SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2007 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-169.3, 37.2-900, 37.2-901 through 37.2-905, 37.2-906, 37.2-907, 37.2-908, 37.2-910, and 37.2-912 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 37.2-905.1 and 37.2-905.2 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 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, or (iii) reviewed for commitment pursuant to Chapter
9 (§ 37.2-900 et seq.) of Title 37.2, or (iv) certified pursuant to §
37.2-806. However, if the court finds that the defendant is incompetent and
is likely to remain so for the foreseeable future and the defendant has been
charged with a sexually violent offense, as defined in § 37.2-900, he shall be
reviewed for commitment pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title
37.2. 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 § 37.2-904, 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 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.
§ 37.2-900. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Commissioner" means the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services.
"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 this chapter.
"Department" means the Department of Mental Health, Mental Retardation and Substance Abuse Services.
"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.
"Respondent" means the person who is subject of a petition filed under this chapter.
"Sexually violent offense" means a felony under (i)
a felony conviction under former § 18-54, former § 18.1-44, subdivision
5 of § 18.2-31, § 18.2-61, 18.2-67.1, or 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;
(iii) subdivision 1 of § 18.2-31 where the abduction was committed with
intent to defile the victim; (iv) § 18.2-32 when the killing was in the
commission of, or attempt to commit rape, forcible sodomy, or inanimate or
animate object sexual penetration; (v) 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; or (iv
vi) 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.
§ 37.2-901. Rights of prisoners and defendants.
In hearings and trials held pursuant to this chapter, prisoners and defendants shall have the following rights:
1. To receive adequate notice of the proceeding.
2. To be represented by counsel.
3. To remain silent or to testify.
4. To be present during the hearing or trial.
5. To present evidence and to cross-examine witnesses.
6. To view and copy all petitions and reports in the court file.
In no event shall a prisoner or defendant be permitted, as a part of any proceedings under this chapter, to raise challenges to the validity of his prior criminal or institutional convictions, charges, or sentences, or the computation of his term of confinement.
In the event the prisoner or defendant refuses to cooperate with the mental health examination required under § 37.2-904, the court may admit evidence of such refusal and may bar the prisoner or defendant from introducing his own expert psychiatric or psychological evidence.
§ 37.2-902. Commitment Review Committee; membership.
A. The Director shall establish a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners in the custody of the Department of Corrections for the purposes of this chapter. The CRC shall be under the supervision of the Department of Corrections. Members of the CRC and any licensed psychiatrists or licensed clinical psychologists providing examinations under subsection B of § 37.2-904 shall be immune from personal liability while acting within the scope of their duties except for gross negligence or intentional misconduct.
B. The CRC shall consist of seven members to be appointed as follows:
(i) three full-time employees of the Department of Corrections, appointed by
the Director; (ii) three full-time employees of the Department, appointed by
the Commissioner, at least one of whom shall be a psychiatrist or psychologist
licensed to practice in the Commonwealth who is skilled in the diagnosis of
mental abnormalities and personality disorders associated with violent diagnosis,
treatment and risk assessment of sex offenders; and (iii) one assistant or
deputy attorney general, appointed by the Attorney General. Initial
appointments by the Director and the Commissioner shall be for terms as
follows: one member each for two years, one member each for three years, and
one member each for four years. The initial appointment by the Attorney General
shall be for a term of four years. Thereafter, all appointments to the CRC
shall be for terms of four years, and vacancies shall be filled for the
unexpired terms. Five Four members shall constitute a quorum.
C. The CRC shall meet at least monthly and at other times as it deems appropriate. The CRC shall elect a chairman from its membership to preside during meetings.
§ 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 diagnosis,
treatment and risk assessment of sex offenders.
B. The Director shall establish and maintain a database of each prisoner in his custody who is (i) incarcerated for a sexually violent offense or (ii) serving or will serve concurrent or consecutive time for 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 five or more on the
Static-99 or a like similar score on a comparable, scientifically
validated instrument designated by the Commissioner, or a score of four on the
Static-99 or a like score on a comparable, scientifically validated instrument
if the sexually violent offense mandating the prisoner's evaluation under this
section was a violation of (a) clause (iii) of subsection A of § 18.2-61;
(b) subdivision A 1 of § 18.2-67.1; (c) subdivision A 1 of § 18.2-67.2; or (d)
subdivision A 1 of § 18.2-67.3 where the victim was under the age of 13 and
suffered physical bodily injury and any of the following where the victim
was under the age of 13: § 18.2-61, 18.2-67.1, or 18.2-67.2.
