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ACROSS SESSIONS
- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
2006 SESSION
061416308Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-169.3, 19.2-299, 37.2-900, 37.2-903 through 37.2-908, 37.2-910, 37.2-912, 37.2-919, and 63.2-105 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Chapter 9 of Title 37.2 a section numbered 37.2-920 as follows:
§ 19.2-169.3. Disposition of the unrestorably incompetent defendant; capital murder charge; referral to Commitment Review Committee.
A. If, at any time after the defendant is ordered to undergo
treatment pursuant to subsection A of § 19.2-169.2, the director of the
treating facility concludes that the defendant is likely to remain incompetent
for the foreseeable future, he shall send a report to the court so stating. The
report shall also indicate whether, in the director's opinion, the defendant
should be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of
Chapter 8 of Title 37.2, committed pursuant to § 37.2-908 Chapter 9
(§ 37.2-900 et seq.) of Title 37.2, or certified pursuant to § 37.2-806 in
the event he is found to be unrestorably incompetent. Upon receipt of the
report, the court shall make a competency determination according to the
procedures specified in subsection E of § 19.2-169.1. If the court finds that
the defendant is incompetent and is likely to remain so for the foreseeable
future, it shall order that he be (i) released, (ii) committed pursuant to
Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (iii) reviewed for
commitment pursuant to § 37.2-905 Chapter 9 (§ 37.2-900 et seq.) of
Title 37.2, or (iv) certified pursuant to § 37.2-806. If the court finds
the defendant incompetent but restorable to competency in the foreseeable
future, it may order treatment continued until six months have elapsed from the
date of the defendant's initial admission under subsection A of § 19.2-169.2.
B. At the end of six months from the date of the defendant's initial admission under subsection A of § 19.2-169.2 if the defendant remains incompetent in the opinion of the director, the director shall so notify the court and make recommendations concerning disposition of the defendant as described above. The court shall hold a hearing according to the procedures specified in subsection E of § 19.2-169.1 and, if it finds the defendant unrestorably incompetent, shall order one of the dispositions described above. If the court finds the defendant incompetent but restorable to competency, it may order continued treatment under subsection A of § 19.2-169.2 for additional six-month periods, provided a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period and the defendant continues to be incompetent but restorable to competency in the foreseeable future.
C. Unless an incompetent defendant is charged with capital murder or the charges against an incompetent criminal defendant have been previously dismissed, charges against an unrestorably incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner.
D. If the court orders an unrestorably incompetent defendant
to be reviewed for commitment pursuant to § 37.2-905 § 37.2-904,
it shall order the attorney for the Commonwealth in the jurisdiction wherein
the defendant was charged and the Commissioner of the Department of Mental
Health, Mental Retardation and Substance Abuse Services to provide the Attorney
General Commitment Review Committee established pursuant to § 37.2-902 with
any information relevant to the review, including, but not limited to: (i) a
copy of the warrant or indictment, (ii) a copy of the defendant's criminal
record, (iii) information about the alleged crime, (iv) a copy of the
competency report completed pursuant to § 19.2-169.1, and (v) a copy of the
report prepared by the director of the defendant's treating facility pursuant
to this section. The court shall further order that the defendant be held in
the custody of the Department of Mental Health, Mental Retardation and
Substance Abuse Services for secure confinement and treatment until the Commitment
Review Committee's and Attorney General's review and any subsequent hearing
or trial are completed. If the court receives notice that the Attorney General
has declined to file a petition for the commitment of an unrestorably
incompetent defendant as a sexually violent predator after conducting a review
pursuant to § 37.2-905, the court shall order that the defendant be released,
committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title
37.2, or certified pursuant to § 37.2-806.
E. In any case when an incompetent defendant is charged with capital murder, notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 for additional six-month periods without limitation, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate, and (iv) the defendant presents a danger to himself or others.
F. The attorney for the Commonwealth may bring charges that have been dismissed against the defendant when he is restored to competency.
§ 19.2-299. Investigations and reports by probation officers in certain cases.
