Pennsylvania Act 1995-24 (session 1) — JUDICIAL CODE (42 PA.C.S.) - AMEND SEX OFFENDERS (MEGAN'S LAW)

Act text

JUDICIAL CODE (42 PA.C.S.) - AMEND SEX OFFENDERS (MEGAN'S LAW)
        Act of Oct. 24, 1995, Special Session 1, P.L. 1079, No. 24    Cl. 42
                      Special Session No. 1 of 1995
                               No. 1995-24

     SB 7

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, providing for sexually
        violent offenders.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Chapter 97 of Title 42 of the Pennsylvania
     Consolidated Statutes is amended by adding a subchapter to read:
                               SUBCHAPTER H
                     REGISTRATION OF SEXUAL OFFENDERS
     Sec.
     9791.  Legislative findings and declaration of policy.
     9792.  Definitions.
     9793.  Registration of certain offenders for ten years.
     9794.  Designation of sexually violent predators.
     9795.  Registration of offenders.
     9796.  Verification of residence.
     9797.  Victim notification.
     9798.  Other notification.
     9799.  Immunity for good faith conduct.
     9799.1.  Duties of Pennsylvania State Police.
     9799.2.  Duties of Pennsylvania Board of Probation and Parole.
     9799.3.  Board.
     9799.4.  Sexually violent predators.
     9799.5.  Exemption from notification.
      § 9791.  Legislative findings and declaration of policy.
        (a)  Legislative findings.--It is hereby determined and
     declared as a matter of legislative finding:
            (1)  If the public is provided adequate notice and
        information about sexually violent predators and certain
        other offenders, the community can develop constructive plans
        to prepare themselves and their children for the offender's
        release. This allows communities to meet with law enforcement
        to prepare and obtain information about the rights and
        responsibilities of the community and to provide education
        and counseling to their children.
            (2)  These sexually violent predators pose a high risk of
        engaging in further offenses even after being released from
        incarceration or commitments and that protection of the
        public from this type of offender is a paramount governmental
        interest.
            (3)  The penal and mental health components of our
        justice system are largely hidden from public view and lack
        of information from either may result in failure of both
        systems to meet this paramount concern of public safety.
            (4)  Overly restrictive confidentiality and liability
        laws governing the release of information about sexually
        violent predators have reduced the willingness to release
        information that could be appropriately released under the
        public disclosure laws and have increased risks to public
        safety.
            (5)  Persons found to have committed such an offense have
        a reduced expectation of privacy because of the public's
        interest in public safety and in the effective operation of
        government.
            (6)  Release of information about sexually violent
        predators to public agencies and the general public will
        further the governmental interests of public safety and
        public scrutiny of the criminal and mental health systems so
        long as the information released is rationally related to the
        furtherance of those goals.
        (b)  Declaration of policy.--It is hereby declared to be the
     intention of the General Assembly to protect the safety and
     general welfare of the people of this Commonwealth by providing
     for registration and community notification regarding sexually
     violent predators who are about to be released from custody and
     will live in or near their neighborhood. It is further declared
     to be the policy of this Commonwealth to require the exchange of
     relevant information about sexually violent predators among
     public agencies and officials and to authorize the release of
     necessary and relevant information about sexually violent
     predators to members of the general public as a means of
     assuring public protection and shall not be construed as
     punitive.
      § 9792.  Definitions.
        The following words and phrases when used in this subchapter
     shall have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Board."  The State Board to Assess Sexually Violent
     Predators.
        "Mental abnormality."  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.
        "Municipality."  A city, borough, incorporated town or
     township.
        "Offender."  An individual who is:
            (1)  designated a sexually violent predator under the
        provisions of this subchapter; or
            (2)  required to register under section 9793(b) (relating
        to registration of certain offenders for ten years).
        "Predatory."  An act directed at a stranger or at a person
     with whom a relationship has been established or promoted for
     the primary purpose of victimization.
        "Sexually violent offense."  Any criminal offense specified
     in section 9793(b) (relating to registration of certain
     offenders for ten years).
        "Sexually violent predator."  A person who has been convicted
     of a sexually violent offense as set forth in section 9793(b)
     (relating to registration of certain offenders for ten years)
     and who is determined to be a sexually violent predator under
     section 9794(e) (relating to designation of sexually violent
     predators) due to a mental abnormality or personality disorder
     that makes the person likely to engage in predatory sexually
     violent offenses.
      § 9793.  Registration of certain offenders for ten years.
