Chapter 980

980.01 Annotation A child enticement conviction under a statute that had been repealed and recreated under a new statute number was a sexually violent offense under sub. (6), although the former number was not listed in the new statute. State v. Irish, 210 Wis. 2d 107, 565 N.W.2d 161 (Ct. App. 1997), 96-2303.

980.01 Annotation Under [former] sub. (7), a “mental disorder that makes it substantially probable that the person will engage in acts of sexual violence” is a disorder that predisposes the affected person to sexual violence. A diagnosis of “antisocial personality disorder,” uncoupled with any other diagnosis but coupled with sufficient evidence establishing that a defendant is a “sexually violent person,” may constitute a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence under [former] sub. (7). State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), 96-3136.

980.01 Annotation Definitions in ch. 980 serve a legal, and not medical, function. The court will not adopt a definition of pedophilia for ch. 980 purposes. State v. Zanelli, 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998), 98-0733.

980.01 Annotation That the state’s expert opined that pedophilia is a lifelong disorder did not mean that commitment was based solely on prior bad acts rather than a present condition. Jury instructions are discussed. State v. Matek, 223 Wis. 2d 611, 589 N.W.2d 441 (Ct. App. 1998), 96-3524.

980.01 Annotation As used in this chapter, “substantial probability” and “substantially probable” both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), 97-1337.

980.01 Annotation The definition of “sexually violent person” includes conduct prohibited by a previous version of a statute enumerated in sub. (6) as long as the conduct prohibited under the predecessor statute remains prohibited under the current statute. State v. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163, 98-1542.

980.01 Annotation Chapter 980 is not facially unconstitutional. Due process does not require proof of a recent overt act in evaluating the dangerousness of the offender when there has been a break in the offender’s incarceration and the offender is reincarcerated for nonsexual behavior. Substantive due process allows for a ch. 980 commitment when there is sufficient evidence of current dangerousness. There is no bright-line rule that requires current dangerousness to be proven by a particular type of evidence. State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, 03-2306.

980.01 Annotation Exclusion of the conditions of a person’s probation supervision from his ch. 980 trial was proper as under sub. (7) as such evidence was irrelevant in determining whether he was a sexually violent person. State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90, 03-2068.

980.01 Annotation The legislature’s replacement of “substantially probable” in sub. (7) with “likely,” lowered the level of dangerousness required to commit a person under ch. 980 but did not violate the constitution on either due process or equal protection grounds. State v. Nelson, 2007 WI App 2, 298 Wis. 2d 453, 727 N.W.2d 364, 05-0810.

980.01 Annotation A ch. 980 commitment did not violate equal protection or due process guarantees when the person was released to the community upon a finding that he was ineligible for commitment and subsequently committed after parole violations that did not involve overt acts of sexual violence. State v. Feldmann, 2007 WI App 35, 300 Wis. 2d 474, 730 N.W.2d 440, 05-2347.

980.01 Annotation “More likely than not,” as used in sub. (1m), is not an obscure or specialized term of art, but a commonly-used expression. An expert witness’s ambiguous and confusing misstatement regarding the meaning of “more likely than not” could not have convinced a reasonable person the phrase meant other than more likely to happen than not to happen. State v. Smalley, 2007 WI App 219, 305 Wis. 2d 709, 741 N.W.2d 286, 06-1475.

980.01 Annotation Under sub. (7), a sexually violent person is one who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence. Actuarial instruments that measure dangerousness without regard to the defendant’s mental illness were relevant to determining whether the defendant was a sexually violent person. Dangerousness was a fact of consequence to the proceedings although not the only fact that needed to be shown. Evidence need not go to every facet of a party’s case in order to be relevant. State v. Smalley, 2007 WI App 219, 305 Wis. 2d 709, 741 N.W.2d 286, 06-1475.

980.01 Annotation Under the reasoning of Mark that conditions of supervision that a person will be subject to if released are irrelevant to the determination of whether the person is a sexually violent person under sub. (7), that a person will be subject to supervision if released is also irrelevant to whether the person is a sexually violent person. State v. Budd, 2007 WI App 245, 306 Wis. 2d 167, 742 N.W.2d 887, 07-0011.

980.01 Annotation Evidence of the department of correction’s screening process for potential ch. 980 cases was irrelevant as to the determination of whether a defendant was a sexually violent person under sub. (7) when the evidence did not establish why the defendant was selected for ch. 980 proceedings. State v. Budd, 2007 WI App 245, 306 Wis. 2d 167, 742 N.W.2d 887, 07-0011.

980.01 Annotation Postcommitment annual reviews do not, generally, bear on the factual issues the jury must resolve in order to determine whether a person is a sexually violent person, but there is not a blanket exclusion for all testimony of annual reviews. Rather, the question of relevancy of such evidence needs to be examined in the particular context in which the evidence is offered. State v. Sugden, 2010 WI App 166, 330 Wis. 2d 628, 795 N.W.2d 456, 09-2445.