A. Unless waived by the court and the defendant and the attorney for the Commonwealth, when a person is tried in a circuit court (i) upon a charge of assault and battery in violation of § 18.2-57 or 18.2-57.2, stalking in violation of § 18.2-60.3, sexual battery in violation of § 18.2-67.4, attempted sexual battery in violation of § 18.2-67.5, or driving while intoxicated in violation of § 18.2-266, and is adjudged guilty of such charge, the court may, or on motion of the defendant shall; or (ii) upon a felony charge not set forth in subdivision (iii) below, the court may when there is a plea agreement between the defendant and the Commonwealth and shall when the defendant pleads guilty without a plea agreement or is found guilty by the court after a plea of not guilty; or (iii) the court shall when a person is charged and adjudged guilty of a felony violation, or conspiracy to commit or attempt to commit a felony violation, of § 18.2-46.2, 18.2-46.3, 18.2-48, 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4:1, 18.2-67.5:1, 18.2-355, 18.2-356, 18.2-357, 18.2-361, 18.2-362, 18.2-366, 18.2-368, 18.2-370, 18.2-370.1, or 18.2-370.2, or any attempt to commit or conspiracy to commit any felony violation of § 18.2-67.5, 18.2-67.5:2, or 18.2-67.5:3, direct a probation officer of such court to thoroughly investigate and report upon the history of the accused, including a report of the accused's criminal record as an adult and available juvenile court records, any information regarding the accused's participation or membership in a criminal street gang as defined in § 18.2-46.1, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. The probation officer, after having furnished a copy of this report at least five days prior to sentencing to counsel for the accused and the attorney for the Commonwealth for their permanent use, shall submit his report in advance of the sentencing hearing to the judge in chambers, who shall keep such report confidential. Counsel for the accused may provide the accused with a copy of the presentence report. The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been provided with a copy of the presentence report by his counsel or advised of its contents and be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter. The report of the investigating officer shall at all times be kept confidential by each recipient, and shall be filed as a part of the record in the case. Any report so filed shall be made available only by court order and shall be sealed upon final order by the court, except that such reports or copies thereof shall be available at any time to any criminal justice agency, as defined in § 9.1-101, of this or any other state or of the United States; to any agency where the accused is referred for treatment by the court or by probation and parole services; and to counsel for any person who has been indicted jointly for the same felony as the person subject to the report. Any report prepared pursuant to the provisions hereof shall without court order be made available to counsel for the person who is the subject of the report if that person is charged with a felony subsequent to the time of the preparation of the report. The presentence report shall be in a form prescribed by the Department of Corrections. In all cases where such report is not ordered, a simplified report shall be prepared on a form prescribed by the Department of Corrections. For the purposes of this subsection, information regarding the accused's participation or membership in a criminal street gang may include the characteristics, specific rivalries, common practices, social customs and behavior, terminology, and types of crimes that are likely to be committed by that criminal street gang.
B. As a part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony, the court probation officer shall advise any victim of such offense in writing that he may submit to the Virginia Parole Board a written request (i) to be given the opportunity to submit to the Board a written statement in advance of any parole hearing describing the impact of the offense upon him and his opinion regarding the defendant's release and (ii) to receive copies of such other notifications pertaining to the defendant as the Board may provide pursuant to subsection B of § 53.1-155.
C. As part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony drug offense set forth in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, the presentence report shall include any known association of the defendant with illicit drug operations or markets.
D. As a part of any presentence investigation conducted pursuant to subsection A, when the offense for which the defendant was convicted was a felony, not a capital offense, committed on or after January 1, 2000, the defendant shall be required to undergo a substance abuse screening pursuant to § 18.2-251.01.
§ 37.2-900. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Defendant" means any person charged with a sexually
violent offense who is deemed to be an unrestorably incompetent defendant
pursuant to § 19.2-169.3 and is referred for commitment review pursuant to §
37.2-905 this chapter.
"Director" means the Director of the Department of Corrections.
"Mental abnormality" or "personality disorder" means a congenital or acquired condition that affects a person's emotional or volitional capacity and renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others.
"Sexually violent offense" means (i) a felony
conviction under former § 18-54, former § 18.1-44, § 18.2-61, 18.2-67.1,
18.2-67.2; (ii) a conviction under § 18.2-48 (ii), 18.2-48 (iii), 18.2-63,
18.2-64.1, or 18.2-67.3 where the complaining witness is less than 13
years of age; or (iii) a felony conviction under the laws of the
Commonwealth for a forcible sexual offense committed prior to July 1, 1981,
where the criminal behavior on which the conviction is based is set forth in §
18.2-67.1 or 18.2-67.2, or is set forth in § 18.2-67.3 where the complaining
witness is less than 13 years of age; or (iv) a felony conviction for
conspiracy to commit or attempt to commit any of the above offenses.
"Sexually violent predator" means any person who (i) has been convicted of a sexually violent offense or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3 and (ii) because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts.
§ 37.2-903. Treatment plans; database of prisoners convicted of sexually violent offenses; maintained by Department of Corrections; notice of pending release to CRC.
