HB1692 (2006) Detail

Establishing the New Hampshire sexual predators act.


CHAPTER 327

HB 1692-FN – FINAL VERSION

22Mar2006… 1422h

22Mar2006… 1507h

04/13/06 1700s

24May2006… 2311cofc

24May2006… 2409eba

2006 SESSION

06-2036

04/01

HOUSE BILL 1692-FN

AN ACT establishing the New Hampshire sexual predators act.

SPONSORS: Rep. Batula, Hills 19; Sen. Foster, Dist 13

COMMITTEE: Criminal Justice and Public Safety

AMENDED ANALYSIS

This bill revises the statutes concerning sexual predators, and establishes a committee to identify and evaluate classification and risk assessment procedures for convicted sex offenders and offenders against children.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

22Mar2006… 1422h

22Mar2006… 1507h

04/13/06 1700s

24May2006… 2311cofc

24May2006… 2409eba

06-2036

04/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

AN ACT establishing the New Hampshire sexual predators act.

Be it Enacted by the Senate and House of Representatives in General Court convened:

327:1 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, III to read as follows:

III. “Sexual offender” means a person who is required to register as a result of any violation or attempted violation of:

(a) RSA 632-A:2, 632-A:3, 632-A:4, I(a), 632-A:4, I(b) if the actor was 21 years of age or older at the time of the offense, 645:1, II, or 645:1, III; [or]

(b) A law of another state or the federal government reasonably equivalent to a violation listed in subparagraph (a)[.]; or

(c) Any other criminal offense which is not specifically listed in subparagraph (a) if the court finds by clear and convincing evidence at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification and protection of the public would be furthered by requiring the person to register. In determining whether the offender should be required to register, the court may consider the offender’s prior criminal history and any other relevant information. Duration of the registration shall be for a period of time as required by the court but not less than 10 years from the date of release from custody. The court shall also make a finding as to whether the offender’s name and registration information shall appear on the public list authorized by RSA 651-B:7. In determining whether the offender’s name shall appear on the public list, the court shall consider whether the victim was a minor at the time of the crime; the nature of the offenses that are currently listed on the public list; whether public safety would be furthered by including the offender on the public list; and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the finding. The court shall provide the defendant an opportunity to be heard on the issue prior to the imposition of the registration requirement and shall state on the record the reasons for its findings and the reasons for requiring registration.

327:2 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, V to read as follows:

V. “Offender against children” means a person who is required to register as a result of any violation or attempted violation of:

(a) Any of the following offenses, where the victim was under the age of 18 at the time of the offense, RSA 632-A:2, RSA 632-A:3, RSA 633:1, RSA 633:2, RSA 633:3, RSA 639:2, or RSA 645:2; or

(b) RSA 169-B:41, II, 639:3, III, 649-A:3, 649-B:3, 649-B:4 or 650:2, II; or

(c) A law of another state or the federal government reasonably equivalent to a violation listed in subparagraph (a) or (b)[.] ; or

(d) Any other criminal offense committed against a victim under the age of 18 at the time of the offense which is not specifically listed in subparagraph (a) or (b) if the court finds by clear and convincing evidence at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification and protection of the public would be furthered by requiring the person to register. In determining whether the offender should be required to register, the court may consider the offender’s prior criminal history and any other relevant information. Duration of the registration shall be for a period of time as required by the court but not less than 10 years from the date of release from custody. The court shall also make a finding as to whether the offender’s name and registration information shall appear on the public list authorized by RSA 651-B:7. In determining whether the offender’s name shall appear on the public list, the court shall consider the nature of the offenses that are currently listed on the public list; whether public safety would be furthered by including the offender on the public list; and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the finding. The court shall provide the defendant an opportunity to be heard on the issue prior to the imposition of the registration requirement and shall state on the record the reasons for its findings and the reasons for requiring registration.

327:3 Registration of Criminal Offenders; Definitions. RSA 651-B:1, VII is repealed and reenacted to read as follows:

VII.(a) “Required to register” means that a sexual offender or offender against children was charged with an offense or an attempt to commit an offense listed in this chapter that resulted in one of the following outcomes:

(1) Conviction;

(2) A finding of not guilty by reason of insanity;

(3) An adjudication as a juvenile delinquent and the court at the time of the dispositional hearing finds, pursuant to RSA 169-B:19, that the juvenile is required to register;

(4) An adjudication of juvenile delinquency or its equivalent in another state or territory of the United States if the juvenile is required to register under the laws of that jurisdiction; or

(5) An order committing the person as a sexually violent predator pursuant to RSA 135-E.

(b) A juvenile certified to stand trial as an adult, who is convicted, found not guilty by reason of insanity, or committed as a sexually violent predator, shall be treated as an adult for all purposes under this chapter.

327:4 New Paragraph; Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1 by inserting after paragraph VII the following new paragraph:

VIII. Notwithstanding RSA 21:6-a, “residence” means a place where a person is living or temporarily staying for more than a total of 5 days during a one-month period, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.

327:5 Registration of Criminal Offenders; Registration. Amend RSA 651-B:2 to read as follows:

651-B:2 Registration.

I. Every sexual offender or offender against children shall be registered with the department of safety, division of state police, as provided in this [subdivision] chapter.

II. Upon receipt of information pursuant to RSA 106-B:14 concerning [the conviction of] the disposition of any charges against any sex offender or offender against children, the division shall register such person and shall include the relevant information in the law enforcement name search (LENS) system.

III. Upon receipt from any out-of-state law enforcement agency of information that a sex offender or offender against children has moved to New Hampshire, the division shall register such person and shall include the relevant information in the LENS system.

IV. The information that a person is required to register on the public list as a sexual offender or offender against children, including his or her qualifying offense or offenses, shall be available to law enforcement through the offender’s criminal record and motor vehicle record. If an offender’s obligation to register terminates for any reason, the department shall notify the division of motor vehicles of the change and the offender’s motor vehicle record shall no longer reflect that the person is required to register as a sexual offender or offender against children.

327:6 Registration of Criminal Offenders; Release of Certain Sexual Offenders Into The Community; Duties. Amend RSA 651-B:3 to read as follows:

651-B:3 Release of Certain Sexual Offenders Into the Community; Duties.

I. Upon release of any sexual offender or offender against children required to register, whether on probation, parole, conditional or unconditional release, completion of sentence, release from secure psychiatric care, release into the community after involuntary commitment, release from a juvenile detention facility, or for any other reason, the official in charge of such release shall notify the offender of the offender’s duty to report under this chapter. The offender shall acknowledge in writing that he has received such notice. The official shall obtain the address at which the offender expects to reside upon release and shall report such address to the department. The department shall inform the local law enforcement agency where the offender expects to reside. The division shall enter the information concerning the offender’s release and notification in the LENS system.

II. Upon receipt from any out-of-state law enforcement agency of information that a sex offender or offender against children has moved to New Hampshire, the department shall obtain the address at which the offender expects to reside and shall inform the local law enforcement agency. The department shall locate and shall serve notice upon such offender of the offender’s duty to report under this chapter. Service by the department is not required if the offender has already registered with the local law enforcement agency in which the offender resides or is located as required by this chapter. At the time of the initial registration, the [The] offender shall acknowledge in writing that the offender has received [such] notice of the duty to report. [The department shall obtain the address at which the offender expects to reside and shall inform the local law enforcement agency.] The division shall enter the information concerning the offender’s location in New Hampshire and notification in the LENS system. This paragraph shall not apply to a sexual offender or offender against children who has moved to New Hampshire and has registered with a local law enforcement agency.

