IV

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
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Whereas most States have not established guidelines regarding the notification and release of a sexually violent offender: Now, therefore, be it

1 Resolved by the House of Representatives (the Senate

2 concurring), That it is the sense of the Congress that each

3 State should enact legislation based on the following

4 model:

5 SECTION 1. ESTABLISHMENT OF ADVISORY BOARD FOR

6 RISK ASSESSMENT.

7 (a) ESTABLISHMENT.—The State shall establish an

8 Advisory Board for Risk Assessment (referred to in this

9 Act as the ‘‘Board’’) which consists of not less than 5

10 members appointed by the Chief Executive Officer of the

11 State.

12 (b) DUTIES.—The Board shall comply with the re13 quirements and guidelines established for a State board

14 under section 170101 of the Violent Crime Control and

15 Law Enforcement Act of 1994 and the provisions of this

16 Act.

17 (c) MEMBERSHIP.—Each member shall, by experi18 ence or training, have a personal interest or professional

19 expertise in law enforcement, crime prevention, victim ad20 vocacy, criminology, psychology, parole, public education,

21 or community relations.

22 (d) TERM.—The term of office of each member of

23 such Board shall be determined by the Chief Executive
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1 Officer of the State in guidelines issued pursuant to this

2 section.

3 (e) VACANCY.—Any member chosen to fill a vacancy

4 occurring other than by expiration of a term shall be ap5 pointed for the remainder of the unexpired term.

6 (f) CHAIRPERSON.—The Chief Executive Officer of

7 the State shall designate 1 of the members of the Board

8 as chairperson to serve in such capacity at the pleasure

9 of the Officer or until the member’s term of office expires

10 and a successor is designated in accordance with law,

11 whichever occurs first.

12 (g) TERMINATION.—Any member of the Board may

13 be removed by the Chief Executive Officer for cause after

14 an opportunity to be heard.

15 (h) QUORUM.—Except as otherwise provided by law,

16 a majority of the Board shall constitute a quorum for the

17 transaction of all business of the Board.

18 SEC. 2. GUIDELINES FOR TIER DETERMINATION.

19 (a) IN GENERAL.—The Chief Executive Officer of the

20 State or a designee shall develop guidelines and proce21 dures for use by the Board to assess the risk of a repeat

22 offense by such sex offender and the threat posed to the

23 public safety. Such guidelines shall be based upon the fol24 lowing:
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1 (1) Criminal history factors indicative of high

2 risk of repeat offense, including—

3 (A) whether the sex offender has a mental

4 abnormality;

5 (B) whether the sex offender’s conduct was

6 found to be characterized by repetitive and

7 compulsive behavior, associated with drugs or

8 alcohol;

9 (C) whether the sex offender served the

10 maximum term;

11 (D) whether the sex offender committed

12 the felony sex offense against a child; and

13 (E) the age of the sex offender at the time

14 of the commission of the first sex offense.

15 (2) Other factors to be considered in determin16 ing risk, including—

17 (A) the relationship between such sex of18 fender and the victims;

19 (B) whether the offense involved the use of

20 a weapon, violence, or infliction of serious bod21 ily injury;

22 (C) the number, date, and nature of prior

23 offenses;

24 (D) conditions of release that minimize

25 risk of another offense, including whether the
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1 sex offender is under supervision, receiving

2 counseling, therapy or treatment, or residing in

3 a home situation that provides guidance and su4 pervision;

5 (E) physical conditions that minimize risk

6 of another offense, including advanced age or

7 debilitating illness;

8 (F) whether psychological or psychiatric

9 profiles indicate a risk of recidivism;

10 (G) the sex offender’s response to treat11 ment;

12 (H) recent behavior, including behavior

13 while confined;

14 (I) recent threats or gestures against per15 sons or expression of intent to commit addi16 tional offenses; and

17 (J) review of any victim impact statement.

