CHAPTER 140 HOUSE BILL No. 2101 An  Act concerning the civil commitment of sexually violent predators; amending K.S.A.
59-29a01 and K.S.A. 1998 Supp. 59-29a02, 59-29a03, 59-29a04, 59-29a07, 59-29a18 and
59-29a19 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 59-29a01 is hereby amended to read as follows: 59-
29a01. The legislature finds that a small but there exists an extremely
dangerous group of sexually violent predators exist who do not have a
mental disease or defect that renders them appropriate for involuntary
treatment pursuant to the treatment act for mentally ill persons defined
in K.S.A. 59-2901 et seq. and amendments thereto, which is intended to
provide short-term treatment to individuals with serious mental disorders
and then return them to the community. In contrast to persons appro-
priate for civil commitment under K.S.A. 59-2901 et seq. and amend-
ments thereto, sexually violent predators generally have antisocial per-
sonality features which are unamenable to existing mental illness
treatment modalities and those features render them likely to engage in
sexually violent behavior. The legislature further finds that sexually violent
predators' likelihood of engaging in repeat acts of predatory sexual vio-
lence is high. The existing involuntary commitment procedure pursuant
to the treatment act for mentally ill persons defined in K.S.A. 59-2901 et
seq. and amendments thereto is inadequate to address the risk these sex-
ually violent predators pose to society. The legislature further finds that
the prognosis for rehabilitating sexually violent predators in a prison set-
ting is poor, the treatment needs of this population are very long term
and the treatment modalities for this population are very different than
the traditional treatment modalities for people appropriate for commit-
ment under the treatment act for mentally ill persons defined in K.S.A.
59-2901 et seq. and amendments thereto, therefore a civil commitment
procedure for the long-term care and treatment of the sexually violent
predator is found to be necessary by the legislature abnormality or per-
sonality disorder and who are likely to engage in repeat acts of sexual
violence if not treated for their mental abnormality or personality disor-
der. Because the existing civil commitment procedures under K.S.A. 59-
2901 et seq. and amendments thereto are inadequate to address the special
needs of sexually violent predators and the risks they present to society,
the legislature determines that a separate involuntary civil commitment
process for the potentially long-term control, care and treatment of sex-
ually violent predators is necessary. The legislature also determines that
because of the nature of the mental abnormalities or personality disorders
from which sexually violent predators suffer, and the dangers they pres-
ent, it is necessary to house involuntarily committed sexually violent pred-
ators in an environment separate from persons involuntarily committed
under K.S.A. 59-2901 et seq and amendments thereto.

      Sec.  2. K.S.A. 1998 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 repeat acts of sexual violence.

      (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. ``Likely to engage in repeat acts of sexual
violence'' means the person's propensity to commit acts of sexual violence
is of such a degree as to pose a menace to the health and safety of others.

      (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-
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) aggravated incest as defined in K.S.A. 21-3603 and amendments
thereto;

      (11) 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) (11) 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) (12) 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) (13) 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 sex-
ually 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 reinte-
gration into the community once released from commitment.

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

      Sec.  3. K.S.A. 1998 Supp. 59-29a03 is hereby amended to read as
follows: 59-29a03. (a) When it appears that a person may meet the cri-
teria of a sexually violent predator as defined in K.S.A. 59-29a02 and
amendments thereto, the agency with jurisdiction shall give written notice
of such to the attorney general and the multidisciplinary team established
in subsection (d), 90 days prior to:

      (1) The anticipated release from total confinement of a person who
has been convicted of a sexually violent offense, except that in the case
of persons who are returned to prison for no more than 90 days as a result
of revocation of postrelease supervision, written notice shall be given as
soon as practicable following the person's readmission to prison;

      (2) release of a person who has been charged with a sexually violent
offense and who has been determined to be incompetent to stand trial
pursuant to K.S.A. 22-3305 and amendments thereto;

      (3) release of a person who has been found not guilty by reason of
insanity of a sexually violent offense pursuant to K.S.A. 22-3428 and
amendments thereto; or

      (4) release of a person who has been found not guilty of a sexually
violent offense pursuant to K.S.A. 22-3428, and amendments thereto, and
the jury who returned the verdict of not guilty answers in the affirmative
to the special question asked pursuant to K.S.A. 22-3221 and amendments
thereto.