III. Semi-annually, the department shall verify the address at which the offender resides by sending a letter by certified non-forwarding mail to the offender. The address verification shall be sent to the offender prior to the offender’s birthday and again prior to the offender’s 6-month semi-annual registration. The address verification shall remind the offender of the obligation to register in person on a semi-annual basis. The offender shall sign the letter and return it to the department within 10 business days of receipt. If the offender’s mailing address is to a post-office box, the department shall deliver by other means as determined by the department a letter to the offender’s residence. The offender shall sign and return the letter within 10 business days of receipt.

327:7 Registration of Criminal Offenders; Duty to Report. Amend RSA 651-B:4, I to read as follows:

I.(a)(1) Any person required to be registered under this chapter shall report in person [such person’s current mailing address, place of residence or temporary domicile, and place of employment or schooling] to the local law enforcement agency within [30] 5 business days after the person’s release as required under RSA 651-B:3, or within [30] 5 business days after the person’s date of establishment of residence in New Hampshire if the person is required to register as a result of an offense committed in another jurisdiction. Such report shall also be made semi-annually within [30] 5 business days after each anniversary of the person’s date of birth and the sixth month following the person’s date of birth and additionally within [30] 5 business days after any change of [address or place of residence] any information the person is required to report pursuant to this chapter. If an offender has more than one residence, the offender shall report in person to each local law enforcement agency having jurisdiction over each of the offender’s residences.

(2) Such person shall [also] be required to submit to a photograph taken by the law enforcement agency each time the person is required to report to the law enforcement agency under this section.

(3) Such person shall also provide the following information at the time of registration: name, age, race, sex, date of birth, height, weight, hair and eye color, address of any permanent residence and address of any current temporary residence, within the state or out of state, mailing address, date and place of any employment or schooling, and vehicle make, model, color, and license tag number. A post office box shall not be provided in lieu of a physical residential address. Such person shall also provide any additional information required by department rules adopted in accordance with RSA 651-B:8.

(b) Any nonresident sexual offender or offender against children who enters this state for the purpose of employment, with or without compensation, or to attend any public or private educational institution for a period exceeding 14 consecutive days or for an aggregate period of time exceeding 30 days during any calendar year shall report in person to the local law enforcement agency having jurisdiction over the place of employment or school within [10] 5 business days of the nonresident offender entering the state for employment or schooling, and additionally within [10] 5 business days after any change of place of employment or schooling. In the event a nonresident offender required to register under this paragraph does not have a principal place of employment, the offender shall register in person with the department in Concord. Upon the nonresident offender’s initial registration, the local law enforcement agency or the department shall notify the offender of the offender’s duty to report under this chapter. The offender shall report the address of the offender’s place of employment or schooling while in the state, the address where the offender resides out of state, and other information required by RSA 651-B:4, I(a)(3) and department rules adopted in accordance with RSA 651-B:8. Such report shall also be made semi-annually within [30] 5 business days after each anniversary of the person’s date of birth and the sixth month following the person’s date of birth, and additionally within [10] 5 business days after any change [of address or place of employment or schooling] in the information the person is required to report pursuant to this chapter.

327:8 Registration of Criminal Offenders; Change of Name or Alias, or Address; Duty to Inform. Amend RSA 651-B:5 to read as follows:

651-B:5 Change of Name or Alias, or Address; Duty to Inform.

[I.] When any person required to be registered under RSA 651-B[:4, I(a) changes residence, or their name or alias,] changes any information the person is required to report pursuant to this chapter the person shall give written notification of the [person’s new address, name, or alias] new information to the local law enforcement agency to which he or she last reported under RSA 651-B:4 within [10] 5 business days of such change of information [residence, name, or alias]. Such notice shall not relieve the person of the duty to report under RSA 651-B:4 at the new place of residence, employment, or schooling. The local law enforcement agency receiving such notice shall forward a copy to the division within 3 days after receipt. The division shall notify the local law enforcement agency at the new place of residence, employment, or schooling, or the appropriate out-of-state law enforcement agency if the new place of residence, employment, or schooling is outside New Hampshire[,]. The division [and] shall include [such change-of-address or change-of-name] any new information in the LENS system.

[II. When any nonresident person required to be registered under RSA 651-B:4, I(b) changes residence, place of employment or schooling, or their name or alias, the person shall give written notification of the person’s new address, place of employment or schooling, name, or alias to the local law enforcement agency to which he or she last reported under RSA 651-B:4 within 10 days of such change of residence, place of employment or schooling, name, or alias. Such notice shall not relieve the person of the duty to report under RSA 651-B:4 at the new place of residence. The local law enforcement agency receiving such notice shall forward a copy to the division within 3 days after receipt. The division shall notify the local law enforcement agency at the new place of residence, or the appropriate out-of-state law enforcement agency if the new place of residence is outside New Hampshire, and shall include such change-of-address or change-of-name information in the LENS system.

III. Any sexual offender or offender against children who, with or without compensation, is employed by or attends any public or private educational institution for a period exceeding 14 consecutive days, or for an aggregate period of time exceeding 30 days during any calendar year, shall give written notification of any changes to the person’s place of employment or schooling to the local law enforcement agency to which he or she last reported under RSA 651-B:4 within 10 days of such change of place of employment or schooling. The local law enforcement agency receiving such notice shall forward a copy to the division within 3 days after receipt. If the sexual offender or offender against children continues to be employed by or attend any public or private educational institution, the division shall notify the local law enforcement agency at the new place of employment or schooling, or the appropriate out-of-state law enforcement agency if the new place of employment or schooling is outside New Hampshire, and shall include such changes in the LENS system.]

327:9 Registration of Criminal Offenders; Duration of Registration. Amend RSA 651-B:6, III to read as follows:

III. Notwithstanding the provisions of paragraph II, any sexual offender or offender against children who is required to register as a result of a violation of more than one offense listed in RSA 651-B:1, III or RSA 651-B:1, V, or who is sentenced to an extended term of imprisonment pursuant to RSA 651:6, I(b) shall be registered for life.

327:10 New Paragraph; Registration of Criminal Offenders; Duration of Registration. Amend RSA 651-B:6 by inserting after paragraph III the following new paragraph:

IV. Registration of any juvenile required to register pursuant to RSA 651-B:1, VII(a)(3) or (4) shall end when the juvenile turns 17 years of age unless the court which adjudicated the juvenile as a delinquent retains jurisdiction over the juvenile pursuant to RSA 169-B:4, V, in which case registration of the juvenile shall end when the court terminates jurisdiction over the juvenile’s case. When the registration of a juvenile terminates, the department shall remove information relating to the juvenile from the LENS system and records of the juvenile’s registration shall be handled in accordance with RSA 169-B:35 and RSA 169-B:36.