18 (b) INFORMATION TRANSFER.—

19 (1) IN GENERAL.—Notwithstanding any other

20 provision of law, any State or local correctional facil21 ity, hospital, or institution shall forward relevant in22 formation pertaining to a sex offender to be dis23 charged, paroled, or released to the Board for review

24 prior to the release or discharge for consideration by

25 the Board in its recommendations. Information shall
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1 include the commitment file, medical file, and treat2 ment file pertaining to such person.

3 (2) CONFIDENTIALITY.—All confidential

4 records provided under paragraph (1) shall remain

5 confidential, unless otherwise ordered by a court, by

6 the lawful custodians of the records, or by another

7 person duly authorized to release such information.

8 SEC. 3. BOARD RECOMMENDATIONS.

9 (a) DESIGNATION.—Applying the guidelines estab10 lished pursuant to section 2(a), the Board shall, prior to

11 the discharge, parole, or release of a sex offender, make

12 a recommendation, which shall be confidential and shall

13 not be available for public inspection, to the sentencing

14 court as to whether such sex offender warrants the des15 ignation of sexually violent predator.

16 (b) NOTIFICATION SYSTEM.—The Board also shall

17 use the guidelines established pursuant to section 2(a) to

18 recommend to the sentencing court 1 of the following 3

19 levels of notification:

20 (1) If the risk of a repeat offense is low, a tier

21 1 designation shall be given to such sex offender. In

22 such case the designated law enforcement agency

23 having jurisdiction and the law enforcement agency

24 having had jurisdiction at the time of his conviction

25 shall be notified in accordance with section
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1 170101(b)(4) of the Violent Crime Control and Law

2 Enforcement Act of 1994.

3 (2) If the risk of a repeat offense is moderate,

4 a tier 2 designation shall be given to such sex of5 fender. In such case the designated law enforcement

6 agency having jurisdiction and the law enforcement

7 agency having had jurisdiction at the time of convic8 tion shall be notified and may notify any victim of

9 the proposed release of such offender and any agen10 cy, organization, or group, serving individuals who

11 have similar characteristics to the previous victim or

12 victims of such offender. The notification may in13 clude the approximate address (by ZIP Code), back14 ground information relating to the crime, type of

15 victim targeted, conviction, including release of a

16 photograph of the offender, and any special condi17 tions imposed on the offender.

18 (3) If the risk of a repeat offense is high and

19 there exists a threat to the public safety, such sex

20 offender shall be deemed a sexually violent predator,

21 and a tier 3 designation shall be given to such of22 fender. In such case, the appropriate law enforce23 ment agencies shall be notified of such an offender’s

24 release and may use the same notification proce25 dures described in paragraph (2), except that a pre-
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1 cise address may be released and any relevant infor2 mation necessary to protect the public concerning a

3 specific person required to register under section

4 170101 of the Violent Crime Control and Law En5 forcement Act of 1994 shall be released.

6 SEC. 4. JUDICIAL DETERMINATION.

7 (a) COURT DESIGNATION.—A determination that an

8 offender is a sex offender or a sexually violent predator

9 shall be made prior to the discharge, parole, or release

10 of such offender by the sentencing court after receiving

11 a recommendation from the Board.

12 (b) NOTIFICATION LEVEL.—The sentencing court

13 also shall make a determination with respect to the level

14 of notification, after receiving a tier recommendation from

15 the Board. In making the determination, the court shall

16 review any statement by a victim or victims and any mate17 rials submitted by the sex offender. The court shall also

18 allow the sex offender to appear and be heard, and inform

19 the sex offender of the right to have counsel appointed

20 if necessary.

21 (c) REVERSAL.—Upon the reversal of a conviction of

22 a sexual offense, the court shall order the expungement

23 of any records required to be kept pursuant to this Act.
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1 SEC. 5. PETITION FOR RELIEF.

2 (a) IN GENERAL.—A sex offender required to register

3 pursuant to section 170101 of the Violent Crime Control

4 and Law Enforcement Act of 1994 may be relieved of any

5 further duty to register in accordance with such section

6 or upon the granting of a petition for relief by the sentenc7 ing court.