      (b) The agency with jurisdiction shall inform the attorney general and
the multidisciplinary team established in subsection (d) of the following:

      (1) The person's name, identifying factors, anticipated future resi-
dence and offense history; and

      (2) documentation of institutional adjustment and any treatment re-
ceived.

      (c) The agency with jurisdiction, its employees, officials, members of
the multidisciplinary team established in subsection (d), members of the
prosecutor's review committee appointed as provided in subsection (e)
and individuals contracting, appointed or volunteering to perform services
hereunder shall be immune from liability for any good-faith conduct un-
der this section.

      (d) The secretary of corrections shall establish a multidisciplinary
team which may include individuals from other state agencies to review
available records of each person referred to such team pursuant to sub-
section (a). The team, within 30 days of receiving notice, shall assess
whether or not the person meets the definition of a sexually violent pred-
ator, as established in K.S.A. 59-29a02 and amendments thereto. The
team shall notify the attorney general of its assessment.

      (e) The attorney general shall appoint a prosecutor's review commit-
tee to review the records of each person referred to the attorney general
pursuant to subsection (a). The prosecutor's review committee shall assist
the attorney general in the determination of whether or not the person
meets the definition of a sexually violent predator. The assessment of the
multidisciplinary team shall be made available to the attorney general and
the prosecutor's review committee.

      (f) The provisions of this section are not jurisdictional, and failure to
comply with such provisions in no way prevents the attorney general from
proceeding against a person otherwise subject to the provision of K.S.A.
59-29a01 et seq., and amendments thereto.

      Sec.  4. K.S.A. 1998 Supp. 59-29a04 is hereby amended to read as
follows: 59-29a04. (a) When it appears that the person presently confined
may be a sexually violent predator and the prosecutor's review committee
appointed as provided in subsection (e) of K.S.A. 59-29a03 and amend-
ments thereto has determined that the person meets the definition of a
sexually violent predator, the attorney general may file a petition, within
75 days of the date the attorney general received the written notice by
the agency of jurisdiction as provided in subsection (a) of K.S.A. 59-29a03
and amendments thereto, alleging that the person is a sexually violent
predator and stating sufficient facts to support such allegation.

      (b) The provisions of this section are not jurisdictional, and failure to
comply with such provisions in no way prevents the attorney general from
proceeding against a person otherwise subject to the provision of K.S.A.
59-29a01 et seq., and amendments thereto.

