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91_HB4116enr
HB4116 Enrolled LRB9112288RCpc
1 AN ACT to amend the Sexually Violent Persons Commitment
2 Act by changing Sections 5, 35, 40, 55, and 60.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Sexually Violent Persons Commitment Act
6 is amended by changing Sections 5, 35, 40, 55, and 60 as
7 follows:
8 (725 ILCS 207/5)
9 Sec. 5. Definitions. As used in this Act, the term:
10 (a) "Department" means the Department of Human Services.
11 (b) "Mental disorder" means a congenital or acquired
12 condition affecting the emotional or volitional capacity that
13 predisposes a person to engage in acts of sexual violence.
14 (c) "Secretary" means the Secretary of Human Services.
15 (d) "Sexually motivated" means that one of the purposes
16 for an act is for the actor's sexual arousal or
17 gratification.
18 (e) "Sexually violent offense" means any of the
19 following:
20 (1) Any crime specified in Section 12-13, 12-14,
21 12-14.1, or 12-16 of the Criminal Code of 1961; or
22 (1.5) Any former law of this State specified in
23 Section 11-1 (rape), 11-3 (deviate sexual assault), 11-4
24 (indecent liberties with a child) or 11-4 (aggravated
25 indecent liberties with a child) of the Criminal Code of
26 1961; or
27 (2) First degree murder, if it is determined by the
28 agency with jurisdiction to have been sexually motivated;
29 or
30 (3) Any solicitation, conspiracy or attempt to
31 commit a crime under paragraph (e)(1) or (e)(2) of this
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1 Section.
2 (f) "Sexually violent person" means a person who has
3 been convicted of a sexually violent offense, has been
4 adjudicated delinquent for a sexually violent offense, or has
5 been found not guilty of a sexually violent offense by reason
6 of insanity and who is dangerous because he or she suffers
7 from a mental disorder that makes it substantially probable
8 that the person will engage in acts of sexual violence.
9 (Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98.)
10 (725 ILCS 207/35)
11 Sec. 35. Trial.
12 (a) A trial to determine whether the person who is the
13 subject of a petition under Section 15 of this Act is a
14 sexually violent person shall commence no later than 45 days
15 after the date of the probable cause hearing under Section 30
16 of this Act. The court may grant a continuance of the trial
17 date for good cause upon its own motion, the motion of any
18 party or the stipulation of the parties, provided that any
19 continuance granted shall be subject to Section 103-5 of the
20 Code of Criminal Procedure of 1963.
21 (b) At the trial to determine whether the person who is
22 the subject of a petition under Section 15 of this Act is a
23 sexually violent person, all rules of evidence in criminal
24 actions apply. All constitutional rights available to a
25 defendant in a criminal proceeding are available to the
26 person. At the trial on the petition it shall be competent
27 to introduce evidence of the commission by the respondent of
28 any number of crimes together with whatever punishments, if
29 any, were imposed. The petitioner may present expert
30 testimony from both the Illinois Department of Corrections
31 evaluator and the Department of Human Services psychologist.
32 (c) The person who is the subject of the petition, the
33 person's attorney, the Attorney General or the State's
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1 Attorney may request that a trial under this Section be by a
2 jury. A request for a jury trial under this subsection shall
3 be made within 10 days after the probable cause hearing under
4 Section 30 of this Act. If no request is made, the trial
5 shall be by the court. The person, the person's attorney or
6 the Attorney General or State's Attorney, whichever is
7 applicable, may withdraw his or her request for a jury trial.
8 (d) (1) At a trial on a petition under this Act, the
9 petitioner has the burden of proving the allegations in
10 the petition beyond a reasonable doubt.
11 (2) If the State alleges that the sexually violent
12 offense or act that forms the basis for the petition was
13 an act that was sexually motivated as provided in
14 paragraph (e)(2) of Section 5 of this Act, the State is
15 required to prove beyond a reasonable doubt that the
16 alleged sexually violent act was sexually motivated.
17 (e) Evidence that the person who is the subject of a
18 petition under Section 15 of this Act was convicted for or
19 committed sexually violent offenses before committing the
20 offense or act on which the petition is based is not
21 sufficient to establish beyond a reasonable doubt that the
22 person has a mental disorder.
