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Public Act 92-0415
HB2088 Enrolled LRB9206809RCcd
AN ACT in relation to sexually violent persons.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Juvenile Court Act of 1987 is amended by
changing Sections 1-7 and 1-8 as follows:
(705 ILCS 405/1-7) (from Ch. 37, par. 801-7)
Sec. 1-7. Confidentiality of law enforcement records.
(A) Inspection and copying of law enforcement records
maintained by law enforcement agencies that relate to a minor
who has been arrested or taken into custody before his or her
17th birthday shall be restricted to the following:
(1) Any local, State or federal law enforcement
officers of any jurisdiction or agency when necessary for
the discharge of their official duties during the
investigation or prosecution of a crime or relating to a
minor who has been adjudicated delinquent and there has
been a previous finding that the act which constitutes
the previous offense was committed in furtherance of
criminal activities by a criminal street gang. For
purposes of this Section, "criminal street gang" has the
meaning ascribed to it in Section 10 of the Illinois
Streetgang Terrorism Omnibus Prevention Act.
(2) Prosecutors, probation officers, social
workers, or other individuals assigned by the court to
conduct a pre-adjudication or pre-disposition
investigation, and individuals responsible for
supervising or providing temporary or permanent care and
custody for minors pursuant to the order of the juvenile
court, when essential to performing their
responsibilities.
(3) Prosecutors and probation officers:
(a) in the course of a trial when institution
of criminal proceedings has been permitted or
required under Section 5-805; or
(b) when institution of criminal proceedings
has been permitted or required under Section 5-805
and such minor is the subject of a proceeding to
determine the amount of bail; or
(c) when criminal proceedings have been
permitted or required under Section 5-805 and such
minor is the subject of a pre-trial investigation,
pre-sentence investigation, fitness hearing, or
proceedings on an application for probation.
(4) Adult and Juvenile Prisoner Review Board.
(5) Authorized military personnel.
(6) Persons engaged in bona fide research, with the
permission of the Presiding Judge of the Juvenile Court
and the chief executive of the respective law enforcement
agency; provided that publication of such research
results in no disclosure of a minor's identity and
protects the confidentiality of the minor's record.
(7) Department of Children and Family Services
child protection investigators acting in their official
capacity.
(8) The appropriate school official. Inspection
and copying shall be limited to law enforcement records
transmitted to the appropriate school official by a local
law enforcement agency under a reciprocal reporting
system established and maintained between the school
district and the local law enforcement agency under
Section 10-20.14 of the School Code concerning a minor
enrolled in a school within the school district who has
been arrested or taken into custody for any of the
following offenses:
(i) unlawful use of weapons under Section 24-1
of the Criminal Code of 1961;
(ii) a violation of the Illinois Controlled
Substances Act;
(iii) a violation of the Cannabis Control Act;
or
(iv) a forcible felony as defined in Section
2-8 of the Criminal Code of 1961.
(9) Mental health professionals on behalf of the
Illinois Department of Corrections or the Department of
Human Services or prosecutors who are evaluating,
prosecuting, or investigating a potential or actual
petition brought under the Sexually Violent Persons
Commitment Act relating to a person who is the subject of
juvenile law enforcement records or the respondent to a
petition brought under the Sexually Violent Persons
Commitment Act who is the subject of the juvenile law
enforcement records sought. Any records and any
information obtained from those records under this
paragraph (9) may be used only in sexually violent
persons commitment proceedings.
(B) (1) Except as provided in paragraph (2), no law
enforcement officer or other person or agency may
knowingly transmit to the Department of Corrections,
Adult Division or the Department of State Police or to
the Federal Bureau of Investigation any fingerprint or
photograph relating to a minor who has been arrested or
taken into custody before his or her 17th birthday,
unless the court in proceedings under this Act authorizes
the transmission or enters an order under Section 5-805
permitting or requiring the institution of criminal
proceedings.
(2) Law enforcement officers or other persons or
agencies shall transmit to the Department of State
Police copies of fingerprints and descriptions of all
minors who have been arrested or taken into custody
before their 17th birthday for the offense of unlawful
use of weapons under Article 24 of the Criminal Code of
1961, a Class X or Class 1 felony, a forcible felony as
defined in Section 2-8 of the Criminal Code of 1961, or a
Class 2 or greater felony under the Cannabis Control Act,
the Illinois Controlled Substances Act, or Chapter 4 of
the Illinois Vehicle Code, pursuant to Section 5 of the
Criminal Identification Act. Information reported to the
Department pursuant to this Section may be maintained
with records that the Department files pursuant to
Section 2.1 of the Criminal Identification Act. Nothing
in this Act prohibits a law enforcement agency from
fingerprinting a minor taken into custody or arrested
before his or her 17th birthday for an offense other than
those listed in this paragraph (2).
