver form to the court with the annual
report. The committed person has a right to have an attorney
represent him at the hearing, but the person is not entitled to be
present at the hearing. If the court at the hearing determines that
probable cause exists to believe that the person's mental abnormality
or personality disorder has so changed that the person is safe to be at
large and will not engage in acts of sexual violence if discharged,
then the court shall set a hearing on the issue. At the hearing, the
committed person is entitled to be present and entitled to the benefit
of all constitutional protections that were afforded the person at the
initial commitment proceeding. The Attorney General shall represent
the State and has a right to a jury trial and to have the committed
person evaluated by experts chosen by the State. The committed
person also has the right to have experts evaluate the person on his
behalf, and the court shall appoint an expert if the person is indigent
and requests an appointment. The burden of proof at the hearing is
upon the State to prove beyond a reasonable doubt that the committed
person's mental abnormality or personality disorder remains such that
the person is not safe to be at large and if released is likely to engage
in acts of sexual violence.
Section 17-30-90. If the director of the Department of Mental
Health determines that the person's mental abnormality or personality
disorder has so changed that the person is not likely to commit
predatory acts of sexual violence if released, the director shall
authorize the person to petition the court for release. The petition
must be served upon the court and the Attorney General. The court,
upon receipt of the petition for release, shall order a hearing within
thirty days. The Attorney General shall represent the State and has
the right to have the petitioner examined by an expert or professional
person of the Attorney General's choice. The hearing must be before
a jury if demanded by either the petitioner or the Attorney General.
The burden of proof is upon the Attorney General to show beyond a
reasonable doubt that the petitioner's mental abnormality or
personality disorder remains such that the petitioner is not safe to be
at large and that if discharged is likely to commit predatory acts of
sexual violence.
Section 17-30-100. In order to protect the public, relevant
information and records which otherwise are confidential or
privileged must be released to the agency with jurisdiction or the
Attorney General for the purpose of determining whether a person is
or continues to be a sexually violent predator.
Section 17-30-110. Psychological reports, drug and alcohol
reports, treatment records, reports of the diagnostic center, medical
records, or victim impact statements which have been submitted to
the court or admitted into evidence under this chapter must be part of
the record but must be sealed and opened only on order of the court.
Section 17-30-120. The agency with jurisdiction, its employees
and officials, members of the multidisciplinary team established in
Section 17-30-30, members of the prosecutor's review committee
appointed as provided in Section 17-30-30, officials, employees, and
agents of the Department of Mental Health and the Department of
Corrections, and individuals contracting, appointed, or volunteering
to perform services under this chapter are immune from liability for
any good-faith conduct under this chapter.
Section 17-30-130. A person released pursuant to this chapter
who otherwise must register pursuant to Article 7, Chapter 3, Title 23
must comply with Article 7, Chapter 3, Title 23."
SECTION 2. This act takes effect October 1, 1998.
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