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| [ Introduced ] | [ Enrolled ] | [ House Amendment 001 ] |
91_HB4116eng HB4116 Engrossed LRB9112288RCpc 1 AN ACT to amend the Sexually Violent Persons Commitment 2 Act by changing Sections 5, 35, 40, 55, and 60. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Sexually Violent Persons Commitment Act 6 is amended by changing Sections 5, 35, 40, 55, and 60 as 7 follows: 8 (725 ILCS 207/5) 9 Sec. 5. Definitions. As used in this Act, the term: 10 (a) "Department" means the Department of Human Services. 11 (b) "Mental disorder" means a congenital or acquired 12 condition affecting the emotional or volitional capacity that 13 predisposes a person to engage in acts of sexual violence. 14 (c) "Secretary" means the Secretary of Human Services. 15 (d) "Sexually motivated" means that one of the purposes 16 for an act is for the actor's sexual arousal or 17 gratification. 18 (e) "Sexually violent offense" means any of the 19 following: 20 (1) Any crime specified in Section 12-13, 12-14, 21 12-14.1, or 12-16 of the Criminal Code of 1961; or 22 (1.5) Any former law of this State specified in 23 Section 11-1 (rape), 11-3 (deviate sexual assault), 11-4 24 (indecent liberties with a child) or 11-4 (aggravated 25 indecent liberties with a child) of the Criminal Code of 26 1961; or 27 (2) First degree murder, if it is determined by the 28 agency with jurisdiction to have been sexually motivated; 29 or 30 (3) Any solicitation, conspiracy or attempt to 31 commit a crime under paragraph (e)(1) or (e)(2) of this HB4116 Engrossed -2- LRB9112288RCpc 1 Section. 2 (f) "Sexually violent person" means a person who has 3 been convicted of a sexually violent offense, has been 4 adjudicated delinquent for a sexually violent offense, or has 5 been found not guilty of a sexually violent offense by reason 6 of insanity and who is dangerous because he or she suffers 7 from a mental disorder that makes it substantially probable 8 that the person will engage in acts of sexual violence. 9 (Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98.) 10 (725 ILCS 207/35) 11 Sec. 35. Trial. 12 (a) A trial to determine whether the person who is the 13 subject of a petition under Section 15 of this Act is a 14 sexually violent person shall commence no later than 45 days 15 after the date of the probable cause hearing under Section 30 16 of this Act. The court may grant a continuance of the trial 17 date for good cause upon its own motion, the motion of any 18 party or the stipulation of the parties, provided that any 19 continuance granted shall be subject to Section 103-5 of the 20 Code of Criminal Procedure of 1963. 21 (b) At the trial to determine whether the person who is 22 the subject of a petition under Section 15 of this Act is a 23 sexually violent person, all rules of evidence in criminal 24 actions apply. All constitutional rights available to a 25 defendant in a criminal proceeding are available to the 26 person. At the trial on the petition it shall be competent 27 to introduce evidence of the commission by the respondent of 28 any number of crimes together with whatever punishments, if 29 any, were imposed. The petitioner may present expert 30 testimony from both the Illinois Department of Corrections 31 evaluator and the Department of Human Services psychologist. 32 (c) The person who is the subject of the petition, the 33 person's attorney, the Attorney General or the State's HB4116 Engrossed -3- LRB9112288RCpc 1 Attorney may request that a trial under this Section be by a 2 jury. A request for a jury trial under this subsection shall 3 be made within 10 days after the probable cause hearing under 4 Section 30 of this Act. If no request is made, the trial 5 shall be by the court. The person, the person's attorney or 6 the Attorney General or State's Attorney, whichever is 7 applicable, may withdraw his or her request for a jury trial. 8 (d) (1) At a trial on a petition under this Act, the 9 petitioner has the burden of proving the allegations in 10 the petition beyond a reasonable doubt. 11 (2) If the State alleges that the sexually violent 12 offense or act that forms the basis for the petition was 13 an act that was sexually motivated as provided in 14 paragraph (e)(2) of Section 5 of this Act, the State is 15 required to prove beyond a reasonable doubt that the 16 alleged sexually violent act was sexually motivated. 17 (e) Evidence that the person who is the subject of a 18 petition under Section 15 of this Act was convicted for or 19 committed sexually violent offenses before committing the 20 offense or act on which the petition is based is not 21 sufficient to establish beyond a reasonable doubt that the 22 person has a mental disorder. 23 (f) If the court or jury determines that the person who 24 is the subject of a petition under Section 15 is a sexually 25 violent person, the court shall enter a judgment on that 26 finding and shall commit the person as provided under Section 27 40 of this Act. If the court or jury is not satisfied beyond 28 a reasonable doubt that the person is a sexually violent 29 person, the court shall dismiss the petition and direct that 30 the person be released unless he or she is under some other 31 lawful restriction. 32 (g) A judgment entered under subsection (f) of this 33 Section on the finding that the person who is the subject of 34 a petition under Section 15 is a sexually violent person is HB4116 Engrossed -4- LRB9112288RCpc 1 interlocutory to a commitment order under Section 40 and is 2 reviewable on appeal. 