HOUSE Substitute for SENATE BILL No. 671

      An Act concerning the civil commitment of sexually violent predators; amending K.S.A.
      59-29a11, 59-29a12 and 59-29a13 and K.S.A. 1997 Supp. 59-29a02, 59-29a08 and 59-
      29a10 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

    New Section 1. (a) During any period the person is in transitional
release, the person committed under this act at least annually, and at any
other time deemed appropriate by the treatment staff, shall be examined
by the treatment staff to determine if the person's mental abnormality or
personality disorder has so changed so as to warrant such person being
considered for conditional release. The treatment staff shall forward a
report of its examination to the court. The court shall review the same.
If the court determines that probable cause exists to believe that the
person's mental abnormality or personality disorder has so changed that
the person is safe to be placed in conditional release, the court shall then
set a hearing on the issue. The attorney general shall have the burden of
proof by a beyond a reasonable doubt standard. The person shall have
the same rights as enumerated in K.S.A. 59-29a06 and amendments
thereto. Subsequent to either a court review or a hearing, the court shall
issue an appropriate order with findings of fact. The order of the court
shall be provided to the attorney general, the person and the secretary.

    (b) If, after the hearing, the court is convinced beyond a reasonable
doubt that the person is appropriate for conditional release, the court
shall order that the person be placed on conditional release. Otherwise,
the court shall order that the person remain either in secure commitment
or in transitional release.

    New Sec. 2. (a) If the court determines that the person should be
placed on conditional release, the court, based upon the recommendation
of the treatment staff, shall establish a plan of treatment which the person
shall be ordered to follow. This plan of treatment may include, but shall
not be limited to: Provisions as to where the person shall reside and with
whom, taking prescribed medications, attending individual and group
counseling, maintaining employment, having no contact with children,
not frequenting facilities, locations, events or otherwise in which children
are likely to be present and not engaging in activities in which contact
with children is likely. Upon a showing by the person that the person
accepts the plan of treatment and is prepared to follow it, the court shall
release the person from the transitional release program.

    (b) After a minimum of five years have passed in which the person
has been free of violations of conditions of such person's treatment plan,
the treatment staff, or other professionals directed by the court may ex-
amine such person to determine if the person's mental abnormality or
personality disorder has changed so as to warrant such person being con-
sidered for final discharge. The person preparing the report shall forward
the report to the court. The court shall review the same. If the court
determines that probable cause exists to believe that the person's mental
abnormality or personality disorder has so changed that the person is safe
to be entitled to final discharge, the court shall set a formal hearing on
the issue. The attorney general shall have the burden of proof by a beyond
a reasonable doubt standard. The person shall have the same rights as
enumerated in K.S.A. 59-29a06 and amendments thereto. Subsequent to
either a court review or a hearing, the court shall issue an appropriate
order with findings of fact. The order of the court shall be provided to
the attorney general, the person and the secretary.

    (c) If, after a hearing, the court is convinced beyond a reasonable
doubt that the person is appropriate for final discharge, the court shall
order the person finally discharged. Otherwise, the court shall continue
custody of the person with the secretary for placement in a secure facility,
transitional release program or conditional release program. In the event
the court does not order final discharge of the person, the person still
retains the right to annual reviews.

    (d) At any time during which the person is on conditional release and
the professional person designated by the court in the treatment plan to
monitor the person's compliance with it determines that the person has
violated any material condition of that plan, that professional person may
request the district court to issue an emergency ex parte order directing
any law enforcement officers to take the person into custody and return
the person to the secure commitment facility. Any such request may be
made verbally or by telephone, but shall be followed in written or facsim-
ile form delivered to the court not later than 5:00 p.m. of the first day
the district court is open for the transaction of business after the verbal
or telephonic request was made.

    (e) Upon the person being returned to the secure commitment fa-
cility from conditional release, notice thereof shall be given by the sec-
retary to the court. The court shall set the matter for a hearing within
two working days of receipt of notice of the person's having been returned
to the secure commitment facility and cause notice thereof to be given
to the attorney general, the person and the secretary. The attorney gen-
eral shall have the burden of proof to show probable cause that the person
violated conditions of conditional release. The hearing shall be to the
court. At the conclusion of the hearing the court shall issue an order
returning the person to the secure commitment facility, to the transitional
release program or to conditional release, and may order such other fur-
ther conditions with which the person must comply if the person is re-
turned to either the transitional release program or to conditional release.

    (f) The final discharge shall not prevent the person from being pros-
ecuted for any criminal acts which the person is alleged to have commit-
ted or from being subject in the future to a subsequent commitment
under this act.

    Sec. 3. K.S.A. 1997 Supp. 59-29a02 is hereby amended to read as
follows: 59-29a02. As used in this act:

    (a) ``Sexually violent predator'' means any person who has been con-
victed of or charged with a sexually violent offense and who suffers from
a mental abnormality or personality disorder which makes the person
likely to engage in the predatory acts of sexual violence, if not confined
in a secure facility.

    (b) ``Mental abnormality'' means a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the per-
son to commit sexually violent offenses in a degree constituting such per-
son a menace to the health and safety of others.

