Section 1. Amend Title 16 of the Delaware Code by adding a new Chapter 56 thereto, to read as follows:

"§5601. Findings of the General Assembly.

The General Assembly hereby finds that there exists an extremely dangerous group of sexually violent persons who have a mental abnormality 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. The General Assembly also hereby finds that without such treatment the likelihood of sexually violent persons engaging in repeat acts of sexual violence is high. In contrast to persons appropriate for civil commitment under Chapter 50 of this Title, sexually violent persons generally have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior.

Because the existing civil commitment procedures set forth in Chapter 50 of this Title may be insufficient to address the special needs of sexually violent persons and the risks they present to society, the General Assembly hereby determines that a separate involuntary civil commitment process for the potentially long-term control, care and treatment of sexually violent persons is necessary. The General Assembly also hereby determines that because of the nature of the mental abnormalities or personality disorders from which sexually violent persons suffer, and the dangers they present, it is necessary to house involuntarily committed sexually violent persons in an environment separate from persons involuntarily committed under Chapter 50 of this Title. The General Assembly also finds that the prognosis for rehabilitating sexually violent persons in a prison setting is poor, and that the treatment needs of this population are often very long term. It is therefore the intent of the General Assembly to create a civil commitment procedure for the long-term care and treatment of sexually violent predators. It is also the intent of the General Assembly that persons who are subject to the civil commitment procedure for sexually violent persons set forth in this Chapter shall be subject to the procedures established herein and not to the provisions of Chapter 50 of this Title. Less restrictive alternatives are not applicable to cases initiated under this Chapter.

The General Assembly hereby finds that the procedures regarding sexually violent persons should reflect legitimate public safety concerns, while providing treatment services designed to benefit sexually violent persons who are civilly committed. The procedures should also reflect the need to protect the public, to respect the needs of the victims of sexually violent offenses, and to encourage full, meaningful participation of sexually violent persons in treatment programs.

§ 5602. Definitions.

As used in this chapter:

(a) 'Commissioner' means the Commissioner of the Department of Correction.

(b) 'Committed person' means an individual committed for custody and treatment pursuant to this chapter.

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

(e) 'Psychiatrist' or 'other qualified expert' means:

(1) A physician licensed to practice medicine in this State or any other State specializing in the field of psychiatry, or a physician employed by the Delaware Psychiatric Center, registered with the Board of Medical Practice and certified by the Delaware Psychiatric Center Medical Director to the Board of Medical Practice as being qualified in the diagnosis and treatment of mentally ill persons; or

(2) Any physician employed by the United States government within the State in the capacity of psychiatrist and certified by the Delaware Psychiatric Center Medical Director to the Medical Council of Delaware as qualified in the diagnosis and treatment of mentally ill persons; or

(3) An individual who has an expertise in sexual offender evaluations and who is a psychiatrist or psychologist trained in a clinical program and licensed pursuant to Delaware law or any other state.

(f) 'Recent overt act' means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.

(g) 'Respondent' means an individual subject to a commitment proceeding pursuant to this chapter.

(h) 'Secretary' means the Secretary of the Department of Health and Social Services or such persons as may be designated by the Secretary.

(i) 'Secure facility' means one which is staffed and supervised continuously by armed guards and at which those who are committed thereto are prohibited from leaving the confines of the facility without armed escort.

(j) 'Sexual act' includes any act of sexual intercourse or sexual contact as those terms are defined in §761 of Title 11 of this Code.

(k) 'Sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.

(l) 'Sexually Violent Offense' means an act which involves:

(1) The commission or attempted commission of any crime described in §§768, 769, 770(a)(3), 771(a)(2), 772, 773, 776,778, 779,1108, 1109, 1111, 1112 and 1112A of Title 11 of the Delaware Code; or

(2) The commission of any offense equivalent to those described in paragraph (1) of this subsection defined by the previous laws of this State, or by the laws of the United States or by any other state or territory thereof; or

