Citations Affected:
IC 12-24-12-10
;
IC 35-36-2-4
; IC 35-39.
Synopsis: Civil commitment of sexual predators. Provides for the
commitment of a person found to be a sexually violent predator to a
mental health institution for an indefinite period following the person's
release from a correctional institution upon completion of a sentence
imposed for conviction of a sexual offense and civil commitment upon
release of a person charged with a sexual offense upon a finding of not
guilty by reason of insanity. Provides for an annual review and hearing
on the person's condition and for release of the person upon a finding
that the person's mental abnormality has so changed that the person is
not likely to commit predatory acts of sexual violence if released.
Requires the commissioner of the department of correction to establish
a multidisciplinary review team that includes individuals from other
state agencies to assess initially whether a person meets the definition
of a sexually violent predator and to notify the attorney general of the
multidisciplinary review team's findings. Requires the attorney general
to establish a prosecuting attorney review committee to review the
records of each person referred to them. Allows the attorney general to
file a petition for civil commitment of a person that the attorney general
and the prosecuting attorney review committee believe to be a sexually
violent predator. Requires a court hearing to determine if there is
probable cause to believe that the person is a sexually violent predator
and requires a trial to be held not later than 60 days after the probable
cause hearing. Provides for the psychological examination of the
person by qualified experts and requires the court to appoint experts to
examine the person if the person is indigent.
Effective: July 1, 2003.
January 21, 2003, read first time and referred to Committee on Judiciary.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
SECTION 1.
IC 12-24-12-10
, AS AMENDED BY P.L.215-2001,
SECTION 69, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 10. (a) Upon admission to a state institution
administered by the division of mental health and addiction, the
gatekeeper is one (1) of the following:
(1) For an individual with a psychiatric disorder, the community
mental health center that submitted the report to the committing
court under IC 12-26.
(2) For an individual with a developmental disability, a division
of disability, aging, and rehabilitative services service coordinator
under
IC 12-11-2.1.
(3) For an individual entering an addictions program, an
addictions treatment provider that is certified by the division of
mental health and addiction.
(b) The division is the gatekeeper for the following:
(1) An individual who is found to have insufficient
comprehension to stand trial under
IC 35-36-3.
written notice regarding the person to the attorney general as
provided in
IC 35-39-3-1.
Upon receipt of the notice required by
this subsection, the attorney general shall initiate proceedings
under IC 35-39 for the commitment of the defendant.
SECTION 3. IC 35-39 IS ADDED TO THE INDIANA CODE AS
A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]:
ARTICLE 39. CIVIL COMMITMENT OF SEXUALLY
VIOLENT PREDATORS
Chapter 1. Applicability
Sec. 1. IC 12-26 does not apply to a person who appears to be a
sexually violent predator and is the subject of an agency notice
under
IC 35-39-3-1.
Chapter 2. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Agency" means an agency having custody of a person
serving a sentence or term of confinement. The term includes the
department of correction, the division of mental health, and the
parole board.
Sec. 3. "Mental abnormality" means a congenital or acquired
condition affecting a person's emotional or volitional capacity that
predisposes the person to commit sexually violent offenses to a
degree that makes the person a menace to the health and safety of
others.
Sec. 4. "Multidisciplinary team" refers to the multidisciplinary
team established under
IC 35-39-3-4.
Sec. 5. "Predatory" describes acts directed toward strangers or
individuals with whom relationships have been established or
promoted for the primary purpose of victimization.
Sec. 6. "Sexually motivated" means that one (1) of the purposes
for which a defendant commits a crime is for the purpose of the
defendant's sexual gratification.
Sec. 7. "Sexually violent offense" includes any of the following:
(1) Rape (IC 35-42-4-1).
(2) Criminal deviate conduct (IC 35-42-4-2).
(3) Child molesting (IC 35-42-4-3).
(4) Child exploitation (IC 35-42-4-4(b)).
(5) Vicarious sexual gratification (IC 35-42-4-5).
(6) Child solicitation (IC 35-42-4-6).
(7) Child seduction (IC 35-42-4-7).
