Assembly Bill No. 280

Assembly Bill No. 280-Assemblymen Berman, Ohrenschall, Herrera, Manendo, Nolan, Collins, Koivisto, Gustavson, Buckley, Carpenter, Segerblom, Perkins, Hettrick, Anderson, Price, Ernaut, Cegavske, Krenzer, Chowning, Lee, Braunlin, Parks, Lambert, Bache, Arberry, Giunchigliani, Goldwater, Amodei, Von Tobel, Neighbors and de Braga

March 17, 1997
____________

Referred to Concurrent Committees on Health and Human
Services and Judiciary

SUMMARY--Provides for involuntary civil commitment of certain sexual predators who commit sexual offenses against children. (BDR 39-1275)

FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: Yes.

EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.

AN ACT relating to sexual predators; providing for the involuntary civil commitment of certain sexual predators who commit sexual offenses against children; requiring the mental hygiene and mental retardation division of the department of human resources to adopt certain regulations; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1 Chapter 433A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 32, inclusive, of this act.
Sec. 2 The legislature hereby finds and declares that:
1. A small group of sexual predators suffers from mental disorders that render them dangerous to the public and especially dangerous to children because they are likely to commit sexual offenses against a child.
2. The existing procedures for involuntary court-ordered admission are inadequate to address the high risk that these sexual predators will commit sexual offenses against a child upon release from detention. Because these sexual predators do not have access to potential victims while detained, they may not engage in observable behavior during their detention which demonstrates that they remain dangerous to children and that further treatment would be in their best interests, as required by NRS 433A.310 to renew their detention. These sexual predators also require different modalities of treatment for a longer period than that offered by public or private mental health facilities as the result of traditional involuntary court-ordered admissions.
3. In order to ensure that the public is protected and that these sexual predators receive proper treatment and care, it is necessary to provide for the involuntary civil commitment of these sexual predators to the custody of the program of treatment established by the division pursuant to subsection 1 of section 32 of this act. The program of treatment is not established to punish or to exact retribution against persons who have previously committed sexual offenses against a child, but to provide appropriate treatment and care for such persons in a secure facility.
Sec. 3 As used in sections 2 to 32, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 4 to 15, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 4 "Alternative course of treatment" and "course of treatment" mean a course of treatment, established by the division pursuant to subsection 2 of section 32 of this act, which is conducted in an environment that is less restrictive than the environment of the program.
Sec. 5 "Child" means a person less than 18 years of age.
Sec. 6 "Court" means the district court having jurisdiction over a proceeding pursuant to sections 2 to 32, inclusive, of this act.
Sec. 7 "Likely to commit a sexual offense against a child" means that the person more probably than not will commit such an offense.
Sec. 8 "Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity of a person which predisposes that person to the commission of sexual acts directed at children. The term includes, but is not limited to, mental disorders and personality disorders that are listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
Sec. 9 "Overt act" means a sexually motivated act that causes harm or creates a reasonable apprehension of harm.
Sec. 10 "Petition" means a petition filed pursuant to section 16 of this act alleging that the person named therein is a sexual predator.
Sec. 11 "Program" means the program for the treatment of sexual predators established by the division pursuant to subsection 1 of section 32 of this act.
Sec. 12 "Qualified professional" means a person who possesses the professional qualifications, as established by the division pursuant to subsection 3 of section 32 of this act, to evaluate a person alleged to be a sexual predator.
Sec. 13 "Sexually motivated" means that one of the purposes for which the person committed the act was his sexual gratification.
Sec. 14 "Sexual offense against a child" means any of the following offenses if the victim of the offense was less than 18 years of age when the offense was committed:
1. Sexual assault pursuant to NRS 200.366.
2. Battery with intent to commit sexual assault pursuant to NRS 200.400.
3. Abuse of a child pursuant to NRS 200.508, if the abuse involved sexual abuse or sexual exploitation.
4. An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive.
5. Incest pursuant to NRS 201.180.
6. Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to NRS 201.195.
7. Open or gross lewdness pursuant to NRS 201.210.
8. Indecent or obscene exposure pursuant to NRS 201.220.
9. Lewdness with a child pursuant to NRS 201.230.
10. Annoyance or molestation of a minor pursuant to NRS 207.260.
11. An act of murder in the first or second degree, kidnaping in the first or second degree, false imprisonment, burglary or invasion of the home if the act was found to have been sexually motivated pursuant to NRS 175.547.
12. An attempt to commit an act or offense listed in subsections 1 to 11, inclusive.
13. An act or offense committed in another jurisdiction that, if committed in this state, would be an act or offense listed in this section.
Sec. 15 "Sexual predator" means a person who:
1. Suffers from a mental disorder;
2. Is dangerous to the public because he is likely to commit a sexual offense against a child; and
3. Has been convicted of:
(a) Two or more sexual offenses against a child; or
(b) One sexual offense against a child if:
(1) The victim was less than 12 years of age when the sexual offense against a child was committed; or
