Current Status Bill Number:860 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19980114 Primary Sponsor:McConnell All Sponsors:McConnell, Moore, Grooms, Wilson, Ryberg, Ravenel, Reese, Mescher, Gregory and Branton Drafted Document Number:res1544.gfm Companion Bill Number:4411 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Sexually Violent Predator Act, Crimes and Offenses, sex; Mental health patients, Corrections Department
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19980127 Committed to Committee 11 SJ
Senate 19980127 Recalled from Committee 13 SMA
Senate 19980114 Introduced, read first time, 13 SMA
referred to Committee
Senate 19971215 Prefiled, referred to Committee 13 SMA
View additional legislative information at the LPITS web site.
TO AMEND TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HEALTH, BY ADDING CHAPTER 48 SO AS TO ENACT THE "SEXUALLY VIOLENT PREDATOR ACT" INCLUDING PROVISIONS 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 PERSON TO THE DEPARTMENT OF MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION UNTIL THE PERSON IS SAFE TO BE AT LARGE; TO AMEND SECTION 16-3-1110, RELATING TO DEFINITIONS IN REGARD TO COMPENSATION OF VICTIMS OF CRIME AND TOLLING THE STATUTE OF LIMITATIONS FOR VICTIMS OF CRIME WHO HAVE A CAUSE OF ACTION AGAINST AN INCARCERATED OFFENDER, SO AS TO FURTHER PROVIDE FOR THE TOLLING OF THE STATUTE OF LIMITATIONS FOR VICTIMS OF CRIME IN REGARD TO PERSONS RELEASED FROM COMMITMENT PURSUANT TO CHAPTER 48 OF TITLE 44; TO AMEND CHAPTER 3, TITLE 24, RELATING TO THE STATE PRISON SYSTEM, BY ADDING SECTION 24-3-85 SO AS TO AUTHORIZE THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS TO ADMIT AND DETAIN PERSONS TRANSFERRED PURSUANT TO AN INTERAGENCY AGREEMENT AUTHORIZED BY CHAPTER 48 OF TITLE 44; AND TO AMEND SECTION 44-22-10, RELATING TO DEFINITIONS IN REGARD TO THE RIGHTS OF MENTAL HEALTH PATIENTS, SO AS TO EXCLUDE FROM THE DEFINITION OF "PATIENT" A PERSON COMMITTED TO THE DEPARTMENT PURSUANT TO CHAPTER 48 OF TITLE 44.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
Section 44-48-10. This chapter is known and may be cited as the 'Sexually Violent Predator Act'.
Section 44-48-20. The General Assembly finds that a small but extremely dangerous group of sexually violent predators exists who do not have a mental disease or mental illness that renders them appropriate for involuntary treatment pursuant to Chapter 17 of this title. In contrast to persons appropriate for civil commitment under Chapter 17 of this title, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The General Assembly further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure for the treatment of the mentally ill is inadequate to address the risk these sexually violent predators pose to society. The General Assembly finds that the prognosis for rehabilitating sexually violent predators is poor and the treatment needs of this population are very long term and the treatment modalities for this population are very different from the traditional treatment modalities for people appropriate for commitment under Chapter 17 of this title. Therefore, the General Assembly determines that a civil commitment procedure for the long-term care and treatment of the sexually violent predator is necessary.
Section 44-48-30. For purposes of this chapter:
(1) 'Sexually violent predator' means a person who has been convicted of 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 degree, as provided in Section 16-3-652;
(b) criminal sexual conduct in the second degree, as provided in Section 16-3-653;
(c) criminal sexual conduct in the third degree, as provided in Section 16-3-654;
(d) criminal sexual conduct with minors in the first degree, as provided in Section 16-3-655(1);
(e) criminal sexual conduct with minors in the second degree, as provided in Section 16-3-655(2) and (3);
(f) engaging a child for a sexual performance, as provided in Section 16-3-810;
(g) producing, directing, or promoting sexual performance by a child, as provided in Section 16-3-820;
(h) assault with intent to commit criminal sexual conduct, as provided in Section 16-3-656;
(i) incest, as provided in Section 16-15-20;
(j) buggery, as provided in Section 16-15-120;
(k) committing or attempting lewd act upon child under sixteen, as provided in Section 16-15-140;
(l) violations of Article 3, Chapter 15 of Title 16 involving a minor when the violations are felonies;
(m) accessory before the fact to commit an offense enumerated in this item and as provided for in Section 16-1-40;
(n) attempt to commit an offense enumerated in item (2) as provided by Section 16-1-80;
(o) any offense for which the judge makes a specific finding on the record that based on the circumstances of the case, the person's offense should be considered a sexually violent offense.
