06 LC 29
2120
Senate
Bill 521
By:
Senator Smith of the 52nd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Titles 16, 17, 37, and 42 of the Official Code of Georgia Annotated,
relating, respectively, to crimes and offenses, criminal procedure, mental
health, and penal institutions, so as to provide for enhanced penalties and
civil commitment for certain sex offenses when aggravating circumstances are
found beyond a reasonable doubt; to provide for legislative findings; to change
punishment provisions relating to rape; to change punishment provisions relating
to sodomy and aggravated sodomy; to change punishment provisions relating to
child molestation and aggravated child molestation; to change punishment
provisions relating to aggravated sexual battery; to provide for lesser
punishment for certain sexual offenses committed by persons of certain ages; to
change certain provisions relating to punishment of serious violent offenders;
to provided for enhanced penalties for certain sex offenses; to provide for
notice of enhanced punishment; to provide for bifurcated proceedings if enhanced
penalties are sought and practice and procedure related thereto; to provide for
aggravating circumstances; to provide for involuntary civil commitment of
sexually violent predators; to provide for legislative intent; to provide for
definitions; to establish multidisciplinary teams; to provide for notice to
prosecuting attorneys and multidisciplinary teams of the release of persons
convicted of sexually violent offenses; to require certain information to be
provided to certain persons; to provide for practice and procedure of civil
commitment; to provide for circumstances where a person is released from total
confinement; to provide for time limitations on assessment, notification, and
filing a petition to hold a person in custody; to provide for the contents of
the civil commitment petition; to provide for the determination of probable
cause, hearing, and evaluation; to provide for the Department of Human Resources
to enter into contracts for facilities and services related to civil commitment;
to provide for rules of procedure and evidence; to provide for trial
proceedings, the right to counsel and experts, and jury trials; to provide for
indigent persons to have the right to counsel and other experts; to provide for
the commitment procedure, mistrials, housing, and counsel and costs in indigent
appellate cases; to provide for examinations, notice, and court hearings for
release of committed persons; to provide for the burden of proof; to provide
authorization for persons to petition for release and the procedure therefor; to
provide for rights of persons committed; to provide for release of records to
agencies, multidisciplinary teams, and the prosecuting attorney; to provide for
the right of habeas corpus; to provide for constitutional considerations; to
provide for immunity from civil liability; to provide for applicability; to
provide for notice to victims of release of persons committed as sexually
violent predators; to provide for penalties for escape from civil commitment; to
provide for subsistence fees and costs of treatment; to provide for program
costs; to provide for establishment of rules; to provide for quarterly reports;
to provide for other related matters; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds that a small but extremely dangerous number of sexually
violent predators exist who generally have antisocial personality features which
are unamenable to existing mental illness treatment modalities, and those
features render them likely to engage in criminal, sexually violent behavior.
The General Assembly further finds that the likelihood of sexually violent
predators engaging in repeat acts of predatory sexual violence is high. The
existing involuntary commitment procedures in Georgia for the treatment and care
of mentally ill persons are inadequate to address the risk these sexually
violent predators pose to society. The General Assembly further finds that the
prognosis for rehabilitating sexually violent 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 current law. It
is therefore the intent of the legislature to create a civil commitment
procedure for the long-term care and treatment of sexually violent
predators.
SECTION
2.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by striking Code Section 16-6-1, relating to rape, and inserting in
lieu thereof the following:
∀16-6-1.
(a)
A person commits the offense of rape when he has carnal knowledge
of:
(1)
A female forcibly and against her will; or
(2)
A female who is less than ten years of age.
Carnal
knowledge in rape occurs when there is any penetration of the female sex organ
by the male sex organ. The fact that the person allegedly raped is the wife of
the defendant shall not be a defense to a charge of rape.
(b)
A person convicted of the offense of rape shall be punished by death, by
imprisonment for life without parole, by imprisonment for life, or by
imprisonment for not less than ten nor more than 20 years. Any person convicted
under this Code section shall, in addition, be subject to the sentencing and
punishment provisions of Code Sections
17-10-6.1,
17-10-6.2, and 17-10-7.
(c)
When evidence relating to an allegation of rape is collected in the course of a
medical examination of the person who is the victim of the alleged crime, the
law enforcement agency investigating the alleged crime shall be responsible for
the cost of the medical examination to the extent that expense is incurred for
the limited purpose of collecting
evidence.∀
SECTION
3.
Said
title is further amended by striking Code Section 16-6-2, relating to sodomy and
aggravated sodomy, and inserting in lieu thereof the following:
∀16-6-2.
(a)(1)
A person commits the offense of sodomy when he or she performs or submits to any
sexual act involving the sex organs of one person and the mouth or anus of
another.
(2)
A person commits the offense of aggravated sodomy when he or she commits sodomy
with force and against the will of the other person or when he or she commits
sodomy with a person who is less than ten years of age. The fact that the
person allegedly sodomized is the spouse of a defendant shall not be a defense
to a charge of aggravated sodomy.
(b)(1)
Except as provided in paragraph (2) of this subsection,
a
A
person convicted of the offense of sodomy shall be punished by imprisonment for
not less than one nor more than 20 years.
(2)
If the victim is 14 or 15 years of age and the person convicted of sodomy is no
more than three years older than the victim, such person shall be guilty of a
misdemeanor.
(3)
A person convicted of the offense of aggravated sodomy shall be punished by
imprisonment for life or by imprisonment for not less than ten nor more than 30
years. Any person convicted under this Code section of the offense of aggravated
sodomy shall, in addition, be subject to the sentencing and punishment
provisions of Code Sections
17-10-6.1,
17-10-6.2, and 17-10-7.
(c)
When evidence relating to an allegation of aggravated sodomy is collected in the
course of a medical examination of the person who is the victim of the alleged
crime, the law enforcement agency investigating the alleged crime shall be
financially responsible for the cost of the medical examination to the extent
that expense is incurred for the limited purpose of collecting
evidence.∀
SECTION
4.
Said
title is further amended by striking Code Section 16-6-4, relating to child
molestation and aggravated child molestation, and inserting in lieu thereof the
following:
∀16-6-4.
