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[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H. Con. Res. 196 Introduced in House (IH)]

104th CONGRESS
  2d Session
H. CON. RES. 196

   Expressing the sense of the Congress that each State should enact 
legislation regarding notification procedures necessary when a sexually 
                     violent offender is released.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             July 10, 1996

 Mr. Gutknecht (for himself, Mr. Zimmer, Mr. Fazio of California, Mrs. 
 Myrick, Mr. Frost, Mr. Horn, Mr. Deutsch, Mr. Walsh, and Mr. Weller) 
 submitted the following concurrent resolution; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                         CONCURRENT RESOLUTION

 
   Expressing the sense of the Congress that each State should enact 
legislation regarding notification procedures necessary when a sexually 
                     violent offender is released.

Whereas States are now required to release certain relevant information to 
        protect the public from sexually violent offenders;
Whereas sentencing courts, after receiving recommendations from a board of 
        experts regarding the behavior and treatment of sexual offenders, must 
        determine that a person is a sexually violent predator or that a person 
        is no longer a sexually violent predator under section 170101 of the 
        Violent Crime Control and Law Enforcement Act of 1994; and
Whereas most States have not established guidelines regarding the notification 
        and release of a sexually violent offender: Now, therefore, be it
    Resolved by the House of Representatives (the Senate concurring), 
That it is the sense of the Congress that each State should enact 
legislation based on the following model:

SECTION 1. ESTABLISHMENT OF ADVISORY BOARD FOR RISK ASSESSMENT.

    (a) Establishment.--The State shall establish an Advisory Board for 
Risk Assessment (referred to in this Act as the ``Board'') which 
consists of not less than 5 members appointed by the Chief Executive 
Officer of the State.
    (b) Duties.--The Board shall comply with the requirements and 
guidelines established for a State board under section 170101 of the 
Violent Crime Control and Law Enforcement Act of 1994 and the 
provisions of this Act.
    (c) Membership.--Each member shall, by experience or training, have 
a personal interest or professional expertise in law enforcement, crime 
prevention, victim advocacy, criminology, psychology, parole, public 
education, or community relations.
    (d) Term.--The term of office of each member of such Board shall be 
determined by the Chief Executive Officer of the State in guidelines 
issued pursuant to this section.
    (e) Vacancy.--Any member chosen to fill a vacancy occurring other 
than by expiration of a term shall be appointed for the remainder of 
the unexpired term.
    (f) Chairperson.--The Chief Executive Officer of the State shall 
designate 1 of the members of the Board as chairperson to serve in such 
capacity at the pleasure of the Officer or until the member's term of 
office expires and a successor is designated in accordance with law, 
whichever occurs first.
    (g) Termination.--Any member of the Board may be removed by the 
Chief Executive Officer for cause after an opportunity to be heard.
    (h) Quorum.--Except as otherwise provided by law, a majority of the 
Board shall constitute a quorum for the transaction of all business of 
the Board.

SEC. 2. GUIDELINES FOR TIER DETERMINATION.

