FIRST REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES BROWN (149) (Sponsor), McGHEE, TILLEY, LeVOTA, WILDBERGER AND LAIR (Co-sponsors).
1776L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 630.110, 632.489, and 632.495, RSMo, and to enact in lieu thereof three new sections relating to sexually violent predators.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 630.110, 632.489, and 632.495, RSMo, are repealed and three new sections enacted in lieu thereof, to be known as sections 630.110, 632.489, and 632.495, to read as follows:
630.110. 1. Except as provided in subsection 5 of this section, each person admitted to a residential facility or day program and each person admitted on a voluntary or involuntary basis to any mental health facility or mental health program where people are civilly detained pursuant to chapter 632, RSMo, except to the extent that the head of the residential facility or day program determines that it is inconsistent with the person's therapeutic care, treatment, habilitation or rehabilitation and the safety of other facility or program clients and public safety, shall be entitled to the following:
(1) To wear his own clothes and to keep and use his own personal possessions;
(2) To keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases;
(3) To communicate by sealed mail or otherwise with persons including agencies inside or outside the facility;
(4) To receive visitors of his own choosing at reasonable times;
(5) To have reasonable access to a telephone both to make and receive confidential calls;
(6) To have access to his mental and medical records;
(7) To have opportunities for physical exercise and outdoor recreation;
(8) To have reasonable, prompt access to current newspapers, magazines and radio and television programming.
2. Any limitations imposed by the head of the residential facility or day program or his designee on the exercise of the rights enumerated in subsection 1 of this section by a patient, resident or client and the reasons for such limitations shall be documented in his clinical record.
3. Each patient, resident or client shall have an absolute right to receive visits from his attorney, physician or clergyman, in private, at reasonable times.
4. Notwithstanding any limitations authorized under this section on the right of communication, every patient, resident or client shall be entitled to communicate by sealed mail with the department, his legal counsel and with the court, if any, which has jurisdiction over the person.
5. Persons committed to a residential facility or day program operated, funded or licensed by the department pursuant to section 552.040, RSMo, persons detained at a county jail or at a secure facility under section 632.484 or 632.489, RSMo, or persons committed to a secure facility under section 632.495, RSMo, shall not be entitled to the rights enumerated in subdivisions (1), (3) and (5) of subsection 1 of this section unless the head of the residential facility or day program determines that these rights are necessary for the person's therapeutic care, treatment, habilitation or rehabilitation. In exercising the discretion to grant any of the rights enumerated in subsection 1 of this section to a patient, resident or client, the head of the residential facility or day program shall consider the safety of the public.
632.489. 1. Upon filing a petition pursuant to section 632.484 or 632.486, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such probable cause determination is made, the judge shall direct that person be taken into custody and direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person under the provisions of section 632.495.
2. Within seventy-two hours after a person is taken into custody pursuant to subsection 1 of this section, excluding Saturdays, Sundays and legal holidays, such person shall be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the detained person is a sexually violent predator. At this hearing the court shall:
(1) Verify the detainee's identity; and
(2) Determine whether probable cause exists to believe that the person is a sexually violent predator. The state may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.
3. At the probable cause hearing as provided in subsection 2 of this section, the detained person shall have the following rights in addition to the rights previously specified:
(1) To be represented by counsel;
(2) To present evidence on such person's behalf;
(3) To cross-examine witnesses who testify against such person; and
(4) To view and copy all petitions and reports in the court file, including the assessment of the multidisciplinary team.
4. If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility, including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility, which may include a county jail as set forth in section 632.495, to house the person. The court shall direct the director of the department of mental health to have the person examined by a psychiatrist or psychologist as defined in section 632.005 who was not a member of the multidisciplinary team that previously reviewed the person's records. In addition, such person may be examined by a consenting psychiatrist or psychologist of the person's choice at the person's own expense. Any examination shall be conducted in the facility in which the person is confined. Any examinations ordered shall be made at such time and under such conditions as the court deems proper; except that, if the order directs the director of the department of mental health to have the person examined, the director shall determine the time, place and conditions under which the examination shall be conducted. The psychiatrist or psychologist conducting such an examination shall be authorized to interview family and associates of the person being examined, as well as victims and witnesses of the person's offense or offenses, for use in the examination unless the court for good cause orders otherwise. The psychiatrist or psychologist shall have access to all materials provided to and considered by the multidisciplinary team and to any police reports related to sexual offenses committed by the person being examined. Any examination performed pursuant to this section shall be completed and filed with the court within sixty days of the date the order is received by the director or other evaluator unless the court for good cause orders otherwise. One examination shall be provided at no charge by the department. All costs of any subsequent evaluations shall be assessed to the party requesting the evaluation.
632.495. 1. The court or jury shall determine whether, by clear and convincing evidence, the person is a sexually violent predator. If such determination that the person is a sexually violent predator is made by a jury, such determination shall be by unanimous verdict of such jury. Any determination as to whether a person is a sexually violent predator may be appealed.
2. If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large. Such control, care and treatment shall be provided by the department of mental health.
3. At all times, persons ordered to the department of mental health after a determination by the court that such persons may meet the definition of a sexually violent predator, persons ordered to the department of mental health after a finding of probable cause under section 632.489, and persons committed for control, care and treatment by the department of mental health pursuant to sections 632.480 to 632.513 shall be kept in a secure facility designated by the director of the department of mental health and such persons shall be segregated at all times from any other patient under the supervision of the director of the department of mental health. The department of mental health shall not place or house a person ordered to the department of mental health after a determination by the court that such person may meet the definition of a sexually violent predator, a person ordered to the department of mental health after a finding of probable cause under section 632.489, or a person committed for control, care, and treatment by the department of mental health, pursuant to sections 632.480 to 632.513, with other mental health patients. The provisions of this subsection shall not apply to a person who has been conditionally released under section 632.505.
4. The department of mental health is authorized to enter into an interagency agreement with the department of corrections for the confinement of such persons. Such persons who are in the confinement of the department of corrections pursuant to an interagency agreement shall be housed and managed separately from offenders in the custody of the department of corrections, and except for occasional instances of supervised incidental contact, shall be segregated from such offenders.
5. The department of mental health is authorized to enter into a contract agreement with one or more county jails in Missouri for the confinement of persons ordered to the department of mental health after a determination by the court that such persons may meet the definition of a sexually violent predator or for the confinement of persons ordered to the department of mental health after a finding of probable cause under section 632.489. Such persons who are in the confinement of a county jail pursuant to a contract agreement shall be housed and managed separately from offenders in the custody of the county jail, and except for occasional instances of supervised incidental contact, shall be segregated from such offenders.
6. If the court or jury is not satisfied by clear and convincing evidence that the person is a sexually violent predator, the court shall direct the person's release.
[6.] 7. Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility, including, but not limited to, a county jail, until another trial is conducted. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person. Any subsequent trial following a mistrial shall be held within ninety days of the previous trial, unless such subsequent trial is continued as provided in section 632.492.
•