3 (Source: P.A. 90-40, eff. 1-1-98.) 4 (725 ILCS 207/40) 5 Sec. 40. Commitment. 6 (a) If a court or jury determines that the person who is 7 the subject of a petition under Section 15 of this Act is a 8 sexually violent person, the court shall order the person to 9 be committed to the custody of the Department for control, 10 care and treatment until such time as the person is no longer 11 a sexually violent person. 12 (b) (1) The court shall enter an initial commitment 13 order under this Section pursuant to a hearing held as 14 soon as practicable after the judgment is entered that 15 the person who is the subject of a petition under Section 16 15 is a sexually violent person. If the court lacks 17 sufficient information to make the determination required 18 by paragraph (b)(2) of this Section immediately after 19 trial, it may adjourn the hearing and order the 20 Department to conduct a predisposition investigation or a 21 supplementary mental examination, or both, to assist the 22 court in framing the commitment order. A supplementary 23 mental examination under this Section shall be conducted 24 in accordance with Section 3-804 of the Mental Health and 25 Developmental Disabilities Code. 26 (2) An order for commitment under this Section 27 shall specify either institutional care in a secure 28 facility, as provided under Section 50 of this Act, or 29 conditional release. In determining whether commitment 30 shall be for institutional care in a secure facility or 31 for conditional release, the court mustmayconsider the 32 nature and circumstances of the behavior that was the 33 basis of the allegation in the petition under paragraph HB4116 Engrossed -5- LRB9112288RCpc 1 (b)(1) of Section 15, the person's mental history and 2 present mental condition, where the person will live, how 3 the person will support himself or herself, and what 4 arrangements are available to ensure that the person has 5 access to and will participate in necessary treatment. 6 The Department shall arrange for control, care and 7 treatment of the person in the least restrictive manner 8 consistent with the requirements of the person and in 9 accordance with the court's commitment order. 10 (3) If the court finds that the person is 11 appropriate for conditional release, the court shall 12 notify the Department. The Department shall prepare a 13 plan that identifies the treatment and services, if any, 14 that the person will receive in the community. The plan 15 shall address the person's need, if any, for supervision, 16 counseling, medication, community support services, 17 residential services, vocational services, and alcohol or 18 other drug abuse treatment. The Department may contract 19 with a county health department, with another public 20 agency or with a private agency to provide the treatment 21 and services identified in the plan. The plan shall 22 specify who will be responsible for providing the 23 treatment and services identified in the plan. The plan 24 shall be presented to the court for its approval within 25 6021days after the court finding that the person is 26 appropriate for conditional release, unless the 27 Department and the person to be released request 28 additional time to develop the plan. 29 (4) An order for conditional release places the 30 person in the custody and control of the Department. A 31 person on conditional release is subject to the 32 conditions set by the court and to the rules of the 33 Department. Before a person is placed on conditional 34 release by the court under this Section, the court shall HB4116 Engrossed -6- LRB9112288RCpc 1 so notify the municipal police department and county 2 sheriff for the municipality and county in which the 3 person will be residing. The notification requirement 4 under this Section does not apply if a municipal police 5 department or county sheriff submits to the court a 6 written statement waiving the right to be notified. If 7 the Department alleges that a released person has 8 violated any condition or rule, or that the safety of 9 others requires that conditional release be revoked, he 10 or she may be taken into custody under the rules of the 11 Department. 12 At any time during which the person is on 13 conditional release, if the Department determines that 14 the person has violated any condition or rule, or that 15 the safety of others requires that conditional release be 16 revoked, the Department may request the Attorney General 17 or State's Attorney to request the court to issue an 18 emergency ex parte order directing any law enforcement 19 officer to take the person into custody and transport the 20 person to the county jail. The Department may request, 21 or the Attorney General or State's Attorney may request 22 independently of the Department, that a petition to 23 revoke conditional release be filed. When a petition is 24 filed, the court may order the Department to issue a 25 notice to the person to be present at the Department or 26 other agency designated by the court, order a summons to 27 the person to be present, or order a body attachment for 28 all law enforcement officers to take the person into 29 custody and transport him or her to the county jail, 30 hospital, or treatment facility. The Department shall 31 submit a statement showing probable cause of the 32 detention and