(2) Before the sexual offense against a child was committed, the person had been convicted in this state or another jurisdiction of one or more offenses that involved substantial bodily harm to another person.
Sec. 16 1. A district attorney may file a petition in the district court alleging that a person is a sexual predator if the district attorney has reasonable cause to believe that the person is a sexual predator.
2. A petition filed pursuant to this section must contain sufficient facts to support the allegation of the district attorney that the person is a sexual predator. If the person named in the petition is not in confinement when the petition is filed, the petition must allege that the person has recently committed an overt act which, when considered in conjunction with the other facts alleged in the petition, is sufficient to establish that there is reasonable cause to believe the person is a sexual predator.
3. The district attorney may file a petition pursuant to this section before or after the person completes a sentence for a sexual offense against a child.
Sec. 17 1. The person named in a petition filed pursuant to section 16 of this act may retain counsel to represent him in all proceedings held before the court pursuant to sections 2 to 32, inclusive, of this act. If the person is indigent and requests counsel, the court shall appoint counsel, who may be the public defender or his deputy, to represent the person in all such proceedings before the court.
2. The court shall award compensation to counsel appointed pursuant to subsection 1 for his services in an amount determined by the court to be fair and reasonable. Compensation for appointed counsel must be charged against the county in which the petition is brought.
3. The district attorney or a deputy district attorney shall represent the state in all proceedings that are held pursuant to sections 2 to 32, inclusive, of this act.
Sec. 18 1. Not later than 72 hours after a petition is filed pursuant to section 16 of this act, the court shall hold a hearing to determine whether probable cause exists to believe that the person named in the petition is a sexual predator. Upon the request of counsel for the person named in the petition, the court shall grant a recess in the hearing to give counsel an opportunity to prepare for the hearing. The recess must not exceed 5 days.
2. If, at the conclusion of the hearing, the court determines that probable cause exists, the court shall:
(a) Order that the person named in the petition be taken into custody and detained at a mental health facility for examination by a qualified professional.
(b) Schedule a hearing to be held before a jury to determine whether the person named in the petition is a sexual predator. The hearing must be held not later than 45 days after the finding of probable cause is made.
Sec. 19 1. A hearing to determine whether a person is a sexual predator must be held before a jury of 12 persons.
2. The court may direct that not more than four jurors in addition to the regular jurors be called and impaneled to sit as alternate jurors. The court shall replace regular jurors who become unable or disqualified to perform their duties with alternate jurors in the order in which the alternate jurors were called. If an alternate juror is required to replace a regular juror after the jury has retired to consider its verdict, the judge shall recall the jury, seat the alternate and resubmit the decision regarding the petition to the jury.
3. The district attorney and the person named in the petition each may exercise three peremptory challenges in the impanelment of the regular jurors. If alternate jurors are to be impaneled, the district attorney and the person named in the petition each has one additional peremptory challenge that may be used only against an alternate juror.
Sec. 20 1. To prove that the person named in the petition is a sexual predator, the district attorney must prove beyond a reasonable doubt that the person named in the petition:
(a) Suffers from a mental disorder;
(b) Is dangerous to the public because he is likely to commit a sexual offense against a child; and
(c) Has been convicted of:
(1) Two or more sexual offenses against a child; or
(2) One sexual offense against a child and:
(I) The victim was less than 12 years of age when the sexual offense against a child was committed; or
(II) Before the sexual offense against a child was committed, the person had been convicted in this state or another jurisdiction of one or more offenses that involved substantial bodily harm to another person.
For purposes of paragraph (c), a certified copy of a conviction is prima facie evidence of that conviction.
2. To prove that the person named in the petition requires commitment to the program, the district attorney must prove beyond a reasonable doubt that an alternative course of treatment:
(a) Is not in the best interests of the person; or
(b) Will not adequately protect the public.
3. The jury must reach a unanimous verdict:
(a) To find that the person named in the petition is a sexual predator; and
(b) To find that the person named in the petition requires commitment to the program.
4. If the jury finds by unanimous verdict that the person named in the petition is a sexual predator and that the person requires commitment to the program, the court shall enter an order committing the person to the custody of the program.
5. If the jury finds by unanimous verdict that the person named in the petition is a sexual predator but does not reach a unanimous verdict that the person requires commitment to the program, the court shall enter an order that the person be conditionally released to undergo an alternative course of treatment pursuant to the provisions of sections 29 and 30 of this act.
6. If the jury does not reach a unanimous verdict that the person named in the petition is a sexual predator, the court shall enter an order that the person be released.
Sec. 21 In all proceedings that are held pursuant to sections 2 to 32, inclusive, of this act:
1. The court, within its discretion, may hear and consider all relevant evidence, including, but not limited to:
(a) The testimony of qualified professionals who have examined the person named in the petition;