        (a)  Registration.--A person convicted of any of the offenses
     set forth in subsection (b) shall be required to register a
     current address with the Pennsylvania State Police upon release
     from incarceration, upon parole from a State or county
     correctional institution or upon the commencement of a sentence
     of intermediate punishment or probation. The period of
     registration shall be ten years.
        (b)  Persons required to register.--
            (1)  Persons convicted of any of the following offenses
        that are classified as a felony and involve a victim who is a
        minor:
                18 Pa.C.S. § 2901 (relating to kidnapping) except by
            a parent.
                18 Pa.C.S. § 3121 (relating to rape).
                18 Pa.C.S. § 3123 (relating to involuntary deviate
            sexual intercourse).
                18 Pa.C.S. § 3125 (relating to aggravated indecent
            assault).
                18 Pa.C.S. § 5902(b) (relating to prostitution and
            related offenses).
                18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to
            obscene and other sexual materials and performances).
            (2)  Persons convicted of any of the following offenses
        regardless of the age of the victim:
                18 Pa.C.S. § 3121.
                18 Pa.C.S. § 3123.
                18 Pa.C.S. § 3125.
                18 Pa.C.S. § 3128(a) and (b) (relating to spousal
            sexual assault).
        (c)  Registration information.--The Pennsylvania State Police
     shall provide the information obtained under this section and
     sections 9795 (relating to registration of offenders) and 9796
     (relating to verification of residence) to the chief law
     enforcement officer of the police department of the municipality
     in which the offender will reside. In addition, the Pennsylvania
     State Police shall provide this officer with the address at
     which the offender will reside following his release from
     incarceration, parole or probation.
      § 9794.  Designation of sexually violent predators.
        (a)  Order for assessment.--After conviction, but before
     sentencing, a court shall order a person convicted of a sexually
     violent offense specified in section 9793(b) (relating to
     registration of certain offenders for ten years) to be assessed
     by the board.
        (b)  Presumption.--An offender convicted of any offense set
     forth in section 9793(b) shall be presumed by the board and the
     court to be a sexually violent predator. This presumption may be
     rebutted by the offender by clear and convincing evidence at a
     hearing held in accordance with subsection (e).
        (c)  Assessment.--The board shall conduct an assessment of
     the offender to determine if the offender is a sexually violent
     predator. Such an assessment shall include, but not be limited
     to, such factors as:
            (1)  Age of the offender.
            (2)  Offender's prior criminal record, sexual offenses as
        well as other offenses.
            (3)  Age of the victim.
            (4)  Whether the offense involved multiple victims.
            (5)  Use of illegal drugs by the offender.
            (6)  Whether the offender completed any prior sentence
        and whether the offender participated in available programs
        for sexual offenders.
            (7)  Any mental illness or mental disability of the
        offender.
            (8)  The nature of the sexual contact with the victim and
        whether the sexual contact was part of a demonstrated pattern
        of abuse.
            (9)  Whether the offense included a display of unusual
        cruelty by the offender during the commission of the crime.
            (10)  Any behavioral characteristics that contribute to
        the offender's conduct.
        (d)  Submission of report by board.--The board shall submit a
     written report containing its assessment to the court no later
     than 30 days from the date of conviction of the defendant.
        (e)  Court review of findings.--Upon receipt of the board's
     report, the court shall determine if the offender is a sexually
     violent predator. This determination shall be made based on
     evidence presented at a hearing held prior to sentencing and
     before the trial judge. The offender and district attorney shall
     be given notice of the hearing and an opportunity to be heard,
     the right to call witnesses, the right to call expert witnesses
     and the right to cross-examine witnesses. In addition, the
     offender shall have the right to counsel and to have a lawyer
     appointed to represent him if he cannot afford one. After a
     review of all evidence presented at this hearing, the court may
     determine whether the presumption arising under subsection (b)
     has been rebutted and shall set forth this determination on the
     sentencing order.
        (f)  Subsequent board review.--No sooner than one year prior
     to release from a State or county correctional institution, or
     in five-year intervals thereafter, an offender designated as a
     sexually violent predator may petition the court with original
     jurisdiction in the matter for reconsideration of the
     determination. The court may review the determination and
     request a new report by the board. The court may enter an order
     terminating the designation in which case the court shall notify
     the Pennsylvania State Police.
      § 9795.  Registration of offenders.
        (a)  Registration of sexually violent predators.--A sexually
     violent predator shall be required to register all current
     addresses with the Pennsylvania State Police upon release from
     incarceration, upon parole from a State or county correctional
     institution or upon the commencement of a sentence of
     intermediate punishment or probation. The registration shall
     continue unless the court determines the person is no longer a
     sexually violent predator as provided in section 9794(f)
     (relating to designation of sexually violent predators).
