RCW 9.94A.670
Special sex offender sentencing alternative.
(Effective until August 1, 2009.)
(1) Unless the context clearly
requires otherwise, the definitions in this subsection apply to
this section only.
(a) "Sex offender treatment provider" or "treatment
provider" means a certified sex offender treatment provider or a
certified affiliate sex offender treatment provider as defined in
RCW 18.155.020.
(b) "Substantial bodily harm" means bodily injury that
involves a temporary but substantial disfigurement, or that
causes a temporary but substantial loss or impairment of the
function of any body part or organ, or that causes a fracture of
any body part or organ.
(c) "Victim" means any person who has sustained emotional,
psychological, physical, or financial injury to person or
property as a result of the crime charged. "Victim" also means a
parent or guardian of a victim who is a minor child unless the
parent or guardian is the perpetrator of the offense.
(2) An offender is eligible for the special sex offender
sentencing alternative if:
(a) The offender has been convicted of a sex offense other
than a violation of RCW 9A.44.050 or a sex offense that is also a
serious violent offense. If the conviction results from a guilty
plea, the offender must, as part of his or her plea of guilty,
voluntarily and affirmatively admit he or she committed all of
the elements of the crime to which the offender is pleading
guilty. This alternative is not available to offenders who plead
guilty to the offense charged under North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Newton,
87 Wash.2d 363, 552 P.2d 682 (1976);
(b) The offender has no prior convictions for a sex offense
as defined in RCW 9.94A.030 or any other felony sex offenses in
this or any other state;
(c) The offender has no prior adult convictions for a
violent offense that was committed within five years of the date
the current offense was committed;
(d) The offense did not result in substantial bodily harm to
the victim;
(e) The offender had an established relationship with, or
connection to, the victim such that the sole connection with the
victim was not the commission of the crime; and
(f) The offender's standard sentence range for the offense
includes the possibility of confinement for less than eleven
years.
(3) If the court finds the offender is eligible for this
alternative, the court, on its own motion or the motion of the
state or the offender, may order an examination to determine
whether the offender is amenable to treatment.
(a) The report of the examination shall include at a minimum
the following:
(i) The offender's version of the facts and the official
version of the facts;
(ii) The offender's offense history;
(iii) An assessment of problems in addition to alleged
deviant behaviors;
(iv) The offender's social and employment situation; and
(v) Other evaluation measures used.
The report shall set forth the sources of the examiner's
information.
(b) The examiner shall assess and report regarding the
offender's amenability to treatment and relative risk to the
community. A proposed treatment plan shall be provided and shall
include, at a minimum:
(i) Frequency and type of contact between offender and
therapist;
(ii) Specific issues to be addressed in the treatment and
description of planned treatment modalities;
(iii) Monitoring plans, including any requirements regarding
living conditions, lifestyle requirements, and monitoring by
family members and others;
(iv) Anticipated length of treatment; and
(v) Recommended crime-related prohibitions and affirmative
conditions, which must include, to the extent known, an
identification of specific activities or behaviors that are
precursors to the offender's offense cycle, including, but not
limited to, activities or behaviors such as viewing or listening
to pornography or use of alcohol or controlled substances.
(c) The court on its own motion may order, or on a motion by
the state shall order, a second examination regarding the
offender's amenability to treatment. The examiner shall be
selected by the party making the motion. The offender shall pay
the cost of any second examination ordered unless the court finds
the defendant to be indigent in which case the state shall pay
the cost.
