State of Illinois
92nd General Assembly
Legislation

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[ Introduced ][ Enrolled ][ Senate Amendment 001 ]


92_HB2088eng

 
HB2088 Engrossed                               LRB9206809RCcd

 1        AN ACT in relation to sexually violent persons.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The Juvenile Court Act of 1987 is amended by
 5    changing Sections 1-7 and 1-8 as follows:

 6        (705 ILCS 405/1-7) (from Ch. 37, par. 801-7)
 7        Sec. 1-7.  Confidentiality of law enforcement records.
 8        (A)  Inspection and copying of  law  enforcement  records
 9    maintained by law enforcement agencies that relate to a minor
10    who has been arrested or taken into custody before his or her
11    17th birthday shall be restricted to the following:
12             (1)  Any  local,  State  or  federal law enforcement
13        officers of any jurisdiction or agency when necessary for
14        the  discharge  of  their  official  duties  during   the
15        investigation  or prosecution of a crime or relating to a
16        minor who has been adjudicated delinquent and  there  has
17        been  a  previous  finding that the act which constitutes
18        the previous offense  was  committed  in  furtherance  of
19        criminal  activities  by  a  criminal  street  gang.  For
20        purposes of this Section, "criminal street gang" has  the
21        meaning  ascribed  to  it  in  Section 10 of the Illinois
22        Streetgang Terrorism Omnibus Prevention Act.
23             (2)  Prosecutors,   probation    officers,    social
24        workers,  or  other  individuals assigned by the court to
25        conduct    a    pre-adjudication    or    pre-disposition
26        investigation,   and    individuals    responsible    for
27        supervising  or providing temporary or permanent care and
28        custody for minors pursuant to the order of the  juvenile
29        court,     when    essential    to    performing    their
30        responsibilities.
31             (3)  Prosecutors and probation officers:
 
HB2088 Engrossed            -2-                LRB9206809RCcd
 1                  (a)  in the course of a trial when  institution
 2             of   criminal  proceedings  has  been  permitted  or
 3             required under Section 5-805; or
 4                  (b)  when institution of  criminal  proceedings
 5             has  been  permitted or required under Section 5-805
 6             and such minor is the subject  of  a  proceeding  to
 7             determine the amount of bail; or
 8                  (c)  when   criminal   proceedings   have  been
 9             permitted or required under Section 5-805  and  such
10             minor  is  the subject of a pre-trial investigation,
11             pre-sentence  investigation,  fitness  hearing,   or
12             proceedings on an application for probation.
13             (4)  Adult and Juvenile Prisoner Review Board.
14             (5)  Authorized military personnel.
15             (6)  Persons engaged in bona fide research, with the
16        permission  of  the Presiding Judge of the Juvenile Court
17        and the chief executive of the respective law enforcement
18        agency;  provided  that  publication  of  such   research
19        results  in  no  disclosure  of  a  minor's  identity and
20        protects the confidentiality of the minor's record.
21             (7)  Department  of  Children  and  Family  Services
22        child protection investigators acting in  their  official
23        capacity.
24             (8)  The  appropriate  school  official.  Inspection
25        and copying shall be limited to law  enforcement  records
26        transmitted to the appropriate school official by a local
27        law  enforcement  agency  under  a  reciprocal  reporting
28        system  established  and  maintained  between  the school
29        district and  the  local  law  enforcement  agency  under
30        Section  10-20.14  of  the School Code concerning a minor
31        enrolled in a school within the school district  who  has
32        been  arrested  or  taken  into  custody  for  any of the
33        following offenses:
34                  (i)  unlawful use of weapons under Section 24-1
 
HB2088 Engrossed            -3-                LRB9206809RCcd
 1             of the Criminal Code of 1961;
 2                  (ii)  a violation of  the  Illinois  Controlled
 3             Substances Act;
 4                  (iii)  a violation of the Cannabis Control Act;
 5             or
 6                  (iv)  a  forcible  felony as defined in Section
 7             2-8 of the Criminal Code of 1961.
 8             (9)  Mental health professionals on  behalf  of  the
 9        Illinois  Department  of Corrections or the Department of
10        Human  Services  or  prosecutors  who   are   evaluating,
11        prosecuting,  or  investigating  a  potential  or  actual
12        petition  brought  under  the  Sexually  Violent  Persons
13        Commitment Act relating to a person who is the subject of
14        juvenile  law  enforcement records or the respondent to a
15        petition  brought  under  the  Sexually  Violent  Persons
16        Commitment Act who is the subject  of  the  juvenile  law
17        enforcement records sought.
18        (B) (1)  Except  as  provided  in  paragraph  (2), no law
19        enforcement  officer  or  other  person  or  agency   may
20        knowingly  transmit  to  the  Department  of Corrections,
21        Adult Division or the Department of State  Police  or  to
22        the  Federal  Bureau  of Investigation any fingerprint or
23        photograph relating to a minor who has been  arrested  or
24        taken  into  custody  before  his  or  her 17th birthday,
25        unless the court in proceedings under this Act authorizes
26        the transmission or enters an order under  Section  5-805
27        permitting  or  requiring  the  institution  of  criminal
28        proceedings.
29             (2)  Law  enforcement  officers  or other persons or
30        agencies shall   transmit  to  the  Department  of  State
31        Police  copies  of  fingerprints  and descriptions of all
32        minors who have  been  arrested  or  taken  into  custody
33        before  their  17th  birthday for the offense of unlawful
34        use of weapons under Article 24 of the Criminal  Code  of
 
HB2088 Engrossed            -4-                LRB9206809RCcd
 1        1961,  a  Class X or Class 1 felony, a forcible felony as
 2        defined in Section 2-8 of the Criminal Code of 1961, or a
 3        Class 2 or greater felony under the Cannabis Control Act,
 4        the Illinois Controlled Substances Act, or Chapter  4  of
 5        the  Illinois  Vehicle Code, pursuant to Section 5 of the
 6        Criminal Identification Act.  Information reported to the
 7        Department pursuant to this  Section  may  be  maintained
 8        with  records  that  the  Department  files  pursuant  to
 9        Section  2.1 of the Criminal Identification Act.  Nothing
10        in this Act  prohibits  a  law  enforcement  agency  from
11        fingerprinting  a  minor  taken  into custody or arrested
12        before his or her 17th birthday for an offense other than
13        those listed in this paragraph (2).
14        (C)  The records of law enforcement  officers  concerning
15    all  minors under 17 years of age must be maintained separate
16    from the records of arrests and may not  be  open  to  public
17    inspection  or  their contents disclosed to the public except
18    by order of the court or when  the  institution  of  criminal
19    proceedings  has  been  permitted  or  required under Section
20    5-805 or such a person has been convicted of a crime  and  is
21    the  subject  of pre-sentence investigation or proceedings on
22    an application for probation or when provided by law.
23        (D)  Nothing contained in subsection (C) of this  Section
24    shall  prohibit  the  inspection or disclosure to victims and
25    witnesses of photographs contained  in  the  records  of  law
26    enforcement  agencies  when  the inspection and disclosure is
27    conducted in the presence of a law  enforcement  officer  for
28    the  purpose  of  the  identification  or apprehension of any
29    person subject to the provisions  of  this  Act  or  for  the
30    investigation or prosecution of any crime.
31        (E)  Law   enforcement  officers  may  not  disclose  the
32    identity of any minor in releasing information to the general
33    public as to the arrest, investigation or disposition of  any
34    case involving a minor.
 