        (b)  Court information for all offenders.--The sentencing
     court shall inform offenders designated in section 9793
     (relating to registration of certain offenders for ten years)
     and sexually violent predators designated in subsection (a) at
     the time of sentencing of the provisions of this subchapter. The
     court shall:
            (1)  Specifically inform the offender of the duty to
        register and obtain the information required for each
        registration.
            (2)  Specifically inform the offender of the duty to
        inform the Pennsylvania State Police within ten days if the
        offender changes residence.
            (3)  Specifically inform the offender of the duty to
        register with a new law enforcement agency if the offender
        moves to another state no later than ten days after
        establishing residence in another state.
            (4)  Order the fingerprints and photograph of the person
        to be provided to the Pennsylvania State Police upon
        sentencing.
            (5)  Require the offender to read and sign a form stating
        that the duty to register under this subchapter has been
        explained. Where the offender is incapable of reading, the
        court shall certify the duty to register was explained to the
        offender and the offender indicated an understanding of the
        duty.
        (c)  Notice by correctional facility and paroling
     authorities.--When the offender is to be released from
     incarceration or paroled from a State or county correctional
     facility, the prison official of the State or county
     correctional facility shall no later than ten days prior to the
     release or parole of the offender again provide the offender
     with notice of the duty to register with the Pennsylvania State
     Police under this subchapter.
        (d)  Penalty.--Any offender who fails to register with the
     Pennsylvania State Police as required in this section commits a
     felony of the third degree.
      § 9796.  Verification of residence.
        (a)  Quarterly verification.--The Pennsylvania State Police
     shall verify the residence of sexually violent predators every
     90 days through the use of a nonforwardable verification form to
     the last reported address. The form shall be returned by the
     offender within ten days.
        (b)  Annual verification.--The Pennsylvania State Police
     shall verify the residence of offenders designated in section
     9793 (relating to registration of certain offenders for ten
     years) annually through the use of a residence verification
     form. The form shall be returned by the offender within ten
     days.
        (c)  Notification of law enforcement agencies of change in
     address.--A change of address of an offender required to
     register under this subchapter reported to the Pennsylvania
     State Police shall be immediately reported by the Pennsylvania
     State Police to the appropriate law enforcement agency having
     jurisdiction of the offender's new place of residence. The
     Pennsylvania State Police shall, if the offender changes
     residence to another state, notify the law enforcement agency
     with which the offender must register in the new state.
        (d)  Failure to provide verification.--Where any offender
     fails to provide verification of residence within the ten-day
     period as set forth in this section, the Pennsylvania State
     Police shall immediately notify the municipal police department
     of the offender's last verified residence. The local municipal
     police shall locate the offender and arrest him for violating
     this section. The Pennsylvania State Police shall assume
     responsibility for locating the offender and arresting him in
     jurisdictions where no municipal police jurisdiction exists. The
     Pennsylvania State Police shall assist any municipal police
     department requesting assistance with locating and arresting an
     offender who fails to verify his residence.
        (e)  Penalty.--Any offender who fails to verify his residence
     as required in this section commits a felony of the third
     degree.
      § 9797.  Victim notification.
        (a)  Duty to inform victim.--
            (1)  Where the offender is determined to be a sexually
        violent predator by a court under section 9794(e) (relating
        to designation of sexually violent predators), the local
        municipal police department or the Pennsylvania State Police
        where no municipal police jurisdiction exists shall give
        written notice to the offender's victim when the offender
        registers initially and when he notifies the Pennsylvania
        State Police of a change of address. This notice shall be
        given within 72 hours after the offender registers or
        notifies the Pennsylvania State Police of a change of
        address. The notice shall contain the offender's name and the
        address or addresses where he resides.
            (2)  A victim may terminate the duty to inform set forth
        in paragraph (1) by providing the local municipal police
        department or the Pennsylvania State Police where no local
        municipal police department exists with a written statement
        releasing that agency from the duty to comply with this
        section as it pertains to that victim.
        (b)  Where an offender is not designated as a sexually
     violent predator.--Where the offender is not determined to be a
     sexually violent predator by a court under section 9794(e), the
     offender's victim shall be notified in accordance with section
     479.3 of the act of April 9, 1929 (P.L.177, No.175), known as
     The Administrative Code of 1929.
      § 9798.  Other notification.
        (a)  By municipality's chief law enforcement officer.--The
     chief law enforcement officer of the police department of the
     municipality where a sexually violent predator lives shall be
     responsible for providing written notice as required under this
     section.
            (1)  The notice shall contain:
                (i)  The name of the convicted sexually violent
            predator.