(C) The records of law enforcement officers concerning
all minors under 17 years of age must be maintained separate
from the records of arrests and may not be open to public
inspection or their contents disclosed to the public except
by order of the court or when the institution of criminal
proceedings has been permitted or required under Section
5-805 or such a person has been convicted of a crime and is
the subject of pre-sentence investigation or proceedings on
an application for probation or when provided by law.
(D) Nothing contained in subsection (C) of this Section
shall prohibit the inspection or disclosure to victims and
witnesses of photographs contained in the records of law
enforcement agencies when the inspection and disclosure is
conducted in the presence of a law enforcement officer for
the purpose of the identification or apprehension of any
person subject to the provisions of this Act or for the
investigation or prosecution of any crime.
(E) Law enforcement officers may not disclose the
identity of any minor in releasing information to the general
public as to the arrest, investigation or disposition of any
case involving a minor.
(F) Nothing contained in this Section shall prohibit law
enforcement agencies from communicating with each other by
letter, memorandum, teletype or intelligence alert bulletin
or other means the identity or other relevant information
pertaining to a person under 17 years of age if there are
reasonable grounds to believe that the person poses a real
and present danger to the safety of the public or law
enforcement officers. The information provided under this
subsection (F) shall remain confidential and shall not be
publicly disclosed, except as otherwise allowed by law.
(G) Nothing in this Section shall prohibit the right of
a Civil Service Commission or appointing authority of any
state, county or municipality examining the character and
fitness of an applicant for employment with a law enforcement
agency, correctional institution, or fire department from
obtaining and examining the records of any law enforcement
agency relating to any record of the applicant having been
arrested or taken into custody before the applicant's 17th
birthday.
(Source: P.A. 90-127, eff. 1-1-98; 91-357, eff. 7-29-99;
91-368, eff. 1-1-00.)
(705 ILCS 405/1-8) (from Ch. 37, par. 801-8)
Sec. 1-8. Confidentiality and accessibility of juvenile
court records.
(A) Inspection and copying of juvenile court records
relating to a minor who is the subject of a proceeding under
this Act shall be restricted to the following:
(1) The minor who is the subject of record, his
parents, guardian and counsel.
(2) Law enforcement officers and law enforcement
agencies when such information is essential to executing
an arrest or search warrant or other compulsory process,
or to conducting an ongoing investigation or relating to
a minor who has been adjudicated delinquent and there has
been a previous finding that the act which constitutes
the previous offense was committed in furtherance of
criminal activities by a criminal street gang.
Before July 1, 1994, for the purposes of this
Section, "criminal street gang" means any ongoing
organization, association, or group of 3 or more persons,
whether formal or informal, having as one of its primary
activities the commission of one or more criminal acts
and that has a common name or common identifying sign,
symbol or specific color apparel displayed, and whose
members individually or collectively engage in or have
engaged in a pattern of criminal activity.
Beginning July 1, 1994, for purposes of this
Section, "criminal street gang" has the meaning ascribed
to it in Section 10 of the Illinois Streetgang Terrorism
Omnibus Prevention Act.
(3) Judges, hearing officers, prosecutors,
probation officers, social workers or other individuals
assigned by the court to conduct a pre-adjudication or
predisposition investigation, and individuals responsible
for supervising or providing temporary or permanent care
and custody for minors pursuant to the order of the
juvenile court when essential to performing their
responsibilities.
(4) Judges, prosecutors and probation officers:
(a) in the course of a trial when institution
of criminal proceedings has been permitted or
required under Section 5-805; or
(b) when criminal proceedings have been
permitted or required under Section 5-805 and a
minor is the subject of a proceeding to determine
the amount of bail; or
(c) when criminal proceedings have been
permitted or required under Section 5-805 and a
minor is the subject of a pre-trial investigation,
pre-sentence investigation or fitness hearing, or
proceedings on an application for probation; or
(d) when a minor becomes 17 years of age or
older, and is the subject of criminal proceedings,
including a hearing to determine the amount of bail,
a pre-trial investigation, a pre-sentence
investigation, a fitness hearing, or proceedings on
an application for probation.