327:11 Availability of Information to the Public. Amend 651-B:7, II-VI(a) to read as follows:

II.(a) The division shall maintain a separate list of all individuals registered pursuant to this chapter who are required to register as a result of any violation or attempted violation of one of the following offenses, or of any law of another state or the federal government reasonably equivalent to one of the following offenses:

(1) RSA 632-A:2, I(j).

(2) RSA 632-A:2, I(k).

[(1)](3) [Repealed.]

[(2)](4) [Repealed.]

[(3)](5) RSA 632-A:3, II, provided that the age difference between the [convicted] individual required to register and the victim was more than 3 years at the time of the offense.

[(4)](6) RSA 632-A:3, III.

[(5)](7) RSA 645:1, II-III.

[(6)](8) Any offense described in RSA 651-B:1, V.

(b)(1) The list described in subparagraph (a) shall include:

(A) The name, address, and date of birth of the registered individual.

(B) The offense for which the individual is required to register.

(C) The date and court of the adjudication on the offense for which the individual is registered.

(D) Outstanding arrest warrants, and the information listed in subparagraphs (b)(1)(A)-(C), for any sexual offender or offender against children who has not complied with the obligation to register under this chapter.

(E) A photograph or physical description of the individual, if available.

(2) Where such information is available, the list may also include:

(A) The date and court of the individual’s other adjudications, if any.

(B) Information on the profile of the victim or victims of the individual’s offense or offenses.

(C) The method of approach utilized by the individual.

(3) In no event shall the list include the identity of any victim. Sexual offenders convicted under RSA 632-A:2 shall be listed on the public list in a manner which does not disclose, directly or indirectly, that the victim and the defendant were related or members of the same household. For sexual offenders convicted under RSA 632-A:1, I, no specific reference to any statutory subparagraph shall appear on the public list.

(c) In no event shall the list made available to the public pursuant to this section include a sexual offender or offender against children who has been adjudicated as a juvenile delinquent.

III. At periodic intervals, not less frequently than once each month, the commissioner of the department of corrections, the superintendent of each county department of corrections and the commissioner of the department of health and human services shall forward to the division a statement identifying every offender who is confined in a facility under their control who is required to register as a result of a violation or attempted violation of an offense described in subparagraph II(a), and who is eligible at that time for any unsupervised work detail, release into the community following secure psychiatric care, or other assignment which may bring the offender into contact with members of the public. These statements shall include the information set forth in subparagraphs II(b)(1)(A), (B), and (C), and may also include the information set forth in subparagraphs II(b)(2)(A)-(D). In no event shall the statements include the identity of any victim. These statements shall be incorporated by the division into the list maintained under paragraph II.

IV.(a) The division shall provide a copy of the list described in this section to each local law enforcement agency at periodic intervals, through written, electronic, computerized, or other accessible means, but in no event less frequently than once each month. The list shall be made available to interested members of the public upon request to a local law enforcement agency. The department of safety may make the list available to interested members of the public through the use of the department’s official public Internet access site. The department shall adopt rules, pursuant to RSA 541-A, establishing procedures for the collection of information described in this section, the transmission of the information from the division to the local law enforcement agencies, and the conditions under which the list shall be made available to the public. These rules shall enable the public to request information about a named individual or about all listed individuals residing or confined in the state. The rules may also include provisions for the imposition of a reasonable fee to defray the administrative costs of collecting the information and making the information available to the public.

(b) Local law enforcement agencies may photograph, at the time of the registration, any individual who is required to be registered pursuant to this chapter. The consent of the registrant shall not be necessary. Such photographs may be used in the performance of any valid law enforcement function.

(c) In the discretion of the local law enforcement agency, such agency may affirmatively notify the public that an offender who is included on the public list received by the agency pursuant to subparagraph IV(a) is residing in the community.

V. Local law enforcement agencies, employees of local law enforcement agencies, [and] county and state officials, municipal and school officials, and municipalities and school districts shall be immune from civil and criminal liability for good faith conduct under this chapter, including any decision to provide or not provide affirmative notification to the public pursuant to RSA 651-B:7, IV(c). Nothing in this paragraph shall be deemed to grant any such immunity to any person for that person’s reckless or wanton conduct.

VI.(a) Notwithstanding the provisions of this section, any individual required to be registered whose name and information is contained on the list described in subparagraph II(a) and who [has been convicted] is required to register as a result of any violation or attempted violation of RSA 632-A:2, III or RSA 632-A:3, II, provided that the age difference between the [convicted] individual required to register and the victim was 3 years or less at the time of the offense and the person has no prior [convictions] adjudications requiring registration under RSA 651-B:2, may file with the clerk of the superior court for the county in which the judgment was rendered an application for review of the public registration requirement contained in RSA 651-B:7. This application shall not be filed prior to the completion of all the terms and conditions of the sentence and in no case earlier than 10 years after the date of release [following conviction]. After review of the application, the court may schedule a hearing. Prior to granting any petition to remove an offender from the public list, the court shall provide notice to the county attorney who prosecuted the case, the victim advocate, and the victim or victim’s family and permit those parties to be heard on the petition. If the court denies the offender’s petition, the offender may not file another application pursuant to this paragraph for 5 years from the date of the denial and shall include a risk assessment prepared at the offender’s expense.

327:12 Registration of Criminal Offenders; Penalties. Amend RSA 651-B:9 to read as follows

651-B:9 Penalty.

I. A sexual offender or offender against children who is required to register under this chapter and who negligently fails to comply with the requirements of this chapter shall be guilty of a [violation] misdemeanor.

II. A sexual offender or offender against children who is required to register under this chapter and who knowingly fails to comply with the requirements of this chapter shall be guilty of a [misdemeanor] class B felony. An offender who is required to register for a period of 10 years following his or her release, pursuant to RSA 651-B:6, II, shall be required to register for an additional 10 years from the date of conviction for violating this paragraph. The obligation to register for an additional 10 years from the date of conviction for violating this paragraph shall be consecutive to the registration period imposed pursuant to RSA 651-B:6 and shall be imposed even if the original registration period has elapsed.

III. A sexual offender or offender against children previously convicted [of a misdemeanor] pursuant to paragraph II who is required to register under this chapter and who knowingly fails to comply with the requirements of this chapter shall be guilty of a class [B] A felony. An offender who is required to register for a period of 10 years following his or her release, pursuant to RSA 651-B:6, II, who is convicted for violating this paragraph shall be required to register for life.

IV. The penalties imposed under paragraphs I-III shall not apply to juveniles required to register pursuant to RSA 651-B:1, VII(a)(3) or (4). The court with jurisdiction over such juveniles may impose an appropriate disposition for a violation of this section.

[IV.] V. Any person who violates the provisions of RSA 651-B:7 shall be guilty of a violation.

VI. A sexual offender or offender against children who knowingly provides false information in response to any of the requirements of this chapter shall be guilty of a class B felony.