8 (b) PETITION.—Upon receipt of a petition for relief

9 from registration requirements under this Act, the court

10 shall notify the Board and request an updated report per11 taining to the sex offender. After receiving the report from

12 the Board, the court may grant or deny the relief sought.

13 (c) CONSULTATION.—The court may consult with the

14 victim prior to making a determination on the petition.

15 (d) HEARING.—The court shall schedule and hold a

16 hearing in an expedited manner.

17 (e) RIGHTS OF OFFENDER.—The offender shall be

18 entitled to present evidence and supporting witnesses and

19 to confront and cross-examine opposing witnesses.

20 (f) BURDEN OF PROOF.—The county attorney has

21 the burden of proof to show, by a preponderance of the

22 evidence, that—

23 (1) the Board’s risk assessment is reasonable;

24 (2) disclosure of information about the offender

25 to the community is appropriate; and
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1 (3) the notification actions proposed to be taken

2 by the law enforcement agency are reasonably relat3 ed to the level of danger presented by the offender.

4 (g) NOTIFICATION AND REGISTRATION.—The filing

5 of the petition shall not stay the designated law enforce6 ment agency’s notification actions unless the court orders

7 otherwise. Such petition, if granted, shall not relieve the

8 petitioner of the duty to register pursuant to section

9 170101 of the Violent Crime Control and Law Enforce10 ment Act of 1994 upon conviction of an offense requiring

11 registration in the future.

12 SEC. 6. PENALTY FOR MISUSE OF REGISTRATION INFORMA13 TION.

14 (a) FINE.—Any person who uses information dis15 closed pursuant to this Act in violation of the law shall

16 be fined under title 18, United States Code, or imprisoned

17 for not more than 5 years, or both.

18 (b) CIVIL ACTION.—The State attorney general, a

19 district attorney, or any person aggrieved by information

20 disclosed in violation of the law is authorized to bring a

21 civil action in the appropriate court requesting preventive

22 relief, including an application for a permanent or tem23 porary injunction, restraining order, or other order

24 against the person or group of persons responsible for

25 such action.
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1 (c) ADDITIONAL REMEDIES.—The foregoing rem2 edies shall be independent of any other remedies or proce3 dures that may be available to an aggrieved party under

4 other provisions of law.

5 SEC. 7. JUVENILE OFFENDERS.

6 (a) IN GENERAL.—Any person residing in a State

7 who has been twice adjudicated delinquent for any sex of8 fense or attempted sex offense, or who has been convicted

9 of any sex offense or attempted sex offense, or who has

10 been acquitted by reason of insanity for any sex offense

11 or attempted sex offense shall be required to comply with

12 the registration requirements established pursuant to sec13 tion 170101 of the Violent Crime Control and Law En14 forcement Act of 1994.

15 (b) YOUTH FACILITY.—Any person who is discharged

16 or paroled from a facility in another State that is equiva17 lent to a Department of the Youth Authority to the cus18 tody of such a facility because of the commission or at19 tempted commission of specified sex offenses, is required

20 to register pursuant to section 170101 of the Violent

21 Crime Control and Law Enforcement Act of 1994.

22 SEC. 8. OFFICIAL IMMUNITY FROM LIABILITY.

23 (a) IMMUNITY.—No official, employee, or agency,

24 whether public or private, shall be subject to any civil or

25 criminal liability for damages for any discretionary deci-
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1 sion to release relevant and necessary information pursu2 ant to this section, unless it is shown that such official,

3 employee, or agency acted with gross negligence or in bad

4 faith.

5 (b) INFORMATION RELEASE.—The immunity pro6 vided under this section applies to the release of relevant

7 information to other employees or officials or to the gen8 eral public.

9 (c) FAILURE TO RELEASE INFORMATION.—Nothing

10 in this section shall be deemed to impose any civil or crimi11 nal liability upon or to give rise to a cause of action

12 against any official, employee, or agency, whether public

13 or private, for failing to release information as authorized

14 in this Act unless it is shown that such official, employee,

15 or agency acted with gross negligence or in bad faith.