(4) After receipt of the reports, the court shall consider
whether the offender and the community will benefit from use of
this alternative, consider whether the alternative is too lenient
in light of the extent and circumstances of the offense, consider
whether the offender has victims in addition to the victim of the
offense, consider whether the offender is amenable to treatment,
consider the risk the offender would present to the community, to
the victim, or to persons of similar age and circumstances as the
victim, and consider the victim's opinion whether the offender
should receive a treatment disposition under this section. The
court shall give great weight to the victim's opinion whether the
offender should receive a treatment disposition under this
section. If the sentence imposed is contrary to the victim's
opinion, the court shall enter written findings stating its
reasons for imposing the treatment disposition. The fact that
the offender admits to his or her offense does not, by itself,
constitute amenability to treatment. If the court determines
that this alternative is appropriate, the court shall then impose
a sentence or, pursuant to *RCW 9.94A.712, a minimum term of
sentence, within the standard sentence range. If the sentence
imposed is less than eleven years of confinement, the court may
suspend the execution of the sentence and impose the following
conditions of suspension:
(a) The court shall order the offender to serve a term of
confinement of up to twelve months or the maximum term within the
standard range, whichever is less. The court may order the
offender to serve a term of confinement greater than twelve
months or the maximum term within the standard range based on the
presence of an aggravating circumstance listed in RCW 9.94A.535(3). In no case shall the term of confinement exceed
the statutory maximum sentence for the offense. The court may
order the offender to serve all or part of his or her term of
confinement in partial confinement. An offender sentenced to a
term of confinement under this subsection is not eligible for
earned release under RCW 9.92.151 or 9.94A.728.
(b) The court shall place the offender on community custody
for the length of the suspended sentence, the length of the
maximum term imposed pursuant to *RCW 9.94A.712, or three years,
whichever is greater, and require the offender to comply with any
conditions imposed by the department under RCW 9.94A.720.
(c) The court shall order treatment for any period up to
five years in duration. The court, in its discretion, shall
order outpatient sex offender treatment or inpatient sex offender
treatment, if available. A community mental health center may
not be used for such treatment unless it has an appropriate
program designed for sex offender treatment. The offender shall
not change sex offender treatment providers or treatment
conditions without first notifying the prosecutor, the community
corrections officer, and the court. If any party or the court
objects to a proposed change, the offender shall not change
providers or conditions without court approval after a hearing.
(d) As conditions of the suspended sentence, the court shall
impose specific prohibitions and affirmative conditions relating
to the known precursor activities or behaviors identified in the
proposed treatment plan under subsection (3)(b)(v) of this
section or identified in an annual review under subsection (7)(b)
of this section.
(5) As conditions of the suspended sentence, the court may
impose one or more of the following:
(a) Crime-related prohibitions;
(b) Require the offender to devote time to a specific
employment or occupation;
(c) Require the offender to remain within prescribed
geographical boundaries and notify the court or the community
corrections officer prior to any change in the offender's address
or employment;
(d) Require the offender to report as directed to the court
and a community corrections officer;
(e) Require the offender to pay all court-ordered legal
financial obligations as provided in RCW 9.94A.030;
(f) Require the offender to perform community restitution
work; or
(g) Require the offender to reimburse the victim for the
cost of any counseling required as a result of the offender's
crime.
(6) At the time of sentencing, the court shall set a
treatment termination hearing for three months prior to the
anticipated date for completion of treatment.
(7)(a) The sex offender treatment provider shall submit
quarterly reports on the offender's progress in treatment to the
court and the parties. The report shall reference the treatment
plan and include at a minimum the following: Dates of
attendance, offender's compliance with requirements, treatment
activities, the offender's relative progress in treatment, and
any other material specified by the court at sentencing.
(b) The court shall conduct a hearing on the offender's
progress in treatment at least once a year. At least fourteen
days prior to the hearing, notice of the hearing shall be given
to the victim. The victim shall be given the opportunity to make
statements to the court regarding the offender's supervision and
treatment. At the hearing, the court may modify conditions of
community custody including, but not limited to, crime-related
prohibitions and affirmative conditions relating to activities
and behaviors identified as part of, or relating to precursor
activities and behaviors in, the offender's offense cycle or
revoke the suspended sentence.