23 (f) If the court or jury determines that the person who
24 is the subject of a petition under Section 15 is a sexually
25 violent person, the court shall enter a judgment on that
26 finding and shall commit the person as provided under Section
27 40 of this Act. If the court or jury is not satisfied beyond
28 a reasonable doubt that the person is a sexually violent
29 person, the court shall dismiss the petition and direct that
30 the person be released unless he or she is under some other
31 lawful restriction.
32 (g) A judgment entered under subsection (f) of this
33 Section on the finding that the person who is the subject of
34 a petition under Section 15 is a sexually violent person is
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1 interlocutory to a commitment order under Section 40 and is
2 reviewable on appeal.
3 (Source: P.A. 90-40, eff. 1-1-98.)
4 (725 ILCS 207/40)
5 Sec. 40. Commitment.
6 (a) If a court or jury determines that the person who is
7 the subject of a petition under Section 15 of this Act is a
8 sexually violent person, the court shall order the person to
9 be committed to the custody of the Department for control,
10 care and treatment until such time as the person is no longer
11 a sexually violent person.
12 (b) (1) The court shall enter an initial commitment
13 order under this Section pursuant to a hearing held as
14 soon as practicable after the judgment is entered that
15 the person who is the subject of a petition under Section
16 15 is a sexually violent person. If the court lacks
17 sufficient information to make the determination required
18 by paragraph (b)(2) of this Section immediately after
19 trial, it may adjourn the hearing and order the
20 Department to conduct a predisposition investigation or a
21 supplementary mental examination, or both, to assist the
22 court in framing the commitment order. A supplementary
23 mental examination under this Section shall be conducted
24 in accordance with Section 3-804 of the Mental Health and
25 Developmental Disabilities Code.
26 (2) An order for commitment under this Section
27 shall specify either institutional care in a secure
28 facility, as provided under Section 50 of this Act, or
29 conditional release. In determining whether commitment
30 shall be for institutional care in a secure facility or
31 for conditional release, the court must may consider the
32 nature and circumstances of the behavior that was the
33 basis of the allegation in the petition under paragraph
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1 (b)(1) of Section 15, the person's mental history and
2 present mental condition, where the person will live, how
3 the person will support himself or herself, and what
4 arrangements are available to ensure that the person has
5 access to and will participate in necessary treatment.
6 The Department shall arrange for control, care and
7 treatment of the person in the least restrictive manner
8 consistent with the requirements of the person and in
9 accordance with the court's commitment order.
10 (3) If the court finds that the person is
11 appropriate for conditional release, the court shall
12 notify the Department. The Department shall prepare a
13 plan that identifies the treatment and services, if any,
14 that the person will receive in the community. The plan
15 shall address the person's need, if any, for supervision,
16 counseling, medication, community support services,
17 residential services, vocational services, and alcohol or
18 other drug abuse treatment. The Department may contract
19 with a county health department, with another public
20 agency or with a private agency to provide the treatment
21 and services identified in the plan. The plan shall
22 specify who will be responsible for providing the
23 treatment and services identified in the plan. The plan
24 shall be presented to the court for its approval within
25 60 21 days after the court finding that the person is
26 appropriate for conditional release, unless the
27 Department and the person to be released request
28 additional time to develop the plan.
29 (4) An order for conditional release places the
30 person in the custody and control of the Department. A
31 person on conditional release is subject to the
32 conditions set by the court and to the rules of the
33 Department. Before a person is placed on conditional
34 release by the court under this Section, the court shall
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1 so notify the municipal police department and county