(a)
A person commits the offense of child molestation when he or she does any
immoral or indecent act to or in the presence of or with any child under the age
of 16 years with the intent to arouse or satisfy the sexual desires of either
the child or the person.
(b)(1)
Except as provided in paragraph (2) of this subsection,
a
A
person convicted of a first offense of child molestation shall be punished by
imprisonment for not less than five nor more than 20 years
and shall be
subject to the sentencing and punishment provisions of Code Section
17-10-7.
Upon such
first conviction of the offense of child molestation, the judge may probate the
sentence; and such probation may be upon the special condition that the
defendant undergo a mandatory period of counseling administered by a licensed
psychiatrist or a licensed psychologist. However, if the judge finds that such
probation should not be imposed, he or she shall sentence the defendant to
imprisonment; provided, further, that upon a
defendant́s
Upon a
defendant being incarcerated on a
conviction for
such
a
first offense, the Department of Corrections shall provide counseling to such
defendant. Upon a second or subsequent conviction of an offense of child
molestation, the defendant shall be punished by imprisonment for not less than
ten years nor more than 30 years or by imprisonment for life
and shall be
subject to the sentencing and punishment provisions of Code Section
17-10-7; provided, however, that prior to
trial, a defendant shall be given notice, in writing, that the state intends to
seek a punishment of life imprisonment. Adjudication of guilt or imposition of
sentence for a conviction of a second or subsequent offense of child
molestation, including a plea of nolo contendere, shall not be suspended,
probated, deferred, or withheld.
(2)
If the victim is 14 or 15 years of age and the person convicted of a first
offense of child molestation is no more than three years older than the victim,
such person shall be guilty of a misdemeanor.
(c)
A person commits the offense of aggravated child molestation when such person
commits an offense of child molestation which act physically injures the child
or involves an act of sodomy.
(d)(1)
Except as
provided in paragraph (2) of this subsection,
a
A
person convicted of the offense of aggravated child molestation shall be
punished by imprisonment for not less than ten nor more than 30 years. Any
person convicted under this Code section of the offense of aggravated child
molestation shall, in addition, be subject to the sentencing and punishment
provisions of Code Sections
17-10-6.1,
17-10-6.2, and 17-10-7.
(2)
A person convicted of the offense of aggravated child molestation
when:
(A)
The victim is 14 or 15 years of age;
(B)
The person so convicted is no more than three years older than the victim;
and
(C)
The basis of the charge of aggravated child molestation involves an act of
sodomy
shall
be guilty of a misdemeanor and shall not be subject to the sentencing and
punishment provisions of Code Section 17-10-6.1.
(2)
The court sentencing a person who has been convicted of a first offense of
aggravated child molestation when the victim is 16 years of age or younger at
the time of the offense is authorized to require, before sentencing, that the
defendant undergo a psychiatric evaluation to ascertain whether or not
medroxyprogesterone acetate chemical treatment or its equivalent would be
effective in changing the
defendant́s
behavior. If it is determined by a qualified mental health professional that
such treatment would be effective, the court may require, as a condition of
probation and upon provisions arranged between the court and the defendant, the
defendant to undergo medroxyprogesterone acetate treatment or its chemical
equivalent which must be coupled with treatment by a qualified mental health
professional. In case of a person sentenced to probation who is required to
undergo such treatment or its chemical equivalent and is in the custody of a law
enforcement agency or confined in a jail at the time of sentencing, when he or
she becomes eligible for probation, such person shall begin medroxyprogesterone
acetate treatment and counseling prior to his or her release from custody or
confinement. A person sentenced to probation who is required to undergo such
treatment and who is not in the custody of a law enforcement agency or confined
in a jail at the time of sentencing shall be taken into custody or confined
until treatment can begin. Additional treatment may continue after such
defendant́s
release from custody or confinement until the defendant demonstrates to the
court that such treatment is no longer necessary. No such treatment shall be
administered until such person has been fully informed of the side effects of
hormonal chemical treatment and has consented to the treatment in writing. The
administration of the treatment shall conform to the procedures and conditions
set out in subsection (c) of Code Section 42-9-44.2.
(3)
Any physician or qualified mental health professional who acts in good faith in
compliance with the provisions of this Code section and subsection (c) of Code
Section 42-9-44.2 in the administration of treatment or provision of counseling
provided for in this Code section shall be immune from civil or criminal
liability for his or her actions in connection with such treatment or
counseling.∀
SECTION
5.
Said
title is further amended by striking Code Section 16-6-22.2, relating to
aggravated sexual battery, and inserting in lieu thereof the
following:
∀16-6-22.2.
(a)
For the purposes of this Code section, the term 'foreign object' means any
article or instrument other than the sexual organ of a person.
(b)
A person commits the offense of aggravated sexual battery when he
or
she intentionally penetrates with a
foreign object the sexual organ or anus of another person without the consent of
that person.
(c)
A person convicted of the offense of aggravated sexual battery shall be punished
by imprisonment for not less than ten nor more than 20 years. Any person
convicted under this Code section shall, in addition, be subject to the
sentencing and punishment provisions of Code Sections
17-10-6.1,
17-10-6.2, and
17-10-7.∀
SECTION
6.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by striking Code Section 17-10-6.1, relating to punishment for serious
violent offenders, and inserting in lieu thereof the following:
∀17-10-6.1.
(a)
As used in this Code section, the term 'serious violent felony'
means:
(1)
Murder or felony murder, as defined in Code Section 16-5-1;
(2)
Armed robbery, as defined in Code Section 16-8-41;
(3)
Kidnapping, as defined in Code Section 16-5-40;
(4)
Rape, as defined in Code Section 16-6-1;
(5)
Aggravated child molestation, as defined in
subsection (c)
of Code Section
16-6-4, unless
subject to the provisions of paragraph (2) of subsection (d) of Code Section
16-6-4;
(6)
Aggravated sodomy, as defined in Code Section 16-6-2; or
(7)
Aggravated sexual battery, as defined in Code Section 16-6-22.2.