VII. A person is guilty of a class B felony if the person has reason to believe that a sexual offender or offender against children is not complying, or has not complied, with the requirements of this chapter and who purposely assists the offender in eluding any law enforcement agency that is seeking to find the offender to question the offender about, or to arrest the offender for, his or her noncompliance with the requirements of this chapter, and engages in any of the following acts or omissions:

(a) Withholds information from, or does not notify, the law enforcement agency about the offender’s noncompliance with the requirements of this chapter, and, if known, the whereabouts of the offender;

(b) Harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the offender;

(c) Conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the offender;

(d) Provides information to the law enforcement agency regarding the offender which the person knows to be false information; or

(e) Warns the offender that the law enforcement agency is attempting to locate the offender.

327:13 New Sections; Registration of Criminal Offenders; Registration Fee; Application. Amend RSA 651-B by inserting after section 10 the following new sections:

651-B:11 Registration Fee.

I. A sexual offender or offender against children shall pay a fee of $17 at the time of the offender’s initial registration and semi-annually at the time of the offender’s re-registration. Of this amount, the department shall receive $15 to be used to defray the costs of maintaining the sex offender registry. Such funds shall be nonlapsing and shall be continually appropriated to the department for such use. The municipality in which the sexual offender or offender against children registers shall keep the remaining $2 to defray any costs associated with implementing the provisions of this paragraph.

II. Anyone required to pay the registration fee who cannot afford to pay the fee shall, within 10 days of registration, request a waiver of the fee and a hearing on the matter before the commissioner. If such a request is made, the commissioner shall promptly schedule and conduct a hearing pursuant to rules adopted under RSA 541-A. At the hearing the offender shall have the burden to prove that the offender cannot afford to pay the fee because the offender is indigent. After hearing, the decision of the commissioner shall be final, and the offender shall have a right to appeal the decision in the superior court. Under no circumstances shall the offender’s request for a hearing or indigency relieve the offender of the obligation to register pursuant to the time-frames required by this chapter.

651-B:12 Application. Whenever possible, the provisions of this chapter shall be interpreted and applied consistent with the provisions of the federal Jacob Wetterling Act, as amended.

327:14 Capital Offense and Murder in the First Degree. Amend RSA 597:1-c to read as follows:

597:1-c [Capital Offenses and Murder in the First Degree.] Offenses Punishable By Life Imprisonment. Any person arrested for an offense punishable by up to life in prison [death or murder in the first degree], where the proof is evident or the presumption great, shall not be allowed bail.

327:15 Sexual Assault and Offenses; Penalties. Amend the introductory paragraph of RSA 632-A:10-a to read as follows:

632-A:10-a Penalties. Notwithstanding RSA 651:2, and except where an extended term is sought as provided in RSA 651:6:

327:16 New Subparagraph; Sexual Assault and Offenses. Amend RSA 632-A:10-a, V by inserting after subparagraph (b) the following new subparagraph:

(c) Prior to granting any petition pursuant to subparagraph V(b), the court shall provide notice to the county attorney who prosecuted the case, the victim advocate, and the victim or victim’s family and permit those parties to be heard on the petition. If the court denies the offender’s petition, the offender may not file another application pursuant to this paragraph for 5 years from the date of the denial and shall include a risk assessment prepared at the offender’s expense.

327:17 Sentences; Extended Term of Imprisonment. Amend RSA 651:6, I(j) to read as follows:

(j) Possesses a radio device with the intent to use that device in the commission of robbery, burglary, theft, gambling, stalking, or a violation of any provision of RSA 318-B. In this section, the term “radio device” means any device capable of receiving a wireless transmission on any frequency allocated for law enforcement use, or any device capable of transmitting and receiving a wireless transmission; [or]

327:18 Sentences; Extended Term of Imprisonment. RSA 651:6, I(k)-(l) is repealed and reenacted to read as follows:

(k) Has committed or attempted to commit negligent homicide as defined in RSA 630:3, I against a person under 13 years of age who was in the care of, or under the supervision of, the defendant at the time of the offense;

(l) Has committed or attempted to commit any of the crimes defined in RSA 637 or RSA 638 against a victim who is 65 years of age or older or who has a physical or mental disability and that in perpetrating the crime, the defendant intended to take advantage of the victim’s age or a physical or mental condition that impaired the victim's ability to manage his or her property or financial resources or to protect his or her rights or interests;

(m) Has committed or attempted to commit aggravated felonious sexual assault in violation of RSA 632-A:2, I(l) or RSA 632-A:2, II where the defendant was 18 years of age or older at the time of the offense;

(n) Has committed or attempted to commit aggravated felonious sexual assault in violation of RSA 632-A:2, III, and one or more of the acts comprising the pattern of sexual assault was an offense under RSA 632-A:2, I(l) or RSA 632-A:2, II, or both, and the defendant was 18 years of age or older when the pattern of sexual assault began;

(o) Has purposely, knowingly, or recklessly with extreme indifference to the value of human life committed an act or acts constituting first degree assault as defined in RSA 631:1 against a person under 13 years of age where the serious bodily injury has resulted in brain damage or physical disability to the child that is likely to be permanent; or

(p) Has committed murder as defined in RSA 630:1-b against a person under 13 years of age.

327:19 Sentences; Extended Term of Imprisonment. Amend RSA 651:6, III to read as follows:

III. If authorized by paragraph I or II, and if notice of the possible application of this section is given the defendant prior to the commencement of trial, a defendant may be sentenced to an extended term of imprisonment. An extended term is, for a person convicted of:

(a) Any felony, other than murder or manslaughter, a minimum to be fixed by the court of not more than 10 years and a maximum to be fixed by the court of not more than 30 years;

(b) A misdemeanor, a minimum to be fixed by the court of not more than 2 years and a maximum to be fixed by the court of not more than 5 years;

(c) Manslaughter, a minimum to be fixed by the court of not more than 20 years and a maximum to be fixed by the court of not more than 40 years;

(d) Murder, life imprisonment;

(e) Two or more offenses under RSA 632-A:2, life imprisonment without parole;

(f) A third offense under RSA 632-A:3, life imprisonment; or

(g) [A class A felony under RSA 632-A:2, I(l) and a subsequent separate offense under RSA 632-A:2, I(l), a minimum to be fixed by the court of not less than 15 years and a maximum of life imprisonment without parole; or

(h)] Any of the crimes listed under RSA 651:6, I(j), a minimum to be fixed by the court of not less than 90 days and a maximum of not more than one year.

327:20 New Paragraphs; Sentences; Extended Term of Imprisonment. Amend RSA 651:6 by inserting after paragraph III the following new paragraphs:

IV. If authorized by subparagraphs I(m), (n), or (o) and if notice of the possible application of this section is given to the defendant prior to the commencement of trial:

(a) There is a presumption that a person shall be sentenced to a minimum to be fixed by the court of not less than 25 years and a maximum of life imprisonment unless the court makes a determination that the goals of deterrence, rehabilitation, and punishment would not be served, based on the specific circumstances of the case, by such a sentence and the court makes specific written findings in support of the lesser sentence. Before the court can determine whether the presumption has been overcome, the court shall consider, but is not limited to, the following factors:

(1) Age of victim at time of offense.

(2) Age of the defendant at the time of the offense.

(3) Relationship between defendant and victim.

(4) Injuries to victim.

(5) Use of force, fear, threats, or coercion to the victim or another.

(6) Length of time defendant offended against victim.

(7) Number of times defendant offended against victim.

(8) Number of other victims.