(8) At least fourteen days prior to the treatment
termination hearing, notice of the hearing shall be given to the
victim. The victim shall be given the opportunity to make
statements to the court regarding the offender's supervision and
treatment. Prior to the treatment termination hearing, the
treatment provider and community corrections officer shall submit
written reports to the court and parties regarding the offender's
compliance with treatment and monitoring requirements, and
recommendations regarding termination from treatment, including
proposed community custody conditions. The court may order an
evaluation regarding the advisability of termination from
treatment by a sex offender treatment provider who may not be the
same person who treated the offender under subsection (4) of this
section or any person who employs, is employed by, or shares
profits with the person who treated the offender under subsection
(4) of this section unless the court has entered written findings
that such evaluation is in the best interest of the victim and
that a successful evaluation of the offender would otherwise be
impractical. The offender shall pay the cost of the evaluation.
At the treatment termination hearing the court may: (a) Modify
conditions of community custody, and either (b) terminate
treatment, or (c) extend treatment in two-year increments for up
to the remaining period of community custody.
(9)(a) If a violation of conditions other than a second
violation of the prohibitions or affirmative conditions relating
to precursor behaviors or activities imposed under subsection
(4)(d) or (7)(b) of this section occurs during community custody,
the department shall either impose sanctions as provided for in
**RCW 9.94A.737(2)(a) or refer the violation to the court and
recommend revocation of the suspended sentence as provided for in
subsections (6) and (8) of this section.
(b) If a second violation of the prohibitions or affirmative
conditions relating to precursor behaviors or activities imposed
under subsection (4)(d) or (7)(b) of this section occurs during
community custody, the department shall refer the violation to
the court and recommend revocation of the suspended sentence as
provided in subsection (10) of this section.
(10) The court may revoke the suspended sentence at any time
during the period of community custody and order execution of the
sentence if: (a) The offender violates the conditions of the
suspended sentence, or (b) the court finds that the offender is
failing to make satisfactory progress in treatment. All
confinement time served during the period of community custody
shall be credited to the offender if the suspended sentence is
revoked.
(11) The offender's sex offender treatment provider may not
be the same person who examined the offender under subsection (3)
of this section or any person who employs, is employed by, or
shares profits with the person who examined the offender under
subsection (3) of this section, unless the court has entered
written findings that such treatment is in the best interests of
the victim and that successful treatment of the offender would
otherwise be impractical. Examinations and treatment ordered
pursuant to this subsection shall only be conducted by certified
sex offender treatment providers or certified affiliate sex
offender treatment providers under chapter 18.155 RCW unless the
court finds that:
(a) The offender has already moved to another state or plans
to move to another state for reasons other than circumventing the
certification requirements; or
(b)(i) No certified sex offender treatment providers or
certified affiliate sex offender treatment providers are
available for treatment within a reasonable geographical distance
of the offender's home; and
(ii) The evaluation and treatment plan comply with this
section and the rules adopted by the department of health.
(12) If the offender is less than eighteen years of age when
the charge is filed, the state shall pay for the cost of initial
evaluation and treatment.
[2006 c 133 § 1. Prior: 2004 c 176 § 4; 2004 c 38 § 9; 2002 c 175 § 11; 2001 2nd sp.s. c 12 § 316; 2000 c 28 § 20.]
NOTES:
Reviser's note: *(1) RCW 9.94A.712 was recodified as RCW 9.94A.507 pursuant to the direction found in section 56(4),
chapter 231, Laws of 2008, effective August 1, 2009.
**(2) RCW 9.94A.737 was amended by 2007 c 483 § 305,
changing subsection (2)(a) to subsection (3)(a).
Severability -- Effective date--2004 c 176: See notes following RCW 9.94A.515.
Effective date -- 2004 c 38: See note following RCW 18.155.075.
Effective date -- 2002 c 175: See note following RCW 7.80.130.
Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250.
Application -- 2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030.
Technical correction bill -- 2000 c 28: See note following RCW 9.94A.015.
RCW 9.94A.670
Special sex offender sentencing alternative.
(Effective August 1, 2009.)
(1) Unless the context clearly
requires otherwise, the definitions in this subsection apply to
this section only.