                (ii)  The address or addresses at which he resides.
                (iii)  The offense for which he was convicted.
                (iv)  A statement that he has been designated by
            court order as a sexually violent predator, which
            designation has or has not been terminated as of a date
            certain.
            (2)  The notice shall not include any information that
        might reveal the victim's name, identity and residence.
        (b)  To whom written notice is provided.--The chief law
     enforcement officer shall provide written notice, under
     subsection (a), to the following persons:
            (1)  Neighbors of the sexually violent predator.
            (2)  The director of the county children and youth
        service agency of the county where the sexually violent
        predator resides.
            (3)  The superintendent of each school district and the
        equivalent official for private and parochial schools
        enrolling students up through grade 12 in the municipality.
            (4)  The director of each licensed day care center and
        licensed preschool program in the municipality.
            (5)  The president of each college, university and
        community college located within 1,000 feet of a sexually
        violent predator's address.
        (c)  Urgency of notification.--The municipal police
     department's chief law enforcement officer shall provide notice
     within the following time frames:
            (1)  To neighbors, notice shall be provided within 72
        hours after information of the sexually violent predator's
        release date and address has been received by the chief law
        enforcement officer. Notwithstanding the provisions of
        subsections (a) and (b), verbal notification may be used if
        written notification would delay meeting this time
        requirement.
            (2)  To the persons specified in subsection (b)(2), (3),
        (4) and (5), notice shall be provided within seven days after
        the chief law enforcement officer receives information
        regarding the sexually violent predator's release date and
        address.
        (d)  Public notice.--All information provided in accordance
     with subsection (a) shall be available, upon request, to the
     general public.
      § 9799.  Immunity for good faith conduct.
        The following entities shall be immune from liability for
     good faith conduct under this section:
            (1)  The Pennsylvania State Police and local law
        enforcement agencies and employees of law enforcement
        agencies.
            (2)  District attorneys and their agents and employees.
            (3)  Superintendents, administrators, teachers and
        employees of any public, private or parochial school.
            (4)  Directors and employees of county children and youth
        agencies.
            (5)  Presidents or similar officers of universities and
        colleges, including community colleges.
            (6)  The Pennsylvania Board of Probation and Parole and
        its agents and employees.
            (7)  Directors of licensed day care centers and directors
        of licensed preschool programs.
      § 9799.1.  Duties of Pennsylvania State Police.
        The Pennsylvania State Police shall:
            (1)  Create and maintain a State registry of offenders
        pursuant to section 9793 (relating to registration of certain
        offenders for ten years).
            (2)  In consultation with the Office of Attorney General
        and the Pennsylvania Board of Probation and Parole,
        promulgate guidelines necessary for the general
        administration of this subchapter.
            (3)  Write regulations regarding neighbor notification of
        the current address of sexually violent predators.
            (4)  Notify, within 72 hours of receiving the offender's
        registration, the chief law enforcement officer of the police
        department having primary jurisdiction of the municipality in
        which an offender resides of the fact that the offender has
        been registered with the Pennsylvania State Police pursuant
        to sections 9795 (relating to registration of offenders) and
        9796 (relating to verification of residence).
            (5)  In consultation with the Department of Education and
        the Pennsylvania Board of Probation and Parole, promulgate
        guidelines directing licensed day-care centers, licensed
        preschool programs, schools, universities and colleges,
        including community colleges, on the proper use and
        administration of information received under section 9797
        (relating to victim notification).
            (6)  Immediately transfer the information received from
        the Pennsylvania Board of Probation and Parole under section
        9799.2(2) and (3) (relating to duties of Pennsylvania Board
        of Probation and Parole) and the fingerprints of the sexually
        violent predator to the Federal Bureau of Investigation.
     All guidelines and regulations promulgated under this section
     shall be published in the Pennsylvania Bulletin no later than
     January 1, 1996.
      § 9799.2.  Duties of Pennsylvania Board of Probation and
                    Parole.
        The Pennsylvania Board of Probation and Parole shall:
            (1)  Create a notification form which will inform State
        and county prison and probation and parole personnel how to
        inform offenders required to register under this subchapter
        of their duty under the law.
            (2)  Obtain the following information regarding
        offenders:
                (i)  Name, including any aliases.
                (ii)  Identifying factors.
                (iii)  Anticipated future residence.
                (iv)  Offense history.
                (v)  Documentation of any treatment received for the
            mental abnormality or personality disorder.
            (3)  Immediately transmit the information in paragraph
        (2) to the Pennsylvania State Police for immediate entry into
        the State registry of sexual offenders and the criminal
        history record of the offender as provided in 18 Pa.C.S. Ch.