(9) Acceptance of responsibility by defendant.

(10) Defendant’s criminal history.

(11) Use of a weapon.

(12) Medical or psychological condition of the victim at the time of the assault.

(b) The sentence shall also include, in addition to any other penalties provided by law, a special sentence of lifetime supervision by the department of corrections. The defendant shall comply with the conditions of lifetime supervision which are imposed by the court or the department of corrections. Violation of any of the conditions of lifetime supervision shall be deemed contempt of court. The special sentence of lifetime supervision shall begin upon the offender’s release from incarceration, parole, or probation. A defendant who is sentenced to lifetime supervision pursuant to this paragraph shall not be eligible for release from the lifetime supervision pursuant to RSA 632-A:10-a, V(b).

(c) Any decision by the superior court under subparagraph (a) may be reviewed by the sentence review division of the superior court at the request of the defendant or at the request of the state pursuant to RSA 651:58.

V. If authorized by subparagraph I(p) and if notice of the possible application of this section is given to the defendant prior to the commencement of trial, a person shall be sentenced to an extended term of imprisonment as follows: a minimum to be fixed by the court of not less than 35 years and a maximum of life imprisonment.

VI. A person shall be sentenced according to the terms of paragraph VII if the court finds, and includes such findings in the record, that such person:

(a)(1) Committed a violation of RSA 632-A:2, I(l), RSA 632-A:2, II, or RSA 632-A:2, III, in which one or more of the acts comprising the pattern of sexual assault was an offense under RSA 632-A:2, I(l) or RSA 632-A:2, II, or both, after having previously been convicted of an offense in violation of one of the aforementioned offenses or any other statute prohibiting the same conduct in another state, territory or possession of the United States, and

(2) The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release; or

(b)(1) Committed a violation of RSA 631:1 after having previously been convicted of an offense in violation of RSA 631:1, or any other statute prohibiting the same conduct in another state, territory or possession of the United States, if the earlier offense also involved a victim under 13 years of age where the serious bodily injury resulted in brain damage or physical disability to the child that is likely to be permanent; and

(2) The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release; or

(c)(1) Committed a violation of RSA 630:1-b after having previously been convicted of an offense in violation of RSA 630:1-b, or any other statute prohibiting the same conduct in another state, territory, or possession of the United States; and

(2) The person committed the subsequent offense while released on bail on the earlier offense or the sentence for the earlier conviction involved a term of incarceration, probation, parole, or other supervised release.

VII. If the court has made the findings authorized by RSA 651:6, VI, and if notice of the possible application of this section is given to the defendant prior to the commencement of trial, a person shall be sentenced to an extended term of imprisonment of life without parole.

327:21 New Chapter; Involuntary Civil Commitment of Sexually Violent Predators. Amend RSA by inserting after chapter 135-D the following new chapter:

CHAPTER 135-E

INVOLUNTARY CIVIL COMMITMENT OF

SEXUALLY VIOLENT PREDATORS

135-E:1 Findings and Intent. The general court finds that a small but extremely dangerous number of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment under RSA 135-C, which is intended to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexually violent behavior. The general court further finds that the likelihood of sexually violent predators engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedures for the treatment and care of mentally ill persons are inadequate to address the risk these sexually violent predators pose to society. The general court further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different from the traditional treatment modalities for people appropriate for commitment under existing law. It is therefore the intent of the general court to create a civil commitment procedure for the long-term care and treatment of sexually violent predators.

135-E:2 Definitions. In this chapter:

I. “Agency with jurisdiction” means the agency that releases, upon lawful order or authority, a person who is serving a sentence in the custody of the department of corrections, or a person who was involuntarily committed upon a finding that the person was not guilty by reason of insanity or incompetent to stand trial.

II. “Commissioner” means the commissioner of the department of health and human services.

III. “Convicted of a sexually violent offense” means a person who has been:

(a) Adjudicated guilty of a sexually violent offense after a trial, guilty plea, or plea of nolo contendere;

(b) Adjudicated not guilty by reason of insanity of a sexually violent offense; or

(c) Found incompetent to stand trial on a charge of a sexually violent offense and the court makes the finding required pursuant to RSA 135-E:5.

IV. “Court” means the superior court in the county where that person was last convicted of a sexually violent offense, or if the person is in custody on an out-of-state or federal sexually violent offense the county where the person plans to reside upon release or, if no residence in this state is planned, in the county where the facility from which the person to be released is located.

V. “Department” means the department of health and human services.

VI. “Likely to engage in acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree that the person has serious difficulty in controlling his or her behavior as to pose a potentially serious likelihood of danger to others.

VII. “Mental abnormality” means a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.

VIII. “Parole board” means the adult parole board established in RSA 651-A:3.

IX. “Person” means an individual 18 years of age or older who is a potential or actual subject of proceedings under this chapter.

X. “Sexually motivated” means that one of the purposes for which the defendant committed the crime was for sexual gratification.

XI. “Sexually violent offense” means:

(a) Capital murder in violation of RSA 630:1, I(e);

(b) First degree murder in violation of RSA 630:1-a, I(b)(1);

(c) Aggravated felonious sexual assault in violation of RSA 632-A:2;

(d) Kidnapping in violation of RSA 633:1, I(d), where the offender confined the victim with the purpose to commit sexual assault against the victim;

(e) Burglary in violation of RSA 635:1, I, where the offender entered a building or occupied structure with the purpose to commit sexual assault;

(f) An attempt, criminal solicitation, or conspiracy, to commit any of the offenses listed above; or

(g) A violation of any other statute prohibiting the same conduct as the offenses listed above in another state, territory, or possession of the United States.

XII. “Sexually violent predator” means any person who:

(a) Has been convicted of a sexually violent offense;

(b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment; and

(c) Is not eligible for involuntary admission under RSA 135-C or RSA 171-B.

XIII. “Total confinement” means that the person is being held in any physically secure facility being operated by or contractually operated for the department of corrections or the department of health and human services. A person shall also be deemed to be in total confinement for applicability of provisions under this chapter if the person is serving an incarcerative sentence under the custody of the department of corrections or is being held in any other secure facility for any reason. A person is not subject to total confinement if the person is subject to an incarcerative sentence or other custody in a secure facility but has contact with the community, such as through work release, a halfway house, or other supervised or unsupervised release into the community.

135-E:3 Notice to County Attorney or Attorney General; Multidisciplinary Teams Established.

I. The commissioner, or designee, shall establish a multidisciplinary team or teams, each of which shall include, but is not limited to, 2 licensed psychiatrists or psychologists or one licensed psychiatrist and one licensed psychologist each of whom has specialized training or experience in the area of treatment and diagnosis of sex offenders. The attorney general shall serve as legal counsel to the multidisciplinary team. The purpose of the team shall be to evaluate whether persons convicted of a sexually violent offense who are eligible for release from total confinement meet the definition of a sexually violent predator.

