SUMMARY--Requires certification by panel before offenders convicted of certain crimes may be released on probation or parole. (BDR 15-288)
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 crimes; requiring certification by a panel before offenders convicted of certain crimes may be released on probation or parole; 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 200 of NRS is hereby amended by adding thereto a new section to read as follows:
A person convicted of violating the provisions of NRS 200.710 to 200.730, inclusive, must not be:
1. Paroled unless a board consisting of:
(a) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(b) The director of the department of prisons; and
(c) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this subsection, the administrator and the director may each designate a person to represent him on the board.
2. Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
Sec. 2 NRS 200.359 is hereby amended to read as follows:
200.359 1. A person having a limited right of custody to a child by operation of law or pursuant to an order, judgment or decree of any court, including a judgment or decree which grants another person rights to custody or visitation of the child, or any parent having no right of custody to the child, who:
(a) In violation of an order, judgment or decree of any court willfully detains, conceals or removes the child from a parent, guardian or other person having lawful custody or a right of visitation of the child; or
(b) In the case of an order, judgment or decree of any court that does not specify when the right to physical custody or visitation is to be exercised, removes the child from the jurisdiction of the court without the consent of either the court or all persons who have the right to custody or visitation,
is guilty of a category D felony and shall be punished as provided in NRS 193.130.
2. A parent who has joint legal custody of a child pursuant to NRS 125.465 shall not willfully conceal or remove the child from the custody of the other parent with the specific intent to deprive the other parent of the parent and child relationship. A person who violates this subsection shall be punished as provided in subsection 1.
3. If the mother of a child has primary physical custody pursuant to subsection 2 of NRS 126.031, the father of the child shall not willfully conceal or remove the child from the physical custody of the mother. If the father of a child has primary physical custody pursuant to subsection 2 of NRS 126.031, the mother of the child shall not willfully conceal or remove the child from the physical custody of the father. A person who violates this subsection shall be punished as provided in subsection 1.
4. Before an arrest warrant may be issued for a violation of this section, the court must find that:
(a) This is the home state of the child, as defined in subsection 5 of NRS 125A.040; and
(b) There is cause to believe that the entry of a court order in a civil proceeding brought pursuant to chapter 125 or 125A of NRS will not be effective to enforce the rights of the parties and would not be in the best interests of the child.
5. Upon conviction for a violation of this section, the court shall order the defendant to pay restitution for any expenses incurred in locating or recovering the child.
6. The prosecuting attorney may recommend to the judge that the defendant be sentenced as for a misdemeanor and the judge may impose such a sentence if he finds that:
(a) The defendant has no prior conviction for this offense and the child has suffered no substantial harm as a result of the offense; or
(b) The interests of justice require that the defendant be punished as for a misdemeanor.
7. A person who aids or abets any other person to violate this section shall be punished as provided in subsection 1.
8. This section does not apply to a person who detains, conceals or removes a child to protect the child from the imminent danger of abuse or neglect or to protect himself from imminent physical harm, and reported the detention, concealment or removal to a law enforcement agency or an agency which provides protective services within 24 hours after detaining, concealing or removing the child, or as soon as the circumstances allowed. As used in this subsection:
(a) "Abuse or neglect" has the meaning ascribed to it in paragraph (a) of subsection [3] 4 of NRS 200.508.
(b) "Agency which provides protective services" has the meaning ascribed to it in NRS 432B.030.
Sec. 3 NRS 200.368 is hereby amended to read as follows:
200.368 1. A person who commits statutory sexual seduction shall be punished:
[1.] (a) If he is 21 years of age or older, for a category C felony as provided in NRS 193.130.
[2.] (b) If he is under the age of 21 years, for a gross misdemeanor.
2. A person convicted of violating the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
Sec. 4 NRS 200.375 is hereby amended to read as follows:
200.375 1. A person convicted of sexual assault or attempted sexual assault [may] must not be paroled unless a board consisting of:
(a) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(b) The director of the department of prisons; and
(c) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others.
2. For the purposes of [this section,] subsection 1, the administrator and the director may each designate a person to represent him on the board.
3. A person convicted of attempted sexual assault of a person who is 16 years of age or older must not be released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
Sec. 5 NRS 200.400 is hereby amended to read as follows:
200.400 1. As used in this section, "battery" means any willful and unlawful use of force or violence upon the person of another.
2. A person who is convicted of battery with the intent to commit mayhem, robbery or grand larceny is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
3. A person who is convicted of battery with the intent to kill is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years.
4. A person who is convicted of battery with the intent to commit sexual assault shall be punished:
(a) If the crime results in substantial bodily harm to the victim, for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served,
as determined by the verdict of the jury, or the judgment of the court if there is no jury.
(b) If the crime does not result in substantial bodily harm to the victim and the victim is 16 years of age or older, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.
(c) If the crime does not result in substantial bodily harm to the victim and the victim is a child under the age of 16, for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 15 years.
In addition to any other penalty, a person convicted pursuant to this subsection may be punished by a fine of not more than $10,000.
5. A person convicted of violating the provisions of subsection 4 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
Sec. 6 NRS 200.508 is hereby amended to read as follows:
200.508 1. A person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect; or
(b) Is responsible for the safety or welfare of a child and who permits or allows that child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect,
is guilty of a gross misdemeanor unless a more severe penalty is prescribed by law for an act or omission which brings about the abuse, neglect or danger.
2. A person who violates any provision of subsection 1, if substantial bodily or mental harm results to the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years.
3. A person convicted of violating the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
4. As used in this section:
(a) "Abuse or neglect" means physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child under the age of 18 years, as set forth in NRS 432B.070, 432B.090, 432B.100, 432B.110, 432B.140 and 432B.150, under circumstances which indicate that the child's health or welfare is harmed or threatened with harm.