(3) 'Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.
(4) 'Predatory' means acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.
(5) 'Sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.
(6) 'Agency with jurisdiction' means that agency which releases upon lawful order or authority a person serving a sentence or term of confinement and includes the South Carolina Department of Corrections, the South Carolina Department of Probation, Parole, and Pardon Services, the Board of Probation, Parole, and Pardon Services, the Department of Juvenile Justice, the Juvenile Parole Board, and the Department of Mental Health.
(7) 'Convicted of a sexually violent offense' means a person has pled guilty to, pled nolo contendere to, been convicted of, been adjudicated delinquent as a result of the commission of, been charged but determined to be incompetent to stand trial for, been found not guilty by reason of insanity of, or been found guilty but mentally ill of a sexually violent offense.
(8) 'Court' means the court of common pleas.
(9) 'Total confinement' means incarceration in a secure state or local correctional facility and does not mean any type of supervision in the community.
Section 44-48-40. (A) When a person has been convicted of a sexually violent offense, the agency with jurisdiction shall give written notice to the Attorney General and the solicitor of the judicial circuit where the person committed the offense 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 any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;
(2) the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;
(3) the anticipated hearing pursuant to Section 17-24-40(C) 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 pursuant to Section 17-24-20.
(B) When a person has been convicted of a sexually violent offense and the Board of Probation, Parole, and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections intends to grant the person a conditional release, the parole or the conditional release shall be granted to be effective in ninety days. The Board of Probation, Parole, and Pardon Services, the Juvenile Parole Board, or the South Carolina Department of Corrections shall immediately send notice of the parole or conditional release of the person to the Attorney General and the solicitor of the judicial circuit where the person committed the offense. If the person is determined to be a sexually violent predator pursuant to this chapter, the person shall be subject to the provisions of this chapter even though the person has been released on parole or conditional release.
(C) The agency with jurisdiction shall inform the Attorney General and the solicitor of the judicial circuit where the person committed the offense of:
(1) the person's name, identifying factors, anticipated future residence, and offense history;
(2) documentation of institutional adjustment and any treatment received.
(D) The agency with jurisdiction, its employees, officials, and individuals contracting, appointed, or volunteering to perform services under this chapter are immune from civil or criminal liability for any good-faith conduct under this section.
Section 44-48-50. (A) When it appears to the Attorney General that the person presently confined may be a sexually violent predator, the Attorney General may file a petition with the court in the jurisdiction where the offense was committed within seventy-five days of the date the Attorney General received the written notice by the agency with jurisdiction as provided in Section 44-48-40(A) or (B) alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation.
(B) When it appears to the solicitor of the judicial circuit where the person committed the offense that the person presently confined may be a sexually violent predator and the Attorney General does not file a petition, the solicitor may file a petition with the court in the jurisdiction where the offense was committed within seventy-six days of the date the solicitor received the written notice by the agency with jurisdiction as provided in Section 44-48-40(A) or (B) alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation.
Section 44-48-60. (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 taken into custody.
(B) Within seventy-two hours after a person is taken into 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 detainee's identity;
(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; and
(4) view and copy all petitions and reports in the court file.
