Chapter 980

980.08(8) (8) 

980.08(8)(a) (a) If the court finds after a hearing, by clear and convincing evidence, that any rule or condition of release has been violated and the court finds that the violation of the rule or condition merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The court may consider alternatives to revocation. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or is placed again on supervised release under sub. (4) (g).

980.08(8)(b) (b) If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked the court shall revoke the order for supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or is placed on supervised release under sub. (4) (g).

980.08(9) (9) 

980.08(9)(a) (a) As a condition of supervised release granted under this chapter, for the first year of supervised release, the court shall restrict the person on supervised release to the person’s residence except for outings approved by the department of health services that are under the direct supervision of a department of corrections escort and that are for employment or volunteer purposes, religious purposes, educational purposes, treatment and exercise purposes, supervision purposes, or residence maintenance, or for caring for the person’s basic living needs.

980.08(9)(b) (b) The department of corrections may contract for the escort services under par. (a).

980.08 History History: 1993 a. 479; 1995 a. 276; 1997 a. 27, 275, 284; 1999 a. 9 ss. 3223L, 3232p to 3238d; 1999 a. 32; 2001 a. 16; 2003 a. 187; 2005 a. 431, 434; 2007 a. 20 ss. 3929, 3930, 9121 (6) (a); 2007 a. 96, 97; 2013 a. 84; 2015 a. 156; 2017 a. 184; 2021 a. 190.

980.08 Cross-reference Cross-reference: See also ch. DHS 98, Wis. adm. code.

980.08 Annotation Sub. (6m) [formerly s. 980.06 (2) (d)] requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson, 199 Wis. 2d 426, 544 N.W.2d 611 (Ct. App. 1996), 95-0664.

980.08 Annotation Whether in a proceeding for an initial ch. 980 commitment or a later petition for supervised release, there is no requirement that the state prove the person is treatable. State v. Seibert, 220 Wis. 2d 308, 582 N.W.2d 745 (Ct. App. 1998), 97-2554.

980.08 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.

980.08 Annotation An institutionalized sex offender who agreed to a stipulation providing supervised release, giving up his right to a jury trial on his discharge petition in exchange, had a constitutional right to enforcement of the agreement. State v. Krueger, 2001 WI App 76, 242 Wis. 2d 793, 626 N.W.2d 83, 00-0152.

980.08 Annotation An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.

980.08 Annotation A person subject to a proceeding to revoke supervised release is entitled to the same due process protections as afforded persons in probation and parole revocation proceedings. Notice of the grounds that are the basis for the revocation must be given. A court can only base a revocation on the grounds of public safety under sub. (6m) when notice has been properly given. State v. VanBronkhorst, 2001 WI App 190, 247 Wis. 2d 247, 633 N.W.2d 236, 00-3075.

980.08 Annotation The relevant inquiry under sub. (4) is whether the person’s behavior indicates a likelihood to reoffend. A sexual assault need not occur and the person’s behavior need not be criminal. State v. Sprosty, 2001 WI App 231, 248 Wis. 2d 480, 636 N.W.2d 213, 00-2404.

980.08 Annotation Sub. (6m), not s. 806.07 (1) (h), governs granting relief to the state from a ch. 980 committee’s supervised release when the committee is confined in an institution awaiting placement on supervised release. Sub. (6m) provides no procedure for initiating revocation other than by the department of health and family services action, preventing courts or prosecutors from initiating revocations. State v. Morford, 2004 WI 5, 268 Wis. 2d 300, 674 N.W.2d 349, 01-2461.

980.08 Annotation Ch. 980 was not unconstitutionally applied to the defendant when an order for supervised release could not be carried out due to an inability to find an appropriate placement and the defendant remained in custody. Any judicial decision that puts the community at risk because of what agents of government may have done or not done must balance the potential injury to society’s interests against the potential benefits that would flow from any rule designed to deter future conduct by those agents. State v. Schulpius, 2006 WI 2, 287 Wis. 2d 44, 707 N.W.2d 495, 02-1056.

980.08 Annotation A rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Burris, 2004 WI 91, 273 Wis. 2d 294, 682 N.W.2d 812, 00-1425.

980.08 Annotation Under sub. (6m) [formerly s. 980.06 (2) (d)], a circuit court must determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. A circuit court is not required to expressly consider alternatives to revocation before revoking a sexually violent person’s supervised release when the court determines that the safety of the public requires the person’s commitment to a secure facility. State v. Burris, 2004 WI 91, 273 Wis. 2d 294, 682 N.W.2d 812, 00-1425.

