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Public Act 91-0875
HB4116 Enrolled LRB9112288RCpc
AN ACT to amend the Sexually Violent Persons Commitment
Act by changing Sections 5, 35, 40, 55, and 60.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Sexually Violent Persons Commitment Act
is amended by changing Sections 5, 35, 40, 55, and 60 as
follows:
(725 ILCS 207/5)
Sec. 5. Definitions. As used in this Act, the term:
(a) "Department" means the Department of Human Services.
(b) "Mental disorder" means a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence.
(c) "Secretary" means the Secretary of Human Services.
(d) "Sexually motivated" means that one of the purposes
for an act is for the actor's sexual arousal or
gratification.
(e) "Sexually violent offense" means any of the
following:
(1) Any crime specified in Section 12-13, 12-14,
12-14.1, or 12-16 of the Criminal Code of 1961; or
(1.5) Any former law of this State specified in
Section 11-1 (rape), 11-3 (deviate sexual assault), 11-4
(indecent liberties with a child) or 11-4 (aggravated
indecent liberties with a child) of the Criminal Code of
1961; or
(2) First degree murder, if it is determined by the
agency with jurisdiction to have been sexually motivated;
or
(3) Any solicitation, conspiracy or attempt to
commit a crime under paragraph (e)(1) or (e)(2) of this
Section.
(f) "Sexually violent person" means a person who has
been convicted of a sexually violent offense, has been
adjudicated delinquent for a sexually violent offense, or has
been found not guilty of a sexually violent offense by reason
of insanity and who is dangerous because he or she suffers
from a mental disorder that makes it substantially probable
that the person will engage in acts of sexual violence.
(Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98.)
(725 ILCS 207/35)
Sec. 35. Trial.
(a) A trial to determine whether the person who is the
subject of a petition under Section 15 of this Act is a
sexually violent person shall commence no later than 45 days
after the date of the probable cause hearing under Section 30
of this Act. The court may grant a continuance of the trial
date for good cause upon its own motion, the motion of any
party or the stipulation of the parties, provided that any
continuance granted shall be subject to Section 103-5 of the
Code of Criminal Procedure of 1963.
(b) At the trial to determine whether the person who is
the subject of a petition under Section 15 of this Act is a
sexually violent person, all rules of evidence in criminal
actions apply. All constitutional rights available to a
defendant in a criminal proceeding are available to the
person. At the trial on the petition it shall be competent
to introduce evidence of the commission by the respondent of
any number of crimes together with whatever punishments, if
any, were imposed. The petitioner may present expert
testimony from both the Illinois Department of Corrections
evaluator and the Department of Human Services psychologist.
(c) The person who is the subject of the petition, the
person's attorney, the Attorney General or the State's
Attorney may request that a trial under this Section be by a
jury. A request for a jury trial under this subsection shall
be made within 10 days after the probable cause hearing under
Section 30 of this Act. If no request is made, the trial
shall be by the court. The person, the person's attorney or
the Attorney General or State's Attorney, whichever is
applicable, may withdraw his or her request for a jury trial.
(d) (1) At a trial on a petition under this Act, the
petitioner has the burden of proving the allegations in
the petition beyond a reasonable doubt.
(2) If the State alleges that the sexually violent
offense or act that forms the basis for the petition was
an act that was sexually motivated as provided in
paragraph (e)(2) of Section 5 of this Act, the State is
required to prove beyond a reasonable doubt that the
alleged sexually violent act was sexually motivated.
(e) Evidence that the person who is the subject of a
petition under Section 15 of this Act was convicted for or
committed sexually violent offenses before committing the
offense or act on which the petition is based is not
sufficient to establish beyond a reasonable doubt that the
person has a mental disorder.
(f) If the court or jury determines that the person who
is the subject of a petition under Section 15 is a sexually
violent person, the court shall enter a judgment on that
finding and shall commit the person as provided under Section
40 of this Act. If the court or jury is not satisfied beyond
a reasonable doubt that the person is a sexually violent
person, the court shall dismiss the petition and direct that
the person be released unless he or she is under some other
lawful restriction.
(g) A judgment entered under subsection (f) of this
Section on the finding that the person who is the subject of
a petition under Section 15 is a sexually violent person is
interlocutory to a commitment order under Section 40 and is
reviewable on appeal.
(Source: P.A. 90-40, eff. 1-1-98.)
(725 ILCS 207/40)
Sec. 40. Commitment.
(a) If a court or jury determines that the person who is
the subject of a petition under Section 15 of this Act is a
sexually violent person, the court shall order the person to
be committed to the custody of the Department for control,
care and treatment until such time as the person is no longer
a sexually violent person.