(a) "Sex offender treatment provider" or "treatment
provider" means a certified sex offender treatment provider or a
certified affiliate sex offender treatment provider as defined in
RCW 18.155.020.
(b) "Substantial bodily harm" means bodily injury that
involves a temporary but substantial disfigurement, or that
causes a temporary but substantial loss or impairment of the
function of any body part or organ, or that causes a fracture of
any body part or organ.
(c) "Victim" means any person who has sustained emotional,
psychological, physical, or financial injury to person or
property as a result of the crime charged. "Victim" also means a
parent or guardian of a victim who is a minor child unless the
parent or guardian is the perpetrator of the offense.
(2) An offender is eligible for the special sex offender
sentencing alternative if:
(a) The offender has been convicted of a sex offense other
than a violation of RCW 9A.44.050 or a sex offense that is also a
serious violent offense. If the conviction results from a guilty
plea, the offender must, as part of his or her plea of guilty,
voluntarily and affirmatively admit he or she committed all of
the elements of the crime to which the offender is pleading
guilty. This alternative is not available to offenders who plead
guilty to the offense charged under North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Newton,
87 Wash.2d 363, 552 P.2d 682 (1976);
(b) The offender has no prior convictions for a sex offense
as defined in RCW 9.94A.030 or any other felony sex offenses in
this or any other state;
(c) The offender has no prior adult convictions for a
violent offense that was committed within five years of the date
the current offense was committed;
(d) The offense did not result in substantial bodily harm to
the victim;
(e) The offender had an established relationship with, or
connection to, the victim such that the sole connection with the
victim was not the commission of the crime; and
(f) The offender's standard sentence range for the offense
includes the possibility of confinement for less than eleven
years.
(3) If the court finds the offender is eligible for this
alternative, the court, on its own motion or the motion of the
state or the offender, may order an examination to determine
whether the offender is amenable to treatment.
(a) The report of the examination shall include at a minimum
the following:
(i) The offender's version of the facts and the official
version of the facts;
(ii) The offender's offense history;
(iii) An assessment of problems in addition to alleged
deviant behaviors;
(iv) The offender's social and employment situation; and
(v) Other evaluation measures used.
The report shall set forth the sources of the examiner's
information.
(b) The examiner shall assess and report regarding the
offender's amenability to treatment and relative risk to the
community. A proposed treatment plan shall be provided and shall
include, at a minimum:
(i) Frequency and type of contact between offender and
therapist;
(ii) Specific issues to be addressed in the treatment and
description of planned treatment modalities;
(iii) Monitoring plans, including any requirements regarding
living conditions, lifestyle requirements, and monitoring by
family members and others;
(iv) Anticipated length of treatment; and
(v) Recommended crime-related prohibitions and affirmative
conditions, which must include, to the extent known, an
identification of specific activities or behaviors that are
precursors to the offender's offense cycle, including, but not
limited to, activities or behaviors such as viewing or listening
to pornography or use of alcohol or controlled substances.
(c) The court on its own motion may order, or on a motion by
the state shall order, a second examination regarding the
offender's amenability to treatment. The examiner shall be
selected by the party making the motion. The offender shall pay
the cost of any second examination ordered unless the court finds
the defendant to be indigent in which case the state shall pay
the cost.
(4) After receipt of the reports, the court shall consider
whether the offender and the community will benefit from use of
this alternative, consider whether the alternative is too lenient
in light of the extent and circumstances of the offense, consider
whether the offender has victims in addition to the victim of the
offense, consider whether the offender is amenable to treatment,
consider the risk the offender would present to the community, to
the victim, or to persons of similar age and circumstances as the
victim, and consider the victim's opinion whether the offender
should receive a treatment disposition under this section. The
court shall give great weight to the victim's opinion whether the
offender should receive a treatment disposition under this
section. If the sentence imposed is contrary to the victim's
opinion, the court shall enter written findings stating its
reasons for imposing the treatment disposition. The fact that
the offender admits to his or her offense does not, by itself,
constitute amenability to treatment. If the court determines
that this alternative is appropriate, the court shall then impose
a sentence or, pursuant to *RCW 9.94A.712, a minimum term of
sentence, within the standard sentence range. If the sentence
imposed is less than eleven years of confinement, the court may
suspend the execution of the sentence as provided in this
section.
