SUMMARY--Provides for treatment of certain recidivist sex offenders with chemical compounds. (BDR 39-285)
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 sex offenders; providing for the use of chemical compounds to treat certain sex offenders; allowing a district attorney to file a petition alleging that a person is a recidivist sex offender in need of treatment with a chemical compound; establishing the procedures for hearing and deciding such a petition; requiring the mental hygiene and mental retardation division of the department of human resources to adopt certain regulations concerning the program for the treatment of recidivist sex offenders with a chemical compound; making it a crime for a person ordered to submit to the program of treatment with a chemical compound knowingly to solicit, obtain, prepare or use certain substances to diminish or negate the effects of the chemical compound; providing a penalty; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 Chapter 433A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 26, inclusive, of this act.
Sec. 2 The legislature hereby finds and declares that:
1. Certain sex offenders pose a grave danger to the public and are especially dangerous to children because they are likely to commit sexual offenses against a child repeatedly. Traditional methods of treatment are not adequate for many of these recidivist sex offenders because such methods of treatment do not address the physiological balance of hormones and chemicals in the body that, in combination with a mental disorder, render the offender dangerous to the public and likely to commit sexual offenses against a child repeatedly.
2. If certain recidivist sex offenders are treated only with traditional methods of treatment, they will be denied the help they need to become productive and contributing members of the community, and they will pose a grave danger to the public. To ensure that these recidivist sex offenders receive proper treatment and care, and to protect the public from the grave danger these offenders pose, it is necessary to provide for a program for the treatment of these offenders with a chemical compound. The purpose of the program for the treatment of these recidivist sex offenders with a chemical compound is not to punish or exact retribution against these offenders because they have previously committed sexual offenses against a child. Rather, the purpose of the program of treatment is to provide appropriate treatment and care that otherwise would not be provided to these offenders.
Sec. 3 As used in sections 2 to 26, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 4 to 14, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 4 "Chemical compound" means medroxyprogesterone acetate or another compound that has the same or similar effects as medroxyprogesterone acetate.
Sec. 5 "Court" means the district court having jurisdiction over a proceeding held pursuant to sections 2 to 26, inclusive, of this act.
Sec. 6 "Likely to commit sexual offenses against a child repeatedly" means that a person more probably than not will commit sexual offenses against a child repeatedly.
Sec. 7 "Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity of a person which predisposes that person to commit sexual acts directed at children repeatedly. The term includes, but is not limited to, a mental disorder or personality disorder that is listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
Sec. 8 "Overt act" means a sexually motivated act that causes harm or creates a reasonable apprehension of harm.
Sec. 9 "Petition" means a petition filed pursuant to section 15 of this act alleging that the person named therein is a recidivist sex offender in need of treatment with a chemical compound.
Sec. 10 "Program of treatment" means the program for the treatment of recidivist sex offenders with a chemical compound that is established by the division pursuant to subsection 1 of section 24 of this act.
Sec. 11 "Qualified psychiatrist" means a psychiatrist who possesses the professional qualifications, as established by the division pursuant to subsection 2 of section 24 of this act, to:
1. Evaluate whether a person is a recidivist sex offender in need of treatment with a chemical compound; and
2. Treat such a recidivist sex offender with a chemical compound.
Sec. 12 "Recidivist sex offender in need of treatment with a chemical compound" means a person:
1. Who has been convicted of:
(a) Two or more sexual offenses against a child; or
(b) One sexual offense against a child and one or more sexual offenses;
2. Who suffers from a mental disorder;
3. Who is dangerous to the public because he is likely to commit sexual offenses against a child repeatedly; and
4. For whom the program of treatment is medically appropriate in relation to the physical health of the person.
Sec. 13 "Sexual offense" means:
1. Sexual assault pursuant to NRS 200.366;
2. Battery with intent to commit sexual assault pursuant to NRS 200.400;
3. Incest pursuant to NRS 201.180;
4. Open or gross lewdness pursuant to NRS 201.210;
5. Indecent or obscene exposure pursuant to NRS 201.220;
6. Sexual penetration of a dead human body pursuant to NRS 201.450;
7. An attempt to commit an offense listed in subsections 1 to 6, inclusive;
8. An offense that is determined to be sexually motivated pursuant to NRS 175.547; or
9. An offense committed in another jurisdiction that, if committed in this state, would be an offense listed in this section.