(3) Engaging in or attempting to engage in a sexual act with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if:

a. the victim is compelled to submit by force or by a threat of force or threat of death, serious physical injury, or kidnapping directed toward the victim or any other person, or if the victim was menaced by what appeared to be a deadly weapon during the course of the commission of the crime, or if the victim is compelled to submit by any threat that would render an individual of reasonable firmness incapable of resisting; or

b. the victim suffers death or physical injury during the course of the commission of the crime, or while the offender is in immediate flight therefrom; or

c. the victim's power to appraise or control the victim's conduct has been substantially impaired by the administration or employment, without the victim's knowledge, of intoxicants or other means for purposes of preventing resistance; or

d. the actor knows or should have known that the victim is unaware that a sexual act is being committed upon the victim; or

e. the victim has not yet reached his or her sixteen birthday and the person is more than four years than the victim; or

f. the actor knows or should have known that the victim is an infirm adult or has a disability that substantially impairs the victim's understanding of the nature of the sexual act or contact; or

g. the victim is in official custody or detained in a treatment facility, health care facility, correctional facility, or other institution and is under the supervisory authority, disciplinary control, or care of the actor; or

(4) Any other violent act or crime which either at the time of adjudication or sentencing for the offense or subsequently during civil commitment proceedings pursuant to this chapter has been determined beyond a reasonable doubt to have been sexually motivated.

(m) 'Sexually violent person' means any person who has been convicted 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 repeat acts of sexual violence if not confined in a secure facility.

(n) 'Total confinement' means that the person is currently being held in any physically secure facility being operated by or contractually operated for the Department of Correction, the Department of Services for Children, Youth and Their Families, or the Department of Health and Social Services. A person shall also be deemed to be in total confinement for applicability of provisions under this chapter if the person is under the custody of the Department of Correction or the Department of Services for Children, Youth and Their Families and is being held in any other facility or institution for any reason.

(o) 'Transitional release' means any halfway house, work release or other placement approved by the Department of Health and Social Services designed to assist the person's adjustment and reintegration into the community once released from commitment.

(p) 'Treatment staff' means the persons, agencies or entities employed by or contracted with the Department of Health and Social Services to provide treatment, supervision or other services at the sexually violent predator facility.

(q) 'Working day' means all days other than Saturday, Sunday and legal holidays; and 'day' means a calendar day.

§ 5603. Jurisdiction and venue.

The Superior Court has original jurisdiction over the proceedings governed by this chapter. A proceeding pursuant to this chapter may be tried in any county in which the respondent resides, is located or incarcerated, has committed any sexually violent conduct, or if the respondent is an incarcerated person, any of the foregoing venues or a county to which the respondent has indicated an intent to relocate upon release from the correctional facility.

§ 5604. Notice to Attorney General prior to release.

(a) The Department of Correction shall maintain treatment, correctional and disciplinary records for any incarcerated person who has been convicted of a sexually violent offense.

(b) Not later than 180 days before the projected release date of any incarcerated person who may meet the criteria of a sexually violent person, the Department shall complete an assessment of the inmate to determine whether a recommendation is to be made to the Attorney General for civil commitment of the incarcerated person under this chapter.

(1) The assessment must be based on actuarial and clinical evaluations, the report of the mental health examination set forth in paragraphs (2), (3) and (4) of this subsection, and any other information determined by the Commissioner to be relevant, including reports of behavior while incarcerated and whether the inmate participated in sexual offender treatment while incarcerated.

(2) Any person who has been incarcerated for any sexually violent offense shall be examined by a psychiatrist or other qualified expert within a 12-month period immediately preceding the projected release of that person. The Commissioner or the Commissioner's designee may request the Director of the Delaware Psychiatric Center to cause examination and studies to be made.

(3) Any psychiatrist or other qualified expert who, pursuant to paragraph (3) of this subsection, examines any incarcerated person shall furnish to the Commissioner or the Commissioner’s designee a report containing their respective findings, opinions as to the mental and emotional health of the applicant, and opinions as to the probability of the applicant again committing acts of sexual violence or any other crime if released. In conducting the examination, the psychiatrist or other qualified expert shall utilize instruments or testing procedures designed to identify mental abnormalities or personality disorders which make the person likely to engage in repeat acts of sexual violence.