980.01 Annotation The existence of treatment for committed persons is a consequence of commitment and, generally, is not relevant in determining whether a person is a sexually violent person. State v. Sugden, 2010 WI App 166, 330 Wis. 2d 268, 795 N.W.2d 456, 09-2445.

980.01 Annotation The proportion of about-to-be released sex offenders who are referred for a special purpose evaluation to determine whether they meet the requirements of ch. 980 is not, in itself, relevant to whether a particular person referred meets the requirements of being a sexually violent person. This is true whether that proportion is expressed in terms of a specific percentage or a more general description of the relative size of the group. State v. Sugden, 2010 WI App 166, 330 Wis. 2d 628, 795 N.W.2d 456, 09-2445.

980.01 Annotation The state is not required to present expert testimony to prove that a person is dangerous under sub. (7) due to a mental disorder that makes it more likely than not that the person will re-offend in a sexually violent manner. The statutes do not require expert testimony on that element, and the court will not create a rule not set forth in the text. State v. Stephenson, 2020 WI 92, 394 Wis. 2d 703, 951 N.W.2d 819, 18-2104.

980.01 Annotation The Kansas Sexually Violent Predator Act comports with due process requirements, does not run afoul of double jeopardy principles, and is not an ex post facto law. Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501 (1997).

980.01 Annotation Civil commitment upon a finding of a “mental disorder” does not violate due process when the predicate diagnosis is not found within the four corners of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. A factfinder may have stronger confidence in his or her conclusions when the examining mental health professionals rely upon authoritative, consensus materials in the field, and a particular diagnosis may be so devoid of content, or so near-universal in its rejection by mental health professionals, that a court’s reliance on it to satisfy the “mental disorder” prong of the statutory requirements for commitment would violate due process. McGee v. Bartow, 594 F.3d 555 (2010).

980.01 Annotation The constitutionality of Wisconsin’s Sexual Predator Law. Straub & Kachelski. Wis. Law. July, 1995.

980.015 980.015 Notice to the department of justice and district attorney.

980.015(2) (2) If an agency with jurisdiction has control or custody over a person who may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 90 days prior to the applicable date of the following:

980.015(2)(a) (a) The anticipated discharge or release, on parole, extended supervision, or otherwise, from a sentence of imprisonment or term of confinement in prison that was imposed for a conviction for a sexually violent offense, from a continuous term of incarceration, any part of which was imposed for a sexually violent offense, or from a placement in a Type 1 prison under s. 301.048 (3) (a) 1., any part of which was required as a result of a conviction for a sexually violent offense.

980.015(2)(b) (b) The anticipated release from a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g), if the person was placed in the facility as a result of being adjudicated delinquent under s. 48.34, 1993 stats., or under s. 938.183 or 938.34 on the basis of a sexually violent offense.

980.015(2)(c) (c) The anticipated release of a person on conditional release under s. 971.17, the anticipated termination of a commitment order under s. 971.17, or the anticipated discharge of a person from a commitment order under s. 971.17, if the person has been found not guilty of a sexually violent offense by reason of mental disease or defect.

980.015(2)(d) (d) The anticipated release on parole or discharge of a person committed under ch. 975 for a sexually violent offense.

980.015(3) (3) The agency with jurisdiction shall provide the district attorney and department of justice with all of the following:

980.015(3)(a) (a) The person’s name, identifying factors, anticipated future residence and offense history.

980.015(3)(b) (b) If applicable, documentation of any treatment and the person’s adjustment to any institutional placement.

980.015 History History: 1993 a. 479; 1995 a. 77; 1997 a. 205, 283; 1999 a. 9; 2005 a. 344, 434; 2007 a. 97; 2015 a. 197 s. 51.

980.015 Annotation The “appropriate district attorney” under sub. (2) is the district attorney in the county of conviction or the county to which prison officials propose to release the person. In re Commitment of Goodson, 199 Wis. 2d 426, 544 N.W.2d 611 (Ct. App. 1996), 95-0664.

980.02 980.02 Sexually violent person petition; contents; filing.

980.02(1) (1) A petition alleging that a person is a sexually violent person may be filed by one of the following:

980.02(1)(a) (a) The department of justice at the request of the agency with jurisdiction over the person.

980.02(1)(b) (b) If the department of justice does not file a petition under par. (a), the district attorney for one of the following:

980.02(1)(b)1. 1. The county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness.

980.02(1)(b)2. 2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a juvenile correctional facility, as defined in s. 938.02 (10p), from a residential care center for children and youth, as defined in s. 938.02 (15g), or from a commitment order.