(5) Adult and Juvenile Prisoner Review Boards.
(6) Authorized military personnel.
(7) Victims, their subrogees and legal
representatives; however, such persons shall have access
only to the name and address of the minor and information
pertaining to the disposition or alternative adjustment
plan of the juvenile court.
(8) Persons engaged in bona fide research, with the
permission of the presiding judge of the juvenile court
and the chief executive of the agency that prepared the
particular records; provided that publication of such
research results in no disclosure of a minor's identity
and protects the confidentiality of the record.
(9) The Secretary of State to whom the Clerk of the
Court shall report the disposition of all cases, as
required in Section 6-204 of the Illinois Vehicle Code.
However, information reported relative to these offenses
shall be privileged and available only to the Secretary
of State, courts, and police officers.
(10) The administrator of a bonafide substance
abuse student assistance program with the permission of
the presiding judge of the juvenile court.
(11) Mental health professionals on behalf of the
Illinois Department of Corrections or the Department of
Human Services or prosecutors who are evaluating,
prosecuting, or investigating a potential or actual
petition brought under the Sexually Persons Commitment
Act relating to a person who is the subject of juvenile
court records or the respondent to a petition brought
under the Sexually Violent Persons Commitment Act, who is
the subject of juvenile court records sought. Any
records and any information obtained from those records
under this paragraph (11) may be used only in sexually
violent persons commitment proceedings.
(B) A minor who is the victim in a juvenile proceeding
shall be provided the same confidentiality regarding
disclosure of identity as the minor who is the subject of
record.
(C) Except as otherwise provided in this subsection (C),
juvenile court records shall not be made available to the
general public but may be inspected by representatives of
agencies, associations and news media or other properly
interested persons by general or special order of the court.
The State's Attorney, the minor, his parents, guardian and
counsel shall at all times have the right to examine court
files and records.
(1) The court shall allow the general public to
have access to the name, address, and offense of a minor
who is adjudicated a delinquent minor under this Act
under either of the following circumstances:
(A) The adjudication of delinquency was based
upon the minor's commission of first degree murder,
attempt to commit first degree murder, aggravated
criminal sexual assault, or criminal sexual assault;
or
(B) The court has made a finding that the
minor was at least 13 years of age at the time the
act was committed and the adjudication of
delinquency was based upon the minor's commission
of: (i) an act in furtherance of the commission of a
felony as a member of or on behalf of a criminal
street gang, (ii) an act involving the use of a
firearm in the commission of a felony, (iii) an act
that would be a Class X felony offense under or the
minor's second or subsequent Class 2 or greater
felony offense under the Cannabis Control Act if
committed by an adult, (iv) an act that would be a
second or subsequent offense under Section 402 of
the Illinois Controlled Substances Act if committed
by an adult, or (v) an act that would be an offense
under Section 401 of the Illinois Controlled
Substances Act if committed by an adult.
(2) The court shall allow the general public to
have access to the name, address, and offense of a minor
who is at least 13 years of age at the time the offense
is committed and who is convicted, in criminal
proceedings permitted or required under Section 5-4,
under either of the following circumstances:
(A) The minor has been convicted of first
degree murder, attempt to commit first degree
murder, aggravated criminal sexual assault, or
criminal sexual assault,
(B) The court has made a finding that the
minor was at least 13 years of age at the time the
offense was committed and the conviction was based
upon the minor's commission of: (i) an offense in
furtherance of the commission of a felony as a
member of or on behalf of a criminal street gang,
(ii) an offense involving the use of a firearm in
the commission of a felony, (iii) a Class X felony
offense under or a second or subsequent Class 2 or
greater felony offense under the Cannabis Control
Act, (iv) a second or subsequent offense under
Section 402 of the Illinois Controlled Substances
Act, or (v) an offense under Section 401 of the
Illinois Controlled Substances Act.
(D) Pending or following any adjudication of delinquency
for any offense defined in Sections 12-13 through 12-16 of
the Criminal Code of 1961, the victim of any such offense
shall receive the rights set out in Sections 4 and 6 of the
Bill of Rights for Victims and Witnesses of Violent Crime
Act; and the juvenile who is the subject of the adjudication,
notwithstanding any other provision of this Act, shall be
treated as an adult for the purpose of affording such rights
to the victim.