(4) If examination and clinical studies as provided in this subsection cannot be made at the correctional institution, the inmate may be transferred, under adequate security safeguards, to the Delaware Psychiatric Center for such examination and studies.

(c) If, upon the completion of the assessment provided for in subsection (a) of this section, the Department determines the incarcerated person may meet the definition of a sexually violent person, the Department shall so notify the Attorney General in writing.

(d) Any referral from the Department must include a summary of the factors considered material to the determination that the incarcerated person is appropriate for referral including but not limited to:

(1) the person's name, date of birth, State Bureau of Identification identification number, anticipated future residence and offense history;

(2) all records in the custody or control of the Department of Correction pertaining to the person’s institutional adjustment, disciplinary history and any medical, mental health or psychological treatment, counseling or rehabilitative services received;

(3) all records pertaining to any period of probation, parole, conditional release or other release from custody permitted to the person and supervised by the Department of Correction;

(4) all records in the custody or control of the Department of Correction pertaining to the person's criminal history, including police reports, victim statements, presentence investigation reports, and any other documents containing facts of the person's criminal incidents;

(5) such other information as may be deemed pertinent to the person’s status as a sexually violent person by either the Department of Correction or the Attorney General; and ,

(6) A current mental health evaluation or mental health records review.

The Department shall provide a copy of the referral and summary to the Attorney General, the Secretary and Director of the Delaware Psychiatric Center.

(e) (1) If the anticipated release date from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, upon such immediate release the Department of Correction shall transfer the person to the custody of the Department of Health and Social Services where he or she shall be held in an appropriate secure facility. The Department of Correction shall also provide written notice to the Attorney General as required by subsection (b) of this section.

(2) Within 72 hours of such transfer, the Department of Health and Social Services shall assess whether or not the person meets the definition of a sexually violent person as established by this chapter and shall provide the Attorney General with an advisory recommendation as to whether the person is a sexually violent person.

(3) Not later than that 5 working days after receipt of the written notice described in paragraph (1) of this subsection if the Attorney General determines that the person appears to be a sexually violent person, the Attorney General may file a petition in the Superior Court alleging that the person is a sexually violent person and stating sufficient facts to support the allegation. If such petition is not filed within 5 working days after receipt of the written notice described in paragraph (1) of this subsection, the person shall be immediately released. If a petition is filed pursuant to this subsection all further proceedings will be held in accord with this chapter.

(f) Following the receipt of a referral but before the release date of the incarcerated person, the Attorney General shall notify the Commissioner, the Secretary and the Director of the Delaware Psychiatric Center of Attorney General’s intended disposition of the referral. Any proceedings initiated by the Attorney General pursuant to this chapter shall be deemed involuntary civil commitment proceedings and not a criminal prosecution.

(g) The provisions of this section are not jurisdictional, and failure to comply with such provisions shall not be dispositive of the matter, and shall not prevent the Attorney General from proceeding under this chapter for the involuntary commitment of a person alleged to be a sexually violent person.

(h) Any person participating in good faith in the assessment and referral of an incarcerated person is immune from any civil or criminal liability. For the purpose of any civil or criminal proceeding, the good faith of any person required to participate in the assessment and referral of an inmate is presumed.

§ 5605. Sexually Violent Person petition – Filing.

When it appears that:

(a) A person who at any time previously has been convicted of or charged with a sexually violent offense is about to be released from total confinement; or,

(b) A person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement; or

(c) A person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is in the custody of the Secretary, or is about to be released, or has been released from total confinement; or

(d) A person who has been found not guilty by reason of insanity of a sexually violent offense is in the custody of the Secretary, or is about to be released, or has been released from total confinement; or

(e) A person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and it appears that the person may be a sexually violent person as defined in this chapter, the Attorney General may file a petition to initiate civil involuntary commitment proceeding alleging that the person is a sexually violent person as defined in this chapter and stating sufficient facts to support such allegation and the need for civil commitment.

§ 5606. Sexually Violent Person petition – determination of probable cause, hearing; evaluation; person taken into custody.