980.02(1)(b)3. 3. The county in which the person is in custody under a sentence, a placement to a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g), or a commitment order.

980.02(1m) (1m) A petition filed under this section shall be filed before the person is released or discharged.

980.02(2) (2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:

980.02(2)(a) (a) The person satisfies any of the following criteria:

980.02(2)(a)1. 1. The person has been convicted of a sexually violent offense.

980.02(2)(a)2. 2. The person has been found delinquent for a sexually violent offense.

980.02(2)(a)3. 3. The person has been found not guilty of a sexually violent offense by reason of mental disease or defect.

980.02(2)(b) (b) The person has a mental disorder.

980.02(2)(c) (c) The person is dangerous to others because the person’s mental disorder makes it likely that he or she will engage in acts of sexual violence.

980.02(3) (3) A petition filed under this section shall state with particularity essential facts to establish probable cause to believe the person is a sexually violent person. If the petition alleges that a sexually violent offense or act that is a basis for the allegation under sub. (2) (a) was an act that was sexually motivated as provided under s. 980.01 (6) (b), the petition shall state the grounds on which the offense or act is alleged to be sexually motivated.

980.02(4) (4) A petition under this section shall be filed in one of the following:

980.02(4)(a) (a) The circuit court for the county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of a sexually violent offense by reason of mental disease or defect.

980.02(4)(am) (am) The circuit court for the county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a juvenile correctional facility, as defined in s. 938.02 (10p), from a secured residential care center for children and youth, as defined in s. 938.02 (15g), or from a commitment order.

980.02(4)(b) (b) The circuit court for the county in which the person is in custody under a sentence, a placement to a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), or a commitment order.

980.02(5) (5) Notwithstanding sub. (4), if the department of justice decides to file a petition under sub. (1) (a), it may file the petition in the circuit court for Dane County.

980.02(6) (6) A court assigned to exercise jurisdiction under chs. 48 and 938 does not have jurisdiction over a petition filed under this section alleging that a person who was adjudicated delinquent as a child is a sexually violent person.

980.02 History History: 1993 a. 479; 1995 a. 77, 225; 1997 a. 27, 205, 283; 1999 a. 9; 2003 a. 187; 2005 a. 344, 434; 2007 a. 96.

980.02 Annotation A ch. 980 commitment is not an extension of a commitment under ch. 975, and s. 975.12 does not limit the state’s ability to seek a separate commitment under ch. 980 of a person originally committed under ch. 975. State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), 94-2356.

980.02 Annotation To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B. 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999), 98-0229.

980.02 Annotation In a trial on a petition filed under sub. (2), the state has the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject’s release or discharge based on a sexually violent offense. State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, 99-0316. See also State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, 99-0316.

980.02 Annotation While a commitment under ch. 980 is civil, a court does not lose subject matter jurisdiction because a petition is filed under a criminal case number. State v. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163, 98-1542.

980.02 Annotation Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.

980.02 Annotation When a ch. 980 petition was filed within 90 days of release from a sentence for an offense that was not a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely. State v. Treadway, 2002 WI App 195, 257 Wis. 2d. 467, 651 N.W.2d 334, 00-2957.

980.02 Annotation The state was not precluded from seeking a ch. 980 commitment following the defendant’s parole revocation, even though the state had failed to prove that the defendant was a sexually violent person in need of commitment in a previous ch. 980 trial that took place prior to the defendant’s parole. State v. Parrish, 2002 WI App 263, 258 Wis. 2d 521, 654 N.W.2d 273, 00-2524.

980.02 Annotation The circuit court had jurisdiction to conduct ch. 980 proceedings involving an enrolled tribal member who committed the underlying sexual offense on an Indian reservation. State v. Burgess, 2003 WI 71, 262 Wis. 2d 354, 665 N.W.2d 124, 00-3074. See also Burgess v. Watters, 467 F.3d 676 (2007).

980.02 Annotation Under sub. (1), a request from the agency with jurisdiction and a subsequent decision by the department of justice not to file are prerequisites to a district attorney’s authority to file a ch. 980 petition. State v. Byers, 2003 WI 86, 263 Wis. 2d 113, 665 N.W.2d 729.

980.02 Annotation The threshold decision of whether a petition should be filed remains in the hands of the agency with jurisdiction and outside of the political process. A district attorney may contact the agency to seek clarification of the ch. 980 evaluator’s determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator. However, the agency can independently exercise its judgment and choose to ignore the district attorney’s efforts or to decline the district attorney’s request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated. State v. Bell, 2006 WI App 30, 289 Wis. 2d 275, 710 N.W.2d 525, 05-0890.