II. When a person who has committed a sexually violent offense is to be released from total confinement in New Hampshire, the agency with jurisdiction over the person shall give written notice to the county attorney of the county where that person was last convicted of a sexually violent offense, or attorney general if the case was prosecuted by the attorney general. If the person is in custody on an out-of-state or federal sexually violent offense the agency with jurisdiction shall give written notice to the county attorney of the county where the person plans to reside upon release or, if no residence in this state is planned, the county attorney in the county where the facility from which the person to be released is located or to the attorney general if the person has been convicted of murder. Except as provided in RSA 135-E:4, the written notice shall be given:

(a) At least 9 months prior to the anticipated release from total confinement of a person serving a sentence in the custody of the department of corrections, except that in the case of persons who are totally confined for a period of less than 9 months, written notice shall be given as soon as practicable; or

(b) At least 9 months prior to the anticipated hearing regarding possible release of a person committed to the custody of the department who has been found not guilty by reason of insanity for a sexually violent offense.

III. Upon receipt of such notice, if there is an articulable basis to believe that the person is likely to engage in acts of sexual violence, either the county attorney, attorney general, or the agency with jurisdiction may request that the multidisciplinary team assess and evaluate the person to determine whether the person is a sexually violent predator.

IV. If a request to assess and evaluate a person is made pursuant to paragraph III, the agency with jurisdiction shall provide the multidisciplinary team with the following information:

(a) The person’s name, identifying characteristics, anticipated future residence, the type of supervision the person will receive in the community, if any, and the person’s offense history;

(b) The person’s criminal history, including police reports, victim statements, pre-sentence investigation reports, post-sentence investigation reports, if available, and any other documents containing facts of the person’s criminal incidents;

(c) Mental health, mental status, and medical records, including all clinical records and notes concerning the person;

(d) Documentation of institutional adjustment and any treatment received; and

(e) If the person was returned to custody after a period of supervision, documentation of adjustment during supervision and any treatment received.

V.(a) The multidisciplinary team shall assess and evaluate each person referred to the team. The assessment and evaluation shall include a review of the person’s institutional history and treatment record, if any, the person’s criminal background, and any other factor that is relevant to the determination of whether such person is a sexually violent predator.

(b) Before concluding the evaluation, the multidisciplinary team shall offer the person being evaluated a personal interview. If the person agrees to participate in a personal interview, at least one member of the team who is a licensed psychiatrist or psychologist shall conduct the interview. If the person refuses to fully participate in a personal interview, the multidisciplinary team may proceed with its recommendation without a personal interview of the person.

(c) Within 6 months after receiving notice of a person’s anticipated release from total confinement, the department of health and human services shall provide to the county attorney or attorney general a written report of the multidisciplinary team’s findings as to whether the person meets the definition of a sexually violent predator.

135-E:4 Release From Total Confinement; Transfers; Petition to Hold in Custody.

I. In the event that a person who has been convicted of a sexually violent offense is eligible for immediate release from total confinement, the agency with jurisdiction shall provide immediate notice to the county attorney or attorney general of the person’s release. The county attorney or attorney general or the agency with jurisdiction may file a petition for an emergency hearing in the superior court requesting that the person subject to immediate release be evaluated by the multidisciplinary team to determine whether the person is a sexually violent predator. The hearing shall be held within 24 hours of the filing of the petition, excluding Saturdays, Sundays, and holidays. The person shall not be released from total confinement until after the hearing has been held. At the hearing, the court shall determine whether there is probable cause to believe that the person is a sexually violent predator. If the court finds probable cause, the person shall be held in an appropriate secure facility.

II. Within 72 hours after finding probable cause, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, the department shall provide notice to the county attorney or attorney general and that person shall be immediately released. If the multidisciplinary team determines that the person meets the definition of a sexually violent predator, the team shall provide the county attorney or attorney general with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter.

III. Within 48 hours after receipt of the written assessment and recommendation from the multidisciplinary team, the county attorney or attorney general may file a petition with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the county attorney or attorney general, the person shall be immediately released. If a petition is filed pursuant to this section, the person shall be held in an appropriate secure facility for further proceedings in accordance with this chapter.

IV. A person shall be released if the multidisciplinary team or the county attorney or attorney general do not comply with the time limitations in this section. The provisions of this section, however, are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the county attorney or attorney general from filing a petition against a person otherwise subject to the provisions of this chapter. However, the court shall not consider any petition filed more than 6 months after the person’s release from incarceration unless the timing of the petition is due to newly discovered material facts, which shall be alleged in the petition.

135-E:5 Persons Found Incompetent to Stand Trial.

I. If the county attorney or attorney general seeks to civilly commit a person charged with a sexually violent offense and found incompetent to stand trial, the court shall order the person to remain in custody for a reasonable period of time, not to exceed 90 days, for proceedings pursuant to this section.

II. The court shall first hear evidence and determine whether the person did commit the act or acts charged. The hearing on this issue shall comply with all the procedures specified in this section. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged beyond a reasonable doubt. In determining whether the state has met its burden, the court shall consider the extent to which the person’s incompetence or developmental disability affected the outcome of the hearing, including the person’s ability to assist his or her counsel by recounting the facts, identifying witnesses, testifying in his or her own defense, or providing other relevant information or assistance to counsel or the court. If the person’s incompetence substantially interferes with the person’s ability to assist his or her counsel, the court shall not find the person committed the act or acts charged unless the court can conclude beyond a reasonable doubt that the acts occurred, and that the strength of the state’s case, including physical evidence, eyewitness testimony, and corroborating evidence, is such that the person’s limitations could not have had a substantial impact on the proceedings. If, after the conclusion of the hearing, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, the court shall enter a final order, appealable to the supreme court on that issue. If the person appeals, the person shall be held in an appropriate secure facility. If the person does not appeal or if the appeal is unsuccessful, the court shall proceed as specified in this section.

III. Within 90 days after the court finds that the person committed the act or acts charged or after appeal, the multidisciplinary team shall conduct an evaluation pursuant to the procedures outlined in RSA 135-E:3 to determine whether the person meets the definition of a sexually violent predator and the department shall provide to the county attorney or attorney general a written report of the multidisciplinary team’s findings as to whether the person meets the definition of a sexually violent predator.

135-E:6 Petition; Contents. If the multidisciplinary team finds the person meets the definition of a sexually violent predator, the county attorney or attorney general may file a petition within 14 days with the superior court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If the county attorney or attorney general does not file a petition within 14 days, and the person is otherwise subject to release, the person shall be released.

135-E:7 Determination of Probable Cause.

I. When the county attorney or attorney general files a petition seeking to have a person declared a sexually violent predator, within 10 days of the filing of the petition, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines based on the content of the petition that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and be held in an appropriate secure facility for further proceedings in accordance with this chapter.

II. If the offender’s incarcerative sentence expires before a hearing on the merits of a petition for civil commitment pursuant to this chapter, the court shall conduct a probable cause hearing within 2 days of the expiration of the person’s incarcerative sentence. If the court concludes following the hearing that there is probable cause to believe that the person is a sexually violent predator, the court shall order that the person remain in custody and held in an appropriate secure facility for further proceedings in accordance with this chapter.

135-E:8 Contract Authority. The department may contract with a private entity or state agency for use of and operation of facilities to comply with the requirements of this chapter.

135-E:9 Trial; Procedure.