    (a) In General.--The Chief Executive Officer of the State or a 
designee shall develop guidelines and procedures for use by the Board 
to assess the risk of a repeat offense by such sex offender and the 
threat posed to the public safety. Such guidelines shall be based upon 
the following:
            (1) Criminal history factors indicative of high risk of 
        repeat offense, including--
                    (A) whether the sex offender has a mental 
                abnormality;
                    (B) whether the sex offender's conduct was found to 
                be characterized by repetitive and compulsive behavior, 
                associated with drugs or alcohol;
                    (C) whether the sex offender served the maximum 
                term;
                    (D) whether the sex offender committed the felony 
                sex offense against a child; and
                    (E) the age of the sex offender at the time of the 
                commission of the first sex offense.
            (2) Other factors to be considered in determining risk, 
        including--
                    (A) the relationship between such sex offender and 
                the victims;
                    (B) whether the offense involved the use of a 
                weapon, violence, or infliction of serious bodily 
                injury;
                    (C) the number, date, and nature of prior offenses;
                    (D) conditions of release that minimize risk of 
                another offense, including whether the sex offender is 
under supervision, receiving counseling, therapy or treatment, or 
residing in a home situation that provides guidance and supervision;
                    (E) physical conditions that minimize risk of 
                another offense, including advanced age or debilitating 
                illness;
                    (F) whether psychological or psychiatric profiles 
                indicate a risk of recidivism;
                    (G) the sex offender's response to treatment;
                    (H) recent behavior, including behavior while 
                confined;
                    (I) recent threats or gestures against persons or 
                expression of intent to commit additional offenses; and
                    (J) review of any victim impact statement.
    (b) Information Transfer.--
            (1) In general.--Notwithstanding any other provision of 
        law, any State or local correctional facility, hospital, or 
        institution shall forward relevant information pertaining to a 
        sex offender to be discharged, paroled, or released to the 
        Board for review prior to the release or discharge for 
        consideration by the Board in its recommendations. Information 
        shall include the commitment file, medical file, and treatment 
        file pertaining to such person.
            (2) Confidentiality.--All confidential records provided 
        under paragraph (1) shall remain confidential, unless otherwise 
        ordered by a court, by the lawful custodians of the records, or 
        by another person duly authorized to release such information.

SEC. 3. BOARD RECOMMENDATIONS.

    (a) Designation.--Applying the guidelines established pursuant to 
section 2(a), the Board shall, prior to the discharge, parole, or 
release of a sex offender, make a recommendation, which shall be 
confidential and shall not be available for public inspection, to the 
sentencing court as to whether such sex offender warrants the 
designation of sexually violent predator.
    (b) Notification System.--The Board also shall use the guidelines 
established pursuant to section 2(a) to recommend to the sentencing 
court 1 of the following 3 levels of notification:
            (1) If the risk of a repeat offense is low, a tier 1 
        designation shall be given to such sex offender. In such case 
        the designated law enforcement agency having jurisdiction and 
        the law enforcement agency having had jurisdiction at the time 
        of his conviction shall be notified in accordance with section 
        170101(b)(4) of the Violent Crime Control and Law Enforcement 
        Act of 1994.
            (2) If the risk of a repeat offense is moderate, a tier 2 
        designation shall be given to such sex offender. In such case 
        the designated law enforcement agency having jurisdiction and 
        the law enforcement agency having had jurisdiction at the time 
        of conviction shall be notified and may notify any victim of 
        the proposed release of such offender and any agency, 
        organization, or group, serving individuals who have similar 
        characteristics to the previous victim or victims of such 
        offender. The notification may include the approximate address 
        (by ZIP Code), background information relating to the crime, 
        type of victim targeted, conviction, including release of a 
        photograph of the offender, and any special conditions imposed 
        on the offender.
            (3) If the risk of a repeat offense is high and there 
        exists a threat to the public safety, such sex offender shall 
        be deemed a sexually violent predator, and a tier 3 designation 
        shall be given to such offender. In such case, the appropriate 
        law enforcement agencies shall be notified of such an 
        offender's release and may use the same notification procedures 
        described in paragraph (2), except that a precise address may 
        be released and any relevant information necessary to protect 
        the public concerning a specific person required to register 
        under section 170101 of the Violent Crime Control and Law 
        Enforcement Act of 1994 shall be released.

SEC. 4. JUDICIAL DETERMINATION.

    (a) Court Designation.--A determination that an offender is a sex 
offender or a sexually violent predator shall be made prior to the 
discharge, parole, or release of such offender by the sentencing court 
after receiving a recommendation from the Board.
    (b) Notification Level.--The sentencing court also shall make a 
determination with respect to the level of notification, after 
receiving a tier recommendation from the Board. In making the 
determination, the court shall review any statement by a victim or 
victims and any materials submitted by the sex offender. The court 
shall also allow the sex offender to appear and be heard, and inform 
the sex offender of the right to have counsel appointed if necessary.
    (c) Reversal.--Upon the reversal of a conviction of a sexual 
offense, the court shall order the expungement of any records required 
to be kept pursuant to this Act.