a petition to revoke the order for 33 conditional release to the committing court within 48 34 hours after the detention. The court shall hear the HB4116 Engrossed -7- LRB9112288RCpc 1 petition within 30 days, unless the hearing or time 2 deadline is waived by the detained person. Pending the 3 revocation hearing, the Department may detain the person 4 in a jail, in a hospital or treatment facility. The 5 State has the burden of proving by clear and convincing 6 evidence that any rule or condition of release has been 7 violated, or that the safety of others requires that the 8 conditional release be revoked. If the court determines 9 after hearing that any rule or condition of release has 10 been violated, or that the safety of others requires that 11 conditional release be revoked, it may revoke the order 12 for conditional release and order that the released 13 person be placed in an appropriate institution until the 14 person is discharged from the commitment under Section 65 15 of this Act or until again placed on conditional release 16 under Section 60 of this Act. 17 (5) An order for conditional release places the 18 person in the custody, care, and control of the 19 Department. The court shall order the person be subject 20 to the following rules of conditional release, in 21 addition to any other conditions ordered, and the person 22 shall be given a certificate setting forth the conditions 23 of conditional release. These conditions shall be that 24 the person: 25 (A) not violate any criminal statute of any 26 jurisdiction; 27 (B) report to or appear in person before such 28 person or agency as directed by the court and the 29 Department; 30 (C) refrain from possession of a firearm or 31 other dangerous weapon; 32 (D) not leave the State without the consent of 33 the court or, in circumstances in which the reason 34 for the absence is of such an emergency nature, that HB4116 Engrossed -8- LRB9112288RCpc 1 prior consent by the court is not possible without 2 the prior notification and approval of the 3 Department; 4 (E) at the direction of the Department, notify 5 third parties of the risks that may be occasioned by 6 his or her criminal record or sexual offending 7 history or characteristics, and permit the 8 supervising officer or agent to make the 9 notification requirement; 10 (F) attend and fully participate in 11 assessment, treatment, and behavior monitoring 12 including, but not limited to, medical, 13 psychological or psychiatric treatment specific to 14 sexual offending, drug addiction, or alcoholism, to 15 the extent appropriate to the person based upon the 16 recommendation and findings made in the Department 17 evaluation or based upon any subsequent 18 recommendations by the Department; 19 (G) waive confidentiality allowing the court 20 and Department access to assessment or treatment 21 results or both; 22 (H) work regularly at a Department approved 23 occupation or pursue a course of study or vocational 24 training and notify the Department within 72 hours 25 of any change in employment, study, or training; 26 (I) not be employed or participate in any 27 volunteer activity that involves contact with 28 children, except under circumstances approved in 29 advance and in writing by the Department officer; 30 (J) submit to the search of his or her person, 31 residence, vehicle, or any personal or real property 32 under his or her control at any time by the 33 Department; 34 (K) financially support his or her dependents HB4116 Engrossed -9- LRB9112288RCpc 1 and provide the Department access to any requested 2 financial information; 3 (L) serve a term of home confinement, the 4 conditions of which shall be that the person: 5 (i) remain within the interior premises 6 of the place designated for his or her 7 confinement during the hours designated by the 8 Department; 9 (ii) admit any person or agent designated 10 by the Department into the offender's place of 11 confinement at any time for purposes of 12 verifying the person's compliance with the 13 condition of his or her confinement; 14 (iii) if deemed necessary by the 15 Department, be placed on an electronic 16 monitoring device; 17 (M) comply with the terms and conditions of an 18 order of protection issued by the court pursuant to 19 the Illinois Domestic Violence Act of 1986. A copy 20 of the order of protection shall be transmitted to 21 the Department by the clerk of the court; 22 (N) refrain from entering into a designated 23 geographic area except upon terms the Department 24 finds appropriate. The terms may include 25 consideration of the purpose of the entry, the time 26 of day, others accompanying the person, and advance 27 approval by the Department; 28 (O) refrain from having any contact, including 29 written or oral communications, directly or 30 indirectly, with certain specified persons 31 including, but not limited to, the victim or the 32 victim's family, and report any incidental contact 33 with the victim or the victim's family to the 34 Department within 72 hours; refrain from entering HB4116 Engrossed -10- LRB9112288RCpc 1 onto the premises of, traveling past, or loitering 2 near the victim's residence, place of employment, or 3 other places frequented by the victim; 4 (P) refrain from having any contact, including 5 written or oral communications, directly or 6 indirectly, with particular types of persons, 7 including but not limited to members of street 8 gangs, drug users, drug