2 sheriff for the municipality and county in which the
3 person will be residing. The notification requirement
4 under this Section does not apply if a municipal police
5 department or county sheriff submits to the court a
6 written statement waiving the right to be notified. If
7 the Department alleges that a released person has
8 violated any condition or rule, or that the safety of
9 others requires that conditional release be revoked, he
10 or she may be taken into custody under the rules of the
11 Department.
12 At any time during which the person is on
13 conditional release, if the Department determines that
14 the person has violated any condition or rule, or that
15 the safety of others requires that conditional release be
16 revoked, the Department may request the Attorney General
17 or State's Attorney to request the court to issue an
18 emergency ex parte order directing any law enforcement
19 officer to take the person into custody and transport the
20 person to the county jail. The Department may request,
21 or the Attorney General or State's Attorney may request
22 independently of the Department, that a petition to
23 revoke conditional release be filed. When a petition is
24 filed, the court may order the Department to issue a
25 notice to the person to be present at the Department or
26 other agency designated by the court, order a summons to
27 the person to be present, or order a body attachment for
28 all law enforcement officers to take the person into
29 custody and transport him or her to the county jail,
30 hospital, or treatment facility. The Department shall
31 submit a statement showing probable cause of the
32 detention and a petition to revoke the order for
33 conditional release to the committing court within 48
34 hours after the detention. The court shall hear the
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1 petition within 30 days, unless the hearing or time
2 deadline is waived by the detained person. Pending the
3 revocation hearing, the Department may detain the person
4 in a jail, in a hospital or treatment facility. The
5 State has the burden of proving by clear and convincing
6 evidence that any rule or condition of release has been
7 violated, or that the safety of others requires that the
8 conditional release be revoked. If the court determines
9 after hearing that any rule or condition of release has
10 been violated, or that the safety of others requires that
11 conditional release be revoked, it may revoke the order
12 for conditional release and order that the released
13 person be placed in an appropriate institution until the
14 person is discharged from the commitment under Section 65
15 of this Act or until again placed on conditional release
16 under Section 60 of this Act.
17 (5) An order for conditional release places the
18 person in the custody, care, and control of the
19 Department. The court shall order the person be subject
20 to the following rules of conditional release, in
21 addition to any other conditions ordered, and the person
22 shall be given a certificate setting forth the conditions
23 of conditional release. These conditions shall be that
24 the person:
25 (A) not violate any criminal statute of any
26 jurisdiction;
27 (B) report to or appear in person before such
28 person or agency as directed by the court and the
29 Department;
30 (C) refrain from possession of a firearm or
31 other dangerous weapon;
32 (D) not leave the State without the consent of
33 the court or, in circumstances in which the reason
34 for the absence is of such an emergency nature, that
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1 prior consent by the court is not possible without
2 the prior notification and approval of the
3 Department;
4 (E) at the direction of the Department, notify
5 third parties of the risks that may be occasioned by
6 his or her criminal record or sexual offending
7 history or characteristics, and permit the
8 supervising officer or agent to make the
9 notification requirement;
10 (F) attend and fully participate in
11 assessment, treatment, and behavior monitoring
12 including, but not limited to, medical,
13 psychological or psychiatric treatment specific to
14 sexual offending, drug addiction, or alcoholism, to
15 the extent appropriate to the person based upon the
16 recommendation and findings made in the Department
17 evaluation or based upon any subsequent
18 recommendations by the Department;
19 (G) waive confidentiality allowing the court
20 and Department access to assessment or treatment
21 results or both;
22 (H) work regularly at a Department approved
23 occupation or pursue a course of study or vocational
24 training and notify the Department within 72 hours
25 of any change in employment, study, or training;
26 (I) not be employed or participate in any
27 volunteer activity that involves contact with
28 children, except under circumstances approved in
29 advance and in writing by the Department officer;
30 (J) submit to the search of his or her person,
31 residence, vehicle, or any personal or real property
32 under his or her control at any time by the
33 Department;
34 (K) financially support his or her dependents
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1 and provide the Department access to any requested
2 financial information;
3 (L) serve a term of home confinement, the
4 conditions of which shall be that the person:
5 (i) remain within the interior premises
6 of the place designated for his or her
7 confinement during the hours designated by the
8 Department;
9 (ii) admit any person or agent designated
10 by the Department into the offender's place of
11 confinement at any time for purposes of
12 verifying the person's compliance with the
13 condition of his or her confinement;
14 (iii) if deemed necessary by the
15 Department, be placed on an electronic
16 monitoring device;
17 (M) comply with the terms and conditions of an
18 order of protection issued by the court pursuant to
19 the Illinois Domestic Violence Act of 1986. A copy
20 of the order of protection shall be transmitted to
21 the Department by the clerk of the court;
