Session Law

Identifying Information:L. 2003 ch. 152
Other Identifying Information:2003 House Substitute for Senate Bill 27
Tax Type:Other
Brief Description:An Act concerning the civil commitment of sexually violent predators; amending K.S.A. 2002 Supp. 59-29a01, 59-29a04, 59-29a06, 59-29a07, 59-29a08 and 59-29a10 and re- pealing the existing sections.
Keywords:


Body:

CHAPTER 152

HOUSE Substitute for SENATE BILL No. 27


An Act concerning the civil commitment of sexually violent predators; amending K.S.A.

2002 Supp. 59-29a01, 59-29a04, 59-29a06, 59-29a07, 59-29a08 and 59-29a10 and re-


pealing the existing sections.


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

Section 1. K.S.A. 2002 Supp. 59-29a01 is hereby amended to read

as follows: 59-29a01. The legislature finds that there exists an extremely

dangerous group of sexually violent predators who have a mental abnor-

mality or personality disorder and who are likely to engage in repeat acts

of sexual violence if not treated for their mental abnormality or personality

disorder. 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 com-

mitment process for the potentially long-term control, care and treatment

of sexually 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 present, it is necessary to house involuntarily committed sexually

violent predators in an environment separate from persons involuntarily

committed under K.S.A. 59-2901 et seq. and amendments thereto. Not-

withstanding any other evidence of legislative intent, it is hereby declared

that any time requirements set forth in K.S.A. 59-29a01 et seq., and

amendments thereto, either as originally enacted or as amended, are in-

tended to be directory and not mandatory and serve as guidelines for

conducting proceedings under K.S.A. 59-29a01 et seq., and amendments

thereto.

Sec. 2. K.S.A. 2002 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, may file a petition in the county where the

person was convicted of or charged with a sexually violent offense 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. 3. K.S.A. 2002 Supp. 59-29a06 is hereby amended to read as

follows: 59-29a06. (a) Within 60 days after the completion of any hearing

held pursuant to K.S.A. 59-29a05 and amendments thereto, the court

shall conduct a trial to determine whether the person is a sexually violent

predator. The trial may be continued upon the request of either party

and a showing of good cause, or by the court on its own motion in the

due administration of justice, and when the respondent will not be sub-

stantially prejudiced.

(b) At all stages of the proceedings under this act K.S.A. 59-29a01 et

seq., and amendments thereto, any person subject to this act K.S.A. 59-

29a01 et seq., and amendments thereto, shall be entitled to the assistance

of counsel, and if the person is indigent, the court shall appoint counsel

to assist such person. Whenever any person is subjected to an examination

under this act K.S.A. 59-29a01 et seq., and amendments thereto, such

person may retain experts or professional persons to perform an exami-

nation of such person's behalf. When the person wishes to be examined

by a qualified expert or professional person of such person's own choice,

such examiner shall be permitted to have reasonable access to the person

for the purpose of such examination, as well as to all relevant medical and

psychological records and reports. In the case of a person who is indigent,

the court, upon the person's request, shall determine whether the services

are necessary and reasonable compensation for such services. If the court

determines that the services are necessary and the expert or professional

person's requested compensation for such services is reasonable, the

court shall assist the person in obtaining an expert or professional person

to perform an examination or participate in the trial on the person's be-

half. The court shall approve payment for such services upon the filing

of a certified claim for compensation supported by a written statement

specifying the time expended, services rendered, expenses incurred on

behalf of the person and compensation received in the same case or for

the same services from any other source.

(c) The person, the attorney general, or the judge shall have the right

to demand that the trial be before a jury. Such demand for the trial to

be before a jury shall be filed, in writing, at least four days prior to trial.

Number and selection of jurors shall be determined as provided in K.S.A.

22-3403, and amendments thereto. If no demand is made, the trial shall

be before the court.

(d) A jury shall consist of 12 jurors unless the parties agree in writing

with the approval of the court that the jury shall consist of any number

of jurors less than 12 jurors. The person and the attorney general shall

each have eight peremptory challenges, or in the case of a jury of less

than 12 jurors, a proportionally equal number of peremptory challenges.

(e) 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. 2002 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.