dealers, or prostitutes; 9 (Q) refrain from all contact, direct or 10 indirect, personally, by telephone, letter, or 11 through another person, with minor children without 12 prior identification and approval of the Department; 13 (R) refrain from having in his or her body the 14 presence of alcohol or any illicit drug prohibited 15 by the Cannabis Control Act or the Illinois 16 Controlled Substances Act, unless prescribed by a 17 physician, and submit samples of his or her breath, 18 saliva, blood, or urine for tests to determine the 19 presence of alcohol or any illicit drug; 20 (S) not establish a dating, intimate, or 21 sexual relationship with a person without prior 22 written notification to the Department; 23 (T) neither possess or have under his or her 24 control any material that is pornographic, sexually 25 oriented, or sexually stimulating, or that depicts 26 or alludes to sexual activity or depicts minors 27 under the age of 18, including but not limited to 28 visual, auditory, telephonic, electronic media, or 29 any matter obtained through access to any computer 30 or material linked to computer access use; 31 (U) not patronize any business providing 32 sexually stimulating or sexually oriented 33 entertainment nor utilize "900" or adult telephone 34 numbers or any other sex-related telephone numbers; HB4116 Engrossed -11- LRB9112288RCpc 1 (V) not reside near, visit, or be in or about 2 parks, schools, day care centers, swimming pools, 3 beaches, theaters, or any other places where minor 4 children congregate without advance approval of the 5 Department and report any incidental contact with 6 minor children to the Department within 72 hours; 7 (W) not establish any living arrangement or 8 residence without prior approval of the Department; 9 (X) not publish any materials or print any 10 advertisements without providing a copy of the 11 proposed publications to the Department officer and 12 obtaining permission prior to publication; 13 (Y) not leave the county except with prior 14 permission of the Department and provide the 15 Department officer or agent with written travel 16 routes to and from work and any other designated 17 destinations; 18 (Z) not possess or have under his or her 19 control certain specified items of contraband 20 related to the incidence of sexually offending items 21 including video or still camera items or children's 22 toys; 23 (AA) provide a written daily log of activities 24 as directed by the Department; 25 (BB) comply with all other special conditions 26 that the Department may impose that restrict the 27 person from high-risk situations and limit access or 28 potential victims. 29 (6) A person placed on conditional release and who 30 during the term undergoes mandatory drug or alcohol 31 testing or is assigned to be placed on an approved 32 electronic monitoring device may be ordered to pay all 33 costs incidental to the mandatory drug or alcohol testing 34 and all costs incidental to the approved electronic HB4116 Engrossed -12- LRB9112288RCpc 1 monitoring in accordance with the person's ability to pay 2 those costs. The Department may establish reasonable 3 fees for the cost of maintenance, testing, and incidental 4 expenses related to the mandatory drug or alcohol testing 5 and all costs incidental to approved electronic 6 monitoring. 7 (Source: P.A. 90-40, eff. 1-1-98.) 8 (725 ILCS 207/55) 9 Sec. 55. Periodic reexamination; report. 10 (a) If a person has been committed under Section 40 of 11 this Act and has not been discharged under Section 65 of this 12 Act, the Department shall conduct an examination of his or 13 her mental condition within 6 months after an initial 14 commitment under Section 40 and then at least once every 12 15 months from the completion of the last evaluationagain16thereafter at least once each 12 monthsfor the purpose of 17 determining whether the person has made sufficient progress 18 to be conditionally released or discharged. At the time of a 19 reexamination under this Section, the person who has been 20 committed may retain or, if he or she is indigent and so 21 requests, the court may appoint a qualified expert or a 22 professional person to examine him or her. 23 (b) Any examiner conducting an examination under this 24 Section shall prepare a written report of the examination no 25 later than 30 days after the date of the examination. The 26 examiner shall place a copy of the report in the person's 27 health care records and shall provide a copy of the report to 28 the court that committed the person under Section 40. 29 (c) Notwithstanding subsection (a) of this Section, the 30 court that committed a person under Section 40 may order a 31 reexamination of the person at any time during the period in 32 which the person is subject to the commitment order. 33 (d) Petitions for discharge after reexamination must HB4116 Engrossed -13- LRB9112288RCpc 1 follow the procedure outlined in Section 65 of this Act. 2 (Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98; 3 91-227, eff. 1-1-00.) 4 (725 ILCS 207/60) 5 Sec. 60. Petition for conditional release. 