(b) (1) The court shall enter an initial commitment
order under this Section pursuant to a hearing held as
soon as practicable after the judgment is entered that
the person who is the subject of a petition under Section
15 is a sexually violent person. If the court lacks
sufficient information to make the determination required
by paragraph (b)(2) of this Section immediately after
trial, it may adjourn the hearing and order the
Department to conduct a predisposition investigation or a
supplementary mental examination, or both, to assist the
court in framing the commitment order. A supplementary
mental examination under this Section shall be conducted
in accordance with Section 3-804 of the Mental Health and
Developmental Disabilities Code.
(2) An order for commitment under this Section
shall specify either institutional care in a secure
facility, as provided under Section 50 of this Act, or
conditional release. In determining whether commitment
shall be for institutional care in a secure facility or
for conditional release, the court must may consider the
nature and circumstances of the behavior that was the
basis of the allegation in the petition under paragraph
(b)(1) of Section 15, the person's mental history and
present mental condition, where the person will live, how
the person will support himself or herself, and what
arrangements are available to ensure that the person has
access to and will participate in necessary treatment.
The Department shall arrange for control, care and
treatment of the person in the least restrictive manner
consistent with the requirements of the person and in
accordance with the court's commitment order.
(3) If the court finds that the person is
appropriate for conditional release, the court shall
notify the Department. The Department shall prepare a
plan that identifies the treatment and services, if any,
that the person will receive in the community. The plan
shall address the person's need, if any, for supervision,
counseling, medication, community support services,
residential services, vocational services, and alcohol or
other drug abuse treatment. The Department may contract
with a county health department, with another public
agency or with a private agency to provide the treatment
and services identified in the plan. The plan shall
specify who will be responsible for providing the
treatment and services identified in the plan. The plan
shall be presented to the court for its approval within
60 21 days after the court finding that the person is
appropriate for conditional release, unless the
Department and the person to be released request
additional time to develop the plan.
(4) An order for conditional release places the
person in the custody and control of the Department. A
person on conditional release is subject to the
conditions set by the court and to the rules of the
Department. Before a person is placed on conditional
release by the court under this Section, the court shall
so notify the municipal police department and county
sheriff for the municipality and county in which the
person will be residing. The notification requirement
under this Section does not apply if a municipal police
department or county sheriff submits to the court a
written statement waiving the right to be notified. If
the Department alleges that a released person has
violated any condition or rule, or that the safety of
others requires that conditional release be revoked, he
or she may be taken into custody under the rules of the
Department.
At any time during which the person is on
conditional release, if the Department determines that
the person has violated any condition or rule, or that
the safety of others requires that conditional release be
revoked, the Department may request the Attorney General
or State's Attorney to request the court to issue an
emergency ex parte order directing any law enforcement
officer to take the person into custody and transport the
person to the county jail. The Department may request,
or the Attorney General or State's Attorney may request
independently of the Department, that a petition to
revoke conditional release be filed. When a petition is
filed, the court may order the Department to issue a
notice to the person to be present at the Department or
other agency designated by the court, order a summons to
the person to be present, or order a body attachment for
all law enforcement officers to take the person into
custody and transport him or her to the county jail,
hospital, or treatment facility. The Department shall
submit a statement showing probable cause of the
detention and a petition to revoke the order for
conditional release to the committing court within 48
hours after the detention. The court shall hear the
petition within 30 days, unless the hearing or time
deadline is waived by the detained person. Pending the
revocation hearing, the Department may detain the person
in a jail, in a hospital or treatment facility. The
State has the burden of proving by clear and convincing
evidence that any rule or condition of release has been
violated, or that the safety of others requires that the
conditional release be revoked. If the court determines
after hearing that any rule or condition of release has
been violated, or that the safety of others requires that
conditional release be revoked, it may revoke the order
for conditional release and order that the released
person be placed in an appropriate institution until the
person is discharged from the commitment under Section 65
of this Act or until again placed on conditional release
under Section 60 of this Act.