SEC. 5. PETITION FOR RELIEF.

    (a) In General.--A sex offender required to register pursuant to 
section 170101 of the Violent Crime Control and Law Enforcement Act of 
1994 may be relieved of any further duty to register in accordance with 
such section or upon the granting of a petition for relief by the 
sentencing court.
    (b) Petition.--Upon receipt of a petition for relief from 
registration requirements under this Act, the court shall notify the 
Board and request an updated report pertaining to the sex offender. 
After receiving the report from the Board, the court may grant or deny 
the relief sought.
    (c) Consultation.--The court may consult with the victim prior to 
making a determination on the petition.
    (d) Hearing.--The court shall schedule and hold a hearing in an 
expedited manner.
    (e) Rights of Offender.--The offender shall be entitled to present 
evidence and supporting witnesses and to confront and cross-examine 
opposing witnesses.
    (f) Burden of Proof.--The county attorney has the burden of proof 
to show, by a preponderance of the evidence, that--
            (1) the Board's risk assessment is reasonable;
            (2) disclosure of information about the offender to the 
        community is appropriate; and
            (3) the notification actions proposed to be taken by the 
        law enforcement agency are reasonably related to the level of 
        danger presented by the offender.
    (g) Notification and Registration.--The filing of the petition 
shall not stay the designated law enforcement agency's notification 
actions unless the court orders otherwise. Such petition, if granted, 
shall not relieve the petitioner of the duty to register pursuant to 
section 170101 of the Violent Crime Control and Law Enforcement Act of 
1994 upon conviction of an offense requiring registration in the 
future.

SEC. 6. PENALTY FOR MISUSE OF REGISTRATION INFORMATION.

    (a) Fine.--Any person who uses information disclosed pursuant to 
this Act in violation of the law shall be fined under title 18, United 
States Code, or imprisoned for not more than 5 years, or both.
    (b) Civil Action.--The State attorney general, a district attorney, 
or any person aggrieved by information disclosed in violation of the 
law is authorized to bring a civil action in the appropriate court 
requesting preventive relief, including an application for a permanent 
or temporary injunction, restraining order, or other order against the 
person or group of persons responsible for such action.
    (c) Additional Remedies.--The foregoing remedies shall be 
independent of any other remedies or procedures that may be available 
to an aggrieved party under other provisions of law.

SEC. 7. JUVENILE OFFENDERS.

    (a) In General.--Any person residing in a State who has been twice 
adjudicated delinquent for any sex offense or attempted sex offense, or 
who has been convicted of any sex offense or attempted sex offense, or 
who has been acquitted by reason of insanity for any sex offense or 
attempted sex offense shall be required to comply with the registration 
requirements established pursuant to section 170101 of the Violent 
Crime Control and Law Enforcement Act of 1994.
    (b) Youth Facility.--Any person who is discharged or paroled from a 
facility in another State that is equivalent to a Department of the 
Youth Authority to the custody of such a facility because of the 
commission or attempted commission of specified sex offenses, is 
required to register pursuant to section 170101 of the Violent Crime 
Control and Law Enforcement Act of 1994.

SEC. 8. OFFICIAL IMMUNITY FROM LIABILITY.

    (a) Immunity.--No official, employee, or agency, whether public or 
private, shall be subject to any civil or criminal liability for 
damages for any discretionary decision to release relevant and 
necessary information pursuant to this section, unless it is shown that 
such official, employee, or agency acted with gross negligence or in 
bad faith.
    (b) Information Release.--The immunity provided under this section 
applies to the release of relevant information to other employees or 
officials or to the general public.
    (c) Failure To Release Information.--Nothing in this section shall 
be deemed to impose any civil or criminal liability upon or to give 
rise to a cause of action against any official, employee, or agency, 
whether public or private, for failing to release information as 
authorized in this Act unless it is shown that such official, employee, 
or agency acted with gross negligence or in bad faith.

