W. Va. Code R. § 81-14-12

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 81-14-12 - Sex Offender Registration Advisory Board

12.1. General.

12.1.a. The scope of the Sex Offender Registration Advisory Board is defined in W. Va. Code § 15-12-2(b), as amended. The Act is regulatory in nature and not penal. The provisions of the Act apply retroactively and prospectively.

12.1.b. Liberal Construction. The provisions of this rule will be liberally construed to permit the Board to discharge its statutory functions and to secure just and expeditious determination of all matters before the Board; therefore, for good cause, the Board may, at any time suspend the requirements of any of these regulations.

12.1.c. Immunity. The Board shall be immune from civil liability for damages arising out of any action for carrying out its responsibilities in the administration of W. Va. Code § 15-12-1 et. seq., as amended, except when the board acts with gross negligence or in bad faith.

12.1.d. Delegation of Powers and Duties. Except where contrary to law, the Board may delegate any of its powers to the employees or agents of the Board.

12.1.e. Meetings. The West Virginia Sex Offender Registration Advisory Board shall meet as called for by the Board President, a majority of the Board members or the Secretary of the Department of Military Affairs and Public Safety. A quorum consists of three members, one of whom shall be a mental health professional. Meeting location will be at the discretion of the Board President.

12.1.f. Mail. The West Virginia Sex Offender Registry located at West Virginia State Police Headquarters, shall be responsible for the receipt of all correspondence and requests for reports from the courts.

12.2. Referral by Circuit Court.

12.2.a. After the court sentences a person convicted of a sexually violent offense as provided in W. Va. Code § 15-12-2 et. seq., as amended, and upon the commencement of a summary proceeding, the court shall, by order, request a report from the West Virginia Sex Offender Registration Advisory Board. The order shall be issued within thirty (30) business days of the filing of the information by the prosecuting attorney or a petition by the sex offender.

12.2.b. The report shall set forth the Boards findings, conclusions and a recommendation on the issue of whether the sex offender is or is not a sexually violent predator subject to the registration requirements in W. Va. Code § 15-12-4, as amended, or is no longer a sexually violent predator.

12.2.c. The court shall request and receive the report prior to the hearing to determine if the sex offender is or is not a sexually violent predator or is no longer a sexually violent predator.

12.2.d. The court order, the information or petition as well as the entire criminal record, all medical and/or psychiatric records and any other relevant materials shall be forwarded to the West Virginia Sex Offender Registration Advisory Board, West Virginia State Police Headquarters, 725 Jefferson Road, South Charleston, West Virginia 25309.

12.2.e. The court order shall provide that any and all records, documents and materials received by the Board are confidential and not subject to public disclosure or dissemination.

12.2.f. Faxed materials are accepted only if the original documents are received within five (5) business days of the date of the fax transmission.

12.2.g. Submission dates shall be determined by postmark, or if hand-delivered, by office receipt stamp and the date of the fax transmission.

12.2.h. Upon receipt of the court order and all relevant documents, the Sex Offender Registry shall forward copies of the same to each member of the Board. All copies of documents mailed or delivered to individual Board members shall be destroyed by the Registry after the Board issues its findings, conclusions and recommendation to the court. The original shall be maintained at the office of the Sex Offender Registry.

12.2.i. In the event the Board is unable to make a decision based on the information provided by the court, the Board shall inform the court of the specific information needed to make findings, conclusions and a recommendation. The Board may request the court to order the information listed in 12.3.c. of these procedural rules be made available.

12.3. Duties of the Sex Offender Registration Advisory Board.

12.3.a. The Board shall issue a report setting forth its findings, conclusions and a recommendation within thirty (30) business days from the date the Board received the courts order requesting the report.

12.3.b. The Board shall consider all case records, interview data, mental health and treatment summaries, relevant materials submitted by the sex offender as well as any other relevant documents that have been timely submitted to the Board.

12.3.c. Other factors that may be considered include, but are not limited to, are:

12.3.c.1. The sex offender's criminal record from the National Criminal Information Center (NCIC) and the Interstate Identification Index (III) or other legal jurisdiction criminal record;

12.3.c.2. Probation and parole records;

12.3.c.3. A copy of the original criminal complaint;

12.3.c.4. The police investigation report;

12.3.c.5. Witness statements;

12.3.c.6. A copy of the indictment;

12.3.c.7. A copy of the plea agreement;

12.3.c.8. The victim(s) impact statement;

12.3.c.9. The sex offender's use of alcohol, illegal drugs and misuse of prescription drugs;

12.3.c.10. Psychological and psychiatric assessments defined by the Board;

12.3.c.11. Participation in sex offender programs in and/or out of correctional facilities;

12.3.c.12. Any mental illness or mental disability of the sex offender;

12.3.c.13. Any mental hygiene hearing reports;

12.3.c.14. The nature of the sexual contact with the victim;

12.3.c.15. Demonstrated patterns of sexual abuse performed by or against the sex offender;

12.3.c.16. Any display of unusual cruelty during the commission of any and all convicted offenses;

12.3.c.17. Any behavioral characteristics that contribute to the sex offender's conduct;

12.3.c.18. A review of commonly accepted sex offender risk factors;

12.3.c.19. An assessment of the sex offender's empathy and remorse for the offense he or she was convicted of;

12.3.c.20. An assessment of the sex offender's understanding and intentions regarding the registration statute;

12.3.c.21. An assessment of the sex offender's plans to not re-offend;

12.3.c.22. An assessment of the sex offender's cognitive, affective and behavioral resources to not re-offend;

12.3.c.23. An assessment of the sex offender's psycho social history;

12.3.c.24. Trial transcript; and;

12.3.c.25. Relevant reports from the West Virginia Department of Health and Human Resources.

12.4. Findings and Conclusions.

12.4.a. When the Board finds that the sex offender is a sexually violent predator, the following findings shall have been made:

12.4.a.1. The sex offender was convicted of an eligible offense as provided in W. Va. Code § 15-12-2, as amended, and;

12.4.a.2. The sex offender suffers from a mental abnormality or personality disorder and;

12.4.a.3. The sex offender is likely to engage in predatory violent offenses.

12.4.b. When the Board finds that the sex offender is not a sexually violent predator; the following findings shall have been made:

12.4.b.1. The sex offender was not convicted of an eligible offense(s) or;

12.4.b.2. The sex offender does not suffer from a mental abnormality or;

12.4.b.3. The sex offender is not likely to engage in violent predatory offenses.

12.4.c. When the Board finds that the sex offender is no longer a sexually violent predator, the following findings shall have been made:

12.4.c.1. The sex offender no longer suffers from a mental abnormality and;

12.4.c.2. The sex offender is not likely to engage in sexually violent predatory offenses.

12.4.c.3. The underlying conviction has been reversed, vacated or set aside.

W. Va. Code R. § 81-14-12