CHAPTER 88

FORMERLY

SENATE BILL NO. 90

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO SEX OFFENDERS AND ESTABLISHING A SEX OFFENDER MANAGEMENT BOARD.

WHEREAS, currently the State of Delaware has approximately 3,400 sex offenders registered under the Delaware Sex Offender Registry who currently reside within the State’s boundaries; and,

WHEREAS, the General Assembly recognizes that the State of Delaware, like many other states, faces a variety of known dilemmas in the management of sex offenders within the criminal justice system due, in part, to a fragmented approach between and within those agencies involved in the management and treatment of sex offenders; and,

WHEREAS, the General Assembly recognizes that although sexual offending cannot be cured, specialized treatment of sex offenders has been found to be effective in reducing sex offense recidivism and is a powerful component in the prevention of future sex offenses; and,

WHEREAS, the General Assembly hereby declares that the comprehensive evaluation, identification, classification, treatment, and continued monitoring of sex offenders who are subject to the supervision of the criminal justice system is necessary in order to work toward the reduction of recidivism by such offenders; and,

WHEREAS, the General Assembly further declares that the creation of a Sex Offender Management Board to develop and standardize the evaluation, identification, classification, treatment and continued monitoring of sex offenders at each stage of the criminal justice system shall eliminate the State’s fragmented approach to the management of sex offenders and will help to resolve future issues pertaining to sex offenders; and,

WHEREAS, standards and guidelines for the identification, classification, treatment and monitoring of sex offenders will most effectively provide the utmost community safety if the entirety of the criminal justice system and social services systems are coordinated through consistent application of the same standards and guidelines; and,

WHEREAS, the paramount purpose and goal of the Sex Offender Management Board is to maximize community safety and to ensure that sex offenders are not within the community without comprehensive treatment, constant supervision and behavioral monitoring.

NOW, THEREFORE:

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

Section 1. Amend Chapter 41, Title 11 of the Delaware Code by adding a new §4120A to read as follows:

Ҥ4120A. Intent and Purpose

(a) The General Assembly hereby declares that the comprehensive evaluation, identification, classification, treatment, and continued monitoring of sex offenders who are subject to the supervision of the criminal justice system is necessary in order to work toward the reduction of recidivism by such offenders. Therefore, the General Assembly hereby creates a Board which shall develop and standardize the evaluation, identification, classification, treatment, and continued monitoring of sex offenders at each stage of the criminal justice system so that such offenders will curtail recidivistic behavior and the protection of victims and potential victims will be enhanced. The General Assembly hereby recognizes that some sex offenders cannot or will not respond to treatment and that, in creating the Board described in this section, the General Assembly does not intend to imply that all sex offenders can be successful in treatment. Further, the General Assembly mandates that each member agency as outlined below must act in accordance with the standards established by the Board.

(b) Definitions.

As used in this section, unless the context otherwise requires, the following words and phrases shall have the meaning ascribed to them in this section:

(1) ‘Board’ means the Sex Offender Management Board created in §4120A of this Title.

(2) ‘Sex offender’ or ‘offender’ means any person who has ever been convicted or adjudicated of an offense as defined in Title 11, Section 761 and Title 11, Section 4121(a)(4) of the Delaware Code.

(3) ‘Treatment’ means therapy, monitoring, and supervision of any sex offender which conforms to the standards created by the State’s Sex Offender Management Board.

(a) Creation of the Sex Offender Management Board.

(1) There is hereby created, in the Delaware Department of Safety and Homeland Security, a Sex Offender Management Board which shall consist of the following members:

a. The President Judge of the Delaware Superior Court, or his or her designee;

b. The Commissioner of the Delaware Department of Correction, or his or her designee;

c. A representative from the Office of Probation and Parole appointed by the Commissioner of the Delaware Department of Correction;

d. The Chairperson of the Board of Parole or his or her designee;

e. A representative from the Division of Child Mental Health appointed by the Secretary for the Delaware Department of Children, Youth and Their Families;

f. One (1) licensed mental health professional with experience in treatment of adult sex offenders appointed by the Governor, and who shall serve on the Board for a term of four (4) years;