(E) Nothing in this Section shall affect the right of a
Civil Service Commission or appointing authority of any
state, county or municipality examining the character and
fitness of an applicant for employment with a law enforcement
agency, correctional institution, or fire department to
ascertain whether that applicant was ever adjudicated to be a
delinquent minor and, if so, to examine the records of
disposition or evidence which were made in proceedings under
this Act.
(F) Following any adjudication of delinquency for a
crime which would be a felony if committed by an adult, or
following any adjudication of delinquency for a violation of
Section 24-1, 24-3, 24-3.1, or 24-5 of the Criminal Code of
1961, the State's Attorney shall ascertain whether the minor
respondent is enrolled in school and, if so, shall provide a
copy of the dispositional order to the principal or chief
administrative officer of the school. Access to such
juvenile records shall be limited to the principal or chief
administrative officer of the school and any guidance
counselor designated by him.
(G) Nothing contained in this Act prevents the sharing
or disclosure of information or records relating or
pertaining to juveniles subject to the provisions of the
Serious Habitual Offender Comprehensive Action Program when
that information is used to assist in the early
identification and treatment of habitual juvenile offenders.
(H) When a Court hearing a proceeding under Article II
of this Act becomes aware that an earlier proceeding under
Article II had been heard in a different county, that Court
shall request, and the Court in which the earlier proceedings
were initiated shall transmit, an authenticated copy of the
Court record, including all documents, petitions, and orders
filed therein and the minute orders, transcript of
proceedings, and docket entries of the Court.
(I) The Clerk of the Circuit Court shall report to the
Department of State Police, in the form and manner required
by the Department of State Police, the final disposition of
each minor who has been arrested or taken into custody before
his or her 17th birthday for those offenses required to be
reported under Section 5 of the Criminal Identification Act.
Information reported to the Department under this Section may
be maintained with records that the Department files under
Section 2.1 of the Criminal Identification Act.
(Source: P.A. 90-28, eff. 1-1-98; 90-87, eff. 9-1-97; 90-127,
eff. 1-1-98; 90-655, eff. 7-30-98; 91-357, eff. 7-29-99;
91-368, eff. 1-1-00.)
Section 10. The Criminal Code of 1961 is amended by
changing Section 11-9.2 as follows:
(720 ILCS 5/11-9.2)
Sec. 11-9.2. Custodial sexual misconduct.
(a) A person commits the offense of custodial sexual
misconduct when: (1) he or she is an employee of a penal
system and engages in sexual conduct or sexual penetration
with a person who is in the custody of that penal system or
(2) he or she is an employee of a treatment and detention
facility and engages in sexual conduct or sexual penetration
with a person who is in the custody of that treatment and
detention facility.
(b) A probation or supervising officer or surveillance
agent commits the offense of custodial sexual misconduct when
the probation or supervising officer or surveillance agent
engages in sexual conduct or sexual penetration with a
probationer, parolee, or releasee or person serving a term of
conditional release who is under the supervisory,
disciplinary, or custodial authority of the officer or agent
so engaging in the sexual conduct or sexual penetration.
(c) Custodial sexual misconduct is a Class 3 felony.
(d) Any person convicted of violating this Section
immediately shall forfeit his or her employment with a penal
system, treatment and detention facility, or conditional
release program.
(e) For purposes of this Section, the consent of the
probationer, parolee, releasee, or inmate in custody of the
penal system or person detained or civilly committed under
the Sexually Violent Persons Commitment Act shall not be a
defense to a prosecution under this Section. A person is
deemed incapable of consent, for purposes of this Section,
when he or she is a probationer, parolee, releasee, or inmate
in custody of a penal system or person detained or civilly
committed under the Sexually Violent Persons Commitment Act.
(f) This Section does not apply to:
(1) Any employee, probation, or supervising
officer, or surveillance agent who is lawfully married to
a person in custody if the marriage occurred before the
date of custody.
(2) Any employee, probation, or supervising
officer, or surveillance agent who has no knowledge, and
would have no reason to believe, that the person with
whom he or she engaged in custodial sexual misconduct was
a person in custody.