980.08 Annotation The sufficiency of evidence standard of review applies when reviewing a circuit court’s order denying a petition for supervised release under sub. (4). The test for the sufficiency of the evidence to support the order is not whether a reviewing court is convinced by clear and convincing evidence that a person’s petition for supervised release should be denied, but whether a circuit court, acting reasonably, could be so convinced by evidence it has a right to believe and accept as true. State v. Brown, 2005 WI 29, 279 Wis. 2d 102, 693 N.W.2d 715, 03-1419.

980.08 Annotation Sub. (4) (cg) unambiguously places the burden of proof with the committed individual. The appropriate burden of persuasion is clear and convincing evidence. This allocation does not violate the guarantees of due process and equal protection in the Wisconsin and United States Constitutions. State v. West, 2011 WI 83, 336 Wis. 2d 578, 800 N.W.2d 929, 09-1579.

980.08 Annotation In this case, the town identified its claimed interest for purposes of intervention under s. 803.09 (1) as the protection of the public in the town. However, allowing a municipality to take a generalized position against the placement of a supervisee under this section anywhere within its boundaries based on a broad interest in protecting the safety of persons within those boundaries runs contrary to the current scheme of this section. That scheme provides a detailed procedure for the consideration and identification of potential placement residences for supervisees and specifically requires that each supervisee be placed somewhere in the supervisee’s county of residence. Town of Mentor v. State, 2021 WI App 85, 400 Wis. 2d 138, 968 N.W.2d 716, 20-1681.

980.08 Annotation Sub. (4) (dm) 1. a. designates the kinds of areas that must be further than 1,500 feet from residential placement options. The statute does not require that a committee must avoid areas with children in an absolute sense. Unlike a combination bike trail and fishing area, which is recognizable as being akin to a “public park” that must be accounted for under the statute, the mere designation of a public road’s right-of-way as an ATV route does not fit within the meaning of any statutorily named area. Town of Mentor v. State, 2021 WI App 85, 400 Wis. 2d 138, 968 N.W.2d 716, 20-1681.

980.08 Annotation Sub. (4) (dm) 2. charges a committee with consulting with “a” local law enforcement agency, not “the” local law enforcement agency, clearly contemplating situations in which more than one agency has jurisdiction and qualifies as local. In this case, when the committee’s formal consultation was with the county sheriff’s department and not with the town’s police department, the county sheriff’s department was sufficiently “local” for purposes of sub. (4) (dm) 2. Town of Mentor v. State, 2021 WI App 85, 400 Wis. 2d 138, 968 N.W.2d 716, 20-1681.

980.08 Annotation Supervised Release Under Chapter 980: Alternatives to Protect Wisconsin While Upholding the Constitution. Hamrin. 2007 WLR 889.

980.09 980.09 Petition for discharge.

980.09(1) (1) A committed person may petition the committing court for discharge at any time. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury would likely conclude the person’s condition has changed since the most recent order denying a petition for discharge after a hearing on the merits, or since the date of his or her initial commitment order if the person has never received a hearing on the merits of a discharge petition, so that the person no longer meets the criteria for commitment as a sexually violent person.

980.09(1m) (1m) 

980.09(1m)(a) (a) If the person files a petition for discharge under sub. (1) without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under sub. (1) through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

980.09(1m)(b) (b) If the person files a petition for a discharge under sub. (1) without counsel, as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j).

980.09(1m)(c) (c) If a person files a petition for discharge under sub. (1), the person may use experts or professional persons to support his or her petition. The district attorney or the department of justice may use experts or professional persons to support or oppose any petition filed under sub. (1).

980.09(1m)(d) (d) After receiving a petition for discharge under sub. (1) and upon the request of the person filing the petition, unless the court previously appointed an examiner under s. 980.031 (3) or 980.07 (1) for the current reexamination period, the court shall appoint for the person an examiner having the specialized knowledge determined by the court to be appropriate. If an examination conducted under s. 980.07 (1) within the 6 months preceding the filing of the petition supports discharge, the court may appoint the examiner who conducted that examination as the examiner for the person. The examiner shall have reasonable access to the person for purposes of examination and to the person’s past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided in s. 146.82 (2) (c). The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

980.09(2) (2) In reviewing the petition, the court may hold a hearing to determine if the person’s condition has sufficiently changed such that a court or jury would likely conclude the person no longer meets the criteria for commitment as a sexually violent person. In determining under this subsection whether the person’s condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court may consider the record, including evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge, any current or past reports filed under s. 980.07, relevant facts in the petition and in the state’s written response, arguments of counsel, and any supporting documentation provided by the person or the state. If the court determines that the record does not contain facts from which a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court shall deny the petition. If the court determines that the record contains facts from which a court or jury would likely conclude the person no longer meets the criteria for commitment, the court shall set the matter for trial.

