CHAPTER 373

FORMERLY

SENATE BILL NO. 354

AS AMENDED BY SENATE AMENDMENT NO. 1 AND

HOUSE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND CHAPTER 43 OF TITLE 11 OF THE DELAWARE CODE RELATING TO SEX OFFENDERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 4336 of Title 11 of the Delaware Code by deleting the text of said section in its entirety and by substituting in lieu thereof the following:

"(a) Notwithstanding any other provision of law to the contrary, the Department of Corrections, or the Department of Services to Children, Youth and Their Families (`DSCYF') as the case may be, shall provide written notice to the Attorney General, to the chief law enforcement officer of the jurisdiction which made the original arrest, to the chief law enforcement officer where the prisoner intends to reside and to the Superintendent of State Police, of the release from incarceration of any person who has been convicted of (i) any of the offenses specified in §§ 764 through 779 of Title 11 of the Delaware Code or (ii) any of the offenses specified in §§ 1108 through 1111 of Title 11 of the Delaware Code; or (iii) attempt to commit any of the foregoing offenses, or of the release of any juvenile adjudicated delinquent on the basis of an offense which, if committed by an adult, would constitute (i) any of the offenses specified in §§ 764 through 779 of Title I I of the Delaware Code, or (ii) any of the offenses specified in §§ 1108 through 1111 of Title 11 of the Delaware Code, or (iii) attempt to commit any of the foregoing offenses.

(b) Notwithstanding any other provision of law to the contrary, the official in charge of any other institution where an inmate is confined because of the commission or attempt to commit any of the offenses specified subsection (a) above, or the official in charge of a state hospital to which a person is committed as a result of having been convicted or adjudged guilty but mentally ill or adjudged not guilty by reason of insanity of one of the offenses specified in subsection (a) above, shall provide written notice to the Attorney General, to the chief law enforcement officer of the jurisdiction which made the original arrest, to the chief law enforcement officer where the prisoner intends to reside and to the Superintendent of State Police, of the release from such institution or state hospital of any such inmate or person.

(c) Any notice required pursuant to subsection (a) or subsection (b) above shall be given no more than 90 days, and no less than 45 days, prior to such person's release. The notice shall include, without limitation, the legal name, any alias or nicknames, age, sex, race, fingerprints, all known identifying factors, offense history, anticipated future residence and a photo of the released person supplied by the Department of Corrections, or the DSCYF, as the case may be, and taken not more than 90 days prior to release. No person shall be released from incarceration or confinement unless and until he or she cooperates with the appropriate authorities pursuant to this section.

"(d) Not withstanding any other provision of law to the contrary the court,

where a person convicted of any of the offenses specified in subsection (a) above is released by a state court on probation or discharged by a state court upon payment of a fine, shall provide written notice to the attorney general, to the chief law enforcement officer of the jurisdiction which made the original arrest, to the chief law enforcement officer where the convicted person intends to reside and to the superintendent of state police, of the release from such court.

(e) Any notice pursuant to subsection (d) shall be given no more than 5 working days after the person's release. The notice shall include, without limitation, the following information as it is available to the court or notation as to the repository for said information: the legal name, any alias or nicknames, age, sex, race, fingerprints, all known identifying factors, offense history, anticipated future residence and a photo taken not more than 90 days prior to release.

(e) The Attorney General shall use any reasonable means to notify the victim of the anticipated release unless the victim has requested not to be notified.

(f) The Attorney General shall, within ten days after receiving notification of a pending release pursuant to subsection (a) or subsection (b), or notification of release pursuant to subsection (d) of this section assess the offender in accordance with the Registrant Risk Assessment Scale, the form of which and a manual for which are attached hereto as Exhibit A. The Attorney General shall notify the Delaware State Police and the chief law enforcement officer of the jurisdiction where the offender intends to reside as to the resulting score on the Registrant Risk Assessment Scale, and shall forward a copy of the completed Registrant Risk Assessment Scale to the Superintendent of the Delaware State Police and to the chief law enforcement officer of the jurisdiction where the registrant offender intends to reside.

(g) The chief law enforcement officer of the jurisdiction where the inmate intends to reside, or the Superintendent of State Police if no local agency exists, shall provide notification of the convicted sex offender's release in accordance with the following guidelines:

(e) Those persons receiving a 'Low Risk' score on the Registrant Risk Assessment Scale shall be considered a Tier One offender. The release of Tier One offenders will require notification to all law enforcement agencies with jurisdiction over the area where the offender intends to reside.