A. The Director shall establish and maintain a treatment program for prisoners convicted pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 and committed to the custody of the Department of Corrections. This program shall include a clinical assessment of all such prisoners upon receipt into the custody of the Department of Corrections and the development of appropriate treatment plans, if indicated. This program shall be operated under the direction of a licensed psychiatrist or licensed clinical psychologist who is experienced in the diagnosis and treatment of mental abnormalities and disorders associated with criminal sexual offenders.
B. The Director shall establish and maintain a database of
prisoners each prisoner in his custody who are is (i)
incarcerated for a sexually violent offenses offense or
(ii) serving or will serve concurrent or consecutive time for other offenses
another offense in addition to time for a sexually violent offense.
The database shall include the following information regarding each prisoner:
(a) the prisoner's criminal record and (b) the prisoner's sentences and
scheduled date of release. A prisoner who is serving or will serve concurrent
or consecutive time for other offenses in addition to his time for a sexually
violent offense, shall remain in the database until such time as he is released
from the custody or supervision of the Department of Corrections or Virginia
Parole Board for all of his charges. Prior to the initial assessment of a
prisoner under subsection C, the Director shall order a national criminal
history records check to be conducted on the prisoner.
C. Each month, the Director shall review the database and
identify all such prisoners who are scheduled for release from prison within 10
months from the date of such review who receive a score of four or more on the
Rapid Risk Assessment for Sexual Offender Recidivism Static-99 or a
like score on a comparable, scientifically validated instrument designated by
the Commissioner. Upon the identification of such prisoners, the Director
shall forward their names, their scheduled dates of release, and copies of
their files to the CRC for assessment.
D. If the Director and the Commissioner agree that no specific scientifically validated instrument exists to measure the risk assessment of a prisoner, the prisoner may instead be evaluated by a licensed psychiatrist or licensed clinical psychologist for an initial determination of whether or not the prisoner may meet the definition of a sexually violent predator.
E. Upon the identification of such prisoners, the Director shall forward their names, their scheduled dates of release, and copies of their files to the CRC for assessment.
§ 37.2-904. CRC assessment of prisoners or incompetent defendants eligible for commitment as sexually violent predators; mental health examination; recommendation.
A. Within 90 days of receiving notice from the Director pursuant to § 37.2-903 regarding a prisoner who is in the database, or from a court referring an incompetent defendant pursuant to § 19.2-169.3, the CRC shall (i) complete its assessment of the prisoner or defendant for possible commitment pursuant to subsection B and (ii) forward its written recommendation regarding the prisoner to the Attorney General pursuant to subsection C.
B. CRC assessments of eligible prisoners or incompetent
defendants shall include a mental health examination, including a personal
interview, of the prisoner or incompetent defendant by a licensed
psychiatrist or a licensed clinical psychologist who is designated by the
Commissioner, skilled in the diagnosis and treatment of mental abnormalities
and disorders associated with violent sex offenders, and not a member of
the CRC. If the prisoner's or defendant's name was forwarded to the CRC
based upon an evaluation by a licensed psychiatrist or licensed clinical
psychologist, a different licensed psychiatrist or licensed clinical
psychologist shall perform the examination for the CRC. The licensed
psychiatrist or licensed clinical psychologist shall determine whether the
prisoner or incompetent defendant is a sexually violent predator, as
defined in § 37.2-900, and forward the results of this evaluation and any
supporting documents to the CRC for its review.
The CRC assessment shall also include:
consideration 1. Consideration of the prisoner's
score on the Rapid Risk Assessment for Sexual Offender Recidivism
Static-99 or a comparable, scientifically validated instrument designated
by the Commissioner; and
a 2. A review of (i) the prisoner's or
incompetent defendant's institutional history and treatment record, if any;
(ii) the prisoner's his criminal background; and (iii) any other
factor that is relevant to the determination of whether the prisoner he
is a sexually violent predator. Notwithstanding § 19.2-299.1 or any other
provision of law, the CRC is authorized to possess, copy, and use presentence
reports, postsentence reports, and victim impact statements for all lawful
purposes.
C. Following the examination and review of a prisoner conducted
pursuant to subsection B, the CRC shall recommend that the prisoner or
incompetent defendant (i) be committed as a sexually violent predator
pursuant to this chapter; (ii) not be committed, but be placed in a conditional
release program as a less restrictive alternative; or (iii) not be committed
because he does not meet the definition of a sexually violent predator. To
assist the Attorney General in his review, the Department of Corrections, the
CRC, and the psychiatrist or psychologist who conducts the mental health
examination pursuant to this section shall provide the Attorney General with
all evaluation reports, prisoner records, criminal records, medical files, and
any other documentation relevant to determining whether a prisoner or
incompetent defendant is a sexually violent predator.