(b)(1)
Notwithstanding any other provisions of law to the contrary, any person
convicted of a serious violent felony as defined in paragraphs (2) through (7)
of subsection (a) of this Code section shall be sentenced to a mandatory minimum
term of imprisonment of ten years and no portion of the mandatory minimum
sentence imposed shall be suspended, stayed, probated, deferred, or withheld by
the sentencing court and shall not be reduced by any form of pardon, parole, or
commutation of sentence by the State Board of Pardons and Paroles.
(2)
No person convicted of a serious violent felony
as defined
in subsection (a) of this Code section
shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of
Title 42, relating to probation for first offenders, or any other provision of
Georgia law relating to the sentencing of first offenders. The State of Georgia
shall have the right to appeal any sentence which is imposed by the superior
court which does not conform to the provisions of this subsection in the same
manner as is provided for other appeals by the state in accordance with Chapter
7 of Title 5, relating to appeals or certiorari by the state.
(c)(1)
Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a
first conviction of a serious violent felony in which the defendant has been
sentenced to life imprisonment, that person shall not be eligible for any form
of parole or early release administered by the State Board of Pardons and
Paroles until that person has served a minimum of 14 years in prison. The
minimum term of imprisonment shall not be reduced by any earned time, early
release, work release, leave, or other sentence-reducing measures under programs
administered by the Department of Corrections.
(2)
For a first conviction of a serious violent felony in which the defendant has
been sentenced to death but the sentence of death has been commuted to life
imprisonment, that person shall not be eligible for any form of parole or early
release administered by the State Board of Pardons and Paroles until that person
has served a minimum of 25 years in prison. The minimum term of imprisonment
shall not be reduced by any earned time, early release, work release, leave, or
other sentence-reducing measures under programs administered by the Department
of Corrections.
(3)
Any sentence imposed for the first conviction of any serious violent felony
other than a sentence of life imprisonment or life without parole or death shall
be served in its entirety as imposed by the sentencing court and shall not be
reduced by any form of parole or early release administered by the State Board
of Pardons and Paroles or by any earned time, early release, work release,
leave, or other sentence-reducing measures under programs administered by the
Department of Corrections, the effect of which would be to reduce the period of
incarceration ordered by the sentencing court.
(d)
For purposes of this Code section, a first conviction of any serious violent
felony means that the person has never been convicted of a serious violent
felony under the laws of this state or of an offense under the laws of any other
state or of the United States, which offense if committed in this state would be
a serious violent felony. Conviction of two or more crimes charged on separate
counts of one indictment or accusation, or in two or more indictments or
accusations consolidated for trial, shall be deemed to be only one
conviction.∀
SECTION
7.
Said
title is further amended by adding a new Code section to follow Code Section
17-10-6.1, relating to punishment for serious violent offenders, to read as
follows:
∀17-10-6.2.
(a)
As used in this Code section, the term 'sexually violent offense' means rape,
aggravated sodomy, aggravated sexual battery, or aggravated child molestation,
unless subject to the provisions of paragraph (2) of subsection (d) of Code
Section 16-6-4.
(b)
At any time after the filing of an indictment for a sexually violent offense,
but not later than the arraignment, the state shall notify the defendant of its
intention to seek the enhanced penalties authorized by subsection (f) of this
Code section. The notice shall be in writing and shall allege the specific
statutory aggravating factors as specified in subsection (e) of this Code
section.
(c)
In a case where notice has been given pursuant to subsection (b) of this Code
section, the trier of fact shall initially determine the
defendant́s
guilt on the charge or charges. If the trier of fact finds the defendant guilty
of such a charge or charges, the trial shall immediately be recommenced to
receive evidence relevant to determining the existence of any aggravating
circumstances as set forth in the notice given. The trial shall resume before
the jury that heard the case unless the defendant waives the right to a trial by
jury for purposes of sentencing pursuant to this Code section. The hearing
shall be conducted in the same manner as provided in Code Section 17-10-2. The
trier of fact shall consider the statutory aggravating circumstances and any
mitigating circumstances.
(d)
The judge, in charging the jury at the conclusion of the sentencing hearing,
shall include in the instructions to the jury any mitigating circumstances or
aggravating circumstances otherwise authorized by law and the statutory
aggravating circumstances set forth in subsection (e) of this Code section which
may be supported by the evidence. The statutory instructions as determined by
the trial judge to be warranted by the evidence shall be given in charge and in
writing to the jury for its deliberation. The jury, if its verdict is a
recommendation of enhanced sentencing, shall designate in writing, signed by the
foreperson of the jury, the aggravating circumstance or circumstances which it
found beyond a reasonable doubt. In nonjury cases the judge shall make such
designation. Unless at least one of the statutory aggravating circumstances
enumerated in subsection (e) of this Code section is so found, the enhanced
penalties shall not be imposed.
(e)
Aggravating circumstances include evidence that:
(1)
The victim was less than 13 years of age;
(2)
The victim was related to the defendant by blood, marriage, or
adoption;
(3)
The victim was in a fiduciary relationship with the defendant;
(4)
The victim was in the custody or control of the defendant;
(5)
There were threats of torture or violence made to the victim;
(6)
There were previous threats of violence made to the victim;
(7)
The victim was held against his or her will or was kidnapped;
(8)
The victim or the
victiḿs
family was stalked before or after the defendant was arrested;
(9)
The defendant used the Internet to lure, attract, or identify the
victim;
(10)
The defendant used any method of communication to harass or intimidate the
victim or the
victiḿs
family, including, but not limited to, the telephone, Internet, or
mail;
(11)
The defendant was using controlled substances or marijuana during the commission
of the crime;
(12)
The defendant intentionally inflicted serious physical harm to the victim.
'Physical harm' means any physical injury that results in broken bones or
disfiguring lacerations requiring multiple sutures or cosmetic surgery or any
physical injury that results in death;
(13)
The sexually violent offense occurred while the defendant was engaged in the
commission of burglary;
(14)
The sexually violent offense was committed for the purpose of facilitating
prostitution;
(15)
The sexually violent offense was committed for the purpose of permitting the
victim to engage in sexually explicit conduct for the purpose of producing a
visual medium depicting such conduct;
(16)
The defendant was in an authoritative, supervisory, or disciplinary relationship
with the victim, including, but not limited to, the
defendant́s
capacity as a teacher, minister, probation officer, parole officer, or a law
enforcement officer involved with the victim, if the offense occurred while the
defendant was actually or ostensibly performing his or her job; or
(17)
The defendant had previously been convicted of a serious violent felony as such
term is defined in Code Section 17-10-6.1.