Sec. 13.5. "Sexual offense against a child" means:
1. A sexual offense listed in section 13 of this act, if the victim of the offense was less than 18 years of age when the offense was committed;
2. Abuse of a child pursuant to NRS 200.508, if the abuse involved sexual abuse or sexual exploitation;
3. An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive;
4. Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to NRS 201.195;
5. Lewdness with a child pursuant to NRS 201.230;
6. Annoyance or molestation of a minor pursuant to NRS 207.260;
7. An attempt to commit an offense listed in subsections 1 to 6, inclusive; or
8. An offense committed in another jurisdiction that, if committed in this state, would be an offense listed in this section.
Sec. 14 "Sexually motivated" means that one of the purposes for which the person committed the act was his sexual gratification.
Sec. 15 1. If the district attorney of the county where a person resides or, if the person is in confinement, where the person expects to reside upon release, has reasonable cause to believe that the person is a recidivist sex offender in need of treatment with a chemical compound, the district attorney may file a petition in the district court of the county alleging that the person is a recidivist sex offender in need of treatment with a chemical compound.
2. The petition must contain sufficient facts to support the allegation of the district attorney that the person is a recidivist sex offender in need of treatment with a chemical compound. 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 recidivist sex offender in need of treatment with a chemical compound.
Sec. 16 1. The person named in a petition may retain counsel to represent him in all proceedings held before the court pursuant to sections 2 to 26, 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 26, inclusive, of this act.
Sec. 17 1. Not later than 5 days after a petition is filed, the court shall hold a hearing to determine whether probable cause exists to believe that the person named in the petition is a recidivist sex offender in need of treatment with a chemical compound.
2. If, at the conclusion of the hearing, the court determines that probable cause exists, the court shall:
(a) Order the person named in the petition to submit to an evaluation by a qualified psychiatrist. The psychiatrist who conducts the evaluation shall prepare a report concerning his conclusions regarding whether the person named in the petition is a recidivist sex offender in need of treatment with a chemical compound. The psychiatrist shall provide a copy of the report to the district attorney and the person named in the petition or his counsel.
(b) Order the person named in the petition to submit to a physical examination by a physician licensed to practice medicine in this state. The physician who conducts the examination shall prepare a report concerning his conclusions regarding whether treatment with a chemical compound is medically appropriate in relation to the physical health of the person named in the petition. The physician shall provide a copy of the report to the district attorney and the person named in the petition or his counsel.
(c) Schedule a hearing to determine whether the person named in the petition is a recidivist sex offender in need of treatment with a chemical compound. The hearing must be held not later than 15 days after the finding of probable cause is made.
Sec. 18 In all proceedings that are held pursuant to sections 2 to 26, 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 psychiatrists who have examined the person named in the petition;
(b) The testimony of experts or other qualified persons; and
(c) The testimony of other witnesses.
2. If the person named in the petition is indigent, upon his request or the request of his counsel, the court shall assist the person in obtaining an expert or other qualified person to perform an evaluation or examination of him or to testify on his behalf.
3. The person named in the petition must be present at the proceeding and, at the discretion of the court, may testify.
4. 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. 19 At a hearing to determine whether the person named in the petition is a recidivist sex offender in need of treatment with a chemical compound:
1. The court shall address the person named in the petition personally and inform him of the nature of the program of treatment and the intended effects and typical adverse effects associated with the chemical compound.
2. The court shall act as the finder of fact.
3. The court shall order the person named in the petition to submit to the program of treatment if the district attorney proves by clear and convincing evidence that:
(a) The person named in the petition has been convicted of:
(1) Two or more sexual offenses against a child; or
(2) One sexual offense against a child and one or more sexual offenses;
(b) The person named in the petition suffers from a mental disorder;
(c) The person named in the petition is dangerous to the public because he is likely to commit sexual offenses against a child repeatedly; and
(d) The program of treatment is medically appropriate in relation to the physical health of the person named in the petition.
For purposes of paragraph (a), a certified copy of a conviction is prima facie evidence of that conviction.
Sec. 19.2. If a person is ordered to submit to the program of treatment:
1. The court shall order the person, to the extent of his financial ability, to pay for the cost of the chemical compound.
2. The program of treatment shall be deemed to be suspended during all periods in which the person is in confinement, other than residential confinement, until the person is released from confinement.