(ii) Those persons receiving a 'Moderate Risk' score on the Registrant Risk Assessment Scale shall be considered a Tier Two offender. In addition to law enforcement notification, the release of a Tier Two offender shall require a Community Organization Alert pursuant to this paragraph. Such Community Organization Alert may include a photograph of the offender if deemed appropriate by the notifying agency. In order to be a community organization entitled to Tier Two notification, such organizations must register with the local law enforcement agency or, where the community has no local law enforcement agency, with the Superintendent of State Police. Organizations may only be included on the notification list if they operate an establishment where children gather under their care, or where women are cared for. The State Board of Education shall provide all law enforcement agencies within the State a list of all educational institutions within the Board's administration. Every law enforcement agency shall automatically register each institution on the Board's list located within its jurisdiction. Notification will go to those organizations which, at any specific time, are likely to encounter the released offender. 'Likely to encounter' for this act means that the location of any organization is such that they are in close geographic proximity to a location where the released offender resides or visits or can be presumed to visit on a regular basis.

(iii) Those persons receiving a 'High Risk' score on the Registrant Risk Assessment Seale shall be considered a Tier Three offender. In addition to law enforcement notification and a Community Organization Alert, the release of a Tier Three offender shall require Community Notification pursuant to this paragraph. Community Notification shall be conducted by door-to-door appearances or by mail or by other methods devised specifically to notify members of the public likely to encounter the offender. Community Notification should be targeted to a defined community. Such Community Notification may include a photograph of the offender if deemed appropriate by the notifying agency.

(i) A complete register of all persons convicted after June 27, 1994, of any of the offenses specified in subsection (a) above, or of attempt to commit any of such offenses, shall be created, maintained and routinely updated by the Delaware State Police for immediate accessibility by the Delaware Justice Information System (DelJIS) computer to all law enforcement agencies. Such register shall be accessible by the name of each offender or by county of residence of each offender. The register required by this subsection shall be established by the Delaware State Police no later than six months after the effective date of this Act.

(j) All elected public officials, public employees, and public agencies are immune from civil liability for any discretionary decision to release relevant information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees or officials or to the general public.

(k) There shall be no civil legal remedies available as a cause of action against any public official, public employee, or public agency for failing to release information as authorized in this section.

(l) In addition to those circumstances enumerated in this Act, law enforcement agencies shall notify any member of the public of the release of a person described in subsection (a), subsection (b) or subsection (d) of this section where such released person may pose a particular threat or danger to a member of the public.

(m) The Court in which any person described in subsection (a) of this section is sentenced shall designate for the Department of Corrections, or the DSCYF, as the case may be, at the time of sentencing that notice in accordance with this section shall be required.

(n) The Court in which any person described in subsection (b) of this section is sentenced shall designate for the official in charge of the institution of confinement or state hospital at the time of sentencing that notice in accordance with this section shall be required.

(o) The Court in which any person described in subsection (d) of this section is sentenced shall determine, at the time of sentencing, that notice in accordance with this section shall be required."

Section 2. This Bill shall apply to any person described in subsection (a), subsection (b) or subsection (d) of § 4336 of Title 11, as amended by this Bill, sentenced after the enactment hereof.

REGISTRANT

RISK ASSESSMENT SCALE MANUAL

This manual is to assist in the implementation of the Registrant Risk Assessment Scale. The purpose of the scale and this accompanying manual is to provide an objective standard on which to base the community notification decision mandated by statute and to insure that the notification law is applied in a uniform manner throughout the State.

The purpose of the assessment is to provide a method of notification to the public so as to address the concerns of the community regarding the location of convicted sex offenders who may be at risk of committing further offenses. This assessment is not intended to determine the actual probability of reoffense but is a method of objectively placing registrants in tiers designed to provide the public with notice of the whereabouts of convicted sex offenders, such that the community will be better informed and prepared,

This procedure sets forth a numerical value which translates into a risk assessment which correlates to a tier. This tier determination will not be modified unless there is a debilitating condition that unequivocally deems the risk of reoffense non-existent.

Selection of Risk Assessment Criteria

I. Assessing the potential risk of reoffense of a sex offender has several components:

A The seriousness of offenses committed by the registrant

B. The history of offending, and

C. Characteristics of the offender.

Risk Assessment Criteria were specifically selected to reflect the seriousness of the offense; thus separating the nuisance offense which poses a low risk to the community from those crimes that carry a high potential risk to the community given the seriousness of a reoffense.

The scale itself was grouped so that criteria is divided among the A) Seriousness of the offense, B) Offense history of the registrant and C) Characteristics that have been exhibited by the registrant.

2. Weighting of the risk assessment criteria:

A. Most weight being given to the seriousness of the offense as it has the potential to pose most harm to the community upon recidivism.

B. The least weight being given to the characteristics of the offender as treatment has not proven to be a "cure".

Sample Cases

Once the scoring mechanisms were agreed upon, actual police cases were used as sample cases to insure that risk assessments using the scale confirmed to expert judgments.