    (c) ``Predatory'' means acts directed towards strangers or individuals
with whom relationships have been established or promoted for the pri-
mary purpose of victimization.

    (d) ``Sexually motivated'' means that one of the purposes for which
the defendant committed the crime was for the purpose of the defend-
ant's sexual gratification.

    (e) ``Sexually violent offense'' means:

    (1) Rape as defined in K.S.A. 21-3502 and amendments thereto;

    (2) indecent liberties with a child as defined in K.S.A. 21-3503 and
amendments thereto;

    (3) aggravated indecent liberties with a child as defined in K.S.A. 21-
3504 and amendments thereto;

    (4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of
K.S.A. 21-3505 and amendments thereto;

    (5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and
amendments thereto;

    (6) indecent solicitation of a child as defined in K.S.A. 21-3510 and
amendments thereto;

    (7) aggravated indecent solicitation of a child as defined in K.S.A. 21-
2511 21-3511 and amendments thereto;

    (8) sexual exploitation of a child as defined in K.S.A. 21-3516 and
amendments thereto;

    (9) aggravated sexual battery as defined in K.S.A. 21-3518 and
amendments thereto;

    (10) any conviction for a felony offense in effect at any time prior to
the effective date of this act, that is comparable to a sexually violent
offense as defined in subparagraphs (1) through (9) or any federal or other
state conviction for a felony offense that under the laws of this state would
be a sexually violent offense as defined in this section;

    (11) an attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 and 21-3303, and amendments thereto, of a
sexually violent offense as defined in this subsection; or

    (12) any act which either at the time of sentencing for the offense or
subsequently during civil commitment proceedings pursuant to this act,
has been determined beyond a reasonable doubt to have been sexually
motivated.

    (f) ``Agency with jurisdiction'' means that agency which releases upon
lawful order or authority a person serving a sentence or term of confine-
ment and includes the department of corrections, the department of so-
cial and rehabilitation services and the Kansas parole board.

    (g) ``Person'' means an individual who is a potential or actual subject
of proceedings under this act.

    (h) ``Treatment staff'' means the persons, agencies or firms employed
by or contracted with the secretary to provide treatment, supervision or
other services at the sexually violent predator facility.

    (i) ``Transitional release'' means any halfway house, work release or
other placement designed to assist the person's adjustment and reintegra-
tion into the community once released from commitment.

    (j) ``Secretary'' means the secretary of the department of social and
rehabilitation services.

    Sec. 4. K.S.A. 1997 Supp. 59-29a08 is hereby amended to read as
follows: 59-29a08. (a) Each person committed under this act shall have a
current examination of the person's mental condition made once every
year. The person may retain, or if the person is indigent and so requests
the court may appoint a qualified professional person to examine such
person, and such expert or professional person shall have access to all
records concerning the person. The yearly report shall be provided to the
court that committed the person under this act. The court shall conduct
an annual review of the status of the committed person. Nothing con-
tained in this act shall prohibit the person from otherwise petitioning the
court for discharge at this hearing. The secretary of the department of
social and rehabilitation services shall provide the committed person with
an annual written notice of the person's right to petition the court for
release over the secretary's objection. The notice shall contain a waiver
of rights. The secretary shall forward the notice and waiver form to the
court with the annual report. The committed person shall have a right to
have an attorney represent the person at the hearing but the person is
not entitled to be present at the hearing.

    (b) If the court at the hearing determines that probable cause exists
to believe that the person's mental abnormality or personality disorder
has so changed that the person is safe to be at large and will not engage
in acts of sexual violence if discharged placed in transitional release, then
the court shall set a hearing on the issue. At the hearing, the committed
person shall be entitled to be present and entitled to the benefit of all
constitutional protections that were afforded the person at the initial com-
mitment proceeding. The attorney general shall represent the state and
shall have a right to a jury trial and to have the committed person eval-
uated by experts chosen by the state. The committed person shall also
have the right to have experts evaluate the person on the person's behalf
and the court shall appoint an expert if the person is indigent and requests
an appointment. The burden of proof at the hearing shall be upon the
state to prove beyond a reasonable doubt that the committed person's
mental abnormality or personality disorder remains such that the person
is not safe to be at large placed in transitional release and if transitionally
released is likely to engage in acts of sexual violence.

    (c) If, after the hearing, the court or jury is convinced beyond a rea-
sonable doubt that the person is not appropriate for transitional release,
the court shall order that the person remain in secure commitment. Oth-
erwise, the court shall order that the person be placed in transitional
release.

    (d) If the court determines that the person should be placed in tran-
sitional release, the secretary shall transfer the person to the transitional
release program. The secretary may contract for services to be provided
in the transitional release program. During any period the person is in
transitional release, that person shall comply with any rules or regulations
the secretary may establish for this program and every directive of the
treatment staff of the transitional release program.