(8) Sexual misconduct with a minor as a Class A or Class B
felony (IC 35-42-4-9).
(9) Incest (
IC 35-46-1-3
).
(10) Sexual battery (IC 35-42-4-8).
(11) Any conviction before July 1, 2003, for a felony in effect
that is comparable to an offense listed in subdivisions (1)
through (10).
(12) Any federal or other state conviction for an offense that
is substantially similar to an offense listed in subdivisions (1)
through (10).
(13) An attempt to commit (as defined in
IC 35-41-5-1
) or
conspiracy to commit (as defined in
IC 35-41-5-2
) an offense
listed in subdivisions (1) through (12).
(14) Any act that, either at the time of sentencing for an
offense or subsequently during civil commitment proceedings
under this article, has been determined beyond a reasonable
doubt to have been sexually motivated.
Sec. 8. "Sexually violent predator" means a person who:
(1) has been convicted of or charged with a sexually violent
offense; and
(2) suffers from a mental abnormality or personality disorder
that makes the person likely to engage in predatory acts of
sexual violence if the person is not confined in a secure
facility.
Chapter 3. Notice of Release of a Sexually Violent Predator
Sec. 1. Whenever it appears to an agency that a person is a
sexually violent predator, the agency shall give written notice
regarding the person to the attorney general and the
multidisciplinary team not later than ninety (90) days before any
of the following occurs:
(1) The release date for a person who has been convicted of a
sexually violent offense. However, in the case of a person who
is returned to a correctional facility for not more than ninety
(90) days as a result of revocation of postrelease supervision,
written notice shall be given under this subdivision as soon as
is practicable following the person's readmission to a
correctional facility.
(2) The release date for a person who has been:
(A) charged with a sexually violent offense; and
(B) determined to be incompetent to stand trial under
IC 35-36-3.
(3) The release date for a person who has been found not
responsible by reason of insanity of a sexually violent offense
under
IC 35-36-2-3.
(4) The release date for a person who has been found not
guilty of a sexually violent offense under
IC 35-36-2-3.
Sec. 2. An agency shall include in the notice required by section
1 of this chapter the following:
(1) The name of the person who is the subject of the notice,
identifying factors, anticipated future residence, and offense
history.
(2) Documentation of institutional adjustment and treatment
received by the person who is the subject of the notice.
Sec 3. An agency, its employees, officials, members of the
multidisciplinary team, members of the prosecuting attorney
review committee appointed under section 5 of this chapter, and
individuals contracting, appointed, or volunteering to perform
services under this article are immune from liability for good faith
conduct under this article.
Sec. 4. (a) The commissioner of the department of correction
shall establish a multidisciplinary team that may include
individuals from other state agencies to review available records
of each person referred to the team under this chapter.
(b) The multidisciplinary team, not later than thirty (30) days
after receiving notice, shall assess whether a person is a sexually
violent predator. The multidisciplinary team shall notify the
attorney general of the multidisciplinary team's assessment.
Sec. 5. (a) The attorney general shall appoint a prosecuting
attorney review committee to review the records of each person
referred to the attorney general under section 4 of this chapter.
(b) The prosecuting attorney review committee shall assist the
attorney general in determining whether a person is a sexually
violent predator.
(c) The assessment of the multidisciplinary team that is made
under section 4(b) of this chapter must be made available to the
attorney general and the prosecuting attorney review committee.
Chapter 4. Determination of Probable Cause; Contents of
Petition; Hearing
Sec. 1. Whenever it appears that a confined person may be a
sexually violent predator and the prosecuting attorney review
committee appointed under
IC 35-39-3-5
has determined that the
person is a sexually violent predator, the attorney general may file
a petition with a court having jurisdiction not later than
seventy-five (75) days after the date the attorney general receives
written notice under
IC 35-39-3-1.
number and selection of jurors is determined under
IC 35-37-1.
If
no demand for a jury trial is made, the trial shall be before the
court.