(5) As conditions of the suspended sentence, the court must
impose the following:
(a) A term of confinement of up to twelve months or the
maximum term within the standard range, whichever is less. The
court may order the offender to serve a term of confinement
greater than twelve months or the maximum term within the
standard range based on the presence of an aggravating
circumstance listed in RCW 9.94A.535(3). In no case shall the
term of confinement exceed the statutory maximum sentence for the
offense. The court may order the offender to serve all or part
of his or her term of confinement in partial confinement. An
offender sentenced to a term of confinement under this subsection
is not eligible for earned release under RCW 9.92.151 or 9.94A.728.
(b) A term of community custody equal to the length of the
suspended sentence, the length of the maximum term imposed
pursuant to *RCW 9.94A.712, or three years, whichever is
greater, and require the offender to comply with any conditions
imposed by the department under RCW 9.94A.703.
(c) Treatment for any period up to five years in duration.
The court, in its discretion, shall order outpatient sex offender
treatment or inpatient sex offender treatment, if available. A
community mental health center may not be used for such treatment
unless it has an appropriate program designed for sex offender
treatment. The offender shall not change sex offender treatment
providers or treatment conditions without first notifying the
prosecutor, the community corrections officer, and the court. If
any party or the court objects to a proposed change, the offender
shall not change providers or conditions without court approval
after a hearing.
(d) Specific prohibitions and affirmative conditions
relating to the known precursor activities or behaviors
identified in the proposed treatment plan under subsection
(3)(b)(v) of this section or identified in an annual review under
subsection (8)(b) of this section.
(6) As conditions of the suspended sentence, the court may
impose one or more of the following:
(a) Crime-related prohibitions;
(b) Require the offender to devote time to a specific
employment or occupation;
(c) Require the offender to remain within prescribed
geographical boundaries and notify the court or the community
corrections officer prior to any change in the offender's address
or employment;
(d) Require the offender to report as directed to the court
and a community corrections officer;
(e) Require the offender to pay all court-ordered legal
financial obligations as provided in RCW 9.94A.030;
(f) Require the offender to perform community restitution
work; or
(g) Require the offender to reimburse the victim for the
cost of any counseling required as a result of the offender's
crime.
(7) At the time of sentencing, the court shall set a
treatment termination hearing for three months prior to the
anticipated date for completion of treatment.
(8)(a) The sex offender treatment provider shall submit
quarterly reports on the offender's progress in treatment to the
court and the parties. The report shall reference the treatment
plan and include at a minimum the following: Dates of
attendance, offender's compliance with requirements, treatment
activities, the offender's relative progress in treatment, and
any other material specified by the court at sentencing.
(b) The court shall conduct a hearing on the offender's
progress in treatment at least once a year. At least fourteen
days prior to the hearing, notice of the hearing shall be given
to the victim. The victim shall be given the opportunity to make
statements to the court regarding the offender's supervision and
treatment. At the hearing, the court may modify conditions of
community custody including, but not limited to, crime-related
prohibitions and affirmative conditions relating to activities
and behaviors identified as part of, or relating to precursor
activities and behaviors in, the offender's offense cycle or
revoke the suspended sentence.
(9) At least fourteen days prior to the treatment
termination hearing, notice of the hearing shall be given to the
victim. The victim shall be given the opportunity to make
statements to the court regarding the offender's supervision and
treatment. Prior to the treatment termination hearing, the
treatment provider and community corrections officer shall submit
written reports to the court and parties regarding the offender's
compliance with treatment and monitoring requirements, and
recommendations regarding termination from treatment, including
proposed community custody conditions. The court may order an
evaluation regarding the advisability of termination from
treatment by a sex offender treatment provider who may not be the
same person who treated the offender under subsection (5) of this
section or any person who employs, is employed by, or shares
profits with the person who treated the offender under subsection
(5) of this section unless the court has entered written findings
that such evaluation is in the best interest of the victim and
that a successful evaluation of the offender would otherwise be
impractical. The offender shall pay the cost of the evaluation.