22 (N) refrain from entering into a designated
23 geographic area except upon terms the Department
24 finds appropriate. The terms may include
25 consideration of the purpose of the entry, the time
26 of day, others accompanying the person, and advance
27 approval by the Department;
28 (O) refrain from having any contact, including
29 written or oral communications, directly or
30 indirectly, with certain specified persons
31 including, but not limited to, the victim or the
32 victim's family, and report any incidental contact
33 with the victim or the victim's family to the
34 Department within 72 hours; refrain from entering
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1 onto the premises of, traveling past, or loitering
2 near the victim's residence, place of employment, or
3 other places frequented by the victim;
4 (P) refrain from having any contact, including
5 written or oral communications, directly or
6 indirectly, with particular types of persons,
7 including but not limited to members of street
8 gangs, drug users, drug dealers, or prostitutes;
9 (Q) refrain from all contact, direct or
10 indirect, personally, by telephone, letter, or
11 through another person, with minor children without
12 prior identification and approval of the Department;
13 (R) refrain from having in his or her body the
14 presence of alcohol or any illicit drug prohibited
15 by the Cannabis Control Act or the Illinois
16 Controlled Substances Act, unless prescribed by a
17 physician, and submit samples of his or her breath,
18 saliva, blood, or urine for tests to determine the
19 presence of alcohol or any illicit drug;
20 (S) not establish a dating, intimate, or
21 sexual relationship with a person without prior
22 written notification to the Department;
23 (T) neither possess or have under his or her
24 control any material that is pornographic, sexually
25 oriented, or sexually stimulating, or that depicts
26 or alludes to sexual activity or depicts minors
27 under the age of 18, including but not limited to
28 visual, auditory, telephonic, electronic media, or
29 any matter obtained through access to any computer
30 or material linked to computer access use;
31 (U) not patronize any business providing
32 sexually stimulating or sexually oriented
33 entertainment nor utilize "900" or adult telephone
34 numbers or any other sex-related telephone numbers;
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1 (V) not reside near, visit, or be in or about
2 parks, schools, day care centers, swimming pools,
3 beaches, theaters, or any other places where minor
4 children congregate without advance approval of the
5 Department and report any incidental contact with
6 minor children to the Department within 72 hours;
7 (W) not establish any living arrangement or
8 residence without prior approval of the Department;
9 (X) not publish any materials or print any
10 advertisements without providing a copy of the
11 proposed publications to the Department officer and
12 obtaining permission prior to publication;
13 (Y) not leave the county except with prior
14 permission of the Department and provide the
15 Department officer or agent with written travel
16 routes to and from work and any other designated
17 destinations;
18 (Z) not possess or have under his or her
19 control certain specified items of contraband
20 related to the incidence of sexually offending items
21 including video or still camera items or children's
22 toys;
23 (AA) provide a written daily log of activities
24 as directed by the Department;
25 (BB) comply with all other special conditions
26 that the Department may impose that restrict the
27 person from high-risk situations and limit access or
28 potential victims.
29 (6) A person placed on conditional release and who
30 during the term undergoes mandatory drug or alcohol
31 testing or is assigned to be placed on an approved
32 electronic monitoring device may be ordered to pay all
33 costs incidental to the mandatory drug or alcohol testing
34 and all costs incidental to the approved electronic
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1 monitoring in accordance with the person's ability to pay
2 those costs. The Department may establish reasonable
3 fees for the cost of maintenance, testing, and incidental
4 expenses related to the mandatory drug or alcohol testing
5 and all costs incidental to approved electronic
6 monitoring.
7 (Source: P.A. 90-40, eff. 1-1-98.)
8 (725 ILCS 207/55)
9 Sec. 55. Periodic reexamination; report.
10 (a) If a person has been committed under Section 40 of
11 this Act and has not been discharged under Section 65 of this
12 Act, the Department shall conduct an examination of his or
13 her mental condition within 6 months after an initial
14 commitment under Section 40 and then at least once every 12
15 months from the completion of the last evaluation again
16 thereafter at least once each 12 months for the purpose of
17 determining whether the person has made sufficient progress
18 to be conditionally released or discharged. At the time of a
19 reexamination under this Section, the person who has been
20 committed may retain or, if he or she is indigent and so
21 requests, the court may appoint a qualified expert or a
22 professional person to examine him or her.
23 (b) Any examiner conducting an examination under this
24 Section shall prepare a written report of the examination no
25 later than 30 days after the date of the examination. The
26 examiner shall place a copy of the report in the person's
27 health care records and shall provide a copy of the report to
28 the court that committed the person under Section 40.
29 (c) Notwithstanding subsection (a) of this Section, the
30 court that committed a person under Section 40 may order a
31 reexamination of the person at any time during the period in
32 which the person is subject to the commitment order.
33 (d) Petitions for discharge after reexamination must
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1 follow the procedure outlined in Section 65 of this Act.
2 (Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98;
3 91-227, eff. 1-1-00.)