(5) An order for conditional release places the
person in the custody, care, and control of the
Department. The court shall order the person be subject
to the following rules of conditional release, in
addition to any other conditions ordered, and the person
shall be given a certificate setting forth the conditions
of conditional release. These conditions shall be that
the person:
(A) not violate any criminal statute of any
jurisdiction;
(B) report to or appear in person before such
person or agency as directed by the court and the
Department;
(C) refrain from possession of a firearm or
other dangerous weapon;
(D) not leave the State without the consent of
the court or, in circumstances in which the reason
for the absence is of such an emergency nature, that
prior consent by the court is not possible without
the prior notification and approval of the
Department;
(E) at the direction of the Department, notify
third parties of the risks that may be occasioned by
his or her criminal record or sexual offending
history or characteristics, and permit the
supervising officer or agent to make the
notification requirement;
(F) attend and fully participate in
assessment, treatment, and behavior monitoring
including, but not limited to, medical,
psychological or psychiatric treatment specific to
sexual offending, drug addiction, or alcoholism, to
the extent appropriate to the person based upon the
recommendation and findings made in the Department
evaluation or based upon any subsequent
recommendations by the Department;
(G) waive confidentiality allowing the court
and Department access to assessment or treatment
results or both;
(H) work regularly at a Department approved
occupation or pursue a course of study or vocational
training and notify the Department within 72 hours
of any change in employment, study, or training;
(I) not be employed or participate in any
volunteer activity that involves contact with
children, except under circumstances approved in
advance and in writing by the Department officer;
(J) submit to the search of his or her person,
residence, vehicle, or any personal or real property
under his or her control at any time by the
Department;
(K) financially support his or her dependents
and provide the Department access to any requested
financial information;
(L) serve a term of home confinement, the
conditions of which shall be that the person:
(i) remain within the interior premises
of the place designated for his or her
confinement during the hours designated by the
Department;
(ii) admit any person or agent designated
by the Department into the offender's place of
confinement at any time for purposes of
verifying the person's compliance with the
condition of his or her confinement;
(iii) if deemed necessary by the
Department, be placed on an electronic
monitoring device;
(M) comply with the terms and conditions of an
order of protection issued by the court pursuant to
the Illinois Domestic Violence Act of 1986. A copy
of the order of protection shall be transmitted to
the Department by the clerk of the court;
(N) refrain from entering into a designated
geographic area except upon terms the Department
finds appropriate. The terms may include
consideration of the purpose of the entry, the time
of day, others accompanying the person, and advance
approval by the Department;
(O) refrain from having any contact, including
written or oral communications, directly or
indirectly, with certain specified persons
including, but not limited to, the victim or the
victim's family, and report any incidental contact
with the victim or the victim's family to the
Department within 72 hours; refrain from entering
onto the premises of, traveling past, or loitering
near the victim's residence, place of employment, or
other places frequented by the victim;
(P) refrain from having any contact, including
written or oral communications, directly or
indirectly, with particular types of persons,
including but not limited to members of street
gangs, drug users, drug dealers, or prostitutes;
(Q) refrain from all contact, direct or
indirect, personally, by telephone, letter, or
through another person, with minor children without
prior identification and approval of the Department;
(R) refrain from having in his or her body the
presence of alcohol or any illicit drug prohibited
by the Cannabis Control Act or the Illinois
Controlled Substances Act, unless prescribed by a
physician, and submit samples of his or her breath,
saliva, blood, or urine for tests to determine the
presence of alcohol or any illicit drug;
(S) not establish a dating, intimate, or
sexual relationship with a person without prior
written notification to the Department;
(T) neither possess or have under his or her
control any material that is pornographic, sexually
oriented, or sexually stimulating, or that depicts
or alludes to sexual activity or depicts minors
under the age of 18, including but not limited to
visual, auditory, telephonic, electronic media, or
any matter obtained through access to any computer
or material linked to computer access use;
(U) not patronize any business providing
sexually stimulating or sexually oriented
entertainment nor utilize "900" or adult telephone
numbers or any other sex-related telephone numbers;
(V) not reside near, visit, or be in or about
parks, schools, day care centers, swimming pools,
beaches, theaters, or any other places where minor
children congregate without advance approval of the
Department and report any incidental contact with
minor children to the Department within 72 hours;
(W) not establish any living arrangement or
residence without prior approval of the Department;
(X) not publish any materials or print any
advertisements without providing a copy of the
proposed publications to the Department officer and
obtaining permission prior to publication;
(Y) not leave the county except with prior
permission of the Department and provide the
Department officer or agent with written travel
routes to and from work and any other designated
destinations;
(Z) not possess or have under his or her
control certain specified items of contraband
related to the incidence of sexually offending items
including video or still camera items or children's
toys;
(AA) provide a written daily log of activities
as directed by the Department;
(BB) comply with all other special conditions
that the Department may impose that restrict the
person from high-risk situations and limit access or
potential victims.
(6) A person placed on conditional release and who
during the term undergoes mandatory drug or alcohol
testing or is assigned to be placed on an approved
electronic monitoring device may be ordered to pay all
costs incidental to the mandatory drug or alcohol testing
and all costs incidental to the approved electronic
monitoring in accordance with the person's ability to pay
those costs. The Department may establish reasonable
fees for the cost of maintenance, testing, and incidental
expenses related to the mandatory drug or alcohol testing
and all costs incidental to approved electronic
monitoring.
(Source: P.A. 90-40, eff. 1-1-98.)
(725 ILCS 207/55)
Sec. 55. Periodic reexamination; report.
(a) If a person has been committed under Section 40 of
this Act and has not been discharged under Section 65 of this
Act, the Department shall conduct an examination of his or
her mental condition within 6 months after an initial
commitment under Section 40 and then at least once every 12
months from the completion of the last evaluation again
thereafter at least once each 12 months for the purpose of
determining whether the person has made sufficient progress
to be conditionally released or discharged. At the time of a
reexamination under this Section, the person who has been
committed may retain or, if he or she is indigent and so
requests, the court may appoint a qualified expert or a
professional person to examine him or her.