I. The person or the county attorney or attorney general has the right to demand that the trial be before a jury. A demand for a jury trial must be filed, in writing, no later than 30 days after the finding of probable cause. If no demand is made, the trial shall be to the court. At all adversarial proceedings under this chapter, the person subject to this chapter is entitled to the assistance of appointed counsel if the person is indigent.

II. Within 60 days after the court’s initial determination of probable cause, or, in cases where a jury trial has been elected, 60 days after the election of a jury trial, the court shall conduct a trial to determine whether the person is a sexually violent predator.

III. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the interests of justice, when the person will not be substantially prejudiced by the delay.

IV. The person may retain experts or mental health professionals to perform an examination. If the person wishes to be examined by a professional of the person’s own choice, the examiner shall be provided reasonable access to the person, as well as to all relevant medical and mental health records and reports. In the case of a person who is indigent, the court, upon the person’s request, shall appoint experts or authorize other services pursuant to RSA 604-A:6. If the defendant retains an expert to perform a mental health examination, the person shall also submit to an examination by an expert of the state’s choosing. If the person refuses to submit to an examination by the state’s expert the court shall prohibit the person’s mental health experts from testifying concerning any mental health tests, evaluations, or examinations of the person.

135-E:10 Rules of Procedure and Evidence. In all civil commitment proceedings for sexually violent predators under this chapter:

I. The rules of evidence, the doctor-patient privilege under RSA 329:26, privileged communications pursuant to RSA 330-A:32, or other similar statutes or rules shall not apply in proceedings under this chapter.

II. The court may consider evidence of the person’s prior conduct if such evidence is relevant to the issue of whether the person is a sexually violent predator.

III. Reports by a member of the multidisciplinary team or reports provided on behalf of the multidisciplinary team shall be inadmissible in proceedings under this chapter unless the court finds the report’s probative value substantially outweighs its prejudicial effect.

IV. Notwithstanding the general inapplicability of the rules of evidence, hearsay evidence is not admissible unless it falls within one of the recognized exceptions to the hearsay rule or unless the court finds that the hearsay evidence contains circumstantial guarantees of trustworthiness and the declarant is unavailable to testify at the civil commitment proceedings. Hearsay evidence shall not be used as the sole basis for committing a person under this chapter.

135-E:11 Determination.

I. The state shall have the burden of proving by clear and convincing evidence that the person is a sexually violent predator. If the determination is made by a jury, the verdict shall be unanimous. If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial. If the court declares a mistrial, the county attorney or attorney general may refile the petition and proceed according to the provisions of this chapter. Any retrial shall occur within 90 days after the previous trial, unless the subsequent proceeding is continued in accordance with RSA 135-E:9, III.

II. If the court or jury determines that the person is a sexually violent predator, upon the expiration of the incarcerative portion of all criminal sentences and disposition of any detainers other than detainers for deportation by the United States Bureau of Citizenship and Immigration Services, the person shall be committed to the custody of the department of corrections for control, care, and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person no longer poses a potentially serious likelihood of danger to others. Persons who are detained or committed under this chapter shall be held at the secure psychiatric unit of the New Hampshire state prison or other appropriate facility controlled or contracted by the department of corrections if available. An order committing a person shall be valid for up to 5 years.

III. The determination that a person is a sexually violent predator may be appealed. The public defender shall be appointed to represent the person on appeal if the person is indigent.

135-E:12 Examinations; Release of Committed Persons.

I. Prior to the expiration of the initial commitment order or any recommittal order, the county attorney or attorney general may file a petition to recommit the person.

II. If the state petitions to renew the committal, the court shall hold a hearing. The person is entitled to be present and is entitled to the benefit of all procedural protections afforded the person at the initial trial, except for the right to a jury. The state has the right to have the person examined by professionals chosen by the state. At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person remains a sexually violent predator. Any recommittal order shall be valid for a period of up to 5 years.

135-E:13 Authorized Petition for Release.

I. If the commissioner, or designee, at any time determines that the person is not likely to commit acts of sexual violence if discharged, the commissioner or his or her designee shall notify the court and the court shall hold a hearing. The petition shall be served upon the court and the county attorney or attorney general. The court, upon receipt of such notice, shall schedule a hearing within 60 days, unless continued for good cause.

II. The county attorney or attorney general shall represent the state, and has the right to have the person examined by professionals of the county attorney’s or attorney general’s choice. The state bears the burden of proving, by clear and convincing evidence, that the person remains a sexually violent predator.

135-E:14 Petitions for Release. A person may file a petition for discharge at any time after commitment under this chapter without the approval of the commissioner, or his or her designee. Notice of the petition shall be provided to the commissioner and to the county attorney or attorney general. After reviewing the petition filed by the person the court may request the commissioner or county attorney or attorney general to respond to the petition. The commissioner or county attorney or attorney general is not required to respond to a petition filed pursuant to this section unless ordered to do so by the court. If the court determines that appointment of counsel may assist in an appropriate resolution of the petition, and the person is indigent, the court shall appoint counsel to represent the person. If the court determines that the petition is without merit on its face, the court may deny the petition without a hearing.

135-E:15 Release of Records to Agencies.

I. In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction, to a multidisciplinary team, or to the county attorney or attorney general for the purpose of meeting the notice requirements of this chapter and determining whether a person is or continues to be a sexually violent predator. A person, agency, or entity receiving information under this section which is confidential shall maintain the confidentiality of that information. Such information does not lose its confidential status due to its release under this section.

II. Psychological or psychiatric reports, drug and alcohol reports, treatment records, medical records, pre-sentence investigative reports, or victim impact statements that have been submitted to the court or admitted into evidence under this chapter shall be part of the record but shall be sealed and may be opened only pursuant to a court order.

135-E:16 Constitutional Requirements. The long-term control, care, and treatment of a person committed under this chapter shall conform to constitutional requirements.

135-E:17 Immunity from Civil Liability. The agency with jurisdiction and its officers and employees; the department and its officers and employees; members of the multidisciplinary team; the county attorney or attorney general and the county attorney’s or attorney general’s employees; and those involved in the evaluation, care, and treatment of sexually violent persons committed under this chapter are immune from any civil liability for good faith conduct under this chapter.

135-E:18 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or applications, and to this end the unconstitutional provisions or applications of this chapter are severable.

135-E:19 Applicability. This chapter applies retroactively to all persons in custody as of the effective date of this statute who have been convicted of a sexually violent offense, as well as prospectively.

135-E:20 Notice Requirements.

I. No later than 30 days prior to the release of a sexually violent predator, the department shall give written notice of the person’s release to the victim advocate for the county in which the person was prosecuted, and to the extent possible the victim or the victim’s family shall be notified.

II. If a sexually violent predator who has an active or pending term of probation, parole, conditional release, or other court-ordered or postprison release supervision is released from custody, the department shall immediately notify the department of corrections. The parole board shall also be immediately notified of the release of a sexually violent predator who has an active or pending term of parole, conditional release, or other postprison release supervision that is administered by the parole board.

135-E:21 Escape.

I. A person who escapes or attempts to escape from lawful custody pursuant to this chapter is guilty of a class A felony.