Chapter 6. Commitment Procedure; Interagency Agreements;
Mistrials
Sec. 1. (a) The court or jury in a trial conducted under
IC 35-39-5
shall determine beyond a reasonable doubt if the
defendant at trial is a sexually violent predator. If the
determination that the defendant is a sexually violent predator is
made by a jury, the jury verdict must be unanimous.
(b) The verdict may be appealed.
Sec. 2. (a) If the court or jury determines that the defendant is
a sexually violent predator, the defendant shall be committed to the
custody of the division of mental health for control, care, and
treatment until the defendant's mental abnormality or personality
disorder has so changed that the defendant is safe to be at large.
(b) The control, care, and treatment of a person committed
under subsection (a) must be provided at a facility operated by the
division of mental health and addiction.
Sec. 3. A person committed under section 2 of this chapter for
control, care, and treatment by the division of mental health under
this article must be:
(1) kept at all times in a secure facility;
(2) segregated at all times from other patients under the
supervision of the division of mental health and addiction;
and
(3) kept in a separate building or facility from any other
building or facility housing patients under the supervision of
the division of mental health and addiction who have not been
committed under this article.
Sec. 4. (a) The division of mental health and addiction may enter
into an interagency agreement with the department of correction
for the confinement of a person found to be a sexually violent
predator under this article.
(b) A person who is in the custody of the department of
correction under an interagency agreement executed under this
section must be housed and managed separately from offenders in
the custody of the department of correction, and except for
occasional instances of supervised incidental contact, must be
segregated from such offenders.
Sec. 5. (a) After a trial conducted under
IC 35-39-5-1
, if a court
or jury is not satisfied beyond a reasonable doubt that the
defendant at trial is a sexually violent predator, the court shall
order the person's release.
(b) Upon a mistrial of a trial held under
IC 35-39-5-1
, a court
shall order that the defendant be held at an appropriate secure
facility, including a county jail, until another trial is conducted.
(c) A subsequent trial following a mistrial under this article
must be held not later than ninety (90) days after the previous trial,
unless the subsequent trial is continued under
IC 35-39-5-1.
Sec. 6. (a) If a person:
(1) is charged with a sexually violent offense;
(2) has been found incompetent to stand trial;
(3) is about to be retained under
IC 35-36-3
; and
(4) is subject to a commitment proceeding under this chapter;
the court shall first conduct a hearing to hear evidence and
determine whether the person committed the act or acts charged.
(b) A hearing held under this section 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.
(c) After hearing evidence at a hearing held under this section,
the court shall make written findings on each of the following:
(1) Whether the person who is the subject of the hearing
committed the act or acts charged.
(2) The extent to which the person's incompetence or
developmental disability affected the outcome of the hearing,
including the effect on the person's ability to consult with and
assist counsel and to testify on the person's own behalf.
(3) The extent to which the evidence could be reconstructed
without the assistance of the person.
(4) The strength of the prosecution's case.
(d) If after the conclusion of a hearing held under this section,
the court finds, beyond a reasonable doubt, that the person
committed the act or acts charged, the court:
(1) shall enter a final order, appealable by the person, on that
issue; and
(2) may initiate on its own motion, or direct the prosecuting
attorney having jurisdiction to initiate, a proceeding for a
determination of probable cause under
IC 35-39-4.
Sec. 7. Upon a finding of probable cause under
IC 35-39-4
, the
matter proceeds to trial as described in
IC 35-39-5
and the person
named as defendant at trial is subject to the requirements and
entitlements of this article.
Chapter 7. Annual Examinations and Contested Release
Petitions
Sec. 1. An examination of the mental condition of each person
committed under this article must be made once every year.
Sec. 2. A person committed under this article may retain, or if
the person is indigent and so requests, the court may appoint, a
qualified professional person to examine the person. The expert or
professional person is entitled to access to all records concerning
the person.
Sec. 3. (a) The annual report must be provided to the court that
committed the person under this article. The court shall hold a
hearing to conduct an annual review of the status of the committed
person.
(b) This article does not prohibit the person from otherwise
petitioning the court for discharge at the annual hearing.
Sec. 4. (a) The division 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 division's objection.
The notice must contain a waiver of rights. The division shall
forward the notice and waiver form to the court with the annual
report.