(f)
If the trier of fact determines beyond a reasonable doubt that one or more of
the aggravating circumstances occurred, the judge shall enhance the sentence
imposed as follows:
(1)
The defendant shall be subject to involuntary civil commitment pursuant to
Chapter 11 of Title 37; and
(2)
The defendant may imprisoned for life and shall not be eligible for any form of
parole or early release until the defendant has served at least 90 percent of
the sentence imposed by the sentencing
court.∀
SECTION
8.
Title
37 of the Official Code of Georgia Annotated, relating to mental health, is
amended by adding a new Chapter 11 to read as follows:
∀CHAPTER
11
37-11-1.
The
General Assembly intends that persons who are subject to the civil commitment
procedure for sexually violent predators under this chapter be subject to the
procedures established in this chapter.
37-11-2.
As
used in this chapter, the term:
(1)
'Agency with jurisdiction' means the agency that releases, upon lawful order or
authority, a person who is serving a sentence in the custody of the Department
of Corrections or a person who was involuntarily committed to the custody of the
department upon an adjudication of not guilty by reason of
insanity.
(2)
'Convicted of a sexually violent offense' means a person who has
been:
(A)
Adjudicated guilty of a sexually violent offense after a trial, guilty plea, or
plea of nolo contendere; or
(B)
Adjudicated not guilty by reason of insanity of a sexually violent
offense.
(3)
'Likely to engage in acts of sexual violence' means the
persońs
propensity to commit acts of sexual violence is of such a degree as to pose a
menace to the health and safety of others if such person is released
unconditionally.
(4)
'Mental abnormality' means a mental condition affecting a
persońs
emotional or volitional capacity which predisposes the person to commit sexually
violent offenses.
(5)
'Multidisciplinary team' shall include, but is not limited to, two
psychiatrists, two psychologists, or one psychiatrist and one
psychologist.
(6)
'Person' means an individual 18 years of age or older who is a potential or
actual subject of proceedings under this chapter.
(7)
'Psychiatrist' means a physician who is certified as a Diplomat in Psychiatry by
the American Board of Psychiatry and Neurology or who has completed three years
of an approved residency training program in psychiatry and has had two years of
full-time practice in this specialty.
(8)
'Sexually violent offense' means:
(A)
Rape, aggravated sodomy, aggravated sexual battery, or aggravated child
molestation unless subject to the provisions of paragraph (2) of subsection (d)
of Code Section 16-6-4; or
(B)
Any conviction for a felony offense in effect at any time before July 1, 2006,
which is comparable to a sexually violent offense under subparagraph (A) or any
federal conviction or conviction in another state for a felony offense that in
this state would be a sexually violent offense.
(9)
'Sexually violent predator' means any person who:
(A)
Has been convicted of a sexually violent offense; and
(B)
Suffers from a mental abnormality or personality disorder that makes the person
likely to engage in acts of sexual violence if not confined in a secure facility
for long-term control, care, and treatment.
(10)
'Total confinement' means that the person is currently being held in any
physically secure facility being operated or contractually operated for the
Department of Corrections, the department, or the division. A person shall also
be deemed to be in total confinement for applicability of provisions under this
chapter if the person is serving an incarcerative sentence under the custody of
the Department of Corrections and is being held in any other secure facility for
any reason.
37-11-3.
(a)
The agency with jurisdiction over a person who has been convicted of a sexually
violent offense shall provide the multidisciplinary team with the following
information:
(1)
The
persońs
name; identifying characteristics; anticipated future residence; the type of
supervision the person will receive in the community, if any; and the
persońs
offense history;
(2)
The
persońs
criminal history, including police reports; victim statements; presentence
investigation reports; postsentence investigation reports, if available; and any
other documents containing facts of the
persońs
criminal incidents;
(3)
The
persońs
mental health, mental status, and medical records, including all clinical
records and notes concerning the person;
(4)
Documentation of institutional adjustment of and any treatment received by the
person; and
(5)
If the person was returned to custody after a period of supervision,
documentation of adjustment during supervision and any treatment
received.
(b)
The agency with jurisdiction shall give written notice to:
(1)
The multidisciplinary team and a copy to the prosecuting attorney of the circuit
where the person was last convicted of a sexually violent offense;
(2)
The multidisciplinary team and a copy to the prosecuting attorney of the circuit
where the person was last convicted of any offense in this state if the person
has never been convicted of a sexually violent offense in this state but has
been convicted of a sexually violent offense in another state or in federal
court; or
(3)
The multidisciplinary team and a copy to the prosecuting attorney of the circuit
where the person plans to reside upon release or, if no residence in this state
is planned, the prosecuting attorney in the circuit where the facility from
which the person to be released is located if the person is being confined in
this state pursuant to interstate compact and has a prior or current conviction
for a sexually violent offense.
(c)
Except as provided in Code Section 37-11-5, the written notice shall be
given:
(1)
At least 545 days prior to the anticipated release from total confinement of a
person serving a sentence in the custody of the Department of Corrections,
except that in the case of persons who are totally confined for a period of less
than 545 days, written notice shall be given as soon as practicable;
or
(2)
At least 180 days prior to the anticipated hearing regarding possible release of
a person committed to the custody of the department who has been found not
guilty by reason of insanity of a sexually violent offense.
(d)
Within 180 days after receiving notice, there shall be a written assessment as
to whether the person meets the definition of a sexually violent predator
followed by a written recommendation, which shall be provided to the prosecuting
attorney by the department and shall include the written report of the
multidisciplinary team.
(e)
The provisions of this Code section shall not be jurisdictional, and failure to
comply with such provisions shall not prevent the prosecuting attorney from
proceeding against a person otherwise subject to the provisions of this
chapter.
37-11-4.
(a)
The commissioner or his or her designee shall establish a multidisciplinary team
or teams.