HB2088 Engrossed            -5-                LRB9206809RCcd
 1        (F)  Nothing contained in this Section shall prohibit law
 2    enforcement  agencies  from  communicating with each other by
 3    letter, memorandum, teletype or intelligence  alert  bulletin
 4    or  other  means  the  identity or other relevant information
 5    pertaining to a person under 17 years of  age  if  there  are
 6    reasonable  grounds  to  believe that the person poses a real
 7    and present danger  to  the  safety  of  the  public  or  law
 8    enforcement  officers.  The  information  provided under this
 9    subsection (F) shall remain confidential  and  shall  not  be
10    publicly disclosed, except as otherwise allowed by law.
11        (G)  Nothing  in this Section shall prohibit the right of
12    a Civil Service Commission or  appointing  authority  of  any
13    state,  county  or  municipality  examining the character and
14    fitness of an applicant for employment with a law enforcement
15    agency, correctional institution,  or  fire  department  from
16    obtaining  and  examining  the records of any law enforcement
17    agency relating to any record of the  applicant  having  been
18    arrested  or  taken  into custody before the applicant's 17th
19    birthday.
20    (Source: P.A. 90-127,  eff.  1-1-98;  91-357,  eff.  7-29-99;
21    91-368, eff. 1-1-00.)

22        (705 ILCS 405/1-8) (from Ch. 37, par. 801-8)
23        Sec.  1-8.  Confidentiality and accessibility of juvenile
24    court records.
25        (A)  Inspection and copying  of  juvenile  court  records
26    relating  to a minor who is the subject of a proceeding under
27    this Act shall be restricted to the following:
28             (1)  The minor who is the  subject  of  record,  his
29        parents, guardian and counsel.
30             (2)  Law  enforcement  officers  and law enforcement
31        agencies when such information is essential to  executing
32        an  arrest or search warrant or other compulsory process,
33        or to conducting an ongoing investigation or relating  to
 
HB2088 Engrossed            -6-                LRB9206809RCcd
 1        a minor who has been adjudicated delinquent and there has
 2        been  a  previous  finding that the act which constitutes
 3        the previous offense  was  committed  in  furtherance  of
 4        criminal activities by a criminal street gang.
 5             Before  July  1,  1994,  for  the  purposes  of this
 6        Section,  "criminal  street  gang"  means   any   ongoing
 7        organization, association, or group of 3 or more persons,
 8        whether  formal or informal, having as one of its primary
 9        activities the commission of one or  more  criminal  acts
10        and  that  has  a common name or common identifying sign,
11        symbol or specific color  apparel  displayed,  and  whose
12        members  individually  or  collectively engage in or have
13        engaged in a pattern of criminal activity.
14             Beginning  July  1,  1994,  for  purposes  of   this
15        Section,  "criminal street gang" has the meaning ascribed
16        to it in Section 10 of the Illinois Streetgang  Terrorism
17        Omnibus Prevention Act.
18             (3)  Judges,    hearing    officers,    prosecutors,
19        probation  officers,  social workers or other individuals
20        assigned by the court to conduct  a  pre-adjudication  or
21        predisposition investigation, and individuals responsible
22        for  supervising or providing temporary or permanent care
23        and custody for minors  pursuant  to  the  order  of  the
24        juvenile   court   when  essential  to  performing  their
25        responsibilities.
26             (4)  Judges, prosecutors and probation officers:
27                  (a)  in the course of a trial when  institution
28             of   criminal  proceedings  has  been  permitted  or
29             required under Section 5-805; or
30                  (b)  when  criminal   proceedings   have   been
31             permitted  or  required  under  Section  5-805 and a
32             minor is the subject of a  proceeding  to  determine
33             the amount of bail; or
34                  (c)  when   criminal   proceedings   have  been
 
HB2088 Engrossed            -7-                LRB9206809RCcd
 1             permitted or required  under  Section  5-805  and  a
 2             minor  is  the subject of a pre-trial investigation,
 3             pre-sentence investigation or  fitness  hearing,  or
 4             proceedings on an application for probation; or
 5                  (d)  when  a  minor  becomes 17 years of age or
 6             older, and is the subject of  criminal  proceedings,
 7             including a hearing to determine the amount of bail,
 8             a    pre-trial    investigation,    a   pre-sentence
 9             investigation, a fitness hearing, or proceedings  on
10             an application for probation.
11             (5)  Adult and Juvenile Prisoner Review Boards.
12             (6)  Authorized military personnel.
13             (7)  Victims,     their    subrogees    and    legal
14        representatives; however, such persons shall have  access
15        only to the name and address of the minor and information
16        pertaining  to  the disposition or alternative adjustment
17        plan of the juvenile court.
18             (8)  Persons engaged in bona fide research, with the
19        permission of the presiding judge of the  juvenile  court
20        and  the  chief executive of the agency that prepared the
21        particular records; provided  that  publication  of  such
22        research  results  in no disclosure of a minor's identity
23        and protects the confidentiality of the record.
24             (9)  The Secretary of State to whom the Clerk of the
25        Court shall report  the  disposition  of  all  cases,  as
26        required  in  Section 6-204 of the Illinois Vehicle Code.
27        However, information reported relative to these  offenses
28        shall  be  privileged and available only to the Secretary
29        of State, courts, and police officers.
30             (10)  The  administrator  of  a  bonafide  substance
31        abuse student assistance program with the  permission  of
32        the presiding judge of the juvenile court.
33             (11)  Mental  health  professionals on behalf of the
34        Illinois Department of Corrections or the  Department  of
 
HB2088 Engrossed            -8-                LRB9206809RCcd
 1        Human   Services   or  prosecutors  who  are  evaluating,
 2        prosecuting,  or  investigating  a  potential  or  actual
 3        petition brought under the  Sexually  Persons  Commitment
 4        Act  relating  to a person who is the subject of juvenile
 5        court records or the respondent  to  a  petition  brought
 6        under the Sexually Violent Persons Commitment Act, who is
 7        the subject of juvenile court records sought.
 8        (B)  A  minor  who is the victim in a juvenile proceeding
 9    shall  be  provided  the   same   confidentiality   regarding
10    disclosure  of  identity  as  the minor who is the subject of
11    record.
12        (C)  Except as otherwise provided in this subsection (C),
13    juvenile court records shall not be  made  available  to  the
14    general  public  but  may  be inspected by representatives of
15    agencies, associations  and  news  media  or  other  properly
16    interested  persons by general or special order of the court.
17    The State's Attorney, the minor, his  parents,  guardian  and
18    counsel  shall  at  all times have the right to examine court
19    files and records.
20             (1)  The court shall allow  the  general  public  to
21        have  access to the name, address, and offense of a minor
22        who is adjudicated a  delinquent  minor  under  this  Act
23        under either of the following circumstances:
24                  (A)  The  adjudication of delinquency was based
25             upon the minor's commission of first degree  murder,
26             attempt  to  commit  first degree murder, aggravated
27             criminal sexual assault, or criminal sexual assault;
28             or
29                  (B)  The court has  made  a  finding  that  the
30             minor  was  at least 13 years of age at the time the
31             act  was   committed   and   the   adjudication   of
32             delinquency  was  based  upon the minor's commission
33             of: (i) an act in furtherance of the commission of a
34             felony as a member of or on  behalf  of  a  criminal
 