(D) If the probable cause determination is made, the court shall direct that the person 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 44-48-70. Within sixty days after the completion of a hearing held pursuant to Section 44-48-60, 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 when 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, as well as to all relevant medical and psychological records and reports. In the case of a person who 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, a solicitor who filed a petition pursuant to Section 44-48-50(B), 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 44-48-80. (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 and has been released pursuant to this chapter. The control, care, and treatment must be provided at a facility operated by the Department of Mental Health. At all times, persons committed for control, care, and treatment by the Department of Mental Health pursuant to this chapter must be kept in a secure facility and these persons must be segregated at all times from other patients under the supervision of the Department of Mental Health. Persons committed pursuant to this chapter must be kept in a facility or building separate from any other patient 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 control, care, and treatment of these persons. Persons who are in the confinement of the Department of Corrections pursuant to an interagency agreement authorized by this chapter must be kept in a secure facility and must so far as practical and to the degree possible be housed and managed separately from offenders in the custody of the Department of Corrections. 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 the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to be released and the person's commitment is sought pursuant to subsection (A), the court first shall hear evidence and determine whether the person did commit 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 did commit the act or acts charged, the extent to which the person's incompetence or developmental disability 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 44-48-90. A person committed under this chapter shall have a current examination of the person's mental condition made once every year. 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. The yearly report must be provided to the court that committed the person under this chapter, the Attorney General, and the solicitor of the judicial circuit where the person committed the offense. The court shall conduct an annual review of the status of the committed person. Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for discharge at this hearing. 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 the person 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 or the solicitor who filed a petition against the person pursuant to Section 44-48-50(B) 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 the person's 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 44-48-100. 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 shall be served upon the court and the Attorney General or the solicitor who filed a petition against the person pursuant to Section 44-48-50(B). The court, upon receipt of the petition for release, shall order a hearing within thirty days. The Attorney General or the solicitor who filed a petition against the person pursuant to Section 44-48-50(B) 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, the Attorney General, or the solicitor. The burden of proof is upon the Attorney General or the solicitor 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 44-48-110. Nothing in this chapter shall prohibit a person from filing a petition for discharge pursuant to this chapter. However, if a person has previously filed a petition for discharge without the approval of the Director of the Department of Mental Health and the court determined either upon review of the petition or following a hearing, that the petitioner's petition was frivolous or that the petitioner's condition had not so changed that the person was safe to be at large, then the court shall deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from committed persons without the director's approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based upon frivolous grounds and if so shall deny the petition without a hearing.
Section 44-48-120. In order to protect the public, relevant information and records which otherwise are confidential or privileged must be released to the agency with jurisdiction, the Attorney General, or the solicitor who filed a petition against the person pursuant to Section 44-48-50(B) for the purpose of meeting the notice requirements of Section 44-48-40 and determining whether a person is or continues to be a sexually violent predator.
Section 44-48-130. 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 44-48-140. A person released from commitment pursuant to this chapter must register pursuant to and comply with the requirements of Article 7, Chapter 3 of Title 23.
Section 44-48-150. The involuntary detention or commitment of persons under this chapter shall conform to constitutional requirements for care and treatment."
SECTION 2. The last paragraph of Section 16-3-1110 of the 1976 Code is amended to read:
"Notwithstanding any other provision of law, the applicable statute of limitations for a crime victim, who has a cause of action against an incarcerated offender based upon the incident which made the person a victim, is tolled and does not expire until three years after the offender's release from the sentence including probation and parole time or three years after release from commitment pursuant to Chapter 48 of Title 44, whichever is later. However, this provision shall not shorten any other tolling period of the statute of limitations which may exist for the crime victim."
SECTION 3. Chapter 3 of Title 24 of the 1976 Code is amended by adding:
"Section 24-3-85. The director of the prison system shall admit and detain in the Department of Corrections for safekeeping any person transferred to his custody pursuant to an interagency agreement authorized pursuant to Chapter 48 of Title 44."
SECTION 4. Section 44-22-10(11) of the 1976 Code is amended to read:
"(11) 'Patient' means an individual undergoing treatment in the department; however, the term does not include a person committed to the department pursuant to Chapter 48 of Title 44."
SECTION 5. If any section, paragraph, provision, or portion of this act is held to be unconstitutional or invalid by a court of competent jurisdiction, this holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declares that the provisions of this act are severable from each other.
SECTION 6. This act takes effect upon approval by the Governor and applies to all persons currently serving a sentence for any offense set forth in Section 44-48-30(2) as well as all persons who are convicted of a sexually violent offense in the future.