(b) "Allow" means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that the child is abused or neglected.
(c) "Permit" means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care, custody and control of a minor child.
(d) "Substantial mental harm" means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within his normal range of performance or behavior.
Sec. 7 NRS 200.700 is hereby amended to read as follows:
200.700 As used in NRS 200.700 to 200.760, inclusive, and section 1 of this act, unless the context otherwise provides:
1. "Performance" means any play, film, photograph, computer-generated image, electronic representation, dance or other visual presentation.
2. "Promote" means to produce, direct, procure, manufacture, sell, give, lend, publish, distribute, exhibit, advertise or possess for the purpose of distribution.
3. "Sexual conduct" means sexual intercourse, lewd exhibition of the genitals, fellatio, cunnilingus, bestiality, anal intercourse, excretion, sado-masochistic abuse, masturbation, or the penetration of any part of a person's body or of any object manipulated or inserted by a person into the genital or anal opening of the body of another.
4. "Sexual portrayal" means the depiction of a person in a manner which appeals to the prurient interest in sex and which does not have serious literary, artistic, political or scientific value.
Sec. 8 NRS 201.180 is hereby amended to read as follows:
201.180 1. Persons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
2. A person convicted of violating the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
Sec. 9 NRS 207.190 is hereby amended to read as follows:
207.190 1. It is unlawful for a person, with the intent to compel another to do or abstain from doing an act which the other person has a right to do or abstain from doing, to:
(a) Use violence or inflict injury upon the other person or any of his family, or upon his property, or threaten such violence or injury;
(b) Deprive the person of any tool, implement or clothing, or hinder him in the use thereof; or
(c) Attempt to intimidate the person by threats or force.
2. A person who violates the provisions of subsection 1 shall be punished:
(a) Where physical force or the immediate threat of physical force is used, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
(b) Where no physical force or immediate threat of physical force is used, for a misdemeanor.
3. Except as otherwise provided in subsection 6, if a person is convicted of a violation of subsection 1 where physical force or the immediate threat of physical force is used, the court shall, at the request of the prosecuting attorney, conduct a separate hearing to determine whether the offense was sexually motivated. A request for such a hearing may not be submitted to the court unless the prosecuting attorney, before the commencement of the trial, files and serves upon the defendant a written notice of his intention to request such a hearing.
4. A hearing requested pursuant to subsection 3 must be conducted before:
(a) The court imposes its sentence; or
(b) A separate penalty hearing is conducted.
5. At the hearing, only evidence concerning the question of whether the offense was sexually motivated may be presented. The prosecuting attorney must prove beyond a reasonable doubt that the offense was sexually motivated.
6. A person may stipulate, before a hearing held pursuant to subsection 3 or as part of an agreement to plead guilty, guilty but mentally ill or nolo contendere, that his offense was sexually motivated.
7. The court shall enter in the record:
(a) Its finding from a hearing held pursuant to subsection 3; or
(b) A stipulation made pursuant to subsection 6.
8. A person who is convicted of a violation of subsection 1 that was sexually motivated must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
9. For the purposes of this section, an offense is "sexually motivated" if one of the purposes for which the person committed the offense was his sexual gratification.
Sec. 10 NRS 176.185 is hereby amended to read as follows:
176.185 1. Except as otherwise provided in this section [,] or by specific statute, whenever a person is found guilty in a district court of a crime upon verdict or plea, except in cases of murder of the first or second degree, kidnaping in the first degree, sexual assault, attempted sexual assault of a child who is less than 16 years of age, an offense for which the suspension of sentence or the granting of probation is expressly forbidden, or where the person is found to be a habitual criminal pursuant to NRS 207.010, a habitually fraudulent felon pursuant to NRS 207.014 or a habitual felon pursuant to NRS 207.012, the court:
(a) If the person is found guilty of a category E felony, shall suspend the execution of the sentence imposed and grant probation to the person pursuant to NRS 193.130; or
(b) If the person is found guilty of any other felony, a gross misdemeanor or a misdemeanor, may suspend the execution of the sentence imposed and grant probation as the court deems advisable.
2. In determining whether to place a person on probation, the court shall not consider whether the person has the financial ability to participate in a program of probation secured by a surety bond established pursuant to NRS 176.1851 to 176.18525, inclusive.
3. [The court may grant probation to a person convicted of indecent or obscene exposure or of lewdness only if a certificate of a psychologist or psychiatrist, as required by NRS 201.210, 201.220 or 201.230, is received by the court.] The court shall consider the standards adopted pursuant to NRS 213.10988 and the recommendation of the chief parole and probation officer, if any, in determining whether to grant probation.
4. If the court determines that a defendant is otherwise eligible for probation but requires more supervision than would normally be provided to a person granted probation, the court may, in lieu of sentencing him to a term of imprisonment, grant him probation pursuant to the program of intensive supervision established pursuant to NRS 176.198.
5. The court shall not, except as otherwise provided in this subsection, grant probation to a person convicted of a felony until the court receives a written report from the chief parole and probation officer. The chief parole and probation officer shall submit a written report not later than 45 days following a request for a probation investigation from the county clerk, but if a report is not submitted by the chief parole and probation officer within 45 days the district judge may grant probation without the written report.
6. If the court determines that a defendant is otherwise eligible for probation, the court shall when determining the conditions of that probation consider the imposition of such conditions as would facilitate timely payments by the defendant of his obligation, if any, for the support of a child and the payment of any such obligation which is in arrears.
Sec. 11 The amendatory provisions of section 9 of this act apply to offenses committed on or after October 1, 1997.
Sec. 12 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.