HB2088 Engrossed            -9-                LRB9206809RCcd
 1             street  gang,  (ii)  an  act  involving the use of a
 2             firearm in the commission of a felony, (iii) an  act
 3             that  would be a Class X felony offense under or the
 4             minor's second or  subsequent  Class  2  or  greater
 5             felony  offense  under  the  Cannabis Control Act if
 6             committed by an adult, (iv) an act that would  be  a
 7             second  or  subsequent  offense under Section 402 of
 8             the Illinois Controlled Substances Act if  committed
 9             by  an adult, or (v) an act that would be an offense
10             under  Section  401  of  the   Illinois   Controlled
11             Substances Act if committed by an adult.
12             (2)  The  court  shall  allow  the general public to
13        have access to the name, address, and offense of a  minor
14        who  is  at least 13 years of age at the time the offense
15        is  committed  and  who   is   convicted,   in   criminal
16        proceedings  permitted  or  required  under  Section 5-4,
17        under either of the following circumstances:
18                  (A)  The minor  has  been  convicted  of  first
19             degree   murder,  attempt  to  commit  first  degree
20             murder,  aggravated  criminal  sexual  assault,   or
21             criminal sexual assault,
22                  (B)  The  court  has  made  a  finding that the
23             minor was at least 13 years of age at the  time  the
24             offense  was  committed and the conviction was based
25             upon the minor's commission of: (i)  an  offense  in
26             furtherance  of  the  commission  of  a  felony as a
27             member of or on behalf of a  criminal  street  gang,
28             (ii)  an  offense  involving the use of a firearm in
29             the commission of a felony, (iii) a Class  X  felony
30             offense  under  or a second or subsequent Class 2 or
31             greater felony offense under  the  Cannabis  Control
32             Act,  (iv)  a  second  or  subsequent  offense under
33             Section 402 of the  Illinois  Controlled  Substances
34             Act,  or  (v)  an  offense  under Section 401 of the
 
HB2088 Engrossed            -10-               LRB9206809RCcd
 1             Illinois Controlled Substances Act.
 2        (D)  Pending or following any adjudication of delinquency
 3    for any offense defined in Sections 12-13  through  12-16  of
 4    the  Criminal  Code  of  1961, the victim of any such offense
 5    shall receive the rights set out in Sections 4 and 6  of  the
 6    Bill  of  Rights  for  Victims and Witnesses of Violent Crime
 7    Act; and the juvenile who is the subject of the adjudication,
 8    notwithstanding any other provision of  this  Act,  shall  be
 9    treated  as an adult for the purpose of affording such rights
10    to the victim.
11        (E)  Nothing in this Section shall affect the right of  a
12    Civil  Service  Commission  or  appointing  authority  of any
13    state, county or municipality  examining  the  character  and
14    fitness of an applicant for employment with a law enforcement
15    agency,  correctional  institution,  or  fire  department  to
16    ascertain whether that applicant was ever adjudicated to be a
17    delinquent  minor  and,  if  so,  to  examine  the records of
18    disposition or evidence which were made in proceedings  under
19    this Act.
20        (F)  Following  any  adjudication  of  delinquency  for a
21    crime which would be a felony if committed by  an  adult,  or
22    following  any adjudication of delinquency for a violation of
23    Section 24-1, 24-3, 24-3.1, or 24-5 of the Criminal  Code  of
24    1961,  the State's Attorney shall ascertain whether the minor
25    respondent is enrolled in school and, if so, shall provide  a
26    copy  of  the  dispositional  order to the principal or chief
27    administrative  officer  of  the  school.   Access  to   such
28    juvenile  records  shall be limited to the principal or chief
29    administrative  officer  of  the  school  and  any   guidance
30    counselor designated by him.
31        (G)  Nothing  contained  in this Act prevents the sharing
32    or  disclosure  of  information  or   records   relating   or
33    pertaining  to  juveniles  subject  to  the provisions of the
34    Serious Habitual Offender Comprehensive Action  Program  when
 
HB2088 Engrossed            -11-               LRB9206809RCcd
 1    that   information   is   used   to   assist   in  the  early
 2    identification and treatment of habitual juvenile offenders.
 3        (H)  When a Court hearing a proceeding under  Article  II
 4    of  this  Act  becomes aware that an earlier proceeding under
 5    Article II had been heard in a different county,  that  Court
 6    shall request, and the Court in which the earlier proceedings
 7    were  initiated  shall transmit, an authenticated copy of the
 8    Court record, including all documents, petitions, and  orders
 9    filed   therein   and   the   minute  orders,  transcript  of
10    proceedings, and docket entries of the Court.
11        (I)  The Clerk of the Circuit Court shall report  to  the
12    Department  of  State Police, in the form and manner required
13    by the Department of State Police, the final  disposition  of
14    each minor who has been arrested or taken into custody before
15    his  or  her  17th birthday for those offenses required to be
16    reported under Section 5 of the Criminal Identification  Act.
17    Information reported to the Department under this Section may
18    be  maintained  with  records that the Department files under
19    Section 2.1 of the Criminal Identification Act.
20    (Source: P.A. 90-28, eff. 1-1-98; 90-87, eff. 9-1-97; 90-127,
21    eff. 1-1-98; 90-655,  eff.  7-30-98;  91-357,  eff.  7-29-99;
22    91-368, eff. 1-1-00.)

23        Section   10.   The  Criminal  Code of 1961 is amended by
24    changing Section 11-9.2 as follows:

25        (720 ILCS 5/11-9.2)
26        Sec. 11-9.2.  Custodial sexual misconduct.
27        (a)  A person commits the  offense  of  custodial  sexual
28    misconduct  when:  (1)  he  or  she is an employee of a penal
29    system and engages in sexual conduct  or  sexual  penetration
30    with  a  person who is in the custody of that penal system or
31    (2) he or she is an employee of  a  treatment  and  detention
32    facility  and engages in sexual conduct or sexual penetration
 
HB2088 Engrossed            -12-               LRB9206809RCcd
 1    with a person who is in the custody  of  that  treatment  and
 2    detention facility.
 3        (b)  A  probation  or supervising officer or surveillance
 4    agent commits the offense of custodial sexual misconduct when
 5    the probation or supervising officer  or  surveillance  agent
 6    engages  in  sexual  conduct  or  sexual  penetration  with a
 7    probationer, parolee, or releasee or person serving a term of
 8    conditional   release   who   is   under   the   supervisory,
 9    disciplinary, or custodial authority of the officer or  agent
10    so engaging in the sexual conduct or sexual penetration.
11        (c)  Custodial sexual misconduct is a Class 3 felony.
12        (d)  Any  person  convicted  of  violating  this  Section
13    immediately  shall forfeit his or her employment with a penal
14    system, treatment  and  detention  facility,  or  conditional
15    release program.
16        (e)  For  purposes  of  this  Section, the consent of the
17    probationer, parolee, releasee, or inmate in custody  of  the
18    penal  system  or  person detained or civilly committed under
19    the Sexually Violent Persons Commitment Act shall  not  be  a
20    defense  to  a  prosecution  under this Section.  A person is
21    deemed incapable of consent, for purposes  of  this  Section,
22    when he or she is a probationer, parolee, releasee, or inmate
23    in  custody  of  a penal system or person detained or civilly
24    committed under the Sexually Violent Persons Commitment Act.
25        (f)  This Section does not apply to:
26             (1)  Any   employee,   probation,   or   supervising
27        officer, or surveillance agent who is lawfully married to
28        a person in custody if the marriage occurred  before  the
29        date of custody.
30             (2)  Any   employee,   probation,   or   supervising
31        officer,  or surveillance agent who has no knowledge, and
32        would have no reason to believe,  that  the  person  with
33        whom he or she engaged in custodial sexual misconduct was
34        a person in custody.
 