6 (a) Any person who is committed for institutional care 7 in a secure facility or other facility under Section 40 of 8 this Act may petition the committing court to modify its 9 order by authorizing conditional release if at least 6 months 10 have elapsed since the initial commitment order was entered, 11 the most recent release petition was denied or the most 12 recent order for conditional release was revoked. The 13 director of the facility at which the person is placed may 14 file a petition under this Section on the person's behalf at 15 any time. 16 (b) If the person files a timely petition without 17 counsel, the court shall serve a copy of the petition on the 18 Attorney General or State's Attorney, whichever is applicable 19 and, subject to paragraph (c)(1) of Section 25 of this Act, 20 appoint counsel. If the person petitions through counsel, 21 his or her attorney shall serve the Attorney General or 22 State's Attorney, whichever is applicable. 23 (c) Within 20 days after receipt of the petition, the 24 court shall appoint one or more examiners having the 25 specialized knowledge determined by the court to be 26 appropriate, who shall examine the person and furnish a 27 written report of the examination to the court within 30 days 28 after appointment. The examiners shall have reasonable 29 access to the person for purposes of examination and to the 30 person's past and present treatment records and patient 31 health care records. If any such examiner believes that the 32 person is appropriate for conditional release, the examiner 33 shall report on the type of treatment and services that the HB4116 Engrossed -14- LRB9112288RCpc 1 person may need while in the community on conditional 2 release. The State has the right to have the person 3 evaluated by experts chosen by the State. The court shall 4 set a probable cause hearing as soon as practical after the 5 examiner's report is filed. If the court determines at the 6 probable cause hearing that cause exists to believe that it 7 is not substantially probable that the person will engage in 8 acts of sexual violence if on release or conditional release, 9 the court shall set a hearing on the issue. 10 (d) The court, without a jury, shall hear the petition 11 within 30 days after the report of the court-appointed 12 examiner is filed with the court, unless the petitioner 13 waives this time limit. The court shall grant the petition 14 unless the State proves by clear and convincing evidence that 15 the person is still a sexually violent person and that it is 16 still substantially probable that the person will engage in 17 acts of sexual violence if the person is not confined in a 18 secure facility. In making a decision under this subsection, 19 the court may consider the nature and circumstances of the 20 behavior that was the basis of the allegation in the petition 21 under paragraph (b)(1) of Section 15 of this Act, the 22 person's mental history and present mental condition, where 23 the person will live, how the person will support himself or 24 herself and what arrangements are available to ensure that 25 the person has access to and will participate in necessary 26 treatment. 27 (e) Before the court may enter an order directing 28 conditional release to a less restrictive alternative it must 29 find the following: (1) the person will be treated by a 30 Department approved treatment provider, (2) the treatment 31 provider has presented a specific course of treatment and has 32 agreed to assume responsibility for the treatment and will 33 report progress to the Department on a regular basis, and 34 will report violations immediately to the Department, HB4116 Engrossed -15- LRB9112288RCpc 1 consistent with treatment and supervision needs of the 2 respondent, (3) housing exists that is sufficiently secure to 3 protect the community, and the person or agency providing 4 housing to the conditionally released person has agreed in 5 writing to accept the person, to provide the level of 6 security required by the court, and immediately to report to 7 the Department if the person leaves the housing to which he 8 or she has been assigned without authorization, (4) the 9 person is willing to or has agreed to comply with the 10 treatment provider, the Department, and the court, and (5) 11 the person has agreed or is willing to agree to comply with 12 the behavioral monitoring requirements imposed by the court 13 and the Department. 14 (f)(e)If the court finds that the person is appropriate 15 for conditional release, the court shall notify the 16 Department. The Department shall prepare a plan that 17 identifies the treatment and services, if any, that the 18 person will receive in the community. The plan shall address 19 the person's need, if any, for supervision, counseling, 20 medication, community support services, residential services, 21 vocational services, and alcohol or other drug abuse 22 treatment. The Department may contract with a county health 23 department, with another public agency or with a private 24 agency to provide the treatment and services identified in 25 the plan. The plan shall specify who will be responsible for 26 providing the treatment and services identified in the plan. 27 The plan shall be presented to the court for its approval 28 within 60 days after the court finding that the person is 29 appropriate for conditional release, unless the Department 30 and the person to be released request additional time to 31 develop the plan. 32 (g)(f)The provisions of paragraph (b)(4) of Section 40 33 of this Act apply to an order for conditional release issued 34 under this Section. HB4116 Engrossed -16- LRB9112288RCpc 1 (Source: P.A. 90-40, eff. 1-1-98.) 2 Section 99. Effective date. This Act takes effect upon 3 becoming law.