4 (725 ILCS 207/60)
5 Sec. 60. Petition for conditional release.
6 (a) Any person who is committed for institutional care
7 in a secure facility or other facility under Section 40 of
8 this Act may petition the committing court to modify its
9 order by authorizing conditional release if at least 6 months
10 have elapsed since the initial commitment order was entered,
11 the most recent release petition was denied or the most
12 recent order for conditional release was revoked. The
13 director of the facility at which the person is placed may
14 file a petition under this Section on the person's behalf at
15 any time.
16 (b) If the person files a timely petition without
17 counsel, the court shall serve a copy of the petition on the
18 Attorney General or State's Attorney, whichever is applicable
19 and, subject to paragraph (c)(1) of Section 25 of this Act,
20 appoint counsel. If the person petitions through counsel,
21 his or her attorney shall serve the Attorney General or
22 State's Attorney, whichever is applicable.
23 (c) Within 20 days after receipt of the petition, the
24 court shall appoint one or more examiners having the
25 specialized knowledge determined by the court to be
26 appropriate, who shall examine the person and furnish a
27 written report of the examination to the court within 30 days
28 after appointment. The examiners shall have reasonable
29 access to the person for purposes of examination and to the
30 person's past and present treatment records and patient
31 health care records. If any such examiner believes that the
32 person is appropriate for conditional release, the examiner
33 shall report on the type of treatment and services that the
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1 person may need while in the community on conditional
2 release. The State has the right to have the person
3 evaluated by experts chosen by the State. The court shall
4 set a probable cause hearing as soon as practical after the
5 examiner's report is filed. If the court determines at the
6 probable cause hearing that cause exists to believe that it
7 is not substantially probable that the person will engage in
8 acts of sexual violence if on release or conditional release,
9 the court shall set a hearing on the issue.
10 (d) The court, without a jury, shall hear the petition
11 within 30 days after the report of the court-appointed
12 examiner is filed with the court, unless the petitioner
13 waives this time limit. The court shall grant the petition
14 unless the State proves by clear and convincing evidence that
15 the person is still a sexually violent person and that it is
16 still substantially probable that the person will engage in
17 acts of sexual violence if the person is not confined in a
18 secure facility. In making a decision under this subsection,
19 the court may consider the nature and circumstances of the
20 behavior that was the basis of the allegation in the petition
21 under paragraph (b)(1) of Section 15 of this Act, the
22 person's mental history and present mental condition, where
23 the person will live, how the person will support himself or
24 herself and what arrangements are available to ensure that
25 the person has access to and will participate in necessary
26 treatment.
27 (e) Before the court may enter an order directing
28 conditional release to a less restrictive alternative it must
29 find the following: (1) the person will be treated by a
30 Department approved treatment provider, (2) the treatment
31 provider has presented a specific course of treatment and has
32 agreed to assume responsibility for the treatment and will
33 report progress to the Department on a regular basis, and
34 will report violations immediately to the Department,
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1 consistent with treatment and supervision needs of the
2 respondent, (3) housing exists that is sufficiently secure to
3 protect the community, and the person or agency providing
4 housing to the conditionally released person has agreed in
5 writing to accept the person, to provide the level of
6 security required by the court, and immediately to report to
7 the Department if the person leaves the housing to which he
8 or she has been assigned without authorization, (4) the
9 person is willing to or has agreed to comply with the
10 treatment provider, the Department, and the court, and (5)
11 the person has agreed or is willing to agree to comply with
12 the behavioral monitoring requirements imposed by the court
13 and the Department.
14 (f)(e) If the court finds that the person is appropriate
15 for conditional release, the court shall notify the
16 Department. The Department shall prepare a plan that
17 identifies the treatment and services, if any, that the
18 person will receive in the community. The plan shall address
19 the person's need, if any, for supervision, counseling,
20 medication, community support services, residential services,
21 vocational services, and alcohol or other drug abuse
22 treatment. The Department may contract with a county health
23 department, with another public agency or with a private
24 agency to provide the treatment and services identified in
25 the plan. The plan shall specify who will be responsible for
26 providing the treatment and services identified in the plan.
27 The plan shall be presented to the court for its approval
28 within 60 days after the court finding that the person is
29 appropriate for conditional release, unless the Department
30 and the person to be released request additional time to
31 develop the plan.
32 (g)(f) The provisions of paragraph (b)(4) of Section 40
33 of this Act apply to an order for conditional release issued
34 under this Section.
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1 (Source: P.A. 90-40, eff. 1-1-98.)
2 Section 99. Effective date. This Act takes effect upon
3 becoming law.
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