MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary

By: Senator(s) Smith

AN ACT TO PROVIDE FOR CIVIL COMMITMENT OF SEXUAL PREDATORS AT EXPIRATION OF SENTENCE; TO ENACT LEGISLATIVE FINDINGS; TO ENACT DEFINITIONS; TO PROVIDE CRITERIA FOR THOSE TO BE COMMITTED; TO PROVIDE FOR APPOINTMENT OF A MULTIDISCIPLINARY TEAM AND A PROSECUTOR'S REVIEW COMMITTEE; TO REQUIRE FILING OF A PETITION; TO ESTABLISH JUDICIAL PROCEDURE; TO ESTABLISH RESPONSIBILITY FOR THE CARE AND TREATMENT OF THOSE COMMITTED; TO REQUIRE ANNUAL EXAMINATION; TO PROVIDE FOR DISCHARGE PETITION AND PROCEDURES; TO REQUIRE THAT CARE AND TREATMENT SHALL CONFORM TO CONSTITUTIONAL REQUIREMENTS; TO REQUIRE WRITTEN NOTICE OF RELEASE TO BE GIVEN TO VICTIMS; TO PROVIDE FOR CONFIDENTIALITY OF CERTAIN RECORDS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Legislature finds that a small but extremely dangerous group of sexual predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment act for mentally ill persons, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. Sexual 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 Legislature further finds a high likelihood that sexual predators will engage in repeat acts of predatory sex offenses. The existing involuntary commitment procedure pursuant to the treatment act for mentally ill persons is inadequate to address the risk these sexual predators pose to society. The Legislature further finds that the prognosis for rehabilitating sexual predators in a prison setting is poor, 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 the treatment act for mentally ill persons. Therefore a civil commitment procedure for the long-term care and treatment of the sexual predator is found to be necessary by the Legislature.

SECTION 2. For the purposes of this act, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Sexual predator" means a person who has been convicted of a sex offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexual offenses.

(b) "Mental abnormality" means a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

(c) "Predatory" means an act directed at a stranger, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.

(d) "Sex offense" means any of the following offenses:

Section 97-3-65 relating to rape and the carnal knowledge of a child under fourteen (14) years of age;

Section 97-3-67 relating to the carnal knowledge of unmarried persons over fourteen (14) and under eighteen (18) years of age;

Section 97-3-71 relating to rape and assault with intent to ravish;

Section 97-3-95 relating to sexual battery;

Section 97-5-21 relating to seduction of a child under age eighteen (18);

Section 97-5-23 relating to the touching of a child for lustful purposes;

Section 97-5-27 relating to the dissemination of sexually oriented material to children;

Section 97-5-33 relating to the exploitation of children;

Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner; or

Section 97-29-59 relating to unnatural intercourse;

Any other offense committed in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere.

(e) "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.

(f) "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 department of corrections, the Department of Mental Health and the Mississippi parole board.

SECTION 3. (1) When it appears that a person may meet the criteria of a sexual predator, the agency with jurisdiction shall giver written notice of such to the Attorney General and the multidisciplinary team ninety (90) days prior to:

(a) The anticipated release from total confinement of a person who has been convicted of a predatory sexual offense, except that in the case of persons who are returned to prison for no more than ninety (90) days as a result of revocation of post-release supervision, written notice shall be given as soon as practicable following the person's readmission to prison;

(b) The release of a person who has been charged with a predatory sexual offense and who has been determined to be incompetent to stand trial;

(c) Release of a person who has been found not guilty by reason of insanity of a predatory sexual offense.

(2) The agency with jurisdiction shall inform the Attorney General and the multidisciplinary team of the following:

(a) The person's name, identifying factors, anticipated future residence and offense history; and

(b) Documentation of institutional adjustment and any treatment received.

(3) The agency with jurisdiction, its employees, officials, members of the multidisciplinary team members of the prosecutor's review committee, and individuals contracting, appointed or volunteering to perform services hereunder shall be immune from liability for any good-faith conduct under this section.

(4) The Commissioner of Corrections shall establish a multidisciplinary team which may include individuals from other state agencies to review available records of each person referred to such team pursuant to subsection (1) of this section. The team, within thirty (30) days of receiving notice, shall assess whether the person meets the definition of a sexual predator. The team shall notify the Attorney General of its assessment.

(5) 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 (1) of this section. The prosecutor's review committee shall assist the Attorney General in the determination of whether the person meets the definition of a sexual predator. The assessment of the multidisciplinary team shall be made available to the Attorney General and the prosecutor's review committee.

SECTION 4. When it appears that a person under confinement may be a sexual predator and the prosecutor's review committee has determined that the person meets the definition of a sexual predator, the Attorney General may file a petition in chancery court within seventy-five (75) days of the date the Attorney General received the written notice from the agency of jurisdiction, alleging that the person is a sexual predator and stating sufficient facts to support such allegation.

SECTION 5. (1) Upon filing of a petition, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexual predator. If such determination is made, the judge shall direct that person be taken into custody.

(2) Within seventy-two (72) hours after a person is taken into custody, such person shall 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 sexual predator. At this hearing the court shall: (a) verify the detainee's identity; and (b) determine whether probable cause exists to believe that the person is a sexual predator. The state may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(3) At the probable cause hearing, the detained person shall have the following rights in addition to the rights previously specified: (a) to be represented by counsel; (b) to present evidence on such person's behalf; (c) to cross-examine witnesses who testify against such person; and (d) to view and copy all petitions and reports in the court file.