HB2088 Engrossed            -13-               LRB9206809RCcd
 1        (g)  In this Section:
 2             (1)  "Custody" means:
 3                  (i)  pretrial incarceration or detention;
 4                  (ii)  incarceration   or   detention   under  a
 5             sentence or commitment to a  State  or  local  penal
 6             institution;
 7                  (iii)  parole or mandatory supervised release;
 8                  (iv)  electronic home detention;
 9                  (v)  probation;
10                  (vi)  detention  or  civil commitment either in
11             secure care or in the community under  the  Sexually
12             Violent Persons Commitment Act.
13             (2)  "Penal  system" means any system which includes
14        institutions as defined in Section 2-14 of this Code or a
15        county shelter care or detention home  established  under
16        Section  1  of the County Shelter Care and Detention Home
17        Act.
18             (2.1)  "Treatment and detention facility" means  any
19        Department of Human Services facility established for the
20        detention  or  civil  commitment  of  persons  under  the
21        Sexually Violent Persons Commitment Act.
22             (2.2)  "Conditional  release"  means  a  program  of
23        treatment  and services, vocational services, and alcohol
24        or other drug abuse  treatment  provided  to  any  person
25        civilly  committed  and  conditionally  released  to  the
26        community  under  the Sexually Violent Persons Commitment
27        Act;
28             (3)  "Employee" means:
29                  (i)  an employee of any governmental agency  of
30             this  State  or  any county or municipal corporation
31             that has by statute, ordinance, or court  order  the
32             responsibility for the care, control, or supervision
33             of  pretrial  or sentenced persons in a penal system
34             or persons detained or civilly committed  under  the
 
HB2088 Engrossed            -14-               LRB9206809RCcd
 1             Sexually Violent Persons Commitment Act;
 2                  (ii)  a  contractual employee of a penal system
 3             as defined in paragraph (g)(2) of this  Section  who
 4             works  in  a penal institution as defined in Section
 5             2-14 of this Code;
 6                  (iii)   a contractual employee of a  "treatment
 7             and  detention  facility"  as  defined  in paragraph
 8             (g)(2.1) of this Code or a contractual  employee  of
 9             the   Department  of  Human  Services  who  provides
10             supervision of persons serving a term of conditional
11             release as defined in  paragraph  (g)(2.2)  of  this
12             Code.
13             (4)  "Sexual  conduct" or "sexual penetration" means
14        any act  of  sexual  conduct  or  sexual  penetration  as
15        defined in Section 12-12 of this Code.
16             (5)  "Probation  officer"  means any person employed
17        in a probation or court services department as defined in
18        Section 9b of the Probation and Probation Officers Act.
19             (6)  "Supervising officer" means any person employed
20        to  supervise  persons  placed  on  parole  or  mandatory
21        supervised release with the duties described  in  Section
22        3-14-2 of the Unified Code of Corrections.
23             (7)  "Surveillance  agent" means any person employed
24        or contracted to supervise persons placed on  conditional
25        release  in  the  community  under  the  Sexually Violent
26        Persons Commitment Act.
27    (Source: P.A. 90-66, eff. 7-7-97; 90-655, eff. 7-30-98.)

28        Section  15.  The Sexually Violent Persons Commitment Act
29    is amended by changing Sections 30, 35, 40,  60,  and  65  as
30    follows:

31        (725 ILCS 207/30)
32        Sec. 30.  Detention; probable cause hearing; transfer for
 
HB2088 Engrossed            -15-               LRB9206809RCcd
 1    examination.
 2        (a)  Upon  the  filing  of a petition under Section 15 of
 3    this Act, the court shall review the  petition  to  determine
 4    whether  to issue an order for detention of the person who is
 5    the subject of the petition.  The person  shall  be  detained
 6    only if there is cause to believe that the person is eligible
 7    for  commitment  under  subsection  (f) of Section 35 of this
 8    Act.  A person detained under this Section shall be held in a
 9    facility approved  by  the  Department.   If  the  person  is
10    serving  a  sentence  of  imprisonment, is in a Department of
11    Corrections correctional facility  or  juvenile  correctional
12    facility or is committed to institutional care, and the court
13    orders  detention  under  this Section, the court shall order
14    that the  person  be  transferred  to  a  detention  facility
15    approved  by  the  Department.   A detention order under this
16    Section remains in effect  until  the  person  is  discharged
17    after  a  trial  under  Section  35  of this Act or until the
18    effective date of a commitment order under Section 40 of this
19    Act, whichever is applicable.
20        (b)  Whenever a petition is filed  under  Section  15  of
21    this Act, the court shall hold a hearing to determine whether
22    there  is  probable cause to believe that the person named in
23    the petition is a sexually violent  person.   If  the  person
24    named in the petition is in custody, the court shall hold the
25    probable  cause hearing within 72 hours after the petition is
26    filed, excluding Saturdays, Sundays and legal holidays.   The
27    court  may  grant a continuance of the probable cause hearing
28    for no more than 7 additional days upon  the  motion  of  the
29    respondent,  for  good  cause.   If  the  person named in the
30    petition has been released, is on  parole,  is  on  mandatory
31    supervised release, or otherwise is not in custody, the court
32    shall  hold  the  probable  cause hearing within a reasonable
33    time after the filing of the petition. At the probable  cause
34    hearing,  the  court  shall  admit  and consider all relevant
 
HB2088 Engrossed            -16-               LRB9206809RCcd
 1    hearsay evidence.
 2        (c)  If the court determines after a hearing  that  there
 3    is  probable  cause  to  believe that the person named in the
 4    petition is a sexually violent person, the court shall  order
 5    that  the person be taken into custody if he or she is not in
 6    custody and shall order the person to be transferred within a
 7    reasonable time to an appropriate facility for an  evaluation
 8    as to whether the person is a sexually violent person. If the
 9    person  who  is  named  in  the petition refuses to speak to,
10    communicate with, or otherwise fails to  cooperate  with  the
11    examining  evaluator from the Department of Human Services or
12    the Department of Corrections, that person may only introduce
13    evidence and testimony from any expert or professional person
14    who is retained or court-appointed to conduct an  examination
15    of  the  person that results from a review of the records and
16    may not introduce evidence resulting from an  examination  of
17    the  person.   If the person named in the petition refuses to
18    speak to, communicate with, or otherwise fails  to  cooperate
19    with  the expert from the Department of Human Services who is
20    conducting the evaluation, the  person  shall  be  prohibited
21    from  introducing  testimony  or  evidence from any expert or
22    professional person who is retained  or  court  appointed  to
23    conduct  an  evaluation  of  the person.  Notwithstanding the
24    provisions  of  Section  10  of   the   Mental   Health   and
25    Developmental    Disabilities    Confidentiality   Act,   all
26    evaluations conducted pursuant to this Act and  all  Illinois
27    Department   of   Corrections   treatment  records  shall  be
28    admissible at all proceedings  held  pursuant  to  this  Act,
29    including the probable cause hearing and the trial.
30        If  the  court  determines  that  probable cause does not
31    exist to believe  that  the  person  is  a  sexually  violent
32    person, the court shall dismiss the petition.
33        (d)  The  Department  shall promulgate rules that provide
34    the qualifications for persons conducting  evaluations  under
 
HB2088 Engrossed            -17-               LRB9206809RCcd
 1    subsection (c) of this Section.
 2        (e)  If  the  person  named  in  the  petition  claims or
 3    appears to  be  indigent,  the  court  shall,  prior  to  the
 4    probable  cause hearing under subsection (b) of this Section,
 5    appoint counsel.
 6    (Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98.)