(a) Upon the filing of a petition pursuant to this chapter, the judge or Commissioner designated by Court shall determine whether to issue an order for detention of the respondent named in the petition. This issue of initial detention petition may be heard ex parte. The Court shall issue an order for detention if there is probable cause to believe that the respondent is a sexually violent person. If the Court issues an order for detention, the order must direct that the respondent be taken into custody and transferred to an appropriate secure or correctional facility to be held for subsequent hearing pursuant to this chapter.

(b) No later than 8 working hours after a person is taken into custody pursuant to subsection (a), such person shall be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the detained person is a sexually violent person. At this hearing the court shall: (1) Verify the detained person’s identity; and (2) determine whether probable cause exists to believe that the person is a sexually violent person. The state may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(c) At the probable cause hearing as provided in subsection (b), the detained person shall have the following rights in addition to the rights previously specified: (1) to be represented by counsel; (2) to present evidence on such person's behalf; (3) to cross-examine witnesses who testify against such person; and (4) to view and copy all petitions and reports in the court file.

(d) If the probable cause determination is made, the Court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a correctional facility, for an evaluation as to whether the person is a sexually violent person. The evaluation shall be conducted by a psychiatrist or other qualified expert as defined by this chapter.

(e) If the Court determines that probable cause does not exist to believe that the respondent is a sexually violent person, the Court shall dismiss the petition.

(f) If the respondent waives the preliminary hearing, the Court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a correctional facility, for an evaluation as to whether the person is a sexually violent person. The evaluation shall be conducted by a psychiatrist or other qualified expert as defined by this chapter.

§ 5607. Right to counsel – Waiver; appointment of guardian ad litem.

(a) Every respondent is entitled to the assistance of legal counsel, and if the respondent is indigent, the Court, shall appoint counsel to represent the respondent. If a respondent retains counsel, the retained counsel shall immediately notify the court of that fact.

(b) After consultation with counsel, the respondent may waive the right to counsel or the right to any hearing provided pursuant to this chapter by notifying the court in writing. The notification must clearly state the respondent's reasons for the waiver and the respondent's counsel shall separately certify that counsel has explained to the respondent the proceedings, the legal and factual issues, potential defenses, the burden of proof, and possible outcomes of the proceedings.

(c) At any stage of a proceeding under this chapter, on application of any individual or on its own motion, the Court may appoint a guardian ad litem for a minor or an individual with mental retardation who is a respondent or witness or otherwise involved in the proceeding, if the minor or an individual with mental retardation has no parent, guardian, or custodian appearing on the minor's or the mentally retarded individual's behalf or the interests of those persons conflict with those of the minor or an individual with mental retardation.

§ 5608. Sexually Violent Person – Evaluation.

Any evaluation provided for in §5606 must be conducted by one or more psychiatrists or other qualified experts designated by the Secretary or the Attorney General. Whenever a respondent is subject to an evaluation pursuant to this chapter, the respondent may retain an expert to perform an evaluation or testify on the respondent's behalf. If the respondent is indigent or an adult with mental retardation and a guardian or guardian ad litem has not been appointed for the respondent, the Court shall appoint an expert to perform an evaluation on behalf of the respondent. An expert retained on behalf of the respondent must have reasonable access to the respondent for the purpose of the examination and to all relevant medical, psychological, and court records and reports.

§ 5609. Sexually Violent Person – Use of confidential records or communications.

In addition to those procedures or rules set forth in §5610 of this title, the following shall apply to proceedings, investigations or examinations under this chapter:

(a) Notwithstanding any other provision of law requiring confidentiality of information about individuals receiving care, custody, education, treatment, or any other services from the state, any political subdivision or any private institution, any confidential information about a respondent or incarcerated person must be released to the Attorney General for proceedings or investigations pursuant to this chapter. The physician-patient privilege and psychotherapist-patient privilege do not apply to communications relevant to an issue in proceedings to commit an individual as a sexually violent person under this chapter if the physician or psychotherapist in the course of diagnosis or treatment has reason to believe the patient is in need of commitment. The provision of any confidential or privileged information to the Attorney General does not render the state, any political subdivision, or any other person liable pursuant to any criminal or civil law relating to confidentiality or privilege.