II. If a person escapes while in custody pursuant to this chapter, the department shall immediately notify the victim and the county attorney or attorney general that filed the petition for civil commitment. If the escapee has an active or pending term of probation, parole, conditional release, or other court-ordered or postprison release supervision, the department shall also immediately notify the department of corrections. The parole board shall also be immediately notified of an escape if the escapee has an active or pending term of parole, conditional release, or other postprison release supervision that is administered by the parole board.

135-E:22 Rules. The department shall adopt rules, pursuant to RSA 541-A, relative to:

I. Procedures to be followed by members of the multidisciplinary teams when assessing and evaluating persons subject to this chapter.

II. Education and training requirements for members of the multidisciplinary teams and professionals who assess and evaluate persons under this chapter.

III. The designation of secure facilities for sexually violent predators who are subject to involuntary commitment under this chapter.

IV. The components of the basic treatment plan for all committed persons under this chapter.

V. The protocol for informing a person that he or she is being evaluated to determine whether he or she is a sexually violent predator under this chapter. Such protocol shall include procedures for informing the person of the right to refuse to participate in a personal interview with the multidisciplinary team or members thereof, the right to consult with counsel prior to participating in such an interview, and the right to have counsel appointed if the person is indigent.

135-E:23 Appointment of Counsel. The right of a person sought to be committed as a sexually violent predator to legal counsel prior to and during any judicial hearing conducted under this chapter shall be absolute and unconditional. The right to legal counsel for any person sought to be committed during any judicial proceeding conducted under this chapter shall be waived only if the client or person sought to be committed makes an informed decision to do so. The person sought to be committed shall pay the costs of the legal services in connection with hearings held under this chapter. If the person sought to be committed is unable to pay for counsel, the court shall appoint counsel pursuant to RSA 604-A:2. Such appointment shall be made no later than upon the filing of the petition and shall be made upon request of the person before any interview or personal examination of the person is conducted by the multidisciplinary team or other person in preparation for the filing of a petition.

327:22 Commitment to Hospitals; Competency Hearing; Commitment for Treatment. Amend RSA 135:17-a, V as follows:

V. If the court has determined that the defendant has not regained competency, and the court determines that he or she is dangerous to himself or herself or others, the court shall order the person to remain in custody for a reasonable period of time, not to exceed 90 days, to be evaluated for the appropriateness of involuntary treatment pursuant to RSA 135-C:34 or RSA 171-B:2. The court may order the person to submit to examinations by a physician, psychiatrist, or psychologist designated by the state for the purpose of evaluating appropriateness and completing the certificate for involuntary admission into the state mental health services system, the state developmental services delivery system, or the secure psychiatric unit, as the case may be. If a defendant who was charged with a sexually violent offense, as defined in RSA 135-E:2, XI, has not regained competency, the court shall proceed pursuant to RSA 135-E.

327:23 New Subparagraph; Delinquent Children; Dispositional Hearing. Amend RSA 169-B:19, I by inserting after subparagraph (j) the following new subparagraph:

(k) Order the minor to register as a sexual offender or offender against children pursuant to RSA 651-B until the juvenile reaches the age of 17 if the court finds that the minor presents a risk to public safety.

327:24 New Subparagraph; Delinquent Children; Dispositional Hearing. Amend RSA 169-B:19, III-a by inserting after subparagraph (e) the following new subparagraph:

(f) If the court retains jurisdiction over the minor pursuant to RSA 169-B:4, V, and the court has determined that the minor is required to register as a sexual offender or offender against children pursuant to RSA 169-B:19, I(k), the minor shall continue to register pursuant to RSA 651-B; provided, the court retains jurisdiction over the case.

327:25 New Subparagraph; Delinquent Children; Juvenile Case and Court Records. Amend RSA 169-B:35, III by inserting after subparagraph (c) the following new subparagraph:

(d) Pursuant to RSA 651-B, the department of safety shall disclose registration information to law enforcement agencies for juveniles if the court has found that the juvenile is required to register as a sexual offender or offender against children. In no event shall any juvenile required to register be listed on the list of sexual offenders and offenders against children made available to the public pursuant to RSA 651-B:7.

327:26 Committee to Identify and Evaluate Classification and Risk Assessment Procedures for Convicted Sex Offenders and Offenders Against Children Established.

I. There is established a committee to identify and evaluate classification and risk assessment procedures for convicted sex offenders and offenders against children.

II. The members of the committee shall be as follows:

(a) Four members of the house of representatives, at least 2 of whom shall be from the criminal justice and public safety committee, and one of whom shall be from the judiciary committee, appointed by the speaker of the house of representatives.

(b) Two members of the senate, appointed by the president of the senate.

III. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

IV. The committee shall:

(a) Identify and evaluate classification and risk assessment procedures for convicted sex offenders and offenders against children.

(b) Identify classification and risk assessment procedures from other states, including those in the New England region.

(c) Identify the scope, use, and effectiveness of such procedures.

(d) Identify the benefits and liabilities of notifying the public of each level of classification and the best system for such notification.

(e) Identify funding sources for such classification and risk assessment procedures.

(f) Identify implementation procedures for past, present, and future offenders.

(g) Identify methods of evaluation and accountability.

(h) Study any additional information that the committee deems necessary.

V. The committee shall use the information collected to make recommendations to the legislature for the management of sex offenders and offenders against children.

VI. The committee shall solicit information and testimony from any organization or individual as deemed necessary to assist the committee in the performance of its duties, including:

(a) Employees of the department of safety with direct responsibility for maintaining the New Hampshire sex offender registry.

(b) Other department of safety employees as may be necessary.

(c) The department of corrections.

(d) The department of education.

(e) Forensic evaluators.

(f) Sex offender treatment providers.

(g) Victims’ advocates.

(h) A licensed New Hampshire attorney primarily engaged in the practice of criminal defense.

(i) The New Hampshire Civil Liberties Union.

(j) The New Hampshire Association of Chiefs of Police.

(k) An advocate for the developmentally disabled.

VII. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.

VIII. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before November 1, 2007.

327:27 Global Positioning Satellite Monitoring; Feasibility Study. The department of corrections shall implement a study to evaluate the feasibility and efficacy of instituting life-time monitoring of serious sexual offenders and offenders against children by means of global positioning satellite technology or other monitoring or tracking systems and report the results of the study to the general court on or before November 1, 2006. The department of corrections shall implement a system for tracking sexual offenders and offenders against children by global positioning satellite technology by July 1, 2008.

327:28 Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are severable.

327:29 Effective Date.

I. Sections 26, 27, and 29 of this act shall take effect upon its passage.

II. Section 2, RSA 651-B:3, II as inserted by section 6, RSA 651-B:7, II(a) as inserted by section 11, section 18, and RSA 651:6, IV-V as inserted by section 20 of this act shall take effect January 1, 2007, at 12:01 a.m.

III. The remainder of this act shall take effect January 1, 2007.

Approved: June 26, 2006

Effective: I. Sections 26, 27, and 29 shall take effect June 26, 2006.

II. Section 2, RSA 651-B:3, II as inserted by section 6, RSA 651-B:7, II(a) as inserted by section 11, section 18, and RSA 651:6, IV-V as inserted by section 20 of this act shall take effect January 1, 2007, at 12:01 a.m.

III. The remainder shall take effect January 1, 2007.