(b) The committed person is entitled to have an attorney
represent the person at a contested petition hearing, but the person
is not entitled to be present at the contested petition hearing.
Sec. 5. (a) If the court at a contested petition 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, the court shall set a release hearing on the issue.
(b) At the contested release hearing scheduled under subsection
(a), the committed person is entitled to be present and is entitled to
the benefit of all constitutional protections that are afforded the
person at the person's initial commitment proceeding.
Sec. 6. (a) The attorney general shall represent the state at a
contested release hearing held under section 5 of this chapter and
is entitled to:
(1) a jury trial of the matter; and
(2) have the committed person evaluated by experts chosen by
the state.
(b) The committed person is also entitled to have experts
evaluate the person on the person's behalf. The court shall appoint
an expert if the person is indigent and requests such an
appointment.
Sec. 7. The burden of proof at a contested release hearing held
under section 5 of this chapter is on the state to prove beyond a
reasonable doubt that the committed person's mental abnormality
or personality disorder remains such that the person:
(1) is not safe to be at large; and
(2) if released, is likely to engage in acts of sexual violence.
Chapter 8. Uncontested Petition for Release
Sec. 1. (a) For a person committed to the custody of the division
of mental health and addiction under this article, if the division of
mental health and addiction 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 division of mental health and addiction shall authorize the
person to submit an uncontested petition to the court for release.
(b) The uncontested petition must be served upon the court that
heard the initial commitment proceeding under this article and the
attorney general.
Sec. 2. (a) The court, upon receipt of an uncontested petition for
release filed under section 1 of this chapter, shall order a hearing
to be held not later than thirty (30) days after the date of receipt of
the uncontested petition.
(b) The attorney general shall represent the state at a hearing
held under this section. The attorney general is entitled to have the
petitioner examined by an expert or professional person of the
attorney general's choice.
Sec. 3. (a) A hearing on an uncontested petition for release held
under this chapter must be held before a jury if demanded by
either the uncontested petitioner or the attorney general.
(b) The burden of proof is on 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 released is likely to
commit predatory acts of sexual violence.
Chapter 9. Subsequent Release Petitions
Sec. 1. This article does not prohibit a person from filing an
unscheduled petition for release under this article. However, if a
person has previously filed a contested petition for release and the
court determined, either upon review of the petition or following
a hearing:
(1) that the petitioner's petition was frivolous; or
that the defendant was sexually motivated to commit the crime.
(b) For a prosecution in which a special allegation of sexually
motivated defendant is filed under section 1 of this chapter in
which the defendant is convicted of the offense, the court shall
make a written finding as to whether the defendant was sexually
motivated to commit the crime, or if there is a jury trial, the jury,
if it finds the defendant guilty, shall also determine by special
verdict whether the defendant was sexually motivated to commit
the crime. The finding or verdict may not be applied to sex offenses
under
IC 35-42-4.
(c) The prosecuting attorney may not withdraw the special
allegation of sexually motivated defendant without approval of the
court through an order of dismissal of the special allegation. The
court may not dismiss a special allegation unless it finds that such
an order is necessary to correct an error in the initial charging
decision or unless there are evidentiary problems that make
proving the special allegation doubtful.
Chapter 13. Confidential or Privileged Information and Records
Sec. 1. In order to protect the public, relevant information and
records maintained under this article that are otherwise
confidential or privileged must be released to an agency or to the
attorney general for the purpose of:
(1) meeting the notice requirement provided in
IC 35-39-3
;
and
(2) determining whether a person is, or continues to be, a
sexually violent predator.
Chapter 14. Court Records
Sec. 1. (a) Psychological reports, drug and alcohol reports,
treatment records, reports of the diagnostic center, medical
records, and victim impact statements that have been submitted to
the court or admitted into evidence under this article shall be part
of the court record.
(b) The court record under this section shall be sealed and may
be opened only on order of the court.
Chapter 15. Commitment Rights
Sec. 1. The involuntary detention or commitment of a person
under this article must conform to constitutional requirements for
care and treatment.