SEC. 9. IDENTITY OF THE VICTIM.

    Any information identifying the victim by name, birth date, 
address, or relation to the registrant shall be excluded from public 
access or dissemination.

SEC. 10. GENERAL STATE REQUIREMENTS.

    The Chief Executive Officer of a State or designee shall establish 
reasonable notification requirements under this Act, including 
notification to an offender of any procedures for which the offender is 
required or is permitted to participate, including the hearing process, 
appeal rights, and submission of information to the Board.

SEC. 11. EXPUNGEMENT OF OUTDATED INFORMATION.

    In accordance with section 170101 of the Violent Crime Control and 
Law Enforcement Act of 1994, the department required to coordinate the 
sex offender registration program shall compile and update information 
regarding the offenders. Any offender whose duty to register has 
expired or who has been relieved of the duty to register shall be 
removed from any public database.

SEC. 12. EXCEPTIONAL CIRCUMSTANCES.

    Nothing in this Act shall be construed to prevent law enforcement 
officers from notifying members of the public exposed to danger of 
individuals that pose a danger under circumstances that are not 
described in section 170101 of the Violent Crime Control and Law 
Enforcement Act of 1994 or under this Act.

SEC. 13. DEFINITIONS.

    For purposes of this Act:
            (1) The term ``criminal offense against a victim who is a 
        minor'' means any criminal offense that consists of--
                    (A) kidnapping of a minor, except by a parent;
                    (B) false imprisonment of a minor, except by a 
                parent;
                    (C) criminal sexual conduct toward a minor;
                    (D) solicitation of a minor to engage in sexual 
                conduct;
                    (E) use of a minor in a sexual performance;
                    (F) solicitation of a minor to practice 
                prostitution;
                    (G) any conduct that by its nature is a sexual 
                offense against a minor; and
                    (H) an attempt to commit an offense described in 
                any of subparagraphs (A) through (H) if the State--
                            (i) makes such an attempt a criminal 
                        offense; or
                            (ii) chooses to include such an offense in 
                        those which are criminal offenses against a 
                        victim who is a minor for purposes of this 
                        section.
        For purposes of this paragraph, conduct which is criminal only 
        because of the age of the victim shall not be considered a 
        criminal offense if the perpetrator is 18 years of age or 
        younger.
            (2) The term ``sexually violent offense'' means any 
        criminal offense that consists of aggravated sexual abuse or 
        sexual abuse (as described in sections 2241 and 2242 of title 
        18, United States Code, or as described in the State criminal 
        code) or an offense that has as its elements engaging in 
        physical contact with another person with intent to commit 
        aggravated sexual abuse or sexual abuse (as described in such 
        sections of title 18, United States Code, or as described in 
        the State criminal code).
            (3) The term ``sexually violent predator'' means a person 
        who has been convicted of a sexually violent offense and who 
        suffers from a mental abnormality or personality disorder that 
        makes the person likely to engage in predatory sexually violent 
        offenses.
            (4) The term ``mental abnormality'' means a congenital or 
        acquired condition of a person that affects the emotional or 
        volitional capacity of the person in a manner that predisposes 
        that person to the commission of criminal sexual acts to a 
        degree that makes the person a menace to the health and safety 
        of other persons.
            (5) The term ``predatory'' means an act directed at a 
        stranger, or a person with whom a relationship has been 
        established or promoted for the primary purpose of 
        victimization.
Any offense committed in another State, which if committed in the State 
at issue would be one of the above enumerated offenses, is considered a 
sexual offense for the purposes of this Act.
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