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 defendants eligible for commitment as sexually violent predators; mental health examination; recommendation.
A. Within 90 120 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 a 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, and risk assessment
of 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 may be based
on:
1. Consideration of the prisoner's score on the Static-99
or a comparable, scientifically validated instrument designated by the
Commissioner; and
2. A An actuarial evaluation, clinical evaluation,
or any other information or evaluation determined by the CRC to be relevant,
including but not limited to, a review of (i) the prisoner's or incompetent
defendant's institutional history and treatment record, if any; (ii) his
criminal background; and (iii) any other factor that is relevant to the
determination of whether 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 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
may recommend that a prisoner or incompetent defendant enter a
conditional release program if it finds that (i) 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, 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. The mental health professional shall
not disseminate the contents of the reports or the actual reports to any person
or entity and shall only utilize the reports 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 F. 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 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, (iii) the competency report completed pursuant to § 19.2-169.1,
(iv) the report and recommendations prepared by the director of the defendant's
treating facility pursuant to § 19.2-169.3, (v) the mental health evaluation
completed pursuant to § 37.2-904, (vi) the defendant's criminal offense
history, (vii) information about the alleged crime, and (viii) any other factor
relevant to the determination of whether the defendant should be civilly
committed.
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. 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.
§ 37.2-905.1. Substantial compliance.
The provisions of §§ 37.2-903 and 37.2-904 are procedural and not substantive or jurisdictional. Absent a showing of failure to follow these provisions as a result of gross negligence or willful misconduct, it shall be presumed that there has been substantial compliance with these provisions.
§ 37.2-905.2. Access to records.
Notwithstanding any other provision of law and for the purpose of performing their duties and obligations under this chapter, the Department of Corrections, the Commitment Review Committee, the Department, and the Office of the Attorney General are authorized to review and receive copies of all records from all state and local courts, clerks, departments, agencies, boards, and commissions, including but not limited to: offices of attorneys for the Commonwealth, Virginia State Police, local police and sheriffs' departments, local schools, colleges and universities, Department of Juvenile Justice, court services units, community services boards, Department, state and local departments of social services and probation and parole districts. Upon request, the records, documents, notes, recordings or other information of any kind shall be provided to the Department of Corrections, the Commitment Review Committee, the Department, or the Office of the Attorney General within 20 days of receiving such request. Notwithstanding any other provision of law, the Department of Corrections, the Commitment Review Committee, the Department, and the Office of the Attorney General may possess, copy and use presentence reports, postsentence reports, and victim impact statements for all lawful purposes under this chapter.
§ 37.2-906. Probable cause hearing.
A. Upon the filing of a petition alleging that a person
the respondent 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
respondent 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 respondent upon good
cause shown. A or by agreement of the parties. The clerk shall mail 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 respondent and to the person in
charge of the facility in which the person respondent is then
confined. The warden or superintendent person in charge of the
facility shall cause the petition to be delivered to the person
respondent 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 respondent 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 respondent 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
respondent 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 respondent's identity and (ii) determine whether
probable cause exists to believe that the person he is a sexually
violent predator. The existence of any prior convictions or charges may be
shown with affidavits or documentary evidence. The details underlying the
commission of an offense or behavior that led to a prior conviction or charge
may be shown by affidavits or documentary evidence, including but not limited
to, hearing and/or trial transcripts, probation and parole and sentencing
reports, police and sheriffs' reports, and mental health evaluations. If
he meets the qualifications set forth in subsection B of § 37.2-904, the expert
witness may be permitted to testify at the probable cause hearing as to his
diagnosis, his opinion as to whether the respondent meets the definition of a
sexually violent predator, his recommendations as to treatment, and the basis
for his opinions. Such opinions shall not be dispositive of whether the
respondent is a sexually violent predator.