(b) Upon request, any confidential records must be provided to the Attorney General pursuant to this chapter and if so provided must, upon request, be made available to the respondent, the attorney of the respondent, a psychiatrist or other qualified expert charged with examining the respondent, the Court, or and any correctional or treatment facility in which the respondent is being evaluated or treated pursuant to this chapter. Such records if provided by the Attorney General may be appropriately redacted to remove the residential address, telephone number or place of employment of any alleged crime victim or a member of the victim's family, or the identity, residential address, telephone number or place of employment of a witness or a member of the witness's family, except to the extent that disclosure is of the site of a crime or is specifically ordered by the Court for good cause.

§ 5610. Rules of procedure and evidence.

(a) In all civil commitment proceedings for sexually violent persons under this chapter, the following shall apply:

(1) The Superior Court shall adopt such rules of procedure as may be required to implement the procedural requirements of this chapter.

(2) The Delaware Uniform Rules of Evidence apply unless otherwise specified in this chapter.

(b) No evidentiary privilege or other privilege regarding disclosure of communications created by statute or rule, except the lawyer-client privilege, shall exist or apply for communications relevant to an issue in proceedings to involuntarily commit a person under this chapter.

(c) Notwithstanding any other provision of law to the contrary, in any proceeding pursuant to this chapter, evidence of prior sexually violent conduct or criminal conduct, including a record of juvenile proceedings, is admissible. The Court may further consider any evidence of prior behavior by a person who is subject to proceedings under this chapter if such evidence is relevant to proving that the person is a sexually violent person.

(d) Hearsay evidence, including but not limited to:

(1) reports of any employee of the Department of Correction, any psychiatrist or other qualified expert or other person designated to provide assessment or evaluation of the respondent, or

(2) certified court documents related to conviction or adjudication for a sexually violent offense, any transcripts related to such proceedings or any reports generated by a law enforcement agency in the investigation of such an offense,

is admissible in proceedings under this chapter unless the Court makes a specific finding that proffered evidence does not meet a minimum indicia of reliability. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this chapter.

§ 5611. Sexually Violent Person – Commitment Proceedings.

(a) Within sixty days after a finding of probable cause under §5606, the Court shall conduct a commitment proceeding to determine whether the respondent is a sexually violent person. The Court may extend the time for good cause. Any proceeding pursuant to this chapter must be tried to a Judge or Commissioner designated by the Court and not a jury.

(b) At the commitment proceeding, the Attorney General shall present evidence in support of the petition and the burden is on the state to show beyond a reasonable doubt that the respondent is a sexually violent person.

(d) An individual may not be found to be a sexually violent person and committed pursuant to this chapter unless the Court finds beyond a reasonable doubt that:

(1) the person has been previously convicted of or charged with a sexually violent offense;

(2) the person suffers from a mental abnormality or personality disorder;

(3) due to the mental abnormality or personality the person has serious difficulty controlling his or her behavior; and

(4) the mental abnormality or personality disorder makes the person likely to engage in acts of sexual violence if not confined in a secured facility for long term control, care and treatment.

(e) If the respondent is found to be a sexually violent person, the Court shall commit the respondent to the control, care, and treatment of the Secretary until such time as the person’s mental abnormality or personality disorder has so changed that the person no longer meets the criteria of a sexually violent person. Such control, care and treatment shall be provided at a secure facility operated by the Department of Health and Social Services or otherwise approved by the Secretary.

(1) At all times, persons committed for control, care and treatment by the Secretary pursuant to this chapter shall be kept in a secure facility and such persons shall be segregated at all times from any other patients under the supervision of the Secretary. The Secretary is authorized to enter into an interagency agreement with the Department of Correction which shall authorize the Department of Correction to provide security at said secure facility.

(2) The Secretary is authorized to enter into an interagency agreement with the Department of Correction for the confinement of such persons. Such persons who are in the confinement of the Commissioner pursuant to an interagency agreement shall be housed and managed separately from incarcerated persons otherwise in the custody of the Commissioner, and except for occasional instances of supervised incidental contact, shall be segregated from such offenders.