Utilizing the Criteria

The assessing individual should look to the most serious instance of each category as it appears on registrant's record. For example, where the record reveals that a registrant has committed a sex offense against an II-year old but no weapon or other violence was used, but in a different sex offense committed by the same person against a 20-year old using a weapon or violence, the Criterion I should reflect the use of violence and Criterion 3 should reflect that a crime was committed against an 11-year old.

Determination of the number of victims or offenses may be based upon documentation other than a criminal conviction. Such documentation may include, but is not limited to, criminal complaints not the subject of a conviction but which are supported by credible evidence, victim statements, admissions by the registrant, police reports, medical, psychological or psychiatric reports, pre-sentencing reports, and discharge summaries from the Department of Correction.

Criteria Explanation with Examples

The following is a list of the criteria in the Registrant Risk Assessment Scale and examples of "Low Risk", "Moderate Risk" and "High Risk". The examples are in no way intended to be exclusive.

I. Degree of Force -- relates to the seriousness of the potential harm to the community if reoffense occurs.

Low Risk example --- offenders exposes self to child/adult

Moderate Risk example -- offender threatens physical harm, attempts to obtain sexual gratification through use of candy, pets or other nonviolent acts or verbally coerces by telling a child victim that he will get "in trouble" or "won't be loved" if he tells anyone of the abuse.

High Risk example -- offender uses violence, a weapon (whether offender uses or is armed with it), any use of physical force or victim injury.

2. Degree of Contact -- relates to the seriousness of the potential harm to the community if reoffense occurs.

Low Risk example -- exhibitionism or showing of pornographic material

Moderate Risk example -- foundling either over or under clothing, approaches victim and presses body against buttocks over clothing.

High Risk example -- penetrates orifice with object or any body part.

2. Age of Victim -- this criterion mirrors statutory age levels. If two or more victims are known, the age of the youngest victim for any offense known is scored. Offenses need not have led to conviction if credible evidence exists in the records. For juveniles a four year age difference between the offender and the victim is needed to score this criterion.

2. Victim Selection -- reference here is made to the manner in which victims are selected and which selections place the community as a whole in the most danger.

Low Risk example -- sexually abuses sibling, household member, biological child, or stepchild. Sexually abuses family member who does not live in the household.

Moderate Risk example -- "acquaintance" implies a degree of social/business interaction. Sexual abuse of a neighbor's child, child for whom offender is babysitting, or a child for whom offender is a coach, teacher, etc. Offender performs coercive sexual acts with date.

High Risk example -- sexually abuses child or adult stranger accosted on street, in park or in schoolyard. Offender lures stranger into coercive sexual activity. Use of the word "stranger" does not automatically preclude the fact of situations in which the victim knows the identify of the offender, for example, the offender and the victim may have had an exchange of words in a bar or other social setting.

3. Number of Victims -- a conviction is not necessary if the rater finds credible evidence of multiple sexual victims.

Low Risk example -- intrafamilial sexual abuse of one child (even if multiple times); sexual assault of one adult stranger.

Moderate Risk example -- two separate victims (even if one incident involving both victims). 1

High Risk example -- three or more separate individuals.

4. Number or Frequency of Offense -- a conviction is not necessary if the rater finds credible evidence to support a specific number or times of offensive behavior.

Low Risk example -- one known offense with no evidence of multiple offenses.

Moderate Risk example -- second known offense with same or different

person.

High Risk example -- Three or more known offenses with same or different person.

7. Prior Criminal History -- prior criminal history includes sex offenses not the subject of criminal prosecution, other crimes against persons and crimes against property. Acts which are not the subject of criminal charges but are credibly represented in the records may be counted. Such documentation may include evidence of behavioral problems in school, prior diagnoses of disorder or defiant disorder. Acts perpetrated while incarcerated or committed may be included.

8. Recidivism -- the number of times that the offender has relapsed into criminal behavior.

Low Risk example -- first time offender; no history or convictions of same or different crime.

Moderate Risk example -- one documented occurrence of convictions or arrests for the same or different crime.

High Risk example -- more than one documented occurrence of convictions or behavior that led to prior arrests for same or different crime.

7. Response to Treatment -- a therapist must have a report to rate this criterion.

Low Risk example -- offender participates in all sessions of sex offender specific treatment. No offense during treatment.

Moderate Risk example -- indication of some progress, but is not consistent in attendance or participation. No offenses during treatment.

High Risk example -- not in treatment; no progress shown if in treatment or more offenses committed while in treatment

7. Substance or Alcohol Abuse -- any substance can act as a disinhibitor of impulses thus causing an offender to act on urges that might otherwise be under control. Substance/alcohol abuse can be an indicator of an antisocial lifestyle or a low level of social competence.

Low Risk example -- no history of use that impaired social or occupational functioning.

Moderate Risk example -- abuse presently in remission.

High Risk example -- current substance dependency; present functioning impaired."

Approved June 21, 1996