D. Pursuant to clause (ii) of subsection C, the CRC shall
recommend that a prisoner or incompetent defendant enter a conditional
release program if it finds that (i) the prisoner he does not
need inpatient treatment, but needs outpatient treatment and monitoring to
prevent his condition from deteriorating to a degree that he would need
inpatient treatment; (ii) appropriate outpatient supervision and treatment are
reasonably available; (iii) there is significant reason to believe that the
prisoner, if conditionally released, he would comply with the
conditions specified; and (iv) conditional release will not present an undue
risk to public safety.
E. Notwithstanding any other provision of law, all state and local courts, clerks, departments, agencies, boards, and commissions shall provide to the CRC all requested records, documents, notes, recordings, or other information of any kind, including presentence or postsentence reports, victim impact statements, and child abuse registry records, within 20 days of receiving such request.
F. Notwithstanding any other provision of law, any mental health professional employed or appointed pursuant to subsection B or § 37.2-907 shall be permitted to copy and possess any presentence or postsentence reports and victim impact statements for use in examinations, creating reports, and testifying in any proceedings pursuant to this article. However, at the conclusion of the examiner's testimony or service in such proceedings, the examiner shall return all presentence reports, postsentence reports and victim impact statements to the Office of the Attorney General.
G. Any mental health professional appointed or employed pursuant to subsection B or § 37.2-907 shall be permitted to testify at the probable cause hearing and at the trial as to his diagnosis, his opinion as to whether the prisoner or incompetent defendant meets the definition of a sexually violent predator, his recommendation as to treatment and his reasoning therefor. Such opinion shall not be dispositive of whether the person is a sexually violent predator.
H. If the CRC deems it necessary to have the services of additional experts in order to complete its review of the prisoner, the Commissioner shall appoint such qualified experts as are needed.
§ 37.2-905. Review of prisoners convicted of a sexually violent offense; review of unrestorably incompetent defendants charged with sexually violent offenses; petition for commitment; notice to Department of Corrections or referring court regarding disposition of review.
A. Upon receipt of a recommendation by the CRC regarding an
eligible prisoner or upon receipt of a court order referring an
unrestorably incompetent defendant for review pursuant to § 19.2-169.3, the
Attorney General shall have 90 days to conduct a review of the prisoner or
defendant and (i) file a petition for the civil commitment of the prisoner or
defendant as a sexually violent predator and stating sufficient facts to
support such allegation or (ii) notify the Director and Commissioner, in the
case of a prisoner, or the referring court and the Commissioner, in the case of
an unrestorably incompetent defendant, that he will not file a petition for
commitment. Petitions for commitment shall be filed in the circuit court in
which the prisoner was last convicted of a sexually violent offense or in which
the defendant was deemed unrestorably incompetent and referred for commitment
review pursuant to § 19.2-169.3.
B. In determining whether to file a petition to civilly commit a prisoner under this chapter, the Attorney General shall review (i) the CRC recommendation and its reasoning; (ii) the results of the mental health examination conducted pursuant to § 37.2-904; (iii) the prisoner's institutional history and treatment record, if any; (iv) the prisoner's criminal offense history; and (v) any other factor relevant to the determination of whether the prisoner should be civilly committed. Although the Attorney General shall consider the CRC recommendation as part of the review, the CRC recommendation is not binding upon the Attorney General.
C. In determining whether to file a petition to civilly commit
a defendant under this chapter, the Attorney General shall review (i) the
CRC recommendation and its reasoning, (ii) the defendant's warrant or
indictment, (ii) (iii) the competency report completed pursuant
to § 19.2-169.1, (iii) (iv) the report and recommendations
prepared by the director of the defendant's treating facility pursuant to § 19.2-169.3,
(iv) (v) the mental health evaluation completed pursuant to § 37.2-904,
(vi) the defendant's criminal offense history, (v) (vii) information
about the alleged crime, (vi) and (viii) any other factor
relevant to the determination of whether the defendant should be civilly
committed, and (vii) the mental health evaluation performed pursuant to
subsection E.
D. Notwithstanding § 19.2-299.1 or any other provision of law, the Attorney General is authorized to possess, copy, and use presentence reports, postsentence reports, and victim impact statements for all lawful purposes.