(b)
The multidisciplinary team shall assess and evaluate each person referred to
such team. The assessment and evaluation shall include a review of the
persońs
institutional history and treatment record, if any; the
persońs
criminal background; and any other factor relevant to determining whether such
person is a sexually violent predator.
(c)
Before recommending that a person meets the definition of a sexually violent
predator, the multidisciplinary team shall offer the person a personal
interview. If the person agrees to participate in a personal interview, at
least one member of the multidisciplinary team who is a licensed psychiatrist or
psychologist shall conduct a personal interview of the person. If the person
refuses to fully participate in a personal interview, the multidisciplinary team
may proceed with its recommendation without a personal interview of the
person.
(d)
The Attorney General shall serve as legal counsel to the multidisciplinary
team.
37-11-5.
(a)
If the anticipated release from total confinement of a person who has been
convicted of a sexually violent offense becomes immediate for any reason, the
agency with jurisdiction shall upon immediate release from total confinement
transfer that person to the custody of the department to be held in an
appropriate secure facility.
(b)
Within 72 hours after transfer, the multidisciplinary team shall assess whether
the person meets the definition of a sexually violent predator. If the
multidisciplinary team determines that the person does not meet the definition
of a sexually violent predator, that person shall be immediately released. If
the multidisciplinary team determines that the person meets the definition of a
sexually violent predator, the team shall provide the prosecuting attorney, as
designated in Code Section 37-11-3, with its written assessment and
recommendation within the 72-hour period or, if the 72-hour period ends on a
weekend or holiday, within the next working day thereafter.
(c)
Within 48 hours after receipt of the written assessment and recommendation from
the multidisciplinary team, the prosecuting attorney, as designated in Code
Section 37-11-3, may file a petition with the superior court alleging that the
person is a sexually violent predator and stating facts sufficient to support
such allegation. No fee shall be charged for the filing of such petition. If a
petition is not filed within 48 hours after receipt of the written assessment
and recommendation by the prosecuting attorney, the person shall be immediately
released. If a petition is filed pursuant to this Code section and the judge
determines that there is probable cause to believe that the person is a sexually
violent predator, the judge shall order that the person be maintained in custody
and held in an appropriate secure facility for further proceedings in accordance
with this chapter.
(d)
The provisions of this Code section shall not be jurisdictional, and failure to
comply with the time limitations, which results in the release of a person who
has been convicted of a sexually violent offense, shall not be dispositive of
the case and shall not prevent the prosecuting attorney from proceeding against
a person otherwise subject to the provisions of this chapter.
37-11-6.
(a)
When the prosecuting attorney files a petition seeking to have a person declared
a sexually violent predator, the judge shall determine whether probable cause
exists to believe that the person named in the petition is a sexually violent
predator. If the judge determines that there is probable cause to believe that
the person is a sexually violent predator, the judge shall order that the person
remain in custody and be immediately transferred to an appropriate secure
facility if the
persońs
incarcerative sentence expires.
(b)
Upon the expiration of the incarcerative sentence and before the release from
custody of a person whom the multidisciplinary team recommends for civil
commitment, but after the prosecuting attorney files a petition pursuant to Code
Section 37-11-5, the court may conduct an adversarial probable cause hearing if
it determines such hearing is necessary. Such hearing shall be considered only
in cases where the failure to begin a trial is not the result of any delay
caused by the respondent. The person shall be provided with notice of, and an
opportunity to appear in person at, an adversarial hearing. At such hearing,
the judge shall:
(1)
Receive evidence and hear argument from the person and the prosecuting attorney;
and
(2)
Determine whether probable cause exists to believe that the person is a sexually
violent predator.
(c)
At the adversarial probable cause hearing, the person shall have the right
to:
(1)
Be represented by counsel;
(2)
Present evidence;
(3)
Cross-examine any witnesses who testify against the person; and
(4)
View and copy all petitions and reports in the court file.
(d)
If the court again concludes that there is probable cause to believe that the
person is a sexually violent predator, the court shall order that the person be
held in an appropriate secure facility upon the expiration of his or her
incarcerative sentence.
(e)
After a court finds probable cause to believe that the person is a sexually
violent predator, the person shall be held in custody in a secure facility
without opportunity for pretrial release or release during the trial
proceedings.
37-11-7.
(a)
The department may contract with a private entity or state agency for use of and
operation of facilities to comply with the requirements of this chapter. The
department may also contract with the Department of Administrative Services to
issue a request for proposals and monitor contract compliance for these
services.
(b)
The department may enter into contracts with health care practitioners, health
care facilities, and other entities or agents as may be necessary to provide
basic medical care to persons civilly committed pursuant to this
chapter.
(c)
The department may develop and propose for consideration by the General Assembly
a system of procedures for intermediate levels of civil commitment that are less
restrictive than the civil commitment provided by this chapter; provided,
however, that no such system shall become effective except as may be provided by
general law.
37-11-8.
(a)
In all civil commitment proceedings for sexually violent predators under this
chapter, the following shall apply:
(1)
The Georgia Rules of Civil Procedure apply unless otherwise specified in this
chapter;
(2)
The Georgia Rules of Evidence apply unless otherwise specified in this
chapter;
(3)
The psychotherapist-patient privilege under Code Section 24-9-21 or 24-9-40
shall neither exist nor apply for communications relevant to an issue in
proceedings to involuntarily commit a person under this chapter;
(4)
The court may consider evidence of prior behavior by a person who is subject to
proceedings under this chapter if such evidence is relevant to proving that the
person is a sexually violent predator;
(5)
Hearsay evidence, including reports of a member of the multidisciplinary team or
reports produced on behalf of the multidisciplinary team, shall be admissible in
proceedings under this chapter unless the court finds that such evidence is not
reliable. In a trial, however, hearsay evidence may not be used as the sole
basis for committing a person under this chapter;
(6)
Rules adopted under Code Section 37-11-24 shall not constitute:
(A)
An evidentiary predicate for the admission of any physical evidence or
testimony;
(B)
A basis for excluding or otherwise limiting the presentation of any physical
evidence or testimony in judicial proceedings under this chapter;
or
(C)
Elements of the cause of action that the state needs to allege or prove in
judicial proceedings under this chapter; and
(7)
If the person who is subject to proceedings under this chapter refuses to be
interviewed by or fully cooperate with members of the multidisciplinary team or
any state mental health experts, the court may, in its discretion:
(A) Order the person to allow members of the multidisciplinary team and any
state mental health experts to review all mental health reports, tests, and
evaluations by the
persońs
mental health expert or experts; or
(B)
Prohibit the
persońs
mental health experts from testifying concerning mental health tests,
evaluations, or examinations of the person.