    (e) At any time during which the person is in the transitional release
program and the treatment staff determines that the person has violated
any rule, regulation or directive associated with the transitional release
program, the treatment staff may remove the person from the transitional
release program and return the person to the secure commitment facility,
or may request the district court to issue an emergency ex parte order
directing any law enforcement officer to take the person into custody and
return the person to the secure commitment facility. Any such request
may be made verbally or by telephone, but shall be followed in written
or facsimile form delivered to the court by not later than 5:00 p.m. of the
first day the district court is open for the transaction of business after the
verbal or telephonic request was made.

    (f) Upon the person being returned to the secure commitment facility
from the transitional release program, notice thereof shall be given by the
secretary to the court. The court shall set the matter for a hearing within
two working days of receipt of notice of the person's having been returned
to the secure commitment facility and cause notice thereof to be given to
the attorney general, the person and the secretary. The attorney general
shall have the burden of proof to show probable cause that the person
violated conditions of transitional release. The hearing shall be to the
court. At the conclusion of the hearing the court shall issue an order
returning the person to the secure commitment facility or to the transi-
tional release program, and may order such other further conditions with
which the person must comply if the person is returned to the transitional
release program.

    Sec. 5. K.S.A. 1997 Supp. 59-29a10 is hereby amended to read as
follows: 59-29a10. (a) If the secretary of the department of social and
rehabilitation services determines that the person's mental abnormality
or personality disorder has so changed that the person is not likely to
commit predatory acts of sexual violence if released placed in transitional
release, the secretary shall authorize the person to petition the court for
transitional release. The petition shall be served upon the court and the
attorney general. The court, upon receipt of the petition for transitional
release, shall order a hearing within 30 days. The attorney general shall
represent the state, and shall have the right to have the petitioner ex-
amined by an expert or professional person of such attorney's choice. The
hearing shall be before a jury if demanded by either the petitioner or the
attorney general. The burden of proof shall be upon the attorney general
to show beyond a reasonable doubt that the petitioner's mental abnor-
mality or personality disorder remains such that the petitioner is not safe
to be at large and that if discharged placed in transitional release is likely
to commit predatory acts of sexual violence.

    (b) If, after the hearing, the court is convinced beyond a reasonable
doubt that the person is not appropriate for transitional release, the court
shall order that the person remain in secure commitment. Otherwise, the
court shall order that the person be placed in transitional release.

    (c) The provisions of subsections (d), (e) and (f) of K.S.A. 59-29a08
and amendments thereto shall apply to a transitional release pursuant to
this section.

    Sec. 6. K.S.A. 59-29a11 is hereby amended to read as follows: 59-
29a11. Nothing in this act shall prohibit a person from filing a petition
for transitional release, conditional release or final discharge pursuant to
this act. However, if a person has previously filed a petition for transi-
tional release, conditional release or final discharge without the secretary
of the department of social and rehabilitation services approval and the
court determined either upon review of the petition or following a hear-
ing, that the petitioner's petition was frivolous or that the petitioner's
condition had not so changed that the person was safe to be at large, then
the court shall deny the subsequent petition unless the petition contains
facts upon which a court could find the condition of the petitioner had
so changed that a hearing was warranted. Upon receipt of a first or sub-
sequent petition from committed persons without the secretary's ap-
proval, the court shall endeavor whenever possible to review the petition
and determine if the petition is based upon frivolous grounds and if so
shall deny the petition without a hearing.

    Sec. 7. K.S.A. 59-29a12 is hereby amended to read as follows: 59-
29a12. The secretary of social and rehabilitation services shall be respon-
sible for all cost relating to the evaluation and treatment of persons com-
mitted to the secretary's custody under any provision of this act.
Reimbursement may be obtained by the secretary for the cost of care and
treatment, including placement in transitional release, of persons com-
mitted to the secretary's custody pursuant to K.S.A. 59-2006 and amend-
ments thereto.

    Sec. 8. K.S.A. 59-29a13 is hereby amended to read as follows: 59-
29a13. In addition to any other information required to be released under
this act, prior to the release of a person committed under this act, the
secretary of the department of social and rehabilitation services shall give
written notice of such placement or release to any victim of the person's
activities or crime who is alive and whose address is known to the secretary
or, if the victim is deceased, to the victim's family, if the family's address
is known to the secretary. Failure to notify shall not be a reason for
postponement of release. Nothing in this section shall create a cause of
action against the state or an employee of the state acting within the scope
of the employee's employment as a result of the failure to notify pursuant
to this action.

    Sec. 9. K.S.A. 59-29a11, 59-29a12 and 59-29a13 and K.S.A. 1997
Supp. 59-29a02, 59-29a08 and 59-29a10 are hereby repealed.

    Sec. 10. This act shall take effect and be in force from and after its
publication in the statute book.

I hereby certifiy that the above Bill originated in the
Senate, and passed that body

__________________________________

Senate adopted
Conference Committe Report __________________________________

__________________________________

President of the Senate.

__________________________________

Secretary of the Senate.

Passed the House
as amended __________________________

House adopted
Conference Committee Report __________________________

__________________________________

Speaker of the House.

__________________________________

Chief Clerk of the House.

Approved __________________________

__________________________________

Governor.