(b) Any examiner conducting an examination under this
Section shall prepare a written report of the examination no
later than 30 days after the date of the examination. The
examiner shall place a copy of the report in the person's
health care records and shall provide a copy of the report to
the court that committed the person under Section 40.
(c) Notwithstanding subsection (a) of this Section, the
court that committed a person under Section 40 may order a
reexamination of the person at any time during the period in
which the person is subject to the commitment order.
(d) Petitions for discharge after reexamination must
follow the procedure outlined in Section 65 of this Act.
(Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98;
91-227, eff. 1-1-00.)
(725 ILCS 207/60)
Sec. 60. Petition for conditional release.
(a) Any person who is committed for institutional care
in a secure facility or other facility under Section 40 of
this Act may petition the committing court to modify its
order by authorizing conditional release if at least 6 months
have elapsed since the initial commitment order was entered,
the most recent release petition was denied or the most
recent order for conditional release was revoked. The
director of the facility at which the person is placed may
file a petition under this Section on the person's behalf at
any time.
(b) If the person files a timely petition without
counsel, the court shall serve a copy of the petition on the
Attorney General or State's Attorney, whichever is applicable
and, subject to paragraph (c)(1) of Section 25 of this Act,
appoint counsel. If the person petitions through counsel,
his or her attorney shall serve the Attorney General or
State's Attorney, whichever is applicable.
(c) Within 20 days after receipt of the petition, the
court shall appoint one or more examiners having the
specialized knowledge determined by the court to be
appropriate, who shall examine the person and furnish a
written report of the examination to the court within 30 days
after appointment. The examiners shall have reasonable
access to the person for purposes of examination and to the
person's past and present treatment records and patient
health care records. If any such examiner believes that the
person is appropriate for conditional release, the examiner
shall report on the type of treatment and services that the
person may need while in the community on conditional
release. The State has the right to have the person
evaluated by experts chosen by the State. The court shall
set a probable cause hearing as soon as practical after the
examiner's report is filed. If the court determines at the
probable cause hearing that cause exists to believe that it
is not substantially probable that the person will engage in
acts of sexual violence if on release or conditional release,
the court shall set a hearing on the issue.
(d) The court, without a jury, shall hear the petition
within 30 days after the report of the court-appointed
examiner is filed with the court, unless the petitioner
waives this time limit. The court shall grant the petition
unless the State proves by clear and convincing evidence that
the person is still a sexually violent person and that it is
still substantially probable that the person will engage in
acts of sexual violence if the person is not confined in a
secure facility. In making a decision under this subsection,
the court may consider the nature and circumstances of the
behavior that was the basis of the allegation in the petition
under paragraph (b)(1) of Section 15 of this Act, the
person's mental history and present mental condition, where
the person will live, how the person will support himself or
herself and what arrangements are available to ensure that
the person has access to and will participate in necessary
treatment.
(e) Before the court may enter an order directing
conditional release to a less restrictive alternative it must
find the following: (1) the person will be treated by a
Department approved treatment provider, (2) the treatment
provider has presented a specific course of treatment and has
agreed to assume responsibility for the treatment and will
report progress to the Department on a regular basis, and
will report violations immediately to the Department,
consistent with treatment and supervision needs of the
respondent, (3) housing exists that is sufficiently secure to
protect the community, and the person or agency providing
housing to the conditionally released person has agreed in
writing to accept the person, to provide the level of
security required by the court, and immediately to report to
the Department if the person leaves the housing to which he
or she has been assigned without authorization, (4) the
person is willing to or has agreed to comply with the
treatment provider, the Department, and the court, and (5)
the person has agreed or is willing to agree to comply with
the behavioral monitoring requirements imposed by the court
and the Department.
(f)(e) If the court finds that the person is appropriate
for conditional release, the court shall notify the
Department. The Department shall prepare a plan that
identifies the treatment and services, if any, that the
person will receive in the community. The plan shall address
the person's need, if any, for supervision, counseling,
medication, community support services, residential services,
vocational services, and alcohol or other drug abuse
treatment. The Department may contract with a county health
department, with another public agency or with a private
agency to provide the treatment and services identified in
the plan. The plan shall specify who will be responsible for
providing the treatment and services identified in the plan.
The plan shall be presented to the court for its approval
within 60 days after the court finding that the person is
appropriate for conditional release, unless the Department
and the person to be released request additional time to
develop the plan.
(g)(f) The provisions of paragraph (b)(4) of Section 40
of this Act apply to an order for conditional release issued
under this Section.
(Source: P.A. 90-40, eff. 1-1-98.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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