 7        (725 ILCS 207/35)
 8        Sec. 35.  Trial.
 9        (a)  A trial to determine whether the person who  is  the
10    subject  of  a  petition  under  Section  15 of this Act is a
11    sexually violent person shall commence no later than  120  45
12    days  after  the  date  of  the  probable cause hearing under
13    Section 30 of this Act. Delay is considered to be  agreed  to
14    by the person unless he or she objects to the delay by making
15    a written demand for trial or an oral demand for trial on the
16    record.   Delay occasioned by the person temporarily suspends
17    for the time of the delay the period within  which  a  person
18    must  be  tried. If the delay occurs within 21 days after the
19    end of the period within which a person must  be  tried,  the
20    court  may continue the cause on application of the State for
21    not more  than  an  additional  21  days  beyond  the  period
22    prescribed.  The  court  may grant a continuance of the trial
23    date for good cause upon its own motion, the  motion  of  any
24    party  or  the  stipulation of the parties, provided that any
25    continuance granted shall be subject to Section 103-5 of  the
26    Code of Criminal Procedure of 1963.
27        (b)  At  the trial to determine whether the person who is
28    the subject of a petition under Section 15 of this Act  is  a
29    sexually  violent  person,  all rules of evidence in criminal
30    actions apply.  All  constitutional  rights  available  to  a
31    defendant  in  a  criminal  proceeding  are  available to the
32    person.  At the trial on the petition it shall  be  competent
33    to  introduce evidence of the commission by the respondent of
 
HB2088 Engrossed            -18-               LRB9206809RCcd
 1    any number of crimes together with whatever  punishments,  if
 2    any,  were  imposed.    The  petitioner  may  present  expert
 3    testimony  from  both  the Illinois Department of Corrections
 4    evaluator and the Department of Human Services psychologist.
 5        (c)  The person who is the subject of the  petition,  the
 6    person's  attorney,  the  Attorney  General  or  the  State's
 7    Attorney  may request that a trial under this Section be by a
 8    jury.  A request for a jury trial under this subsection shall
 9    be made within 10 days after the probable cause hearing under
10    Section 30 of this Act.  If no request  is  made,  the  trial
11    shall  be by the court.  The person, the person's attorney or
12    the  Attorney  General  or  State's  Attorney,  whichever  is
13    applicable, may withdraw his or her request for a jury trial.
14        (d) (1)  At a trial on a petition  under  this  Act,  the
15        petitioner  has  the burden of proving the allegations in
16        the petition beyond a reasonable doubt.
17             (2)  If the State alleges that the sexually  violent
18        offense  or act that forms the basis for the petition was
19        an  act  that  was  sexually  motivated  as  provided  in
20        paragraph (e)(2) of Section 5 of this Act, the  State  is
21        required  to  prove  beyond  a  reasonable doubt that the
22        alleged sexually violent act was sexually motivated.
23        (e)  Evidence that the person who is  the  subject  of  a
24    petition  under  Section  15 of this Act was convicted for or
25    committed sexually violent  offenses  before  committing  the
26    offense  or  act  on  which  the  petition  is  based  is not
27    sufficient to establish beyond a reasonable  doubt  that  the
28    person has a mental disorder.
29        (f)  If  the court or jury determines that the person who
30    is the subject of a petition under Section 15 is  a  sexually
31    violent  person,  the  court  shall  enter a judgment on that
32    finding and shall commit the person as provided under Section
33    40 of this Act.  If the court or jury is not satisfied beyond
34    a reasonable doubt that the  person  is  a  sexually  violent
 
HB2088 Engrossed            -19-               LRB9206809RCcd
 1    person,  the court shall dismiss the petition and direct that
 2    the person be released unless he or she is under  some  other
 3    lawful restriction.
 4        (g)  A  judgment  entered  under  subsection  (f) of this
 5    Section on the finding that the person who is the subject  of
 6    a  petition  under Section 15 is a sexually violent person is
 7    interlocutory to a commitment order under Section 40  and  is
 8    reviewable on appeal.
 9    (Source: P.A. 90-40, eff. 1-1-98; 91-875, eff. 6-30-00.)

10        (725 ILCS 207/40)
11        Sec. 40.  Commitment.
12        (a)  If a court or jury determines that the person who is
13    the  subject  of a petition under Section 15 of this Act is a
14    sexually violent person, the court shall order the person  to
15    be  committed  to  the custody of the Department for control,
16    care and treatment until such time as the person is no longer
17    a sexually violent person.
18        (b) (1)  The court  shall  enter  an  initial  commitment
19        order  under  this  Section pursuant to a hearing held as
20        soon as practicable after the judgment  is  entered  that
21        the person who is the subject of a petition under Section
22        15  is  a  sexually  violent  person.  If the court lacks
23        sufficient information to make the determination required
24        by paragraph (b)(2) of  this  Section  immediately  after
25        trial,   it   may  adjourn  the  hearing  and  order  the
26        Department to conduct a predisposition investigation or a
27        supplementary mental examination, or both, to assist  the
28        court  in framing the commitment order.   A supplementary
29        mental examination under this Section shall be  conducted
30        in accordance with Section 3-804 of the Mental Health and
31        Developmental Disabilities Code.
32             (2)  An  order  for  commitment  under  this Section
33        shall specify  either  institutional  care  in  a  secure
 
HB2088 Engrossed            -20-               LRB9206809RCcd
 1        facility,  as  provided  under Section 50 of this Act, or
 2        conditional release.  In determining  whether  commitment
 3        shall  be for institutional care in a secure  facility or
 4        for conditional release, the court  shall  must  consider
 5        the nature and circumstances of the behavior that was the
 6        basis  of  the allegation in the petition under paragraph
 7        (b)(1) of Section 15, the  person's  mental  history  and
 8        present mental condition, where the person will live, how
 9        the  person  will  support  himself  or herself, and what
10        arrangements are available to ensure that the person  has
11        access  to  and  will participate in necessary treatment.
12        The  Department  shall  arrange  for  control,  care  and
13        treatment of the person in the least  restrictive  manner
14        consistent  with  the  requirements  of the person and in
15        accordance with the court's commitment order.
16             (3)  If  the  court  finds  that   the   person   is
17        appropriate  for  conditional  release,  the  court shall
18        notify the Department.  The Department  shall  prepare  a
19        plan  that identifies the treatment and services, if any,
20        that the person will receive in the community.   The plan
21        shall address the person's need, if any, for supervision,
22        counseling,  medication,  community   support   services,
23        residential services, vocational services, and alcohol or
24        other  drug abuse treatment.  The Department may contract
25        with a county  health  department,  with  another  public
26        agency  or with a private agency to provide the treatment
27        and services identified in  the  plan.   The  plan  shall
28        specify   who  will  be  responsible  for  providing  the
29        treatment and services identified in the plan.  The  plan
30        shall  be  presented to the court for its approval within
31        60 days after  the  court  finding  that  the  person  is
32        appropriate   for   conditional   release,   unless   the
33        Department   and   the  person  to  be  released  request
34        additional time to  develop  the  plan.  The  conditional
 
HB2088 Engrossed            -21-               LRB9206809RCcd
 1        release  program  operated  under  this  Section  is  not
 2        subject  to  the  provisions  of  the  Mental  Health and
 3        Developmental Disabilities Confidentiality Act.
 4             (4)  An order for  conditional  release  places  the
 5        person  in  the custody and control of the Department.  A
 6        person  on  conditional  release  is   subject   to   the
 7        conditions  set  by  the  court  and  to the rules of the
 8        Department.  Before a person  is  placed  on  conditional
 9        release  by the court under this Section, the court shall
10        so notify the  municipal  police  department  and  county
11        sheriff  for  the  municipality  and  county in which the
12        person will be residing.   The  notification  requirement
13        under  this  Section does not apply if a municipal police
14        department or county  sheriff  submits  to  the  court  a
15        written  statement  waiving the right to be notified.  If
16        the  Department  alleges  that  a  released  person   has
17        violated  any  condition  or  rule, or that the safety of
18        others requires that conditional release be  revoked,  he
19        or  she  may be taken into custody under the rules of the
20        Department.
21             At  any  time  during  which  the   person   is   on
22        conditional  release,  if  the Department determines that
23        the person has violated any condition or  rule,  or  that
24        the safety of others requires that conditional release be
25        revoked,  the Department may request the Attorney General
26        or State's Attorney to request  the  court  to  issue  an
27        emergency  ex  parte  order directing any law enforcement
28        officer to take the person into custody and transport the
29        person to the county jail.  The Department  may  request,
30        or  the  Attorney General or State's Attorney may request
31        independently of  the  Department,  that  a  petition  to
32        revoke  conditional release be filed.  When a petition is
33        filed, the court may order  the  Department  to  issue  a
34        notice  to  the person to be present at the Department or
 