Sec. 19.4. 1. Except as otherwise provided in subsection 2, a person who is ordered to submit to the program of treatment and who knowingly solicits, obtains, prepares or uses a substance which diminishes or negates the effects of the chemical compound or which the person believes will diminish or negate the effects of the chemical compound, whether or not the substance actually diminishes or negates the effects of the chemical compound, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
2. The provisions of subsection 1 do not apply to a substance that:
(a) Is approved by the Food and Drug Administration for sale over the counter without a prescription, if the person uses the substance only as directed by the instructions on the manufacturer's label for the substance; or
(b) Is prescribed by a physician licensed in this state for use by the person, if the substance is intended to:
(1) Diminish or negate the typical adverse effects associated with the chemical compound; or
(2) Address other physical or psychological conditions affecting the health of the person.
Sec. 20 1. If a person is ordered to submit to the program of treatment, the court shall hold a hearing once per year, and may hold a hearing more often if necessary, to determine whether the person requires continued participation in the program of treatment.
2. At a hearing held pursuant to subsection 1, the court shall terminate the program of treatment upon the stipulation of the district attorney or if the person proves by clear and convincing evidence that:
(a) He no longer suffers from a mental disorder;
(b) He no longer is dangerous to the public; or
(c) The program of treatment is no longer medically appropriate in relation to his physical health.
Sec. 21 1. The administrator may suspend the program of treatment for medical reasons if he determines that the program of treatment poses a present and substantial danger to the physical health of the person.
2. If the administrator suspends the program of treatment for medical reasons, he shall notify the district attorney within 48 hours after his decision.
3. The district attorney may file with the court a request for a hearing, and the court shall hold a hearing not later than 5 days after the request is filed.
4. At the hearing:
(a) If the court determines that a present and substantial danger to the physical health of the person does not exist, the court shall order that the program of treatment be resumed.
(b) If the court determines that a present and substantial danger to the physical health of the person exists and that the danger is the result of a temporary medical condition, the court shall suspend the program of treatment until the program of treatment no longer poses a danger to the physical health of the person.
(c) If the court determines that a present and substantial danger to the physical health of the person exists and that the danger is the result of a permanent medical condition, the court shall terminate the program of treatment.
Sec. 22 1. In response to a petition filed by the district attorney pursuant to section 15 of this act, the person named in the petition may stipulate that he is a recidivist sex offender in need of treatment with a chemical compound and may voluntarily submit to the program of treatment with the approval of the court.
2. If a person voluntarily submits to the program of treatment with the approval of the court, the person is subject to the provisions of sections 2 to 26, inclusive, of this act as if the court had ordered the person to submit to the program of treatment.
Sec. 23 An appeal may be taken from a judgment or an order of the court entered pursuant to sections 2 to 26, 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. 24 1. The division shall adopt regulations establishing the program for the treatment of recidivist sex offenders with a chemical compound, including, but not limited to, regulations specifying guidelines for:
(a) Administering the program of treatment; and
(b) Administering any psychological counseling that the division makes available to a recidivist sex offender ordered to submit to the program of treatment.
2. The division shall adopt regulations setting forth the professional qualifications that a psychiatrist must possess to:
(a) Evaluate whether a person is a recidivist sex offender in need of treatment with a chemical compound; and
(b) Treat such a recidivist sex offender with a chemical compound.
Sec. 25 Notwithstanding another provision of law, the informed consent of a person ordered to submit to the program of treatment is not required for the division, or a person designated by the division, to administer treatment with a chemical compound pursuant to the program of treatment.
Sec. 26 This state and its agencies and political subdivisions and the officers, employees, and independent contractors of this state and its agencies and political subdivisions are immune from liability for damages arising from:
1. The administration or use of a chemical compound pursuant to sections 2 to 26, inclusive, of this act; and
2. An act or omission related to the administration or use of a chemical compound pursuant to sections 2 to 26, inclusive, of this act.
Sec. 27 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. 28 The amendatory provisions of sections 2 to 26, inclusive, of this act apply to all persons who have been convicted of a sexual offense or a sexual offense against a child, as defined in sections 13 and 13.5 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.
Sec. 29 The amendatory provisions of section 19.4 of this act do not apply to offenses that are committed before October 1, 1997.