(b)
The failure of any party to comply with the rules as set forth in this Code
section shall not constitute a defense in any judicial proceedings under this
chapter.
37-11-9.
(a)
Within 30 days after the determination of probable cause, the court shall
conduct a trial to determine whether the person is a sexually violent
predator.
(b)
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 interests of justice, when
the person will not be substantially prejudiced.
(c)
At all adversarial proceedings under the provisions of this chapter, the person
subject to such provisions shall be entitled to the assistance of counsel, and,
if the person is indigent, the court shall appoint the public defender or, if a
conflict exists or a public
defendeŕs
office is not established in the circuit, other counsel to assist the
person.
(d)
If the person is subjected to a mental health examination under this chapter,
the person also may retain experts or mental health professionals to perform an
examination. If the person wishes to be examined by a professional of the
persońs
own choice, the examiner shall be provided reasonable access to the person, as
well as to all relevant medical and mental health records and reports. In the
case of a person who is indigent, the court, upon the
persońs
request, shall determine whether such an examination is necessary. If the court
determines that an examination is necessary, the court shall appoint a mental
health professional and determine the reasonable compensation for the
professionaĺs
services, which shall be paid by the state.
(e)
The person or the prosecuting attorney has the right to demand that the trial be
before a jury of 12 members. A demand for a jury trial shall be filed, in
writing, at least five days before the trial. If no such demand is made, the
person shall be tried before the court.
37-11-10.
(a)
The court or the jury shall determine beyond a reasonable doubt whether the
person is a sexually violent predator. If the determination is made by the
jury, the verdict shall be unanimous. If the jury is unable to reach a
unanimous verdict, the court shall declare a mistrial and set a retrial within
45 days of the date of the mistrial unless the prosecuting attorney earlier
moves to dismiss the petition. The retrial may be continued upon the request of
either party upon a showing of good cause in accordance with subsection (b) of
Code Section 37-11-9. In no event shall a person be released from confinement
prior to retrial or dismissal of the case. The determination that a person is a
sexually violent predator may be appealed.
(b)
If the court or the jury determines that the person is a sexually violent
predator, upon the expiration of the incarcerative portion of all criminal
sentences and disposition of any detainers other than detainers for deportation
by the United States Bureau of Citizenship and Immigration Services, the person
shall be committed to the custody of the department for control, care, and
treatment until such time as the
persońs
mental abnormality or personality disorder has so changed that it is safe for
the person to be at large. At all times, persons who are detained or committed
under this chapter shall be kept in a secure facility segregated from patients
of the department who are not detained or committed under this
chapter.
(c)
The public defender of the circuit in which a person was determined to be a
sexually violent predator shall be appointed to represent the person on appeal.
If the public defender is unable to represent the person on appeal due to a
conflict or if a public defender office is not established for the circuit, the
court shall appoint other counsel, who shall be compensated at a rate not less
than that provided for appointed counsel in criminal cases. Filing fees for
indigent appeals under this chapter shall be waived. Costs and fees related to
such appeals, including the amounts paid for records, transcripts, and
compensation of appointed counsel, shall be authorized by the trial court and
paid from state funds that are appropriated for such purposes.
37-11-11.
(a)
The mental health of a person committed under this chapter shall be examined
once every year or more frequently at the
court́s
discretion. The person may retain or, if the person is indigent and so
requests, the court may appoint, a qualified professional to examine the person.
Such a professional shall have access to all records concerning the person. The
results of the examination shall be provided to the court that committed the
person under this chapter. Upon receipt of the report, the court shall conduct
a review of the
persońs
status.
(b)
The department shall provide the person with annual written notice of the
persońs
right to petition the court for release over the objection of the director of
the facility where the person is housed. The notice shall contain a waiver of
rights. The director of the facility shall forward the notice and waiver form
to the court.
(c)
The court shall hold a limited hearing to determine whether there is probable
cause to believe that the
persońs
condition has so changed that it is safe for the person to be at large and that
the person will not engage in acts of sexual violence if discharged. The person
has the right to be represented by counsel at the probable cause hearing, but
the person is not entitled to be present. If the court determines that there is
probable cause to believe it is safe to release the person, the court shall set
a trial before the court on the issue.
(d)
At the trial before the court, the person is entitled to be present and is
entitled to the benefit of all constitutional protections afforded the person at
the initial trial, except for the right to a jury. The prosecuting attorney
shall represent the state and has the right to have the person examined by
professionals chosen by the state. At the hearing, the state bears the burden
of proving, beyond a reasonable doubt, that the
persońs
mental condition remains such that it is not safe for the person to be at large
and that, if released, the person is likely to engage in acts of sexual
violence.
37-11-12.
(a)
Any person subjected to restricted liberty as a sexually violent predator
pursuant to this chapter shall not forfeit any legal right or suffer any legal
disability as a consequence of any actions taken or orders made, other than as
specifically provided in this chapter.
(b)
Any person committed pursuant to this chapter has the right to adequate care and
individualized treatment. The department shall keep records detailing all
medical, expert, and professional care and treatment received by a committed
person and shall keep copies of all reports of periodic examinations made
pursuant to this chapter. All such records and reports shall be made available
upon request only to the committed person, his or her attorney, the prosecuting
attorney, the court, or another expert or professional who, upon proper showing,
demonstrates a need for access to such records.
(c)
At the time a person is taken into custody or transferred into a facility
pursuant to a petition under this chapter, the professional in charge of such
facility or his or her designee shall take reasonable precautions to inventory
and safeguard the personal property of the persons detained or transferred. A
copy of the inventory, signed by the staff member, shall be given to the person
detained and shall be open to inspection to any responsible relative, subject to
limitations, if any, specifically imposed by the detained person. For purposes
of this subsection, 'responsible relative' includes the guardian, conservator,
attorney, spouse, parent, adult child, or adult sibling of the person. The
facility shall not disclose the contents of the inventory to any other person
without consent of the person or order of the court.