980.09(3) (3) The court shall hold a trial within 90 days of the determination that the person’s condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment as a sexually violent person. At trial, the state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

980.09(4) (4) If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the person shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court shall proceed under s. 980.08 (4) to determine whether to modify the person’s existing commitment order by authorizing supervised release, unless the person waives consideration of the criteria in s. 980.08 (4) (cg). If the person waives consideration of these criteria, the waiver is a denial of supervised release for purposes of s. 980.08 (1).

980.09(5) (5) If a court orders discharge of a committed person under this section, the court shall stay the execution of the order so that the department may comply with its statutory duties under s. 980.11 (2) and (3). The stay of execution may not exceed 10 working days and shall be for as short a period as necessary to permit the department to comply with s. 980.11 (2) and (3).

980.09 History History: 1993 a. 479; 1999 a. 9; 2003 a. 187; 2005 a. 434; 2013 a. 84 ss. 10 to 12, 21 to 25; 2013 a. 168 s. 20.

980.09 Annotation Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), 94-2356.

980.09 Annotation Progress in treatment is one way of showing that a person is not still a sexually violent person under [former] sub. (2) (a). A new diagnosis is another. A new diagnosis need not attack the original finding that an individual was sexually violent, but focuses on the present and is evidence of whether an individual is still a sexually violent person. State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 680, 02-3342.

980.09 Annotation Under sub. (1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under sub. (2). State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052.

980.09 Annotation Sub. (2) requires the circuit court to review specific items enumerated in that subsection. The court need not seek out items not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The court’s task is to determine whether the petition and the additional supporting materials before it contain facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052.

980.09 Annotation Sub. (2) explicitly prescribes a different procedure than that for summary judgment set forth in s. 802.08. As such, summary judgment is not available in discharge proceedings under this section. The state’s burden of proof is implicated only during a hearing under sub. (3). When a trial court granted summary judgment prior to a hearing under sub. (3), no one could say with any certainty whether the state possessed enough evidence to meet its burden of proof. State v. Allison, 2010 WI App 103, 329 Wis. 2d 129, 789 N.W.2d 120, 09-1232.

980.09 Annotation A research paper is not sufficient evidence to demonstrate that a sex offender’s condition has changed. New actuarial research, absent a psychological examination, is not enough to demonstrate that an offender is no longer a sexually violent person. State v. Richard, 2011 WI App 66, 333 Wis. 2d 708, 799 N.W.2d 509, 10-1188.

980.09 Annotation The only reasonable construction of the “condition has changed” in sub. (1) is that it encompasses all the changes that a fact finder could determine result in the person not meeting the criteria for commitment as a sexually violent person. This language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person’s mental disorder or dangerousness if the change is such that a fact finder could conclude the person does not meet the criteria for commitment. The circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person. State v. Ermers, 2011 WI App 113, 336 Wis. 2d 451, 802 N.W.2d 540, 10-2634.

980.09 Annotation When determining whether to hold a hearing on a petition for discharge, the circuit court must determine whether the petitioner has set forth new evidence, not considered by a prior trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. An expert’s opinion that is not based on some new fact, new professional knowledge, or new research is not sufficient for a new discharge hearing under sub. (2). A doctor’s further reflection on past scoring of a test is not sufficient for a new discharge hearing because it is not new professional knowledge or research about how to predict dangerousness. State v. Schulpius, 2012 WI App 134, 345 Wis. 2d 351, 825 N.W.2d 311, 11-2565.

980.09 Annotation A petition alleging a change in a sexually violent person’s status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. State v. Richard, 2014 WI App 28, 353 Wis. 2d 219, 844 N.W.2d 370, 12-2748.

980.09 Annotation The clear and convincing evidence standard under sub. (3) satisfies due process at a ch. 980 discharge trial. State v. Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155, 13-0492.

980.09 Annotation The petitioner’s socializing more with peers, joining a fitness group, and increased communication from family members were not changes from which a factfinder could determine that the petitioner was no longer a sexually violent person. These facts, which resulted in no change to the evaluating psychologist’s ultimate conclusion or overall risk assessment, were not enough to satisfy the statutory threshold for a discharge hearing set forth in sub. (2), 2011 stats. State v. Talley, 2017 WI 21, 373 Wis. 2d 610, 891 N.W.2d 390, 13-0950.

980.09 Annotation Sub. (2) allows a circuit court to consider the entire record — not just the facts favorable to the petitioner — when determining whether the statutory criteria for a discharge trial have been met. A circuit court may carefully examine those portions of the record the court considers helpful to its consideration of the petition, which may include facts both favorable and unfavorable to the petitioner. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330.