      Sec.  5. K.S.A. 1998 Supp. 59-29a07 is hereby amended to read as
follows: 59-29a07. (a) The court or jury shall determine whether, beyond
a reasonable doubt, the person is a sexually violent predator. If such de-
termination that the person is a sexually violent predator is made by a
jury, such determination shall be by unanimous verdict of such jury. Such
determination may be appealed. If the court or jury determines that the
person is a sexually violent predator, the person shall be committed to
the custody of the secretary of social and rehabilitation services for con-
trol, care and treatment until such time as the person's mental abnor-
mality or personality disorder has so changed that the person is safe to
be at large. Such control, care and treatment shall be provided at a facility
operated by the department of social and rehabilitation services. At all
times, persons committed for control, care and treatment by the depart-
ment of social and rehabilitation services pursuant to this act shall be kept
in a secure facility and such persons shall be segregated at all times from
any other patient under the supervision of the secretary of social and
rehabilitation services and commencing June 1, 1995, such persons com-
mitted pursuant to this act shall be kept in a facility or building separate
from any other patient under the supervision of the secretary. The de-
partment of social and rehabilitation services is authorized to enter into
an interagency agreement with the department of corrections for the
confinement of such persons. Such persons who are in the confinement
of the secretary of corrections pursuant to an interagency agreement shall
be housed and managed separately from offenders in the custody of the
secretary of corrections, and except for occasional instances of supervised
incidental contact, shall be segregated from such offenders. If any person
while committed to the custody of the secretary pursuant to this act shall
be taken into custody by any law enforcement officer as defined in K.S.A.
21-3110 and amendments thereto pursuant to any parole revocation pro-
ceeding or any arrest or conviction for a criminal offense of any nature,
upon the person's release from the custody of any law enforcement officer,
the person shall be returned to the custody of the secretary for further
treatment pursuant to this act. During any such period of time a person
is not in the actual custody or supervision of the secretary, the secretary
shall be excused from the provisions of K.S.A. 59-29a08 and amendments
thereto, with regard to providing that person an annual examination,
annual notice and annual report to the court, except that the secretary
shall give notice to the court as soon as reasonably possible after the taking
of the person into custody that the person is no longer in treatment pur-
suant to this act, and notice to the court when the person is returned to
the custody of the secretary for further treatment. If the court or jury is
not satisfied beyond a reasonable doubt that the person is a sexually vi-
olent predator, the court shall direct the person's release. Upon a mistrial,
the court shall direct that the person be held at an appropriate secure
facility, including, but not limited to, a county jail, until another trial is
conducted. Any subsequent trial following a mistrial shall be held within
90 days of the previous trial, unless such subsequent trial is continued as
provided in K.S.A. 59-29a06 and amendments thereto.

      (b) If the person charged with a sexually violent offense has been
found incompetent to stand trial, and is about to be released pursuant to
K.S.A. 22-3305 and amendments thereto, and such person's commitment
is sought pursuant to subsection (a), the court shall first hear evidence
and determine whether the person did commit the act or acts charged.
The hearing on this issue must comply with all the procedures specified
in this section. In addition, the rules of evidence applicable in criminal
cases shall apply, and all constitutional rights available to defendants at
criminal trials, other than the right not to be tried while incompetent,
shall apply. After hearing evidence on this issue, the court shall make
specific findings on whether the person did commit the act or acts
charged, the extent to which the person's incompetence or developmental
disability affected the outcome of the hearing, including its effect on the
person's ability to consult with and assist counsel and to testify on such
person's own behalf, the extent to which the evidence could be recon-
structed without the assistance of the person and the strength of the
prosecution's case. If after the conclusion of the hearing on this issue, the
court finds, beyond a reasonable doubt, that the person did commit the
act or acts charged, the court shall enter a final order, appealable by the
person, on that issue, and may proceed to consider whether the person
should be committed pursuant to this section.

      Sec.  6. K.S.A. 1998 Supp. 59-29a18 is hereby amended to read as
follows: 59-29a18. (a) During any period the person is in transitional re-
lease, 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 to show beyond a reasonable doubt standard that the person's
mental abnormality or personality disorder remains such that the person
is not safe to be at large and that if placed on conditional release is likely
to engage in repeat acts of sexual violence. The person shall have the same
rights as enumerated in K.S.A. 59-29a06 and amendments thereto. Sub-
sequent 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 not 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. Otherwise, the court shall order that the person
be placed on conditional release.

      Sec.  7. K.S.A. 1998 Supp. 59-29a19 is hereby amended to read as
follows: 59-29a19. (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 to
show beyond a reasonable doubt standard that the person's mental ab-
normality or personality disorder remains such that such person is not
appropriate for final discharge. 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 not 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. Otherwise,
the court shall order the person finally discharged. 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.

      New Sec.  8. Any person for whom a petition pursuant to this act has
been filed and is in the secure confinement of the state shall not be
eligible for bail, bond, house arrest or any other measures releasing the
person from the physical protective custody of the state, notwithstanding
the provisions of K.S.A. 59-29a10 and amendments thereto.

 Sec.  9. K.S.A. 59-29a01 and K.S.A. 1998 Supp. 59-29a02, 59-29a03,
59-29a04, 59-29a07, 59-29a18 and 59-29a19 are hereby repealed.

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

Approved May 11, 1999.
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