HB2088 Engrossed            -22-               LRB9206809RCcd
 1        other agency designated by the court, order a summons  to
 2        the  person to be present, or order a body attachment for
 3        all law enforcement officers  to  take  the  person  into
 4        custody  and  transport  him  or  her to the county jail,
 5        hospital, or treatment  facility.  The  Department  shall
 6        submit   a   statement  showing  probable  cause  of  the
 7        detention  and  a  petition  to  revoke  the  order   for
 8        conditional  release  to  the  committing court within 48
 9        hours after the detention.   The  court  shall  hear  the
10        petition  within  30  days,  unless  the  hearing or time
11        deadline is waived by the detained person.   Pending  the
12        revocation  hearing, the Department may detain the person
13        in a jail, in a  hospital  or  treatment  facility.   The
14        State  has  the burden of proving by clear and convincing
15        evidence that any rule or condition of release  has  been
16        violated,  or that the safety of others requires that the
17        conditional release be revoked.  If the court  determines
18        after  hearing  that any rule or condition of release has
19        been violated, or that the safety of others requires that
20        conditional release be revoked, it may revoke  the  order
21        for  conditional  release  and  order  that  the released
22        person be placed in an appropriate institution until  the
23        person is discharged from the commitment under Section 65
24        of  this Act or until again placed on conditional release
25        under Section 60 of this Act.
26             (5)  An order for  conditional  release  places  the
27        person   in   the  custody,  care,  and  control  of  the
28        Department.  The court shall order the person be  subject
29        to   the  following  rules  of  conditional  release,  in
30        addition to any other conditions ordered, and the  person
31        shall be given a certificate setting forth the conditions
32        of  conditional  release.  These conditions shall be that
33        the person:
34                  (A)  not violate any criminal  statute  of  any
 
HB2088 Engrossed            -23-               LRB9206809RCcd
 1             jurisdiction;
 2                  (B)  report  to or appear in person before such
 3             person or agency as directed by the  court  and  the
 4             Department;
 5                  (C)  refrain  from  possession  of a firearm or
 6             other dangerous weapon;
 7                  (D)  not leave the State without the consent of
 8             the court or, in circumstances in which  the  reason
 9             for the absence is of such an emergency nature, that
10             prior  consent  by the court is not possible without
11             the  prior  notification   and   approval   of   the
12             Department;
13                  (E)  at the direction of the Department, notify
14             third parties of the risks that may be occasioned by
15             his  or  her  criminal  record  or  sexual offending
16             history   or   characteristics,   and   permit   the
17             supervising   officer   or   agent   to   make   the
18             notification requirement;
19                  (F)  attend   and    fully    participate    in
20             assessment,   treatment,   and  behavior  monitoring
21             including,   but   not    limited    to,    medical,
22             psychological  or  psychiatric treatment specific to
23             sexual offending, drug addiction, or alcoholism,  to
24             the  extent appropriate to the person based upon the
25             recommendation and findings made in  the  Department
26             evaluation    or    based    upon   any   subsequent
27             recommendations by the Department;
28                  (G)  waive confidentiality allowing  the  court
29             and  Department  access  to  assessment or treatment
30             results or both;
31                  (H)  work regularly at  a  Department  approved
32             occupation or pursue a course of study or vocational
33             training  and  notify the Department within 72 hours
34             of any change in employment, study, or training;
 
HB2088 Engrossed            -24-               LRB9206809RCcd
 1                  (I)  not be  employed  or  participate  in  any
 2             volunteer   activity   that  involves  contact  with
 3             children, except  under  circumstances  approved  in
 4             advance and in writing by the Department officer;
 5                  (J)  submit to the search of his or her person,
 6             residence, vehicle, or any personal or real property
 7             under  his  or  her  control  at  any  time  by  the
 8             Department;
 9                  (K)  financially  support his or her dependents
10             and provide the Department access to  any  requested
11             financial information;
12                  (L)  serve  a  term  of  home  confinement, the
13             conditions of which shall be that the person:
14                       (i)  remain within the  interior  premises
15                  of   the   place  designated  for  his  or  her
16                  confinement during the hours designated by  the
17                  Department;
18                       (ii)  admit any person or agent designated
19                  by  the Department into the offender's place of
20                  confinement  at  any  time  for   purposes   of
21                  verifying  the  person's  compliance  with  the
22                  condition of his or her confinement;
23                       (iii)  if    deemed   necessary   by   the
24                  Department,  be   placed   on   an   electronic
25                  monitoring device;
26                  (M)  comply with the terms and conditions of an
27             order  of protection issued by the court pursuant to
28             the Illinois Domestic Violence Act of 1986.  A  copy
29             of  the  order of protection shall be transmitted to
30             the Department by the clerk of the court;
31                  (N)  refrain from entering  into  a  designated
32             geographic  area  except  upon  terms the Department
33             finds   appropriate.    The   terms   may    include
34             consideration  of the purpose of the entry, the time
 
HB2088 Engrossed            -25-               LRB9206809RCcd
 1             of day, others accompanying the person, and  advance
 2             approval by the Department;
 3                  (O)  refrain from having any contact, including
 4             written   or   oral   communications,   directly  or
 5             indirectly,   with   certain    specified    persons
 6             including,  but  not  limited  to, the victim or the
 7             victim's family, and report any  incidental  contact
 8             with  the  victim  or  the  victim's  family  to the
 9             Department within 72 hours;  refrain  from  entering
10             onto  the  premises of, traveling past, or loitering
11             near the victim's residence, place of employment, or
12             other places frequented by the victim;
13                  (P)  refrain from having any contact, including
14             written  or   oral   communications,   directly   or
15             indirectly,   with   particular  types  of  persons,
16             including but  not  limited  to  members  of  street
17             gangs, drug users, drug dealers, or prostitutes;
18                  (Q)  refrain   from   all  contact,  direct  or
19             indirect,  personally,  by  telephone,  letter,   or
20             through  another person, with minor children without
21             prior identification and approval of the Department;
22                  (R)  refrain from having in his or her body the
23             presence of alcohol or any illicit  drug  prohibited
24             by   the   Cannabis  Control  Act  or  the  Illinois
25             Controlled Substances Act, unless  prescribed  by  a
26             physician,  and submit samples of his or her breath,
27             saliva, blood, or urine for tests to  determine  the
28             presence of alcohol or any illicit drug;
29                  (S)  not   establish  a  dating,  intimate,  or
30             sexual relationship  with  a  person  without  prior
31             written notification to the Department;
32                  (T)  neither  possess  or have under his or her
33             control any material that is pornographic,  sexually
34             oriented,  or  sexually stimulating, or that depicts
 
HB2088 Engrossed            -26-               LRB9206809RCcd
 1             or alludes to  sexual  activity  or  depicts  minors
 2             under  the  age  of 18, including but not limited to
 3             visual, auditory, telephonic, electronic  media,  or
 4             any  matter  obtained through access to any computer
 5             or material linked to computer access use;
 6                  (U)  not  patronize  any   business   providing
 7             sexually    stimulating    or    sexually   oriented
 8             entertainment nor utilize "900" or  adult  telephone
 9             numbers or any other sex-related telephone numbers;
10                  (V)  not  reside near, visit, or be in or about
11             parks, schools, day care  centers,  swimming  pools,
12             beaches,  theaters,  or any other places where minor
13             children congregate without advance approval of  the
14             Department  and  report  any incidental contact with
15             minor children to the Department within 72 hours;
16                  (W)  not establish any  living  arrangement  or
17             residence without prior approval of the Department;
18                  (X)  not  publish  any  materials  or print any
19             advertisements  without  providing  a  copy  of  the
20             proposed publications to the Department officer  and
21             obtaining permission prior to publication;
22                  (Y)  not  leave  the  county  except with prior
23             permission  of  the  Department  and   provide   the
24             Department  officer  or  agent  with  written travel
25             routes to and from work  and  any  other  designated
26             destinations;
27                  (Z)  not  possess  or  have  under  his  or her
28             control  certain  specified  items   of   contraband
29             related to the incidence of sexually offending items
30             including  video or still camera items or children's
31             toys;
32                  (AA)  provide a written daily log of activities
33             as directed by the Department;
34                  (BB)  comply with all other special  conditions
 