g. One (1) member at-large who can represent sex abuse victims, victims’ rights organizations, and/or the community at large appointed by the Governor, and who shall serve on the Board for a term of four (4) years;

h. The Secretary for the Delaware Department of Health and Social Services, or his or her designee;

i. The Superintendent of the Delaware State Police, or his or her designee;

j. One (1) member who is a recognized expert in the treatment of juvenile sex offenders, appointed by the Governor, and who shall serve on the Board for a term of four (4) years;

k. The Attorney General for the State of Delaware, or his or her designee;

l. The Public Defender of the State of Delaware, or his or her designee;

m. The Chairperson of the Police Chief’s Council of Delaware, or his or her designee;

n. Two (2) members appointed by the Governor who are recognized experts in the field of sexual abuse and who can represent sexual abuse victims and victims’ rights organizations, and who shall serve on the Board for a term of four (4) years;

o. A member of the Delaware State Police Sex Offender Registry appointed by the Superintendent of the Delaware State Police;

p. The Executive Director of Delaware Criminal Justice Information System (DELJIS), or his or her designee;

q. A representative from Youth Rehabilitative Services appointed by the Secretary for the Delaware Department of Children, Youth and Their Families;

r. One (1) member from the Delaware Department of Education who has experience in dealing with juvenile sex offenders in the public school system appointed by the Secretary for the Delaware Department of Education;

s. The Chief Judge of Family Court or his/her designee; and,

t. The Secretary for the Delaware Department of Safety and Homeland Security, or his or her designee.

(2) Members shall serve without compensation.

(3) The Secretary of the Delaware Department of Safety and Homeland Security shall preside as Chairperson of the Board or shall appoint a presiding officer for the Board from among the members appointed in section 4120A(c)(1) who shall preside over the Board as Chairperson for a period not to exceed two years.

(4) The Board shall elect from amongst its membership, a Vice Chair, who shall become the Chairperson of the Board upon the expiration of the Chairperson’s term.

(5) The Board shall meet on a regular basis. Meetings shall be subject to all relevant open-meeting laws and regulations.

(6) The Sex Offender Management Board shall adopt by-laws, within six months from the enactment of this section, to govern itself. Such by-laws shall include, at a minimum, the factors outlined within this section.

(7) The Board may, as needed and appropriate, create subcommittees, task forces, or working groups to explore specific issues or opportunities or to provide subject matter expertise in the promulgation of the rules and regulations and the development of standards and programs as they relate to the evaluation, identification, classification, treatment and continued monitoring of sex offenders within the criminal justice system.

(8) The Board shall adopt rules and regulations to effectuate compliance by all affected agencies.

(d) The Duties and Authority of the Sex Offender Management Board shall be as follows

(1) Prior to January 1, 2009, the Board shall develop and prescribe a standardized procedure for the evaluation, identification, and classification of adult and juvenile sex offenders. Such procedure shall provide for an evaluation, identification, and classification of the offender and recommend behavior management, monitoring, and treatment based upon the knowledge that some sex offenders are extremely habituated and that there is no known cure for the propensity to commit sexual abuse. The Board shall develop and implement measures of success based upon a no-cure policy for intervention. The Board shall develop and implement methods of intervention for sex offenders which have as a priority the physical and psychological safety of victims and potential victims and which are appropriate to the needs of the particular offender, so long as there is no reduction of the safety of victims and potential victims.

(2) Prior to January 1, 2009, the Board shall develop guidelines and standards for a system of programs for the treatment of sex offenders which can be utilized by offenders who are incarcerated or under the supervision of the Department of Correction or the Board of Parole. The programs developed pursuant to this subsection shall be as flexible as possible so that such programs may be utilized by each offender to prevent the offender from harming victims and potential victims. Such programs shall be structured in such a manner that the programs provide a continuing monitoring process as well as a continuum of treatment programs for each offender as that offender proceeds through the criminal justice system and may include, but shall not be limited to, group counseling, individual counseling, outpatient treatment, inpatient treatment, or treatment in a therapeutic community. Also, such programs shall be developed in such a manner that, to the extent possible, the programs continue to be accessible by all offenders in the criminal justice system.