E. Whenever a court refers an incompetent defendant to the
Attorney General for review, the court shall also appoint a licensed
psychiatrist or licensed clinical psychologist from the list maintained by the
Commissioner pursuant to subsection B of § 37.2-904 to conduct a mental health
evaluation, including a personal interview, of the incompetent defendant. The
licensed psychiatrist or licensed clinical psychologist shall determine whether
the incompetent defendant is a sexually violent predator as defined in §
37.2-900 and shall forward the results of this evaluation and any supporting
documents to the Attorney General within 45 days of his appointment.
If the Attorney General decides not to file a petition for the civil commitment of a prisoner or incompetent defendant, or if a petition is filed but is dismissed for any reason, and the prisoner or incompetent defendant has outstanding probation or parole time to serve, the Attorney General and the Director may share any relevant information with the probation and parole officer to the extent allowed by state and federal law.
§ 37.2-906. Probable cause hearing.
A. Upon the filing of a petition alleging that a person is a sexually violent predator, the circuit court shall (i) forthwith order that until a final order is entered in the proceeding, in the case of a prisoner, he remain in the secure custody of the Department of Corrections or, in the case of a defendant, he remain in the secure custody of the Department and (ii) schedule a hearing within 60 days to determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. A continuance extending the case beyond the 60 days may be granted to either the Attorney General or the person who is the subject of the petition only upon good cause shown. A copy of the petition shall be mailed by the clerk to the attorney appointed or retained for the person named in the petition and, in those cases in which the person named in the petition is a prisoner, to the warden or superintendent of the correctional facility in which the person is then confined. The warden or superintendent shall cause the petition to be delivered to the person and shall certify the delivery to the clerk. In addition, a written explanation of the sexually violent predator involuntary commitment process and the statutory protections associated with the process shall be given to the person at the time the petition is delivered.
B. Prior to any hearing under this section, the judge shall ascertain if the person whose commitment is sought is represented by counsel and, if he is not represented by counsel, the judge shall appoint an attorney to represent him. However, if the person requests an opportunity to employ counsel, the court shall give him a reasonable opportunity to employ counsel at his own expense.
C. At the probable cause hearing, the judge shall (i) verify the person's identity and (ii) determine whether probable cause exists to believe that the person is a sexually violent predator. In the case of a prisoner in the custody of the Department of Corrections, if the judge finds that there is not probable cause to believe that the person is a sexually violent predator, the judge shall dismiss the petition, and the person shall remain in the custody of the Department of Corrections until his scheduled date of release from prison. In the case of a defendant, if the judge finds that there is not probable cause to believe the defendant is a sexually violent predator, the judge shall dismiss the petition and order that the defendant be discharged, involuntarily admitted pursuant to §§ 37.2-814 through 37.2-819, or certified for admission pursuant to § 37.2-806.
§ 37.2-907 Right to assistance of experts; compensation.
A. Any person who is the subject of a petition under this
chapter shall have, prior to trial, the right to employ experts at his own
expense to perform examinations and testify on his behalf. However, if a person
has not employed an expert and requests expert assistance, the judge shall
appoint such experts as he deems necessary to perform examinations and
participate in the trial on the person's behalf. Any expert appointed to assist
the person on matters relating to the person's mental health, including
examination, evaluation, diagnosis, and treatment, shall have the
qualifications required by subsection B of § 37.2-904. Any expert employed to
assist the person on matters relating to the person's mental health shall be a
licensed psychiatrist or licensed clinical psychologist who is skilled in the
diagnosis and treatment of mental abnormalities and disorders associated with
violent sex offenders and who is not a member of the CRC. Any expert
employed or appointed pursuant to this section shall have reasonable access to
all relevant medical and psychological records and reports pertaining to the
person he has been employed or appointed to assist.
B. Each psychiatrist, psychologist, or other expert appointed by the court to render professional service pursuant to this chapter who is not regularly employed by the Commonwealth, except by the University of Virginia School of Medicine and the Virginia Commonwealth University School of Medicine, shall receive a reasonable fee for such service. The fee shall be determined in each instance by the court that appointed the expert, in accordance with guidelines established by the Supreme Court after consultation with the Department. The fee shall not exceed $5,000. However, in addition, if any such expert is required to appear as a witness in any hearing held pursuant to this chapter, he shall receive mileage and a fee of $750 for each day during which he is required to serve. An itemized account of expenses, duly sworn to, must be presented to the court, and, when allowed, shall be certified to the Supreme Court for payment out of the state treasury, and shall be charged against the appropriations made to pay criminal charges. Allowance for the fee and for the per diem authorized shall also be made by order of the court, duly certified to the Supreme Court, for payment out of the appropriation to pay criminal charges.