(3) If any person while committed to the custody of the Secretary pursuant to this chapter shall be taken into custody by any law enforcement officer pursuant to any probation or other supervised release revocation proceeding 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 chapter. 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 this chapter with regard to providing that person with treatment or care or other obligations of the Secretary under this chapter. In such case, however, 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 chapter and notice to the Court when the person is returned to the custody of the Secretary for further treatment.

(f) If the Court is not satisfied beyond a reasonable doubt that respondent is a sexually violent person, the Court shall direct the respondent’s release consistent with the provisions of this chapter.

(g) If a person charged with a sexually violent offense has been found incompetent to stand trial, and is about to be transferred or released pursuant §404 of title 11, and such person's commitment is sought pursuant to subsection (a) of this section, 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 chapter. 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 to a jury trial and 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 reconstructed 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 order so finding on that issue and may proceed to consider whether the person should be committed pursuant to this chapter.

§ 5612. Waiver of rights; voluntary commitment of Sexually Violent Person.

An respondent may waive any of the rights provided by this chapter if the court determines that such waiver is voluntary and with the respondent’s knowing and intelligent consent, or if, where the respondent is incapable of knowingly and intelligently consenting, the Court, upon application by a guardian ad litem appointed pursuant to §5607(c) of this title and after appropriate inquiry and finding of facts, approves such waiver for good cause shown. If the hearing provided for in §5611 is waived, the Court shall enter an order of disposition in accordance with subsections (d) and (e) of §5611 of this title. Any waiver under this section must be submitted in writing to the Court or be orally presented in open court.

§ 5613. Post-commitment proceeding, discharge, and further disposition.

(a) A person committed pursuant to this chapter must remain in the control, care and treatment of the Secretary at a secure facility for the purposes of therapy and treatment until, in the opinion of the Secretary, the person no longer meets the criteria of a sexually violent person.

(b) Each person committed pursuant to this chapter must have an examination of that person's mental condition at least once a year. A report regarding the examination must be provided to the Court that committed the person. At the time of the annual examination and upon the request of an indigent person committed under this chapter, the Court may appoint a qualified expert to examine the committed person and report to the Court. That expert must have reasonable access to the committed person and to all records relating to the committed person, including confidential records.

(c) If a committed person has been committed to an out-of-state facility by the Secretary for purposes of treatment, an expert from that state may be appointed by the Court as a qualified expert for an indigent committed person for any post-commitment proceeding.

(d) After any report pursuant to this section is provided to the Court, the Court may order further examination and investigation of the committed person as the Court considers necessary. The Court may set the matter for a hearing. At the hearing, the committed person is entitled to be present and to the benefit of the protections afforded at the commitment proceeding. The Attorney General shall represent the state at the hearing. After any such hearing, the Court shall determine whether the committed person is to be discharged, placed in transitional release pursuant to §4615 of this section, or to be retained as a sexually violent person in secure facility under the control, care and treatment of the Secretary.

(e) The Secretary may only place a committed person at transitional release or discharge a sexually violent person from commitment under this chapter pursuant to an order of the same Court that ordered commitment under this chapter. The Secretary may petition the committing Court for the placement of the person at transitional release pursuant to § 4615 of this section, or discharge of the committed person at any time the Secretary can certify that in the opinion of the Secretary, the person no longer meets the criteria of a sexually violent person. The Secretary shall give the Attorney General notice of any petition for transitional release or discharge the Secretary files with the Court. Before any petition for discharge may be granted, the Attorney General has the right to be heard by the Court on the petition. The Attorney General may waive this right.

§ 5614. Petition for transitional release or discharge -- Notice.

(a) Annually, the Secretary shall provide the committed person with written notice that the person has a right to petition the Court for transitional release. The notice must explain to the committed person when the committed person has a right to a hearing on the petition. The notice must inform the committed person of the rights this chapter affords the committed person at a transitional release or discharge hearing. The Secretary shall forward a copy of the notice to the committing court. If the committed person had previously been appointed a guardian ad litem pursuant to §5607(c) of this title, the Secretary shall also provide the written notice to the person's guardian ad litem.