(3) On or before January 1, 2009, the Board shall consult on and approve the risk assessment screening instrument to assist any sentencing authority in determining the likelihood that an offender would commit one or more sex offenses. In carrying out this duty, the Board shall consider sex offender risk assessment research and shall consider as one element the risk posed by a sex offender who suffers from a mental abnormality, psychosis, or personality disorder that makes the person more likely to engage in sexually violent predatory offenses.

(4) The Board shall develop criteria for measuring a sex offender’s progress in treatment. The criteria shall be designed to assist the Courts and the State Board of Parole in determining whether a sex offender would pose an undue public safety threat to the community if he or she were released from incarceration, released to a reduced level of supervision, or discharged from probation or parole. The criteria shall not limit the decision-making authority of the Courts or the State Board of Parole.

(5) The Board shall research and analyze the effectiveness of the monitoring and tracking, evaluation, identification, classification, and treatment procedures and programs developed pursuant to this section. The Board shall also develop and prescribe a system for implementation of the guidelines and standards developed pursuant to section 4120A and for tracking offenders who have been subjected to evaluation, identification, classification, and treatment pursuant to this section. The Board shall implement the guidelines and standards so developed in § 4120A by no later than January 1, 2010.

(6) The Board shall research and analyze the safety issues raised by living arrangements for and the location of sex offenders within the community, including but not limited to shared or structured living arrangements. At a minimum, the Board shall consider the issues raised by the location of sex offender residences, especially in proximity to public or private schools and child care facilities, and public notification of the location of sex offender residences. On or before July 15, 2009, the Board shall prepare and submit a report concerning the research and analysis conducted pursuant to this paragraph and any related legislative recommendations. The Board shall submit the report to the Public Safety, Judiciary and Corrections Committees of the House of Representatives and the Senate. On or before January 1, 2010, the Board shall adopt such guidelines as it may deem appropriate regarding the living arrangements and location of sex offenders. The Board shall accomplish the requirements specified in this paragraph within existing appropriations.

(7) Prior to January 1, 2010, the Board, in collaboration with law enforcement agencies, victim advocacy organizations, the Department of Education, and the Department of Safety and Homeland Security, shall develop, for use by schools, educational materials regarding general information about sex offenders, safety concerns related to sex offenders, and other relevant material. The Board shall provide these materials to the Department of Education, and the Department of Education shall make these materials available to schools in the state.

(8) The Board and the individual members thereof shall be immune from any liability, whether civil or criminal, for the good faith performance of the duties of the Board as specified in this section except when such performance constitutes willful or wanton conduct or gross negligence.

(e) Each sex offender sentenced by a Court for an offense committed on or after January 1, 2010, shall be required, as a part of any sentence to probation, community corrections, or incarceration with the Department of Correction, to undergo treatment to the extent appropriate to such offender based upon the recommendations of the evaluation and identification.

(f) Each sex offender placed on parole by the State Board of Parole on or after January 1 2010 shall be required, as a condition of such parole, to undergo treatment based upon the recommendations of the evaluation and identification regarding such offender during the offender’s incarceration or any period of parole.

(g) The Board shall require any person who applies for placement, including any person who applies for continued placement, on the list of persons who may provide sex offender treatment and sex offender services pursuant to this section, to submit fingerprints and other necessary information in order to obtain the following:

1. A report of the applicant’s entire criminal history record from the State Bureau of Identification or a statement from the State Bureau of Identification that the State Bureau of Identification Central Repository contains no such information relating to that person.

2. A report of the applicant’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 [28 U.S.C. § 534]. The State Bureau of Identification shall be the intermediary for the purposes of this section and the Board shall be the screening point for the receipt of said federal criminal history records.

3. The Board may obtain such other information and recommendations from third parties which may be relevant to the applicant’s fitness to provide sex offender treatment and sex offender services pursuant to this section.

(h) The Board shall use the information obtained from the state and national criminal history record check and the current background investigation in determining whether to place or continue the placement of the person on the approved provider list.”

Section 4. Amend §4120(j), Chapter 41, Title 11 of the Delaware Code by adding in the first sentence therein after the words “All elected” but before the words “public officials” the words “and appointed” and by adding after the words “or public agencies” but before the words “are immune from civil liability” the phrase, “including but not limited to the members of the Sex Offender Management Board,”.

Approved July 05, 2007