§ 37.2-908. Trial; right to trial by jury; standard of proof; discovery.
A. Within 90 days after the completion of the probable cause hearing held pursuant to § 37.2-906, the court shall conduct a trial to determine whether the person who is the subject of the petition is a sexually violent predator. A continuance extending the case beyond the 90 days may be granted to either the Attorney General or the person who is the subject of the petition only upon good cause shown.
B. The Attorney General or the person who is the subject of the petition shall have the right to a trial by jury. Seven persons from a panel of 13 shall constitute a jury in such cases. If a jury determines a person to be a sexually violent predator, a unanimous verdict shall be required. If no demand is made by either party for a trial by jury, the trial shall be before the court.
C. The court or jury shall determine whether, by clear and convincing evidence, the person who is the subject of the petition is a sexually violent predator. If the court or jury does not find clear and convincing evidence that the person is a sexually violent predator, the court shall, in the case of a prisoner, direct that he be returned to the custody of the Department of Corrections. The Department of Corrections shall immediately release him if his scheduled release date has passed, or hold him until his scheduled release date. In the case of a defendant, if the court or jury does not find by clear and convincing evidence that the defendant is a sexually violent predator, the court shall order that the defendant be discharged, involuntarily admitted pursuant to §§ 37.2-814 through 37.2-819, or certified for admission pursuant to § 37.2-806.
D. If the court or jury finds the person to be a sexually violent predator, the court shall then determine whether the person shall be fully committed or placed on conditional release. If the court finds, in its determination of treatment needs, that alternatives to involuntary secure inpatient treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to involuntary secure inpatient treatment, the judge shall by written order and specific findings so certify and order that the person be committed to the custody of the Department for appropriate inpatient treatment in a secure facility designated by the Commissioner. Persons committed pursuant to this chapter are subject to the provisions of § 19.2-174.1 and Chapter 11 (§ 37.2-1100 et seq.).
E. If the court determines not to order full commitment, the court shall continue the case for not less than 30 days nor more than 60 days and shall require the Commissioner to submit a report to the court, the Attorney General, and counsel for the person suggesting possible alternatives to full commitment. The court shall then reconvene the hearing and receive testimony on the possible alternatives to full commitment. At the conclusion of the hearing, if the court finds, in determining the treatment needs of a person found to be a sexually violent predator, that less restrictive alternatives to involuntary secure inpatient treatment have been investigated and are deemed suitable, and if the judge finds specifically that the person meets the criteria for conditional release set forth in § 37.2-912, the judge shall order outpatient treatment, day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to Chapter 11 (§ 37.2-1100 et seq.), or such other appropriate course of treatment as may be necessary to meet the needs of the individual. The court shall also order the person to be subject to electronic monitoring of his location by means of a GPS (Global Positioning System) tracking device, or other similar device, at all times while he is on conditional release.
F. The Department shall recommend a specific course of treatment and programs for provision of such treatment and shall monitor the person's compliance with such treatment as may be ordered by the court under this section, unless the person is on parole or probation, in which case the parole or probation officer shall monitor the person's compliance. The person's failure to comply with involuntary outpatient treatment as ordered by the court may be admitted into evidence in subsequent hearings held pursuant to the provisions of this chapter. Upon failure of the person to adhere to the terms of the involuntary outpatient treatment, the judge may revoke the same and, upon notice to the person undergoing involuntary outpatient treatment and after a hearing, order the person committed as a sexually violent predator for inpatient treatment at a secure facility designated by the Commissioner.
G. In the event of a mistrial, the court shall direct that the prisoner remain in the secure custody of the Department of Corrections or the defendant remain in the secure custody of the Department until another trial is conducted. Any subsequent trial following a mistrial shall be held within 90 days of the previous trial.
H. All proceedings conducted hereunder are civil
proceedings. However, no discovery other than that provided in § 37.2-901 shall
be allowed without prior leave of the court, which may deny or limit discovery
in any such proceeding. No less than 30 days prior to the trial of the matter,
any expert employed or appointed pursuant to § 37.2-907 shall prepare a written
report detailing his findings and conclusions and shall submit the report,
along with all supporting data, to the court, the Attorney General, and counsel
for the person. Under no circumstances shall the prisoner or defendant be
entitled to receive a copy of the victim impact statement or the presentence
investigation report. However, counsel for the prisoner or defendant and any
expert employed or appointed pursuant to § 37.2-907 may review the victim
impact statement or presentence investigation report outside the presence of
the prisoner or defendant. The Attorney General shall file with the clerk
copies of any relevant presentence reports, postsentence reports, and victim
impact statements in his possession, withholding identifying information about
victims. Such filings shall be held by the court in confidence and reviewable
only by the court, the Attorney General, and the counsel for the prisoner or
defendant pursuant to this section possess and copy the victim impact
statement or presentence or postsentence report for use at the trial. Within
30 days after the case is finally disposed of, counsel for the prisoner or
defendant and any expert employed or appointed pursuant to § 37.2-907 shall
return all copies of the victim impact statements and presentence and postsentence
reports to the Attorney General. However, in no event shall the prisoner
or defendant be permitted to possess or copy a victim impact statement or
presentence or postsentence report.