(g) In this Section:
(1) "Custody" means:
(i) pretrial incarceration or detention;
(ii) incarceration or detention under a
sentence or commitment to a State or local penal
institution;
(iii) parole or mandatory supervised release;
(iv) electronic home detention;
(v) probation;
(vi) detention or civil commitment either in
secure care or in the community under the Sexually
Violent Persons Commitment Act.
(2) "Penal system" means any system which includes
institutions as defined in Section 2-14 of this Code or a
county shelter care or detention home established under
Section 1 of the County Shelter Care and Detention Home
Act.
(2.1) "Treatment and detention facility" means any
Department of Human Services facility established for the
detention or civil commitment of persons under the
Sexually Violent Persons Commitment Act.
(2.2) "Conditional release" means a program of
treatment and services, vocational services, and alcohol
or other drug abuse treatment provided to any person
civilly committed and conditionally released to the
community under the Sexually Violent Persons Commitment
Act;
(3) "Employee" means:
(i) an employee of any governmental agency of
this State or any county or municipal corporation
that has by statute, ordinance, or court order the
responsibility for the care, control, or supervision
of pretrial or sentenced persons in a penal system
or persons detained or civilly committed under the
Sexually Violent Persons Commitment Act;
(ii) a contractual employee of a penal system
as defined in paragraph (g)(2) of this Section who
works in a penal institution as defined in Section
2-14 of this Code;
(iii) a contractual employee of a "treatment
and detention facility" as defined in paragraph
(g)(2.1) of this Code or a contractual employee of
the Department of Human Services who provides
supervision of persons serving a term of conditional
release as defined in paragraph (g)(2.2) of this
Code.
(4) "Sexual conduct" or "sexual penetration" means
any act of sexual conduct or sexual penetration as
defined in Section 12-12 of this Code.
(5) "Probation officer" means any person employed
in a probation or court services department as defined in
Section 9b of the Probation and Probation Officers Act.
(6) "Supervising officer" means any person employed
to supervise persons placed on parole or mandatory
supervised release with the duties described in Section
3-14-2 of the Unified Code of Corrections.
(7) "Surveillance agent" means any person employed
or contracted to supervise persons placed on conditional
release in the community under the Sexually Violent
Persons Commitment Act.
(Source: P.A. 90-66, eff. 7-7-97; 90-655, eff. 7-30-98.)
Section 15. The Sexually Violent Persons Commitment Act
is amended by changing Sections 30, 35, 40, 60, and 65 as
follows:
(725 ILCS 207/30)
Sec. 30. Detention; probable cause hearing; transfer for
examination.
(a) Upon the filing of a petition under Section 15 of
this Act, the court shall review the petition to determine
whether to issue an order for detention of the person who is
the subject of the petition. The person shall be detained
only if there is cause to believe that the person is eligible
for commitment under subsection (f) of Section 35 of this
Act. A person detained under this Section shall be held in a
facility approved by the Department. If the person is
serving a sentence of imprisonment, is in a Department of
Corrections correctional facility or juvenile correctional
facility or is committed to institutional care, and the court
orders detention under this Section, the court shall order
that the person be transferred to a detention facility
approved by the Department. A detention order under this
Section remains in effect until the person is discharged
after a trial under Section 35 of this Act or until the
effective date of a commitment order under Section 40 of this
Act, whichever is applicable.
(b) Whenever a petition is filed under Section 15 of
this Act, the court shall hold a hearing to determine whether
there is probable cause to believe that the person named in
the petition is a sexually violent person. If the person
named in the petition is in custody, the court shall hold the
probable cause hearing within 72 hours after the petition is
filed, excluding Saturdays, Sundays and legal holidays. The
court may grant a continuance of the probable cause hearing
for no more than 7 additional days upon the motion of the
respondent, for good cause. If the person named in the
petition has been released, is on parole, is on mandatory
supervised release, or otherwise is not in custody, the court
shall hold the probable cause hearing within a reasonable
time after the filing of the petition. At the probable cause
hearing, the court shall admit and consider all relevant
hearsay evidence.