At the treatment termination hearing the court may: (a) Modify
conditions of community custody, and either (b) terminate
treatment, or (c) extend treatment in two-year increments for up
to the remaining period of community custody.
(10)(a) If a violation of conditions other than a second
violation of the prohibitions or affirmative conditions relating
to precursor behaviors or activities imposed under subsection
(5)(d) or (8)(b) of this section occurs during community custody,
the department shall either impose sanctions as provided for in
RCW 9.94A.633(1) or refer the violation to the court and
recommend revocation of the suspended sentence as provided for in
subsections (7) and (9) of this section.
(b) If a second violation of the prohibitions or affirmative
conditions relating to precursor behaviors or activities imposed
under subsection (5)(d) or (8)(b) of this section occurs during
community custody, the department shall refer the violation to
the court and recommend revocation of the suspended sentence as
provided in subsection (11) of this section.
(11) The court may revoke the suspended sentence at any time
during the period of community custody and order execution of the
sentence if: (a) The offender violates the conditions of the
suspended sentence, or (b) the court finds that the offender is
failing to make satisfactory progress in treatment. All
confinement time served during the period of community custody
shall be credited to the offender if the suspended sentence is
revoked.
(12) If the offender violates a requirement of the sentence
that is not a condition of the suspended sentence pursuant to
subsection (5) or (6) of this section, the department may impose
sanctions pursuant to RCW 9.94A.633(1).
(13) The offender's sex offender treatment provider may not
be the same person who examined the offender under subsection (3)
of this section or any person who employs, is employed by, or
shares profits with the person who examined the offender under
subsection (3) of this section, unless the court has entered
written findings that such treatment is in the best interests of
the victim and that successful treatment of the offender would
otherwise be impractical. Examinations and treatment ordered
pursuant to this subsection shall only be conducted by certified
sex offender treatment providers or certified affiliate sex
offender treatment providers under chapter 18.155 RCW unless the
court finds that:
(a) The offender has already moved to another state or plans
to move to another state for reasons other than circumventing the
certification requirements; or
(b)(i) No certified sex offender treatment providers or
certified affiliate sex offender treatment providers are
available for treatment within a reasonable geographical distance
of the offender's home; and
(ii) The evaluation and treatment plan comply with this
section and the rules adopted by the department of health.
(14) If the offender is less than eighteen years of age when
the charge is filed, the state shall pay for the cost of initial
evaluation and treatment.
[2008 c 231 § 31; 2006 c 133 § 1. Prior: 2004 c 176 § 4; 2004 c 38 § 9; 2002 c 175 § 11; 2001 2nd sp.s. c 12 § 316; 2000 c 28 § 20.]
NOTES:
*Reviser's note: RCW 9.94A.712 was recodified as RCW 9.94A.507 pursuant to the direction found in section 56(4), chapter 231, Laws of 2008, effective August 1, 2009.
Intent -- Application -- Application of repealers -- Effective date -- 2008 c 231: See notes following RCW 9.94A.701.
Severability -- 2008 c 231: See note following RCW 9.94A.500.
Severability -- Effective date--2004 c 176: See notes following RCW 9.94A.515.
Effective date -- 2004 c 38: See note following RCW 18.155.075.
Effective date -- 2002 c 175: See note following RCW 7.80.130.
Intent -- Severability -- Effective dates -- 2001 2nd sp.s. c 12: See notes following RCW 71.09.250.
Application -- 2001 2nd sp.s. c 12 §§ 301-363: See note following RCW 9.94A.030.
Technical correction bill -- 2000 c 28: See note following RCW 9.94A.015.