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91st General Assembly
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Public Act 91-0875

HB4116 Enrolled                                LRB9112288RCpc

    AN ACT to amend the Sexually Violent  Persons  Commitment
Act by changing Sections 5, 35, 40, 55, and 60.

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

    Section 5.  The Sexually Violent Persons  Commitment  Act
is  amended  by  changing  Sections  5, 35, 40, 55, and 60 as
follows:

    (725 ILCS 207/5)
    Sec. 5.  Definitions. As used in this Act, the term:
    (a)  "Department" means the Department of Human Services.
    (b)  "Mental disorder" means  a  congenital  or  acquired
condition affecting the emotional or volitional capacity that
predisposes a person to engage in acts of sexual violence.
    (c)  "Secretary" means the Secretary of Human Services.
    (d)  "Sexually  motivated" means that one of the purposes
for  an  act  is  for   the   actor's   sexual   arousal   or
gratification.
    (e)  "Sexually   violent   offense"   means  any  of  the
following:
         (1)  Any crime specified in  Section  12-13,  12-14,
    12-14.1, or 12-16 of the Criminal Code of 1961; or
         (1.5)  Any  former  law  of  this State specified in
    Section 11-1 (rape), 11-3 (deviate sexual assault),  11-4
    (indecent  liberties  with  a  child) or 11-4 (aggravated
    indecent liberties with a child) of the Criminal Code  of
    1961; or
         (2)  First degree murder, if it is determined by the
    agency with jurisdiction to have been sexually motivated;
    or
         (3)  Any  solicitation,  conspiracy  or  attempt  to
    commit  a  crime under paragraph (e)(1) or (e)(2) of this
    Section.
    (f)  "Sexually violent person" means  a  person  who  has
been  convicted  of  a  sexually  violent  offense,  has been
adjudicated delinquent for a sexually violent offense, or has
been found not guilty of a sexually violent offense by reason
of insanity and who is dangerous because he  or  she  suffers
from  a  mental disorder that makes it substantially probable
that the person will engage in acts of sexual violence.
(Source: P.A. 90-40, eff. 1-1-98; 90-793, eff. 8-14-98.)

    (725 ILCS 207/35)
    Sec. 35.  Trial.
    (a)  A trial to determine whether the person who  is  the
subject  of  a  petition  under  Section  15 of this Act is a
sexually violent person shall commence no later than 45  days
after the date of the probable cause hearing under Section 30
of  this Act.  The court may grant a continuance of the trial
date for good cause upon its own motion, the  motion  of  any
party  or  the  stipulation of the parties, provided that any
continuance granted shall be subject to Section 103-5 of  the
Code of Criminal Procedure of 1963.
    (b)  At  the trial to determine whether the person who is
the subject of a petition under Section 15 of this Act  is  a
sexually  violent  person,  all rules of evidence in criminal
actions apply.  All  constitutional  rights  available  to  a
defendant  in  a  criminal  proceeding  are  available to the
person.  At the trial on the petition it shall  be  competent
to  introduce evidence of the commission by the respondent of
any number of crimes together with whatever  punishments,  if
any,  were  imposed.    The  petitioner  may  present  expert
testimony  from  both  the Illinois Department of Corrections
evaluator and the Department of Human Services psychologist.
    (c)  The person who is the subject of the  petition,  the
person's  attorney,  the  Attorney  General  or  the  State's
Attorney  may request that a trial under this Section be by a
jury.  A request for a jury trial under this subsection shall
be made within 10 days after the probable cause hearing under
Section 30 of this Act.  If no request  is  made,  the  trial
shall  be by the court.  The person, the person's attorney or
the  Attorney  General  or  State's  Attorney,  whichever  is
applicable, may withdraw his or her request for a jury trial.
    (d) (1)  At a trial on a petition  under  this  Act,  the
    petitioner  has  the burden of proving the allegations in
    the petition beyond a reasonable doubt.
         (2)  If the State alleges that the sexually  violent
    offense  or act that forms the basis for the petition was
    an  act  that  was  sexually  motivated  as  provided  in
    paragraph (e)(2) of Section 5 of this Act, the  State  is
    required  to  prove  beyond  a  reasonable doubt that the
    alleged sexually violent act was sexually motivated.
    (e)  Evidence that the person who is  the  subject  of  a
petition  under  Section  15 of this Act was convicted for or
committed sexually violent  offenses  before  committing  the
offense  or  act  on  which  the  petition  is  based  is not
sufficient to establish beyond a reasonable  doubt  that  the
person has a mental disorder.
    (f)  If  the court or jury determines that the person who
is the subject of a petition under Section 15 is  a  sexually
violent  person,  the  court  shall  enter a judgment on that
finding and shall commit the person as provided under Section
40 of this Act.  If the court or jury is not satisfied beyond
a reasonable doubt that the  person  is  a  sexually  violent
person,  the court shall dismiss the petition and direct that
the person be released unless he or she is under  some  other
lawful restriction.
    (g)  A  judgment  entered  under  subsection  (f) of this
Section on the finding that the person who is the subject  of
a  petition  under Section 15 is a sexually violent person is
interlocutory to a commitment order under Section 40  and  is
reviewable on appeal.
(Source: P.A. 90-40, eff. 1-1-98.)

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

    (725 ILCS 207/55)
    Sec. 55.  Periodic reexamination; report.
    (a)  If a person has been committed under Section  40  of
this Act and has not been discharged under Section 65 of this
Act,  the  Department  shall conduct an examination of his or
her  mental  condition  within  6  months  after  an  initial
commitment under Section 40 and then at least once  every  12
months  from  the  completion  of  the  last evaluation again
thereafter at least once each 12 months for  the  purpose  of
determining  whether  the person has made sufficient progress
to be conditionally released or discharged.  At the time of a
reexamination under this Section, the  person  who  has  been
committed  may  retain  or,  if  he or she is indigent and so
requests, the court may  appoint  a  qualified  expert  or  a
professional person to examine him or her.
    (b)  Any  examiner  conducting  an examination under this
Section shall prepare a written report of the examination  no
later  than  30  days after the date of the examination.  The
examiner shall place a copy of the  report  in  the  person's
health care records and shall provide a copy of the report to
the court that committed the person under Section 40.
    (c)  Notwithstanding  subsection (a) of this Section, the
court that committed a person under Section 40  may  order  a
reexamination  of the person at any time during the period in
which the person is subject to the commitment order.
    (d)  Petitions for  discharge  after  reexamination  must
follow the procedure outlined in Section 65 of this Act.
(Source:  P.A.  90-40,  eff.  1-1-98;  90-793,  eff. 8-14-98;
91-227, eff. 1-1-00.)

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

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

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