(d)
Nothing in this chapter shall prohibit a person presently committed from
exercising a right presently available to him or her for the purpose of
obtaining release from confinement, including the right to petition for a writ
of habeas corpus pursuant to Code Section 37-11-16.
37-11-13.
(a)
If the commissioner or the
commissioneŕs
designee at any time determines that the person is not likely to commit acts of
sexual violence if discharged, the commissioner or the
commissioneŕs
designee shall authorize the person to petition the court for release. The
petition shall be served upon the court and the prosecuting attorney. The
court, upon receipt of such a petition, shall order a trial before the court
within 30 days, unless continued for good cause.
(b)
The prosecuting attorney shall represent the state and has the right to have the
person examined by professionals of the prosecuting
attorneýs
choice. The state bears the burden of proving, beyond a reasonable doubt, that
the
persońs
mental condition remains such that it is not safe for the person to be at large
and that, if released, the person is likely to engage in acts of sexual
violence.
37-11-14.
A
person is not prohibited from filing a petition for discharge at any time after
commitment under this chapter. However, if the person has previously filed such
a petition without the approval of the commissioner or the
commissioneŕs
designee and the court determined that the petition was without merit, a
subsequent petition shall be denied unless the petition contains facts upon
which a court could find that the
persońs
condition has so changed that a probable cause hearing is
warranted.
37-11-15.
(a)
In order to protect the public, relevant information and records that are
otherwise confidential or privileged shall be released to the agency with
jurisdiction, to a multidisciplinary team, or to the prosecuting attorney for
the purpose of meeting the notice requirements of this chapter and determining
whether a person is or continues to be a sexually violent predator. A person,
agency, or entity receiving confidential information under this Code section
shall not subject such information to public inspection or disclosure as
permitted under Article 4 of Chapter 18 of Title 50 and shall maintain the
confidentiality of that information. Such information shall not lose its
confidential status by release under this Code section.
(b)
Psychological or psychiatric reports, drug and alcohol reports, treatment
records, medical records, or victim impact statements that have been submitted
to the court or admitted into evidence under this chapter shall be part of the
record but shall be sealed and may be opened only pursuant to a court
order.
37-11-16.
(a)(1)
At any time after exhausting all administrative remedies, a person held in a
secure facility under this chapter may file a petition for habeas corpus in the
superior court for the county in which the facility is located alleging
that:
(A)
The
persońs
conditions of confinement violate a statutory right under state law or a
constitutional right under the Georgia Constitution or the United States
Constitution; or
(B)
The facility in which the person is confined is not an appropriate secure
facility, as that term is used in Code Section 37-11-6.
(2)
Upon filing a legally sufficient petition stating a prima-facie case under
subsection (a) of this Code section, the court may direct the department to file
a response. If necessary, the court may conduct an evidentiary proceeding and
issue an order to correct a violation of state or federal rights found to exist
by the court. A final order entered under this Code section may be appealed to
the Court of Appeals. An appeal by the department shall stay the trial
court́s
order until disposition of the appeal.
(b)
Any claim referred to in subsection (a) of this Code section may be asserted
only as provided in this Code section. No such claim shall be considered in
commitment proceedings brought under this chapter. A person shall not have a
right to appointed counsel in any proceeding initiated under this Code
section.
(c)
Relief granted on a petition filed under this Code section shall be narrowly
drawn and may not exceed that which is minimally necessary to correct, in the
least intrusive manner possible, the violation of the state or federal rights of
a particular petitioner. A court considering a petition under this Code section
shall give substantial weight to whether the granting of relief would adversely
impact the operation of the detention and treatment facility or would adversely
impact public safety.
(d)
The court may not enter an order releasing a person from secure detention unless
the court expressly finds that no relief short of release will remedy the
violation of state or federal rights which is found to have
occurred.
37-11-17.
The
long-term control, care, and treatment of a person committed under this chapter
shall conform to constitutional requirements.
37-11-18.
The
agency with jurisdiction and its officers and employees; the department and its
officers and employees; members of the multidisciplinary team; the prosecuting
attorney and the prosecuting
attorneýs
employees; the Department of Law and its officers and employees; and those
involved in the evaluation, care, and treatment of sexually violent predators
committed under this chapter shall be immune from any civil liability for good
faith conduct under this chapter.
37-11-19.
This
chapter applies to all persons currently in custody who have been convicted of a
sexually violent offense, as well as to all persons convicted of a sexually
violent offense and sentenced to total confinement in the future.
37-11-20.
(a)
As soon as is practicable, the department shall give written notice of the
release of a person committed as a sexually violent predator to any victim of
the committed person who is alive and whose address is known to the department
or, if the victim is deceased, to the
victiḿs
family, if the
familýs
address is known to the department. Failure to notify is not a reason for
postponement of release. As used in this Code section, the term 'victim' shall
have the same meaning as in Code Section 17-17-3. This Code section shall not
create a cause of action against the state or an employee of the state acting
within the scope of the
employeés
employment as a result of the failure to notify pursuant to this Code
section.
(b)
If a sexually violent predator who has an active or pending term of probation,
parole, conditional release, or other court ordered supervision is released from
custody, the department shall immediately notify the Department of Corrections.
The State Board of Pardons and Paroles shall also be immediately notified of any
release of a sexually violent predator who has an active or pending term of
parole, conditional release, or other supervision that is administered by the
State Board of Pardons and Paroles.
37-11-21.
(a)
A person who is held in lawful custody pursuant to a judicial finding of
probable cause under Code Section 37-11-6 or pursuant to a commitment as a
sexually violent predator under Code Section 37-11-9 and who escapes or attempts
to escape while in such custody shall be guilty of a felony, punishable by
imprisonment for not less than five nor more than 20 years.
