Chapter 980

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.

980.11(3) (3) The notice under sub. (2) shall inform the department of corrections and the person under sub. (2) (am) of the name of the person committed under this chapter and the date the person is placed on supervised release or discharged. The department shall send the notice, postmarked at least 7 days before the date the person committed under this chapter is placed on supervised release or discharged, to the department of corrections and to the last-known address of the person under sub. (2) (am).

980.11(4) (4) The department shall design and prepare cards for persons specified in sub. (2) (am) to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the person committed under this chapter and any other information the department determines is necessary. The department shall provide the cards, without charge, to the department of justice and district attorneys. The department of justice and district attorneys shall provide the cards, without charge, to persons specified in sub. (2) (am). These persons may send completed cards to the department of health services. All records or portions of records of the department of health services that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1), except as needed to comply with a request by the department of corrections under s. 301.46 (3) (d).

980.11 History History: 1993 a. 479; 1995 a. 27 s. 9126 (19); 1995 a. 440; 1997 a. 181; 1999 a. 9; 2005 a. 434; 2007 a. 20 s. 9121 (6) (a); 2009 a. 28.

980.12 980.12 Department duties; costs.

980.12(1) (1) Except as provided in ss. 980.031 (3) and 980.07 (1), the department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all costs relating to the evaluation, treatment, and care of persons evaluated or committed under this chapter.

980.12(2) (2) By February 1, 2002, the department shall submit a report to the legislature under s. 13.172 (2) concerning the extent to which pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen has been required as a condition of supervised release under s. 980.06, 1997 stats., or s. 980.08 and the effectiveness of the treatment in the cases in which its use has been required.

980.12 History History: 1993 a. 479; 1997 a. 284; 1999 a. 9; 2005 a. 434.

980.13 980.13 Applicability. This chapter applies to a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2, 1994.

980.13 History History: 1993 a. 479.

980.135 980.135 Local restrictions; limited exemption. No county, city, town, or village may enforce an ordinance or resolution that restricts or prohibits a sex offender from residing at a certain location or that restricts or prohibits a person from providing housing to a sex offender against an individual who is released under s. 980.08 or against a person who provides housing to the individual so long as the individual is subject to supervised release under this chapter, the individual is residing where he or she is ordered to reside under s. 980.08, and the individual is in compliance with all court orders issued under this chapter.

980.135 History History: 2015 a. 156.

980.14 980.14 Immunity.

980.14(1) (1) In this section, “agency” means the department of corrections, the department of health services, the department of justice, or a district attorney.

980.14(2) (2) Any agency or officer, employee, or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with any provision of this chapter.

980.14 History History: 2005 a. 434 ss. 79, 129, 130; 2007 a. 20 s. 9121 (6) (a).