D. 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 respondent is a sexually violent
predator, the judge shall dismiss the petition, and the person respondent
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 respondent
is a sexually violent predator, the judge shall dismiss the petition and order
that the defendant respondent 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, Upon a
finding of probable cause the judge shall ascertain if the respondent is
requesting expert assistance. If the respondent requests expert assistance and
has not employed an expert at his own expense, the judge shall appoint such
experts as he deems necessary to perform examinations and participate in the
trial on the person's behalf; however, if the respondent refused to
cooperate pursuant to § 37.2-901 any expert appointed to assist the respondent
shall not be permitted to testify at trial. 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 employed
or appointed pursuant to this section shall be a licensed psychiatrist or
licensed clinical psychologist who is skilled in the diagnosis and,
treatment, and risk assessment of mental abnormalities and disorders
associated with 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 respondent.
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
shall 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 respondent
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 respondent upon good cause shown or
by agreement of the parties.
B. The Attorney General or the person who is the subject of
the petition respondent 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 that the respondent is 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
respondent is a sexually violent predator. If the court or jury does not find
clear and convincing evidence that the person respondent 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 he is a sexually violent predator, the
court shall order that the defendant he be discharged,
involuntarily admitted pursuant to §§ 37.2-814 through 37.2-819, or certified
for admission pursuant to § 37.2-806.
If he meets the qualifications set forth in subsection B of § 37.2-904 or 37.2-907, any expert witness may be permitted to testify at the trial as to his diagnosis, his opinion as to whether the respondent meets the definition of a sexually violent predator, his recommendation as to treatment, and the basis for his opinions. Such opinions shall not be dispositive of whether the respondent is a sexually violent predator.
D. If the court or jury finds the person respondent
to be a sexually violent predator, the court shall then determine whether
that the person respondent shall be fully committed or
placed on conditional release or continue the trial for not less than 30
days nor more than 60 days pursuant to subsection E. In making its
determination, the court may consider (i) the nature and circumstances of the
sexually violent offense for which the person respondent was
charged or convicted, including the age and maturity of the victim; (ii) the
results of any actuarial test, including the likelihood of recidivism; (iii)
the results of any diagnostic tests previously administered to the person
respondent under this chapter; (iv) the person's respondent's
mental history, including treatments for mental illness or mental disorders,
participation in and response to therapy or treatment, and any history of
previous hospitalizations; (v) the person's respondent's present
mental condition; (vi) the person's respondent's disciplinary
record and types of infractions he may have committed while incarcerated or
hospitalized; (vii) the person's respondent's living arrangements
and potential employment if he were to be placed on conditional release; (viii)
the availability of transportation and appropriate supervision to ensure
participation by the person respondent in necessary treatment;
and (ix) any other factors that the court deems relevant. If the court
finds, in its determination of treatment needs, that alternatives to
involuntary secure inpatient treatment have been investigated and deemed
unsuitable and If after considering the factors listed in § 37.2-912,
the court finds that there is no suitable less restrictive
alternative to involuntary secure inpatient treatment, the judge shall by
written order and specific findings so certify and order that the person
respondent be committed to the custody of the Department for appropriate
inpatient treatment in a secure facility designated by the Commissioner. Persons
Respondents 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 to continue the case for not less than 30 days nor
more than 60 days and trial to receive additional evidence on possible
alternatives to full commitment, the court shall require the Commissioner
to submit a report to the court, the Attorney General, and counsel for the person
respondent suggesting possible alternatives to full commitment. The court
shall then reconvene the hearing trial and receive testimony on
the possible alternatives to full commitment. At the conclusion of the
hearing trial, if the court finds, in determining the treatment
needs of a person respondent found to be a sexually violent
predator, that less restrictive alternatives to involuntary secure inpatient
treatment have been investigated and are deemed suitable, and that any such
alternatives will be able to accommodate needed and appropriate supervision and
treatment plans for the person respondent, including but not
limited to, therapy or counseling, access to medications, availability of
travel, location of residence, and regular psychological monitoring of the person
respondent if appropriate, including polygraph examinations, penile
plethysmograph testing, or sexual interest testing, if necessary. Access to
anti-androgen medications or other medication prescribed to lower blood serum
testosterone shall not be used as a primary reason for determining that less
restrictive alternatives are appropriate pursuant to this chapter. If the judge
finds specifically that the person respondent 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
that the respondent be returned to the custody of the Department of Corrections
to be processed for conditional release as a sexually violent predator,
pursuant to his conditional release plan. The court shall also order the person
respondent 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
respondent's compliance with such treatment as may be ordered by the
court under this section, unless the person respondent is on
parole or probation, in which case the parole or probation officer shall
monitor the person's his compliance. The person's respondent'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 respondent
to adhere to the terms of the involuntary outpatient treatment, the judge may
revoke the same and, upon notice to the person respondent
undergoing involuntary outpatient treatment and after a hearing, order the person
respondent 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 prior to the probable cause hearing. After the probable cause
hearing, 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 this chapter 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 respondent. 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 Counsel for the prisoner or defendant respondent
and any expert employed or appointed pursuant to § 37.2-907 this
chapter may 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; however, neither counsel for the
respondent nor any expert shall disseminate the contents of the reports or the
actual reports to any person or entity and shall only utilize the reports in
examinations, creating reports, and testifying in any proceedings pursuant to
this chapter. In no event shall the prisoner or defendant
respondent 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 respondent'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. A continuance extending the review may be granted to
either the Attorney General or the respondent upon good cause shown or by
agreement of the parties.