16 SEC. 9. IDENTITY OF THE VICTIM.

17 Any information identifying the victim by name, birth

18 date, address, or relation to the registrant shall be ex19 cluded from public access or dissemination.

20 SEC. 10. GENERAL STATE REQUIREMENTS.

21 The Chief Executive Officer of a State or designee

22 shall establish reasonable notification requirements under

23 this Act, including notification to an offender of any proce24 dures for which the offender is required or is permitted
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1 to participate, including the hearing process, appeal

2 rights, and submission of information to the Board.

3 SEC. 11. EXPUNGEMENT OF OUTDATED INFORMATION.

4 In accordance with section 170101 of the Violent

5 Crime Control and Law Enforcement Act of 1994, the de6 partment required to coordinate the sex offender registra7 tion program shall compile and update information re8 garding the offenders. Any offender whose duty to register

9 has expired or who has been relieved of the duty to register

10 shall be removed from any public database.

11 SEC. 12. EXCEPTIONAL CIRCUMSTANCES.

12 Nothing in this Act shall be construed to prevent law

13 enforcement officers from notifying members of the public

14 exposed to danger of individuals that pose a danger under

15 circumstances that are not described in section 170101

16 of the Violent Crime Control and Law Enforcement Act

17 of 1994 or under this Act.

18 SEC. 13. DEFINITIONS.

19 For purposes of this Act:

20 (1) The term ‘‘criminal offense against a victim

21 who is a minor’’ means any criminal offense that

22 consists of—

23 (A) kidnapping of a minor, except by a

24 parent;
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1 (B) false imprisonment of a minor, except

2 by a parent;

3 (C) criminal sexual conduct toward a

4 minor;

5 (D) solicitation of a minor to engage in

6 sexual conduct;

7 (E) use of a minor in a sexual perform8 ance;

9 (F) solicitation of a minor to practice pros10 titution;

11 (G) any conduct that by its nature is a

12 sexual offense against a minor; and

13 (H) an attempt to commit an offense de14 scribed in any of subparagraphs (A) through

15 (H) if the State—

16 (i) makes such an attempt a criminal

17 offense; or

18 (ii) chooses to include such an offense

19 in those which are criminal offenses

20 against a victim who is a minor for pur21 poses of this section.

22 For purposes of this paragraph, conduct which is

23 criminal only because of the age of the victim shall

24 not be considered a criminal offense if the perpetra25 tor is 18 years of age or younger.
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1 (2) The term ‘‘sexually violent offense’’ means

2 any criminal offense that consists of aggravated sex3 ual abuse or sexual abuse (as described in sections

4 2241 and 2242 of title 18, United States Code, or

5 as described in the State criminal code) or an of6 fense that has as its elements engaging in physical

7 contact with another person with intent to commit

8 aggravated sexual abuse or sexual abuse (as de9 scribed in such sections of title 18, United States

10 Code, or as described in the State criminal code).

11 (3) The term ‘‘sexually violent predator’’ means

12 a person who has been convicted of a sexually violent

13 offense and who suffers from a mental abnormality

14 or personality disorder that makes the person likely

15 to engage in predatory sexually violent offenses.

16 (4) The term ‘‘mental abnormality’’ means a

17 congenital or acquired condition of a person that af18 fects the emotional or volitional capacity of the per19 son in a manner that predisposes that person to the

20 commission of criminal sexual acts to a degree that

21 makes the person a menace to the health and safety

22 of other persons.

23 (5) The term ‘‘predatory’’ means an act di24 rected at a stranger, or a person with whom a rela-
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1 tionship has been established or promoted for the

2 primary purpose of victimization.

3 Any offense committed in another State, which if commit4 ted in the State at issue would be one of the above enu5 merated offenses, is considered a sexual offense for the

6 purposes of this Act.

Æ