(b) The testimony of experts or other qualified persons retained by the person named in the petition; and
(c) The testimony of other witnesses.
2. Except as otherwise provided in subsection 3 of section 25 of this act, the person named in the petition must be present and, at the discretion of the court, may testify.
3. A witness who is subpoenaed to testify must be paid the same fees and mileage as is paid to a witness in the courts of this state.
Sec. 22 If the person named in the petition is subjected to an examination by a qualified professional pursuant to sections 2 to 32, inclusive, of this act:
1. The person may retain experts or other qualified persons to perform an examination on his behalf.
2. The division shall permit an expert or other qualified person retained by the person named in the petition to have reasonable access to the person named in the petition and to all relevant medical and psychological records and reports.
3. If the person named in the petition is indigent, upon his request or the request of his counsel, the court shall assist the person named in the petition in obtaining an expert or other qualified person to perform an examination or to testify on behalf of the person named in the petition.
Sec. 23 1. If a person is committed to the custody of the program, the division shall select a qualified professional to conduct a complete examination of the person at least once per year to evaluate his mental condition. The qualified professional selected by the division must have access to all records concerning the person committed.
2. In conducting his examination, the qualified professional selected by the division shall consider whether conditional release to an alternative course of treatment is in the best interests of the person committed and whether such conditional release will adequately protect the public.
3. Upon completion of his examination of the person committed, the qualified professional selected by the division shall prepare a report of his conclusions regarding the mental condition of the person committed and shall submit that report to the administrator. The administrator shall provide a copy of the report to the court.
Sec. 24 1. If the administrator determines, as a result of an annual examination or at any other time during the period of commitment, that a person committed to the custody of the program:
(a) No longer suffers from a mental disorder;
(b) No longer is dangerous to the public; or
(c) Is suitable for conditional release to an alternative course of treatment,
the administrator, within 5 days after this determination, shall file with the court a certified request for release of the person committed and shall provide a copy of the certified request for release to the person committed and the district attorney.
2. The court shall hold a hearing on the merits of a certified request for release not later than 45 days after the date on which the certified request for release is filed.
3. The court shall conduct a hearing on the merits of a certified request for release pursuant to the provisions of sections 27 and 28 of this act.
Sec. 25 1. A person committed to the custody of the program may file an uncertified request for release with the court not more than once every 6 months. If the court determines that an uncertified request for release filed by a person committed does not comply with the provisions of this subsection, the court shall summarily deny the uncertified request for release without a hearing.
2. Except as otherwise provided in subsection 1, if an uncertified request for release is filed with the court, the court shall schedule a hearing to show cause not later than 30 days after the date the uncertified request for release is filed.
3. The person committed may be represented by counsel at a hearing to show cause, but the person committed may not be present at the hearing.
4. At the hearing to show cause, the court shall determine whether probable cause exists to believe that the mental condition or the dangerousness of the person committed has so changed that a hearing on the merits of the uncertified request for release is warranted.
5. If, at the hearing to show cause, the court determines that probable cause exists to believe that the mental condition or the dangerousness of the person committed has so changed that a hearing on the merits of the uncertified request for release is warranted, the court shall schedule a hearing on the merits of the uncertified request for release not later than 45 days after the date of the determination of the court.
6. The court shall conduct a hearing on the merits of an uncertified request for release pursuant to the provisions of sections 27 and 28 of this act.
Sec. 26 1. The administrator shall file an uncertified request for release on behalf of a person committed to the custody of the program if during the preceding 12 months:
(a) The person committed did not file an uncertified request for release; and
(b) The administrator did not file a certified request for release of the person committed.
2. An uncertified request for release filed pursuant to subsection 1 shall be deemed an uncertified request for release filed pursuant to section 25 of this act, and the court shall proceed in accordance with the provisions of section 25 of this act.
Sec. 27 1. A hearing on the merits of a certified or uncertified request for release must be conducted in the same manner as a hearing to determine whether the person is a sexual predator pursuant to section 19 of this act, and the person must be afforded the same rights that are provided in a hearing to determine whether a person is a sexual predator.
2. The district attorney may request, not later than 30 days before the date of a hearing on the merits of a certified or uncertified request for release, that the person committed submit to an examination by a qualified professional selected by the district attorney.
Sec. 28 At a hearing on the merits of a certified or uncertified request for release:
1. To prove that the person committed remains a sexual predator, the district attorney must prove beyond a reasonable doubt that the person committed:
(a) Continues to suffer from a mental disorder; and