B. Prior to the hearing, the Commissioner shall provide to the
court a report reevaluating the committed person's respondent'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
sex offenders and qualified by training and experience to perform forensic
evaluations. diagnosis, treatment and risk assessment of sex offenders.
If the Commissioner's report recommends discharge or the committed person
respondent requests discharge, the committed person's
respondent'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 respondent. Any professional person
who conducts a second evaluation of a committed person respondent
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 respondent 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 respondent
is no longer a sexually violent predator, the court shall release the committed
person respondent from secure inpatient treatment. If the court
finds that the committed person respondent 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 respondent
shall be conditionally released, the court shall determine if the person
respondent meets the criteria for conditional release set forth in §
37.2-912. If the court orders that the person respondent 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. Any such
plan must be able to accommodate needed and appropriate supervision and
treatment plans for the person respondent, including but not
limited to, therapy or counseling, access to medications, availability of
travel, location of residence, and regular psychological monitoring of the person
respondent if called for, including polygraph examinations, penile
plethysmograph testing, or sexual interest testing, if necessary. Access to
anti-androgen medications or other medication prescribed to lower blood serum
testosterone shall not be used as a primary reason for determining that less
restrictive alternatives are appropriate pursuant to this chapter.
If the court places the person respondent on
conditional release, the court shall order the person respondent
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
respondent's need for secure inpatient treatment pursuant to this chapter,
it shall place the committed person respondent 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 respondent, if conditionally released, would comply with the
conditions specified; and (iv) conditional release will not present an undue
risk to public safety. In making its determination, the court may consider (i)
the nature and circumstances of the sexually violent offense for which the person
respondent was charged or convicted, including the age and maturity of the
victim; (ii) the results of any actuarial test, including the likelihood of
recidivism; (iii) the results of any diagnostic tests previously administered
to the person respondent under this chapter; (iv) the person's
respondent's mental history, including treatments for mental illness or
mental disorders, participation in and response to therapy or treatment, and
any history of previous hospitalizations; (v) the person's respondent's
present mental condition; (vi) the person's respondent's response
to treatment while in secure inpatient treatment or on conditional release,
including his disciplinary record and any infractions; (vii) the person's
respondent's living arrangements and potential employment if he were to be
placed on conditional release; (viii) the availability of transportation and
appropriate supervision to ensure participation by the person
respondent in necessary treatment; and (ix) any other factors that the
court deems relevant. The court shall subject a conditionally released
committed person the respondent to the orders and conditions it
deems will best meet the committed person's his 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
respondent 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. A continuance extending the
review may be granted to either the Attorney General or the respondent upon
good cause shown or by agreement of the parties.
The Department or, if the person respondent is
on parole or probation, the person's respondent'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
respondent's progress and adjustment in the community no less frequently
than every six months. The Department of Mental Health, Mental Retardation and
Substance Abuse Services is authorized to contract with the Department of
Corrections to provide services for the monitoring and supervision of
persons committed as sexually violent predators who are on conditional
release.
The Department or, if the person respondent is
on parole or probation, the person's respondent'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 respondent is placed on conditional release under this
article, the Department of Corrections and the Office of the Attorney
General shall provide to the Department of Mental Health, Mental
Retardation and Substance Abuse Services, or if the person
respondent is on parole or probation, the person's respondent'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 this chapter, for use in the
management and treatment of the person respondent 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.).