(b) If the committed person files a petition for transitional release and has not had a hearing pursuant to §5611 of this title or this section during the preceding twelve months, the committed person has a right to a hearing on the petition for transitional release.

(c) At the hearing on the petition for transitional release, the committed person is entitled to be present and to the benefit of the protections afforded at the commitment proceeding. The Attorney General shall represent the state. The committed person may be evaluated by a psychiatrist of other qualified expert at the request of the state or the committed person. The Court shall appoint a qualified expert if the committed person is indigent and requests an appointment. That expert must have reasonable access to the committed person and to all records relating to the committed person, including confidential records.

(d) At any hearing held pursuant to a petition for transitional release, the burden of proof is on the state to show by clear and convincing evidence that the committed person remains a sexually violent person. If, after the hearing, the Superior Court is convinced by clear and convincing evidence that the person is not appropriate for transitional release, the Court shall order that the person remain in secure commitment. If, after the hearing, the Superior 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 transitional release, then the Court may order such transitional release pursuant to §5615.

§ 5615. Transitional Release

(a) If the Superior Court determines that the committed person should be placed in transitional release, the Department of Health and Social Services shall transfer the person to a transitional release program. The Department of Health and Social Services 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, regulations or conditions the Secretary Services may promulgate.

(b) 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 condition associated with the transitional release program, the treatment staff may remove the person from the transitional release program and return the person to a secure facility, or may request the Superior Court to issue an emergency ex parte order directing any law enforcement officer to take the person into custody and return the person to a secure facility. Any such request may be made verbally or by telephone, but shall be followed in written or facsimile form delivered to the Superior Court by not later than 5:00 p.m. on the next business day.

(c) Notwithstanding any provision of this section to the contrary, if a person participating in the transitional release program is arrested or charged by warrant, indictment, information or petition with a crime, the treatment staff shall remove the person from the transitional release program and return the person to the secure commitment facility unless such person is remanded to the custody of the Department of Correction by any court.

(d) Upon the person being returned to the secure commitment facility from the transitional release program, notice thereof shall be given by the Department of Health and Social Services to the Superior Court. The Court shall set the matter for a hearing not later than five working days of receipt of such notice, and shall cause notice thereof to be given to the Attorney General, the committed person and the Department of Health and Social Services. The Attorney General shall have the burden to demonstrate probable cause that the person violated conditions of transitional release. At the conclusion of the hearing the Court shall issue an order returning the person to a secure 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 transitional release program.

§5616. Conditional release; final release.

(a) The Secretary shall annually provide a person on transitional release pursuant to §5615 of this title with written notice that the person has a right to petition the Court for conditional release. The notice must explain to the committed person when the committed person has a right to a hearing on the petition. The notice must inform the committed person of the rights this chapter affords the committed person at a conditional release hearing. The Secretary shall forward a copy of the notice to the committing court. If the committed person had previously been appointed a guardian ad litem pursuant to §5607(c) of this title, the Secretary shall also provide the written notice to the person's guardian ad litem.

(b) If the committed person files a petition for conditional release and has not had a hearing pursuant to §5611 of this title or this section during the preceding twelve months, the committed person has a right to a hearing on the petition for conditional release.

(c) At the hearing on the petition for conditional release, the committed person is entitled to be present and to the benefit of the protections afforded at the commitment proceeding. The Attorney General shall represent the state. The committed person may be evaluated by a psychiatrist of other qualified expert at the request of the state or the committed person. The Court shall appoint a qualified expert if the committed person is indigent and requests an appointment. That expert must have reasonable access to the committed person and to all records relating to the committed person, including confidential records.

(d) At any hearing held pursuant to a petition for conditional release or discharge, the burden of proof is on the state to show by clear and convincing evidence that the committed person's mental abnormality or personality disorder remains such that the person would be likely to be a danger to himself, herself or others if placed on conditional release, or if conditionally released the person will likely to engage in acts of sexual violence. If, after the hearing, the Superior Court is convinced by clear and convincing evidence that the person is not appropriate for conditional release or discharge, the Court shall order that the person remain at transitional release or return to secure commitment. If, after the hearing, the Superior 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 transitional release, then the Court may order such conditional release pursuant to the provisions of this section.