HB2088 Engrossed            -27-               LRB9206809RCcd
 1             that  the  Department  may  impose that restrict the
 2             person from high-risk situations and limit access or
 3             potential victims.
 4             (6)  A person placed on conditional release and  who
 5        during  the  term  undergoes  mandatory  drug  or alcohol
 6        testing or is  assigned  to  be  placed  on  an  approved
 7        electronic  monitoring  device  may be ordered to pay all
 8        costs incidental to the mandatory drug or alcohol testing
 9        and all  costs  incidental  to  the  approved  electronic
10        monitoring in accordance with the person's ability to pay
11        those  costs.   The  Department  may establish reasonable
12        fees for the cost of maintenance, testing, and incidental
13        expenses related to the mandatory drug or alcohol testing
14        and  all  costs   incidental   to   approved   electronic
15        monitoring.
16    (Source: P.A. 90-40, eff. 1-1-98; 91-875, eff. 6-30-00.)

17        (725 ILCS 207/60)
18        Sec. 60.  Petition for conditional release.
19        (a)  Any  person  who is committed for institutional care
20    in a secure facility or other facility under  Section  40  of
21    this  Act  may  petition  the  committing court to modify its
22    order by authorizing conditional release if at least 6 months
23    have elapsed since the initial commitment order was  entered,
24    the  most  recent  release  petition  was  denied or the most
25    recent  order  for  conditional  release  was  revoked.   The
26    director of the facility at which the person  is  placed  may
27    file  a petition under this Section on the person's behalf at
28    any time.
29        (b)  If  the  person  files  a  timely  petition  without
30    counsel, the court shall serve a copy of the petition on  the
31    Attorney General or State's Attorney, whichever is applicable
32    and,  subject  to paragraph (c)(1) of Section 25 of this Act,
33    appoint counsel.  If the person  petitions  through  counsel,
 
HB2088 Engrossed            -28-               LRB9206809RCcd
 1    his  or  her  attorney  shall  serve  the Attorney General or
 2    State's Attorney, whichever is applicable.
 3        (c)  Within 20 days after receipt of  the  petition,  the
 4    court   shall  appoint  one  or  more  examiners  having  the
 5    specialized  knowledge  determined  by  the   court   to   be
 6    appropriate,  who  shall  examine the mental condition of the
 7    person and furnish a written report of the examination to the
 8    court within 30 days after appointment.  The examiners  shall
 9    have   reasonable  access  to  the  person  for  purposes  of
10    examination and to the person's past  and  present  treatment
11    records  and  patient  health  care  records.   If  any  such
12    examiner   believes   that  the  person  is  appropriate  for
13    conditional release, the examiner shall report on the type of
14    treatment and services that the person may need while in  the
15    community on conditional release.  The State has the right to
16    have  the  person  evaluated  by experts chosen by the State.
17    The court shall set a  probable  cause  hearing  as  soon  as
18    practical after the examiner's report is filed.  If the court
19    determines at the probable cause hearing that cause exists to
20    believe that it is not substantially probable that the person
21    will  engage  in  acts  of  sexual  violence if on release or
22    conditional release, the court shall set  a  hearing  on  the
23    issue.
24        (d)  The  court,  without a jury, shall hear the petition
25    within 30  days  after  the  report  of  the  court-appointed
26    examiner  is  filed  with  the  court,  unless the petitioner
27    waives this time limit.  The court shall grant  the  petition
28    unless the State proves by clear and convincing evidence that
29    the   person   has   not   made  sufficient  progress  to  be
30    conditionally released that the person is  still  a  sexually
31    violent  person  and  that it is still substantially probable
32    that the person will engage in acts of sexual violence if the
33    person is not confined in a secure  facility.   In  making  a
34    decision  under  this subsection, the court must may consider
 
HB2088 Engrossed            -29-               LRB9206809RCcd
 1    the nature and circumstances of the  behavior  that  was  the
 2    basis  of  the  allegation  in  the  petition under paragraph
 3    (b)(1) of Section 15 of this Act, the person's mental history
 4    and present mental condition, where the person will live, how
 5    the  person  will  support  himself  or  herself   and   what
 6    arrangements  are  available  to  ensure  that the person has
 7    access to and will participate in necessary treatment.
 8        (e)  Before  the  court  may  enter  an  order  directing
 9    conditional release to a less restrictive alternative it must
10    find the following: (1) the  person  will  be  treated  by  a
11    Department  approved  treatment  provider,  (2) the treatment
12    provider has presented a specific course of treatment and has
13    agreed to assume responsibility for the  treatment  and  will
14    report  progress  to  the  Department on a regular basis, and
15    will  report  violations  immediately  to   the   Department,
16    consistent  with  treatment  and  supervision  needs  of  the
17    respondent, (3) housing exists that is sufficiently secure to
18    protect  the  community,  and  the person or agency providing
19    housing to the conditionally released person  has  agreed  in
20    writing  to  accept  the  person,  to  provide  the  level of
21    security required by the court, and immediately to report  to
22    the  Department  if the person leaves the housing to which he
23    or she has  been  assigned  without  authorization,  (4)  the
24    person  is  willing  to  or  has  agreed  to  comply with the
25    treatment provider, the Department, and the  court,  and  (5)
26    the  person  has agreed or is willing to agree to comply with
27    the behavioral monitoring requirements imposed by  the  court
28    and the Department.
29        (f)  If  the  court  finds that the person is appropriate
30    for  conditional  release,  the  court   shall   notify   the
31    Department.    The  Department  shall  prepare  a  plan  that
32    identifies the treatment  and  services,  if  any,  that  the
33    person will receive in the community.  The plan shall address
34    the  person's  need,  if  any,  for  supervision, counseling,
 
HB2088 Engrossed            -30-               LRB9206809RCcd
 1    medication, community support services, residential services,
 2    vocational  services,  and  alcohol  or  other   drug   abuse
 3    treatment.   The Department may contract with a county health
 4    department, with another public  agency  or  with  a  private
 5    agency  to  provide  the treatment and services identified in
 6    the plan.  The plan shall specify who will be responsible for
 7    providing the treatment and services identified in the  plan.
 8    The  plan  shall  be  presented to the court for its approval
 9    within 60 days after the court finding  that  the  person  is
10    appropriate  for  conditional  release, unless the Department
11    and the person to be  released  request  additional  time  to
12    develop the plan.
13        (g)  The  provisions of paragraph (b)(4) of Section 40 of
14    this Act apply to an order  for  conditional  release  issued
15    under this Section.
16    (Source: P.A. 90-40, eff. 1-1-98; 91-875, eff. 6-30-00.)