§ 37.2-910. Review of continuation of secure inpatient treatment hearing; procedure and reports; disposition.
A. The committing court shall conduct a hearing 12 months after the date of commitment to assess each committed person's need for secure inpatient treatment. A hearing for assessment shall be conducted at yearly intervals for five years and at biennial intervals thereafter. The court shall schedule the matter for hearing as soon as possible after it becomes due, giving the matter priority over all pending matters before the court.
B. Prior to the hearing, the Commissioner shall provide to the
court a report reevaluating the committed person's condition and recommending
treatment. The report shall be prepared by a licensed psychiatrist or a
licensed clinical psychologist skilled in the diagnosis and treatment of mental
abnormalities and personality disorders associated with violent sex
offenders and qualified by training and experience to perform forensic
evaluations. If the Commissioner's report recommends discharge or the committed
person requests discharge, the committed person's condition and need for secure
inpatient treatment shall be evaluated by a second person with such credentials
who is not currently treating the committed person. Any professional person who
conducts a second evaluation of a committed person shall submit a report of his
findings to the court and the Commissioner. A copy of any report submitted
pursuant to this subsection shall be sent to the Attorney General.
C. The burden of proof at the hearing shall be upon the Commonwealth to prove to the court by clear and convincing evidence that the committed person remains a sexually violent predator.
D. If the court finds, based upon the report and other
evidence provided at the hearing, that the committed person's condition has
so changed that he person is no longer a sexually violent predator,
the court shall (i) release the committed person from secure inpatient
treatment if he does not need it and does not meet the criteria for
conditional release set forth in § 37.2-912, provided the court has approved a
discharge plan prepared by the Department or (ii) place the committed person on
conditional release if he meets the criteria for conditional release and the
court has approved a conditional release plan prepared by the Department. However,
if . If the court finds that the committed person remains a sexually
violent predator, it shall order that he remain in the custody of the
Commissioner for secure inpatient hospitalization and treatment or
that he be conditionally released. To determine if the committed person
shall be conditionally released, the court shall determine if the person meets
the criteria for conditional release set forth in § 37.2-912. If the court
orders that the person be conditionally released, the court shall allow the Department
no less than 30 days and no more than 60 days to prepare a conditional release
plan. If the court places the person on conditional release, the court shall
order the person to be subject to electronic monitoring of his location by
means of a GPS (Global Positioning System) tracking device, or other similar
device, at all times while he is on conditional release.
§ 37.2-912. Conditional release; criteria; conditions; reports.
A. At any time the court considers the committed person's need for secure inpatient treatment pursuant to this chapter, it shall place the committed person on conditional release if it finds that (i) based on consideration of the factors that the court must consider in its commitment decision, he does not need secure inpatient treatment but needs outpatient treatment or monitoring to prevent his condition from deteriorating to a degree that he would need secure inpatient treatment; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the committed person, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety. The court shall subject a conditionally released committed person to the orders and conditions it deems will best meet the committed person's need for treatment and supervision and best serve the interests of justice and society. In all cases of conditional release, the court shall order the person to be subject to electronic monitoring of his location by means of a GPS (Global Positioning System) tracking device, or other similar device, at all times while he is on conditional release.
The Department or, if the person is on parole or probation, the person's parole or probation officer shall implement the court's conditional release orders and shall submit written reports to the court on the committed person's progress and adjustment in the community no less frequently than every six months. The Department or, if the person is on parole or probation, the person's parole or probation officer shall send a copy of each written report submitted to the court and copies of all correspondence with the court pursuant to this section to the Attorney General and the Commissioner.