(b) At all times, persons committed for control, care and treatment

by the department of social and rehabilitation services pursuant to this

act K.S.A. 59-29a01 et seq., and amendments thereto, 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 reha-

bilitation services and commencing June 1, 1995, such persons committed

pursuant to this act K.S.A. 59-29a01 et seq., and amendments thereto,

shall be kept in a facility or building separate from any other patient under

the supervision of the secretary.

(c) The department of social and rehabilitation services is authorized

to enter into an interagency agreement with the department of correc-

tions 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.

(d) If any person while committed to the custody of the secretary

pursuant to this act K.S.A. 59-29a01 et seq., and amendments thereto,

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 revoca-

tion proceeding or any arrest or conviction for a criminal offense of any

nature, upon the person's release from the custody of any law enforce-

ment officer, the person shall be returned to the custody of the secretary

for further treatment pursuant to this act K.S.A. 59-29a01 et seq., and

amendments thereto. 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 pursuant to this act

K.S.A. 59-29a01 et seq., and amendments thereto, and notice to the court

when the person is returned to the custody of the secretary for further

treatment.

(e) If the court or jury is not satisfied beyond a reasonable doubt that

the person is a sexually violent predator, the court shall direct the person's

release.

(f) 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) (g) 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. 5. K.S.A. 2002 Supp. 59-29a08 is hereby amended to read as

follows: 59-29a08. (a) Each person committed under this act K.S.A. 59-

29a01 et seq., and amendments thereto, shall have a current examination

of the person's mental condition made once every year. The secretary

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 objec-

tion. The notice shall contain a waiver of rights. The secretary shall also

forward the annual report, as well as the annual notice and waiver form,

to the court that committed the person under K.S.A. 59-29a01 et seq., and

amendments thereto. 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

that committed the person under K.S.A. 59-29a01 et seq., and amend-

ments thereto, shall then conduct an annual review of the status of the

committed person. Nothing contained 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 pro-

vide 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 person's mental

condition. 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) Nothing contained in K.S.A. 59-29a01 et seq., and amendments

thereto, shall prohibit the person from otherwise petitioning the court for

discharge at this hearing.

(c) 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 placed in transitional release,

then the court shall set a hearing on the issue. At the hearing, the com-

mitted person shall be entitled to be present and entitled to the benefit

of all constitutional protections that were afforded the person at the initial

commitment proceeding. The attorney general shall represent the state

and shall have a right to a jury trial and to have the committed person

evaluated 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 placed in transitional release and if transitionally released

is likely to engage in acts of sexual violence.

(c) (d) If, after the hearing, the court or jury is convinced beyond a

reasonable doubt that the person is not appropriate for transitional re-

lease, the court shall order that the person remain in secure commitment.

Otherwise, the court shall order that the person be placed in transitional

release.

(d) (e) If the court determines that the person should be placed in

transitional release, the secretary shall transfer the person to the transi-

tional release program. The secretary may contract for services to be

provided in the transitional release program. During any period the per-

son is in transitional release, that person shall comply with any rules or

regulations the secretary may establish for this program and every direc-

tive of the treatment staff of the transitional release program.

(e) (f) At any time during which the person is in the transitional re-

lease 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 com-

mitment 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) (g) 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 at-

torney 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

transitional release program, and may order such other further conditions

with which the person must comply if the person is returned to the tran-

sitional release program.

Sec. 6. K.S.A. 2002 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 engage in repeat acts of sexual violence if 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 examined 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 abnormality or personality disorder remains such that the peti-

tioner is not safe to be at large and that if placed in transitional release is

likely to commit predatory engage in repeat 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) and (g) of K.S.A.

59-29a08 and amendments thereto shall apply to a transitional release

pursuant to this section.

New Sec. 7. If any provision of this act or the application thereof to

any person or circumstances is held invalid, the invalidity shall not affect

other provisions or applications of the act which can be given effect with-

out the invalid provisions or application and, to this end, the provisions

of this act are severable.

Sec. 8. K.S.A. 2002 Supp. 59-29a01, 59-29a04, 59-29a06, 59-29a07,

59-29a08 and 59-29a10 are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 21, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003