(e) 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 any condition reasonably related to the therapy and treatment of the person and the protection of the public, including but not limited to: Conditions 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 specified 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. The plan of treatment shall include a requirement that the person not be charged with any criminal offense by warrant, indictment, information or petition. 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.

(f) a minimum of five years have passed after the person’s initial conditional release in which the person has been free of violations of conditions of such person's treatment plan, at the direction of the Department of Health and Social Services or the Court a psychiatrist or other qualified expert may examine such person to determine if the person's mental abnormality or personality disorder has changed so as to warrant such person being considered 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 admitted to final discharge, the Court shall set a hearing on the issue.

(1) At the hearing on the petition for final discharge, the committed person is entitled to be present and to the benefit of the protections afforded at the commitment proceeding. The Attorney General shall represent the state

(2) At any final discharge hearing, the burden of proof is on the state to show by clear and convincing evidence that the committed person's mental abnormality or personality disorder remains such that the person would be likely to be a danger to himself, herself or others if finally discharged, or if finally discharged the person will likely to engage in acts of sexual violence. If, after a hearing, the Court is convinced by clear and convincing evidence that the person is not appropriate for final discharge, the court shall continue custody of the person with the Department of Health and Social Services 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.

(3) Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact.

(g) At any time during which the person is in the conditional release program and the treatment staff determines that the person has violated any rule, regulation or condition associated with the conditional release program, the treatment staff may remove the person from the conditional release program and return the person to a secure facility, or may request the Superior 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 Superior Court by not later than 5:00 p.m. on the next business day.

(h) Notwithstanding any provision of this section to the contrary, if a person participating in the conditional release program is arrested or charged by warrant, indictment, information or petition with a crime, the treatment staff shall remove the person from the transitional release program and return the person to a secure facility unless such person is taken into custody by a law enforcement officer.

(i) Upon the person being returned to a secure facility from the conditional release program, notice thereof shall be given by the Department of Health and Social Services to the Superior Court. The Court shall set the matter for a hearing no later that five working days of receipt of such notice, and shall cause notice thereof to be given to the Attorney General, the person and the Department of Health and Social Services. The Attorney General shall have the burden to show probable cause that the person violated conditions of conditional release. At conclusion of the hearing the court shall issue an order returning the person to the secure commitment facility or to the transitional or conditional release program, and may order such other further conditions with which the person must comply if the person is returned to the transitional or conditional release program.

(j) A final discharge shall not prevent the person from being prosecuted for any criminal acts which the person is alleged to have committed or from being subject in the future to a subsequent commitment under this chapter.

§ 5616. Appeal.

Any party to the commitment proceedings set forth in §5611 of this title or discharge proceedings set forth in §5614 of this title may appeal an order of disposition to the Supreme Court within 30 days of the entry of such order. The appeal must be limited to a review of the procedures, findings, and conclusions of the committing Court. The appeal shall not operate as a stay of the order of disposition unless the committing court or the Supreme Court so directs.

§ 5617. Promulgation of Rules.

The Secretary of Health and Social Services and/or the Commissioner of the Department of Correction may adopt and enforce such rules and regulations concerning the involuntary commitment of sexually violent persons as may be necessary to carry out this chapter, provided such rules and regulations are not contrary to the provisions of this chapter and do not restrict or limit the rights guaranteed by this chapter.

§5618. Transitional Provisions.

The provisions of this Chapter shall be applicable to any person meeting the criteria for designation as a sexually violent person who committed a sexually violent offense either before or after the enactment of this Chapter.

§5619. Effective Date.

The provisions of this Act shall become effective upon appropriate of sufficient funds by the General Assembly to accomplish the purposes of this Chapter.

§5620. Severability.

If any provision of this Chapter 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 without the invalid provisions or application and, to this end, the provisions of this act are severable.".

SPONSOR:	Rep. Smith & Rep. Spence & Sen. Vaughn & Sen. Bonini