B. Notwithstanding any other provision of law, when any person is placed on conditional release under this article, the Department of Corrections shall provide to the Department of Mental Health, Mental Retardation and Substance Abuse Services, or if the person is on parole or probation, the person's parole or probation officer, all relevant criminal history information, medical and mental health records, presentence and postsentence reports and victim impact statements, and the mental health evaluations performed pursuant to subsection B of § 37.2-904 and § 37.2-907, for use in the management and treatment of the person placed on conditional release. Any information or document provided pursuant to this subsection shall not be subject to disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
§ 37.2-919. Commission of new criminal offense by person committed to Department.
If a person committed to the Department of Mental Health, Mental Retardation and Substance Abuse Services is arrested for a felony or Class 1 or 2 misdemeanor offense, he shall be transported to a judicial officer forthwith for a bond determination in accordance with the provisions of § 19.2-80. If the judicial officer admits the accused to bail, he shall, upon his admission to bail, be immediately transported back into the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services. If, after trial for this offense, no active period of incarceration is imposed, or if the person is acquitted or the charges are withdrawn or dismissed, he shall be returned to the Department of Mental Health, Mental Retardation and Substance Abuse Services pursuant to his commitment. If a period of active incarceration of 12 months or longer is imposed or any suspended sentence is revoked resulting in the person being returned to the Department of Corrections for a period of active incarceration of 12 months or longer, the person shall not be entitled to an annual or biennial review hearing pursuant to § 37.2-910 until 12 months after he has been returned to the custody of the Commissioner. Such reincarceration shall toll the provisions of § 37.2-910.
§ 37.2-920. Appeal by Attorney General; emergency custody order.
In any case in which the Attorney General successfully appeals the trial court's denial of probable cause, denial of civil commitment or conditional release, or discharge or placement on conditional release after an annual review hearing, upon the issuance of the mandate by the Supreme Court of Virginia, the trial court shall immediately issue an emergency custody order to any local law-enforcement official to have the person taken into custody and held in the local correctional facility, pending further appropriate proceedings.
§ 63.2-105. Confidential records and information concerning social services; child-protective services and child-placing agencies.
A. The local department may disclose the contents of records
and information learned during the course of a child-protective services
investigation or during the provision of child-protective services to a family,
without a court order and without the consent of the family, to a person having
a legitimate interest when in the judgment of the local department such
disclosure is in the best interest of the child who is the subject of the
records. Persons having a legitimate interest in child-protective services
records of local departments include, but are not limited to, (i) any person
who is responsible for investigating a report of known or suspected abuse or
neglect or for providing services to a child or family that is the subject of a
report, including multidisciplinary teams and family assessment and planning
teams referenced in subsections J and K of § 63.2-1503, law-enforcement
agencies and attorneys for the Commonwealth; (ii) child welfare or human
services agencies of the Commonwealth or its political subdivisions when those
agencies request information to determine the compliance of any person with a
child-protective services plan or an order of any court; (iii) personnel of the
school or child day program as defined in § 63.2-100 attended by the child so
that the local department can receive information from such personnel on an
ongoing basis concerning the child's health and behavior, and the activities of
the child's custodian; and (iv) a parent, grandparent, or any other
person when such parent, grandparent or other person would be considered by the
local department as a potential caretaker of the child in the event the local
department has to remove the child from his custodian; and (v) the
Commitment Review Committee and the Office of the Attorney General for the
purposes of sexually violent predator civil commitments pursuant to Chapter 9
(§ 37.2-900 et seq.) of Title 37.2.
Whenever a local department exercises its discretion to release otherwise confidential information to any person who meets one or more of these descriptions, the local department shall be presumed to have exercised its discretion in a reasonable and lawful manner.
B. Any person who has not been legally adopted in accordance with the provisions of this title and who was a child for whom all parental rights and responsibilities have been terminated, shall not have access to any information from a child-placing agency with respect to the identity of the biological family, except (i) upon application of the child who is 18 or more years of age, (ii) upon order of a circuit court entered upon good cause shown, and (iii) after notice to and opportunity for hearing by the applicant for such order and the child-placing agency or local board that had custody of the child.
An eligible person who is a resident of Virginia may apply for the court order provided for herein to (a) the circuit court of the county or city where the person resides or (b) the circuit court of the county or city where the principal office of the child-placing agency or local board that controls the information sought by the person is located. An eligible person who is not a resident of Virginia shall apply for such a court order to the circuit court of the county or city where the principal office of the child-placing agency or local board that controls the information sought by the person is located.
If the identity and whereabouts of the biological family are known to the agency or local board, the court may require the agency or local board to advise the biological parents of the pendency of the application for such order. In determining good cause for the disclosure of such information, the court shall consider the relative effects of such action upon the applicant for such order and upon the biological parents.