(b) Continues to be dangerous to the public because he is likely to commit a sexual offense against a child.
2. To prove that the person committed requires continued commitment to the program, the district attorney must prove beyond a reasonable doubt that an alternative course of treatment:
(a) Is not in the best interests of the person committed; or
(b) Will not adequately protect the public.
3. The jury must reach a unanimous verdict:
(a) To find that the person committed remains a sexual predator; and
(b) To find that the person committed requires continued commitment to the program.
4. If the jury finds by unanimous verdict that the person committed remains a sexual predator and that the person requires continued commitment to the program, the court shall enter an order denying the certified or uncertified request for release.
5. If the jury finds by unanimous verdict that the person committed remains a sexual predator but does not reach a unanimous verdict that the person requires continued commitment to the program, the court shall enter an order that the person be conditionally released to undergo an alternative course of treatment pursuant to the provisions of sections 29 and 30 of this act.
6. If the jury does not reach a unanimous verdict that the person committed remains a sexual predator, the court shall enter an order that the person be released.
Sec. 29 1. If the court enters an order conditionally releasing a person to undergo an alternative course of treatment, the court shall impose conditions on the person to ensure that the person complies with the course of treatment and to protect the public. The court shall impose a condition that prohibits the person from being in a secluded environment with a child unless another adult who has never been convicted of a sexual offense against a child is present.
2. If the district attorney has reasonable cause to believe that a person conditionally released to undergo an alternative course of treatment has violated a condition imposed by the court, the district attorney shall request that the court hold a hearing to determine if such a violation has occurred.
3. Upon receipt of a request by the district attorney for a hearing on an alleged violation, the court shall order that the person be taken into custody and detained at a mental health facility until a hearing on the alleged violation is held. The court shall hold the hearing on the alleged violation not later than 5 days after the date the person is taken into custody.
4. If the court determines at the hearing that the person violated a condition imposed by the court, the court shall enter an order committing the person to the custody of the program.
5. If the court determines at the hearing that the person did not violate a condition imposed by the court, the court shall enter an order reinstating the conditional release of the person. As part of such an order, the court may:
(a) Select a different course of treatment for the person;
(b) Modify the conditions imposed on the person; or
(c) Impose additional conditions on the person.
Sec. 30 1. If a person is conditionally released to undergo an alternative course of treatment, the court shall hold a hearing once per year, and may hold a hearing more often, to determine whether the person requires continued participation in an alternative course of treatment.
2. At the conclusion of the hearing, the court may:
(a) Release the person from participating in an alternative course of treatment;
(b) Select a different course of treatment for the person;
(c) Modify the conditions imposed on the person; or
(d) Impose additional conditions on the person.
Sec. 31 An appeal may be taken from a judgment or an order of the court entered pursuant to sections 2 to 32, inclusive, of this act in the same manner and under the same circumstances as an appeal taken from a civil case originating in a district court.
Sec. 32 1. The division shall adopt regulations establishing the program, including regulations:
(a) Specifying guidelines for the treatment and care of persons committed to the custody of the program;
(b) Ensuring that persons committed to the custody of the program are securely confined and that appropriate procedures are followed to protect the safety of persons in the custody of the program and the safety of the public; and
(c) Providing that a person committed to the custody of the program is permitted to:
(1) Wear his own clothing and to keep and use his personal possessions, except when the deprivation of such possessions is necessary for his treatment, protection or safety, for the protection or safety of others or for the protection of property within the facility;
(2) Have access to reasonable space for the storage of personal possessions, within the limitations of the facility;
(3) Have approved visitors within reasonable limitations;
(4) Have reasonable access to a telephone to make and receive telephone calls;
(5) Have reasonable access to materials to write letters; and
(6) Receive and send correspondence through the mail within reasonable limitations.
2. The division shall adopt regulations establishing alternative courses of treatment. An alternative course of treatment may include reasonable periods of confinement and restrictions on movement.
3. The division shall adopt regulations setting forth the professional qualifications that are required for a person to be a qualified professional for the purpose of evaluating sexual predators.
4. The division shall, in conjunction with the department of prisons, make available mental health facilities for persons committed to the custody of the program or ordered to undergo alternative courses of treatment.
Sec. 33 The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 34 The amendatory provisions of sections 2 to 32, inclusive, of this act apply to all persons who have been convicted of a sexual offense against a child, as defined in section 14 of this act, whether or not:
1. The offense was committed before, on or after October 1, 1997;
2. The person was sentenced for the offense before, on or after October 1, 1997; or
3. The person was released from confinement before, on or after October 1, 1997.