(c) If the court determines after a hearing that there
is probable cause to believe that the person named in the
petition is a sexually violent person, the court shall order
that the person be taken into custody if he or she is not in
custody and shall order the person to be transferred within a
reasonable time to an appropriate facility for an evaluation
as to whether the person is a sexually violent person. If the
person who is named in the petition refuses to speak to,
communicate with, or otherwise fails to cooperate with the
examining evaluator from the Department of Human Services or
the Department of Corrections, that person may only introduce
evidence and testimony from any expert or professional person
who is retained or court-appointed to conduct an examination
of the person that results from a review of the records and
may not introduce evidence resulting from an examination of
the person. If the person named in the petition refuses to
speak to, communicate with, or otherwise fails to cooperate
with the expert from the Department of Human Services who is
conducting the evaluation, the person shall be prohibited
from introducing testimony or evidence from any expert or
professional person who is retained or court appointed to
conduct an evaluation of the person. Notwithstanding the
provisions of Section 10 of the Mental Health and
Developmental Disabilities Confidentiality Act, all
evaluations conducted pursuant to this Act and all Illinois
Department of Corrections treatment records shall be
admissible at all proceedings held pursuant to this Act,
including the probable cause hearing and the trial.
If the court determines that probable cause does not
exist to believe that the person is a sexually violent
person, the court shall dismiss the petition.
(d) The Department shall promulgate rules that provide
the qualifications for persons conducting evaluations under
subsection (c) of this Section.
(e) If the person named in the petition claims or
appears to be indigent, the court shall, prior to the
probable cause hearing under subsection (b) of this Section,
appoint counsel.
(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 120 45
days after the date of the probable cause hearing under
Section 30 of this Act. Delay is considered to be agreed to
by the person unless he or she objects to the delay by making
a written demand for trial or an oral demand for trial on the
record. Delay occasioned by the person temporarily suspends
for the time of the delay the period within which a person
must be tried. If the delay occurs within 21 days after the
end of the period within which a person must be tried, the
court may continue the cause on application of the State for
not more than an additional 21 days beyond the period
prescribed. 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; 91-875, eff. 6-30-00.)
(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 shall must 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 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. The conditional
release program operated under this Section is not
subject to the provisions of the Mental Health and
Developmental Disabilities Confidentiality Act.
(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; 91-875, eff. 6-30-00.)
(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 mental condition of 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 has not made sufficient progress to be
conditionally released 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 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 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) 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) 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; 91-875, eff. 6-30-00.)
(725 ILCS 207/65)
Sec. 65. Petition for discharge; procedure.
(a)(1) If the Secretary determines at any time that a
person committed under this Act is no longer a sexually
violent person, the Secretary shall authorize the person to
petition the committing court for discharge. The person
shall file the petition with the court and serve a copy upon
the Attorney General or the State's Attorney's office that
filed the petition under subsection (a) of Section 15 of this
Act, whichever is applicable. The court, upon receipt of the
petition for discharge, shall order a hearing to be held
within 45 days after the date of receipt of the petition.
(2) At a hearing under this subsection, the Attorney
General or State's Attorney, whichever filed the original
petition, shall represent the State and shall have the right
to have the petitioner examined by an expert or professional
person of his or her choice. The committed person or the
State may elect to have the hearing before a jury. The State
has the burden of proving by clear and convincing evidence
that the petitioner is still a sexually violent person.
(3) If the court or jury is satisfied that the State has
not met its burden of proof under paragraph (a)(2) of this
Section, the petitioner shall be discharged from the custody
or supervision of the Department. If the court is satisfied
that the State has met its burden of proof under paragraph
(a)(2), the court may proceed under Section 40 of this Act to
determine whether to modify the petitioner's existing
commitment order.
(b)(1) A person may petition the committing court for
discharge from custody or supervision without the Secretary's
approval. At the time of an examination under subsection (a)
of Section 55 of this Act, the Secretary shall provide the
committed person with a written notice of the person's right
to petition the court for discharge over the Secretary's
objection. The notice shall contain a waiver of rights. The
Secretary shall forward the notice and waiver form to the
court with the report of the Department's examination under
Section 55 of this Act. If the person does not affirmatively
waive the right to petition, the court shall set a probable
cause hearing to determine whether facts exist that warrant a
hearing on whether the person is still a sexually violent
person. If a person does not file a petition for discharge,
yet fails to waive the right to petition under this Section,
then the probable cause hearing consists only of a review of
the reexamination reports and arguments on behalf of the
parties. The committed person has a right to have an attorney
represent him or her at the probable cause hearing, but the
person is not entitled to be present at the probable cause
hearing. The probable cause hearing under this Section must
be held within 45 days of the filing of the reexamination
report under Section 55 of this Act.