17        (725 ILCS 207/65)
18        Sec. 65.  Petition for discharge; procedure.
19        (a)(1)  If  the  Secretary  determines at any time that a
20    person committed under this  Act  is  no  longer  a  sexually
21    violent  person,  the Secretary shall authorize the person to
22    petition the committing  court  for  discharge.   The  person
23    shall  file the petition with the court and serve a copy upon
24    the Attorney General or the State's  Attorney's  office  that
25    filed the petition under subsection (a) of Section 15 of this
26    Act, whichever is applicable.  The court, upon receipt of the
27    petition  for  discharge,  shall  order  a hearing to be held
28    within 45 days after the date of receipt of the petition.
29        (2)  At a hearing under  this  subsection,  the  Attorney
30    General  or  State's  Attorney,  whichever filed the original
31    petition, shall represent the State and shall have the  right
32    to  have the petitioner examined by an expert or professional
33    person of his or her choice.  The  committed  person  or  the
 
HB2088 Engrossed            -31-               LRB9206809RCcd
 1    State may elect to have the hearing before a jury.  The State
 2    has  the  burden  of proving by clear and convincing evidence
 3    that the petitioner is still a sexually violent person.
 4        (3)  If the court or jury is satisfied that the State has
 5    not met its burden of proof under paragraph  (a)(2)  of  this
 6    Section,  the petitioner shall be discharged from the custody
 7    or supervision of the Department.  If the court is  satisfied
 8    that  the  State  has met its burden of proof under paragraph
 9    (a)(2), the court may proceed under Section 40 of this Act to
10    determine  whether  to  modify  the   petitioner's   existing
11    commitment order.
12        (b)(1)  A  person  may  petition the committing court for
13    discharge from custody or supervision without the Secretary's
14    approval.  At the time of an examination under subsection (a)
15    of Section 55 of this Act, the Secretary  shall  provide  the
16    committed  person with a written notice of the person's right
17    to petition the court  for  discharge  over  the  Secretary's
18    objection.  The notice shall contain a waiver of rights.  The
19    Secretary  shall  forward  the  notice and waiver form to the
20    court with the report of the Department's  examination  under
21    Section 55 of this Act.  If the person does not affirmatively
22    waive  the  right to petition, the court shall set a probable
23    cause hearing to determine whether facts exist that warrant a
24    hearing on whether the person is  still  a  sexually  violent
25    person.  If  a person does not file a petition for discharge,
26    yet fails to waive the right to petition under this  Section,
27    then  the probable cause hearing consists only of a review of
28    the reexamination reports and  arguments  on  behalf  of  the
29    parties. The committed person has a right to have an attorney
30    represent  him  or her at the probable cause hearing, but the
31    person is not entitled to be present at  the  probable  cause
32    hearing.  The  probable cause hearing under this Section must
33    be held within 45 days of the  filing  of  the  reexamination
34    report under Section 55 of this Act.
 
HB2088 Engrossed            -32-               LRB9206809RCcd
 1        (2)  If  the  court  determines  at  the  probable  cause
 2    hearing  under paragraph (b)(1) of this Section that probable
 3    cause exists to believe  that  the  committed  person  is  no
 4    longer  a sexually violent person, then the court shall set a
 5    hearing on the issue.  At a hearing under this  Section,  the
 6    committed person is entitled to be present and to the benefit
 7    of the protections afforded to the person under Section 25 of
 8    this Act. The committed person or the State may elect to have
 9    a  hearing  under this Section before a jury.  A verdict of a
10    jury under this Section is not valid unless it is  unanimous.
11    The Attorney General or State's Attorney, whichever filed the
12    original  petition,  shall  represent  the State at a hearing
13    under this Section.   The State has the  right  to  have  the
14    committed  person  evaluated  by experts chosen by the State.
15    At the hearing, the State has the burden of proving by  clear
16    and  convincing evidence that the committed person is still a
17    sexually violent person.
18        (3)  If the court or jury is satisfied that the State has
19    not met its burden of proof under paragraph  (b)(2)  of  this
20    Section,  the  person shall be discharged from the custody or
21    supervision of the Department.   If  the  court  or  jury  is
22    satisfied  that  the  State has met its burden of proof under
23    paragraph (b)(2) of this Section, the court may proceed under
24    Section 40 of this Act to determine  whether  to  modify  the
25    person's existing commitment order.
26    (Source: P.A. 90-40, eff. 1-1-98; 91-227, eff. 1-1-00.)

27        Section   20.  The Unified Code of Corrections is amended
28    by changing Section 5-3-4 as follows:

29        (730 ILCS 5/5-3-4) (from Ch. 38, par. 1005-3-4)
30        Sec. 5-3-4. Disclosure of Reports.
31        (a)  Any report made pursuant to this Article or  Section
32    5-705  of  the  Juvenile  Court Act of 1987 shall be filed of
 
HB2088 Engrossed            -33-               LRB9206809RCcd
 1    record with the court in a sealed envelope.
 2        (b)  Presentence reports shall  be  open  for  inspection
 3    only as follows:
 4             (1)  to the sentencing court;
 5             (2)  to  the  state's  attorney  and the defendant's
 6        attorney at least 3  days  prior  to  the  imposition  of
 7        sentence, unless such 3 day requirement is waived;
 8             (3)  to  an  appellate court in which the conviction
 9        or sentence is subject to review;
10             (4)  to any department,  agency  or  institution  to
11        which the defendant is committed;
12             (5)  to  any  probation  department of whom courtesy
13        probation is requested;
14             (6)  to any probation department assigned by a court
15        of lawful jurisdiction to conduct a presentence report;
16             (7)  to any other person  only  as  ordered  by  the
17        court; and.
18             (8)  to  any mental health professional on behalf of
19        the Illinois Department of Corrections or the  Department
20        of Human Services or to a prosecutor who is evaluating or
21        investigating  a  potential  or  actual  petition brought
22        under  the  Sexually  Violent  Persons   Commitment   Act
23        relating  to a person who is the subject of a presentence
24        report or the respondent to a petition brought under  the
25        Sexually  Violent  Persons  Commitment  Act  who  is  the
26        subject of the presentence report sought.
27        (c)  Presentence  reports  shall  be filed of record with
28    the court within 30 days of a verdict or  finding  of  guilty
29    for  any  offense involving an illegal sexual act perpetrated
30    upon a victim, including but  not  limited  to  offenses  for
31    violations of Article 12 of the Criminal Code of 1961.
32        (d)  A  complaint, information or indictment shall not be
33    quashed or dismissed nor shall any person in custody  for  an
34    offense  be  discharged from custody because of noncompliance
 
HB2088 Engrossed            -34-               LRB9206809RCcd
 1    with subsection (c) of this Section.
 2    (Source: P.A. 90-590, eff. 1-1-99.)

 3        Section   25.   The  Mental  Health   and   Developmental
 4    Disabilities  Confidentiality  Act  is  amended  by  changing
 5    Section 9.3 as follows:

 6        (740 ILCS 110/9.3)
 7        Sec.  9.3.  Disclosure without consent under the Sexually
 8    Violent  Persons  Commitment  Act.  Disclosure  may  be  made
 9    without consent by any therapist or other treatment  provider
10    providing   mental   health   or  developmental  disabilities
11    services pursuant to the provisions of the  Sexually  Violent
12    Persons Commitment Act or who previously provided any type of
13    mental  health  or  developmental  disabilities services to a
14    person who is subject to  an  evaluation,  investigation,  or
15    prosecution  of a petition under the Sexually Violent Persons
16    Commitment Act.  Disclosure  may  be  made  to  the  Attorney
17    General,  the State's Attorney participating in the case, the
18    Department of Human Services, the court, and any other  party
19    to  whom  the  court  directs  disclosure  to  be  made.  The
20    information   disclosed   may   include   any   records    or
21    communications   in  the  possession  of  the  Department  of
22    Corrections, if those records or communications  were  relied
23    upon   by   the  therapist  in  providing  mental  health  or
24    developmental disabilities services pursuant to the  Sexually
25    Violent Persons Commitment Act.
26    (Source: P.A. 90-793, eff. 8-14-98.)

27        Section  99.  Effective date.  This Act takes effect upon
28    becoming law.

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