        91 (relating to criminal history record information).
      § 9799.3.  Board.
        (a)  Composition.--The State Board to Assess Sexually Violent
     Predators shall be composed of three persons, one psychiatrist,
     one psychologist and one criminal justice expert, each of whom
     has a minimum of ten years of experience and specialized
     training in the behavior and treatment of sex offenders.
        (b)  Appointment.--The Governor shall appoint the
     psychiatrist and psychologist board members. The Attorney
     General shall appoint the criminal justice expert. All
     appointments shall be made within 30 days of the effective date
     of this section.
        (c)  Term of office.--Members of the board shall serve four-
     year terms.
        (d)  Compensation.--The members of the board shall be
     compensated at a rate of $125 per day and receive reimbursement
     for their actual and necessary expenses while performing the
     business of the board. The chairman shall receive $500
     additional compensation per annum.
        (e)  Staff.--Support staff for the board shall be provided by
     the Pennsylvania Board of Probation and Parole.
      § 9799.4.  Sexually violent predators.
        (a)  Lifetime parole; counseling.--Notwithstanding any other
     provision of law to the contrary, a person designated as a
     sexually violent predator under this subchapter shall remain on
     lifetime parole when released from a State or county
     correctional facility unless the court determines the person is
     no longer a sexually violent predator under section 9794(f)
     (relating to designation of sexually violent predators). The
     sexually violent predator shall be required to attend at least
     monthly counseling sessions in a program approved by the board
     and be financially responsible for all fees assessed from such
     counseling sessions. If the sexually violent predator can prove
     to the satisfaction of the court that that person cannot afford
     to pay for the counseling sessions, that person shall still
     attend the counseling sessions and the parole office shall pay
     the requisite fees.
        (b)  Mandatory sentence.-- Notwithstanding any other
     provision of law to the contrary, when a person who has been
     designated as a sexually violent predator is convicted of a
     subsequent sexually violent offense, the mandatory sentence
     shall be life imprisonment. Should a previous conviction be
     vacated and an acquittal or final discharge entered subsequent
     to imposition of sentence under this section, the offender shall
     have the right to petition the sentencing court for
     reconsideration of sentence if this section would not have been
     applicable except for the conviction which was vacated.
        (c)  Authority of court in sentencing.--There shall be no
     authority in any court to impose on an offender to which this
     section is applicable any lesser sentence than provided for in
     subsection (b), to place such offender on probation or to
     suspend sentence. Nothing in this section shall prevent the
     sentencing court from imposing a sentence greater than that
     provided in this section. Sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing shall not supersede
     the mandatory sentences provided in this section.
        (d)  Appeal by Commonwealth.--If a sentencing court refuses
     to apply this section when it is applicable, the Commonwealth
     shall have the right to appellate review of the action of the
     sentencing court. The appellate court shall vacate the sentence
     and remand the case to the sentencing court for the imposition
     of a sentence in accordance with this section if it finds that
     the sentence was imposed in violation of this section.
      § 9799.5.  Exemption from notification.
        Nothing in this subchapter shall be construed as imposing a
     duty upon a person licensed under the act of February 19, 1980
     (P.L.15, No.9), known as the Real Estate Licensing and
     Registration Act, or an employee thereof to disclose any
     information regarding an offender required to register under
     this act.
        Section 2.  The provisions of this act are severable. If any
     provision of this act or its application to any person or
     circumstance is held invalid, the invalidity shall not affect
     other provisions or applications of this act which can be given
     effect without the invalid provision or application.
        Section 3.  The provisions of this act shall be applicable as
     follows:
            (1)  All offenders convicted of an offense set forth in
        42 Pa.C.S. § 9793(b) before the effective date of this
        section who remain under the jurisdiction of the Pennsylvania
        Board of Probation and Parole or the Department of
        Corrections shall be subject to the provisions of this act,
        with the exception of 42 Pa.C.S. §§ 9794, 9795(a), 9796(a),
        9797, 9798 and 9799.4, which relate to sexually violent
        predators.
            (2)  All offenders convicted of an offense set forth in
        42 Pa.C.S. § 9793(b) committed on or after the effective date
        of this section shall be subject to all provisions of this
        act.
        Section 4.  This act shall take effect as follows:
            (1)  The addition of 42 Pa.C.S. §§ 9791, 9792, 9799.1,
        9799.2 and 9799.3 shall take effect immediately.
            (2)  This section shall take effect immediately.
            (3)  The remainder of this act shall take effect in 180
        days.

     APPROVED--The 24th day of October, A. D. 1995.

     THOMAS J. RIDGE