(2) If the court determines at the probable cause
hearing under paragraph (b)(1) of this Section that probable
cause exists to believe that the committed person is no
longer a sexually violent person, then the court shall set a
hearing on the issue. At a hearing under this Section, the
committed person is entitled to be present and to the benefit
of the protections afforded to the person under Section 25 of
this Act. The committed person or the State may elect to have
a hearing under this Section before a jury. A verdict of a
jury under this Section is not valid unless it is unanimous.
The Attorney General or State's Attorney, whichever filed the
original petition, shall represent the State at a hearing
under this Section. The State has the right to have the
committed person evaluated by experts chosen by the State.
At the hearing, the State has the burden of proving by clear
and convincing evidence that the committed person is still a
sexually violent person.
(3) If the court or jury is satisfied that the State has
not met its burden of proof under paragraph (b)(2) of this
Section, the person shall be discharged from the custody or
supervision of the Department. If the court or jury is
satisfied that the State has met its burden of proof under
paragraph (b)(2) of this Section, the court may proceed under
Section 40 of this Act to determine whether to modify the
person's existing commitment order.
(Source: P.A. 90-40, eff. 1-1-98; 91-227, eff. 1-1-00.)
Section 20. The Unified Code of Corrections is amended
by changing Section 5-3-4 as follows:
(730 ILCS 5/5-3-4) (from Ch. 38, par. 1005-3-4)
Sec. 5-3-4. Disclosure of Reports.
(a) Any report made pursuant to this Article or Section
5-705 of the Juvenile Court Act of 1987 shall be filed of
record with the court in a sealed envelope.
(b) Presentence reports shall be open for inspection
only as follows:
(1) to the sentencing court;
(2) to the state's attorney and the defendant's
attorney at least 3 days prior to the imposition of
sentence, unless such 3 day requirement is waived;
(3) to an appellate court in which the conviction
or sentence is subject to review;
(4) to any department, agency or institution to
which the defendant is committed;
(5) to any probation department of whom courtesy
probation is requested;
(6) to any probation department assigned by a court
of lawful jurisdiction to conduct a presentence report;
(7) to any other person only as ordered by the
court; and.
(8) to any mental health professional on behalf of
the Illinois Department of Corrections or the Department
of Human Services or to a prosecutor who is evaluating or
investigating a potential or actual petition brought
under the Sexually Violent Persons Commitment Act
relating to a person who is the subject of a presentence
report or the respondent to a petition brought under the
Sexually Violent Persons Commitment Act who is the
subject of the presentence report sought. Any records and
any information obtained from those records under this
paragraph (8) may be used only in sexually violent
persons commitment proceedings.
(c) Presentence reports shall be filed of record with
the court within 30 days of a verdict or finding of guilty
for any offense involving an illegal sexual act perpetrated
upon a victim, including but not limited to offenses for
violations of Article 12 of the Criminal Code of 1961.
(d) A complaint, information or indictment shall not be
quashed or dismissed nor shall any person in custody for an
offense be discharged from custody because of noncompliance
with subsection (c) of this Section.
(Source: P.A. 90-590, eff. 1-1-99.)
Section 25. The Mental Health and Developmental
Disabilities Confidentiality Act is amended by changing
Section 9.3 as follows:
(740 ILCS 110/9.3)
Sec. 9.3. Disclosure without consent under the Sexually
Violent Persons Commitment Act. Disclosure may be made
without consent by any therapist or other treatment provider
providing mental health or developmental disabilities
services pursuant to the provisions of the Sexually Violent
Persons Commitment Act or who previously provided any type of
mental health or developmental disabilities services to a
person who is subject to an evaluation, investigation, or
prosecution of a petition under the Sexually Violent Persons
Commitment Act. Disclosure may be made to the Attorney
General, the State's Attorney participating in the case, the
Department of Human Services, the court, and any other party
to whom the court directs disclosure to be made. The
information disclosed may include any records or
communications in the possession of the Department of
Corrections, if those records or communications were relied
upon by the therapist in providing mental health or
developmental disabilities services pursuant to the Sexually
Violent Persons Commitment Act. Any records and any
information obtained from those records under this Section
may be used only in sexually violent persons commitment
proceedings.
(Source: P.A. 90-793, eff. 8-14-98.)
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly May 22, 2001.
Approved August 17, 2001.
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