980.09 Annotation 2013 Wis. Act 84 increased the burden of production under sub. (2) necessary for a committed individual to receive a discharge trial. The burden of production is a procedural matter that does not implicate a committed person’s fundamental right to freedom from bodily restraint and does not violate the right to due process. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330.

980.09 Annotation The state is not required to present expert testimony in order to meet its burden of proof on the question of future dangerousness in discharge proceedings under this chapter. State v. Stephenson, 2019 WI App 63, 389 Wis. 2d 322, 935 N.W.2d 842, 18-2104.

980.09 Annotation Affirmed. 2020 WI 92, 394 Wis. 2d 703, 951 N.W.2d 819, 18-2104.

980.095 980.095 Procedures for discharge hearings.

980.095(1) (1) Use of juries.

980.095(1)(a) (a) The district attorney or the department of justice, whichever filed the original petition, or the person who filed the petition for discharge or his or her attorney may request that a trial under s. 980.09 (3) be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the determination by the court that a court or jury would likely conclude under s. 980.09 (1) that the person’s condition has sufficiently changed.

980.095(1)(b) (b) Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par. (a), plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

980.095(1)(c) (c) No verdict shall be valid or received unless at least 5 of the jurors agree to it.

980.095(2) (2) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.

980.095(3) (3) Appeals. Any party may appeal an order under this subsection as a final order under chs. 808 and 809.

980.095 History History: 2005 a. 434; 2013 a. 84.

980.101 980.101 Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect.

980.101(1) (1) In this section, “judgment relating to a sexually violent offense” means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense, or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.

980.101(2) (2) If, at any time after a person is committed under s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside, or vacated and that sexually violent offense was a basis for the allegation made in the petition under s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court that committed the person. The court shall proceed as follows on the motion for postcommitment relief:

980.101(2)(a) (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody of the department.

980.101(2)(b) (b) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside, or vacated, or if the sexually violent offense was not the sole basis for the allegation under s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under s. 980.05 because the reversal, setting aside, or vacating of the judgment for the sexually violent offense would probably change the result of the trial.

980.101(3) (3) An appeal may be taken from an order entered under sub. (2) as from a final judgment.

980.101 History History: 2001 a. 16; 2005 a. 253, 434.

980.105 980.105 Determination of county and city, village, or town of residence.

980.105(1m) (1m) The department shall determine a person’s county of residence for the purposes of this chapter by doing all of the following:

980.105(1m)(a) (a) The department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.

980.105(1m)(b) (b) The department shall apply the criteria for consideration of residence and physical presence under par. (a) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under s. 980.02.

980.105(2) (2) If sub. (1m) is insufficient to determine the county of residence, the department shall find that the county of residence is the county in which, on the date that the person committed the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under s. 980.02, the person would have been a resident for the purposes of social security disability insurance eligibility.

980.105(2m) (2m) The department shall determine a person’s city, village, or town of residence for the purposes of s. 980.08 (4) (dm) 1. by doing all of the following:

980.105(2m)(a) (a) The department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.

980.105(2m)(b) (b) The department shall apply the criteria for consideration of residence and physical presence under par. (a) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under s. 980.02.

980.105 History History: 1995 a. 276; 2001 a. 16; 2005 a. 431; 2017 a. 184.

980.105 Annotation A person’s county of residence shall be determined based on the facts that existed on the date of the underlying offense. A court does not have jurisdiction merely because the defendant was in a Wisconsin prison at the time the petition was filed. State v. Burgess, 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81, 00-3074. Affirmed on other grounds. 2003 WI 71, 262 WI 2d 354, 665 N.W.2d 124, 00-3074.

980.105 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.

980.11 980.11 Notice concerning supervised release or discharge.

980.11(1) (1) In this section:

980.11(1)(a) (a) “Act of sexual violence” means an act or attempted act that is a basis for an allegation made in a petition under s. 980.02 (2) (a).

980.11(1)(b) (b) “Member of the family” means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.

980.11(1)(c) (c) “Victim” means a person against whom an act of sexual violence has been committed.

980.11(2) (2) If the court places a person on supervised release under s. 980.08 (4) or discharges a person under s. 980.09 (4), the department shall do all of the following:

980.11(2)(am) (am) Make a reasonable attempt to notify whichever of the following persons is appropriate, if he or she can be found, in accordance with sub. (3):

980.11(2)(am)1. 1. The victim of the act of sexual violence.

980.11(2)(am)2. 2. An adult member of the victim’s family, if the victim died as a result of the act of sexual violence.

980.11(2)(am)3. 3. The victim’s parent or legal guardian, if the victim is younger than 18 years old.

980.11(2)(bm) (bm) Notify the department of corrections.