980.02 Annotation That the ch. 980 definition of “dangerousness” lacks a temporal context limited to imminent danger. does not render the statute unconstitutional. State v. Olson, 2006 WI App 32, 290 Wis. 2d 202, 712 N.W.2d 61, 04-0412

980.02 Annotation Chapter 980 does not require the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of the revocation of either parole or extended supervision. Section 980.06 requires the circuit court to order the person to be committed to the custody of DHS for control, care, and treatment, but ch. 980 does not specify when that commitment must commence. While this section sets forth the requirements for a proper commitment order, neither this section nor any other section of ch. 980 contains language stating when the individual requirements of that order must be satisfied. State v. Gilbert, 2012 WI 72, 342 Wis. 2d 82, 816 N.W.2d 215, 10-0594.

980.02 Annotation If a ch. 980 petition satisfies the statutory requirements in this section at the time it is filed, it will not be invalidated if the conviction recited in the petition is later reversed. Subsequent facts that impact the status of the allegations in the petition may be relevant at trial under s. 980.05, but they will not invalidate a petition that met the requirements of this section at the time of filing. State v. Spaeth, 2014 WI 71, 355 Wis. 2d 761, 850 N.W.2d 93, 12-2170.

980.02 Annotation Applying the common and accepted legal meanings of “released” and “discharged” as those terms are used in sub. (1m), a ch. 980 petition must be filed either before the person is freed from confinement in prison or before the person’s entire sentence is completed. Even assuming that the department of corrections was required to release the defendant on his presumptive mandatory release (PMR) date, a ch. 980 filed petition after the PMR date but while the defendant remained incarcerated was timely filed based on the language of sub. (1m), which permits filing a ch. 980 petition before a person is “discharged.” State v. Stanley, 2014 WI App 89, 356 Wis. 2d 268, 853 N.W.2d 600, 13-2477.

980.03 980.03 Rights of persons subject to petition.

980.03(1) (1) The circuit court in which a petition under s. 980.02 is filed shall conduct all hearings under this chapter. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.

980.03(2) (2) Except as provided in ss. 980.038 (2) and 980.09 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:

980.03(2)(a) (a) Counsel. In any situation under this chapter in which the person has a right to be represented by counsel, the court shall refer the person as soon as practicable to the state public defender, who shall appoint counsel for the person under s. 977.08 without a determination of indigency.

980.03(2)(b) (b) Remain silent.

980.03(2)(c) (c) Present and cross-examine witnesses.

980.03(2)(d) (d) Have the hearing recorded by a court reporter.

980.03(3) (3) The person who is the subject of the petition, the person’s attorney, or the petitioner may request that a trial under s. 980.05 be to a jury. A request for a jury trial shall be made as provided under s. 980.05 (2). Notwithstanding s. 980.05 (2), if the person, the person’s attorney, or the petitioner does not request a jury trial, the court may on its own motion require that the trial be to a jury. The jury shall be selected as provided under s. 980.05 (2m). A verdict of a jury under this chapter is not valid unless it is unanimous.

980.03 History History: 1993 a. 479; 1997 a. 252; 1999 a. 9; 2005 a. 434; 2017 a. 184.

980.03 Annotation There are circumstances when comment on the defendant’s silence is permitted. If a defendant refuses to be interviewed by the state’s psychologist and the defense attorney challenges the psychologist’s findings based on the lack of an interview, it is appropriate for the psychologist to testify about the refusal. State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), 96-3136.

980.03 Annotation If all jurors agree that the defendant suffers from a mental disease, unanimity requirements are met even if the jurors disagree on the disease that predisposes the defendant to reoffend. State v. Pletz, 2000 WI App 221, 239 Wis. 2d 49, 619 N.W.2d 97, 98-2455.

980.03 Annotation Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.

980.03 Annotation The circuit court must appoint an examiner for the court under sub. (3) regardless of whether the court also appointed an examiner for the petitioner under sub. (4), 2001 stats. An indigent party petitioning for supervised release is not entitled under sub. (4), 2001 stats., to an examiner of his or her choice, but is entitled to a “qualified and available” court-appointed examiner. Requirements for a qualified examiner are discussed. State v. Thiel, 2004 WI App 225, 277 Wis. 2d 698, 691 N.W.2d 388, 03-2649.

980.0305 980.0305 Reimbursement for counsel provided by the state.

980.0305(1) (1) Inquiry. At or after the conclusion of a proceeding under this chapter in which the state public defender has provided counsel for a person, the court may inquire as to the person’s ability to reimburse the state for the costs of representation. If the court determines that the person is able to make reimbursement for all or part of the costs of representation, the court may order the person to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court’s request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.

980.0305(2) (2) Payment. Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).

980.0305(3) (3) Report. By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.

980.0305 History History: 2017 a. 184.

980.031 980.031 Examinations.

980.031(1) (1) If a person who is the subject of a petition filed under s. 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist, or other mental health professional to conduct an examination of the person’s mental condition and testify at trial.