(b)
If a person who is held in custody pursuant to a finding of probable cause or
commitment as a sexually violent predator escapes while in custody, the
department shall immediately notify the victim in accordance Code Section
37-11-20. The prosecuting attorney that filed the petition for civil commitment
of the escapee shall also be immediately notified by the department. If the
escapee has an active or pending term of probation, conditional release, or
other court ordered supervision, the department shall also immediately notify
the Department of Corrections. The State Board of Pardons and Paroles shall
also be immediately notified of an escape if the escapee has an active or
pending term of parole, conditional release, or other supervision that is
administered by the State Board of Pardons and Paroles.
37-11-22.
(a)
Each person committed under this chapter shall upon order of the court
committing the person:
(1)
Disclose all revenue or assets to the department; and
(2)
Pay from such income and assets, except where such income is exempt by state or
federal law, all or a fair portion of the
persońs
daily subsistence and treatment costs, based upon the
persońs
ability to pay, the liability or potential liability of the person to the victim
or the guardian or the estate of the victim, and the needs of his or her
dependents.
(b)(1)
Any person who is directed to pay all or a fair portion of daily subsistence and
treatment costs is entitled to reasonable advance notice of the assessment and
shall be afforded an opportunity to present reasons for opposition to the
assessment.
(2)
An order directing payment of all or a fair portion of a
persońs
daily subsistence and treatment costs may survive against the estate of the
person.
37-11-23.
The
department shall be responsible for all costs relating to the evaluation and
treatment of persons committed to the
department́s
custody as sexually violent predators. A county shall not be obligated to fund
costs for psychological examinations, expert witnesses, court appointed counsel,
or other costs required by this chapter. Other costs for psychological
examinations, expert witnesses, and court appointed counsel required by this
chapter shall be paid from state funds appropriated by general law.
37-11-24.
The
department shall adopt rules for:
(1)
Procedures that shall be followed by members of the multidisciplinary teams when
assessing and evaluating persons subject to this chapter;
(2)
Education and training requirements for members of the multidisciplinary teams
and professionals who assess and evaluate persons under this
chapter;
(3)
The criteria used by a multidisciplinary team to recommend to a prosecuting
attorney that a petition should be filed to involuntarily commit a person under
this chapter. The criteria shall include, but are not limited to,
whether:
(A)
The person has a propensity to engage in future acts of sexual
violence;
(B)
The person should be placed in a secure, residential facility; and
(C)
The person needs long-term treatment and care;
(4)
The designation of secure facilities for sexually violent predators who are
subject to involuntary commitment under this chapter;
(5)
The components of the basic treatment plan for all committed persons under this
chapter; and
(6)
The protocol to inform a person that he or she is being examined to determine
whether he or she is a sexually violent predator under this
chapter.
37-11-25.
(a)
Beginning January 1, 2007, the Department of Corrections shall collect
information and compile quarterly reports with statistics profiling inmates
released the previous quarter who fit the criteria and were referred to the
department pursuant to this chapter. The quarterly reports shall be produced
beginning April 1, 2007. At a minimum, the information that shall be collected
and compiled for inclusion in the reports includes:
(1)
The nature of the qualifying offense;
(2)
The most serious sexual offense;
(3)
The total number of distinct victims of the sexual offense;
(4)
Whether the victim was known to the offender;
(5)
Whether the sexual act was consensual;
(6)
Whether the sexual act involved multiple victims;
(7)
Whether direct violence was involved in the sexual offense;
(8)
The age of each victim at the time of the offense;
(9)
The age of the offender at the time of the first sexual offense;
(10)
Whether a weapon was used;
(11)
The length of time since the most recent sexual offense; and
(12)
The total number of prior and current sexual offense convictions.
(b)
In addition, the department shall implement a long-term study to determine the
overall efficacy of the provisions of this
chapter.∀
SECTION
9.
Title
42 of the Official Code of Georgia Annotated, relating to penal institutions, is
amended by striking in its entirety Code Section 42-9-44.2, relating to chemical
treatment and counseling as a condition of parole for child molesters, and
inserting in lieu thereof the following:
∀42-9-44.2.
(a)
The Board of Pardons and Paroles may in the exercise of its discretion in
considering the grant of parole to a person who has been convicted of a second
or subsequent offense of child molestation of a child who was 16 years of age or
younger at the time of the offense or who has been convicted of a first offense
of aggravated child molestation of a child who was 16 years of age or younger at
the time of the offense require, as a condition of parole, that such person
undergo medroxyprogesterone acetate treatment or its chemical equivalent. While
undergoing such treatment, such person must participate in and pay for
counseling currently available from a private or public provider of outpatient
mental health services. No such treatment shall be administered until such
person has consented thereto in writing.
(b)
A person who is required to undergo medroxyprogesterone acetate treatment or its
chemical equivalent and counseling as a condition of parole shall begin such
treatment prior to his or her release from confinement in the state correctional
institution or other institution, but additional treatment may continue after
such
defendant́s
release on parole until the defendant demonstrates to the board that such
treatment is no longer necessary.
(c)
The provision of treatment required as a condition of parole shall be
administered by the State Board of Pardons and Paroles through licensed medical
personnel employed by the defendant and approved by the board. Any physician or
qualified mental health professional who acts in good faith in compliance with
the provisions of this Code section in the administration of treatment or
provision of counseling provided for in this Code section shall be immune from
civil or criminal liability for his or her actions in connection with such
treatment. The Department of Corrections shall permit access by such licensed
medical personnel for such purpose to any person required to begin the treatment
and counseling while confined in a facility of the department. The medical
personnel utilized or approved by the board shall be required to inform the
person about the effect of hormonal chemical treatment and any side effects that
may result from it. A person subject to treatment under this Code section shall
acknowledge in writing the receipt of this
information.
Reserved.∀
SECTION
10.
(a)
This Act shall become effective July 1, 2006.
OR
(a) This Act shall become effective only if funds are specifically appropriated for purposes of this Act in an appropriations Act making specific reference to this Act and when funds so appropriated become available for expenditure.
(b) The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment.
(a) This Act shall become effective only if funds are specifically appropriated for purposes of this Act in an appropriations Act making specific reference to this Act and when funds so appropriated become available for expenditure.
(b) The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment.
SECTION
11.
All
laws and parts of laws in conflict with this Act are repealed.