(4) 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 sexual predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination.

SECTION 6. Within sixty (60) days after the completion of any hearing held under Section 5 of this act, the court shall conduct a trial to determine whether the person is a sexual 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 act, any person subject to this act shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel. Whenever any person is subjected to an examination under this act, the person may retain experts or professionals to perform an examination on the person's behalf. When the person wishes to be examined by a qualified expert or professional of his own choice, the examiner shall be permitted to have reasonable access to the person for the purpose of such 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 the reasonable compensation for such services. If the court determines that the services are necessary and the expert or professionals requested compensation for such services is reasonable, the court shall assist the person in obtaining an expert or professional to perform an examination or participate in the trial on the person's behalf. The court shall approve payment for such 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 shall have the right to demand that the trial be before a jury. Such demand for the trial to be before a jury shall be filed, in writing, at least four (4) days prior to the trial. If no demand is made, the trial shall be before the court.

SECTION 7. (1) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexual predator. If the determination is made by a jury, the determination shall be the unanimous verdict of the jury. The determination may be appealed. If the court or jury determines that the person is a sexual predator, the person shall be committed to the custody of the State Mental Hospital 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. At all times, persons committed under this act shall be kept in a secure facility and shall be segregated at all times from any other patient and shall be kept in a facility or building separate from patients not committed pursuant to this act. The Department of Mental Health is authorized to enter into an interagency agreement with the Department of Corrections for the confinement of such persons. Persons who are in confinement by commitment under this act shall 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 sexual 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. Any subsequent trial following a mistrial shall be held within ninety (90) days of the previous trial, unless such subsequent trial is continued.

(2) If the person charged with a predatory sexual offense has been found incompetent to stand trial and is about to be released, and such person's commitment is sought, the court shall first 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 shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall 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 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 section.

SECTION 8. Each person committed under this act shall have made a current examination of the person's mental condition once every year. The person may retain, or if the person is indigent and so requests, the court may appoint a qualified professional to examine the person, and the expert or professional shall have access to all records concerning the person. The yearly report shall be provided to the court that committed the person under this act. The court shall conduct an annual review of the status of the committed person. Nothing contained in this act shall prohibit the person from otherwise petitioning the court for discharge at this hearing. The Director of the State Mental Hospital shall provide the committed person with an annual written notice of the person's right to petition the court for release over the Department of Mental Health'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 shall have 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 predatory sexual offenses if discharged, then the court shall set a hearing on the issue. At the hearing, the committed person shall be 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's office shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The committed person shall also have 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 so requests. The burden of proof at the hearing shall be 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 predatory sexual offenses.

SECTION 9. The involuntary detention or commitment of persons under this act shall conform to constitutional requirements for care and treatment.

SECTION 10. If the Director of the State Mental Hospital determines that the person's mental abnormality or personality disorder has so changed that the person is not likely to commit predatory sexual offenses 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. The court, upon receipt of the petition for release, shall order a hearing within thirty (30) days. The Attorney General's office shall represent the state, and shall have the right to have the petitioner examined by an expert or professional of the Attorney General's choice. The hearing shall be before a jury if demanded by either the petitioner or the Attorney General. The burden of proof shall be 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 sexual offenses.

SECTION 11. Nothing in this act shall prohibit a person from filing a petition for discharge pursuant to this act. However, if a person has previously filed a petition for discharge without the Director of the State Mental Hospital's approval 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 12. The Director of the State Mental Hospital shall be responsible for all cost relating to the evaluation and treatment of persons committed to the director's custody under any provision of this act. Reimbursement may be obtained by the director for the cost of care and treatment of persons committed to the director's custody.

SECTION 13. In addition to any other information required to be released under this act, prior to the release of a person committed under this act, the Director of the State Mental Hospital shall give written notice of such release to any victim of the person's activities or crime who is alive and whose address is known to the director or, if the victim is deceased, to the victim's family, if the family's address is known to the director. Failure to notify shall not be a reason for postponement of release. Nothing in this section shall create a cause of action against the state or an employee of the state acting within the scope of the employee's employment as a result of the failure to notify pursuant to this act.

SECTION 14. (1) The county or district attorney shall file a special allegation of sexual motivation within ten (10) days after arraignment in every criminal case other than sex offenses, when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.

(2) In a criminal case wherein there has been special allegation, the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury trial is had, the jury, if it finds the defendant guilty, also shall find a special verdict as to whether or not the defendant committed the crime with a sexual motivation. This finding shall not be applied to sex offenses.

(3) The county or district attorney shall not withdraw the special allegation of sexual motivation without approval of the court through an order of dismissal of the special allegation. The court shall not dismiss this 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 which make proving the special allegation doubtful.

SECTION 15. In order to protect the public, relevant information and records which are otherwise confidential or privileged shall be released to the agency with jurisdiction or the Attorney General to determine whether a person is or continues to be a sexually violent predator.

SECTION 16. Any 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 act shall be part of the record but shall be sealed and opened only on order of the court.

SECTION 17. This act shall take effect and be in force from and after July 1, 1998.