RULE 004.00.02-003 - Sex Offender Guidelines and Procedures Implementing Risk Assessment and Community Notification Regarding Sex Offenders

RULE 004.00.02-003. Sex Offender Guidelines and Procedures Implementing Risk Assessment and Community Notification Regarding Sex Offenders

BACKGROUND

On June 19, 1998, the U.S. Department of Justice published Proposed Guidelines in the Federal Register (63 FR 33696) to implement the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as amended by Megan's Law, the Pam Lychner Sexual Offender Tracking and Identification Act of 1996, and section 115 of the General Provisions of Title I of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998.

The 82nd General Assembly of the state of Arkansas passed House Bill 1963 which became Act 1353 of 1999. Act 1353 amends "The Sex and Child Offender Registration Act of 1997." The intent of the Act is to protect the people of Arkansas from sexual victimization by individuals who have previously engaged in this type of criminal activity. Act 1353 is codified in Ark Code Ann §§ 12-12-901 - 920, and 12-12-1301 -1303. Act 1353 was modified by Acts 1740 and 1743 in the 83rd General Assembly. Code section references remain the same (12-12-901 through 920 and 12-12-1301 through 1303).

In compliance with the Campus Sex Crimes Prevention Act § 1601, P.L. 106-386 the following supplement to the Guidelines is being issued by the Sex Offender Assessment Committee. It is effective as of 11/04/2002, following approval by the Rules and Regulations Committee of the Arkansas Legislature, and the Board of Corrections. A copy of the addendum will be included in each volume of the Guidelines subsequently issued. Copies of the addendum will be mailed to all judges, prosecutors, sheriffs, chiefs of police, campus security offices, and others known to have been issued copies of the Guidelines.

The law provides for the appointment by the governor of a Sex Offender Assessment Committee, which includes:

* A defense attorney

* A prosecuting attorney

* Two licensed mental health professionals

* A victim's rights advocate

* A law enforcement officer

* The director of the Arkansas Department of Correction, or the director's designee.

* The director of the Arkansas Crime Information Center, or the director's designee.

* The director of the Department of Community Correction, or the director's designee.

Correspondence to the Sex Offender Assessment Committee may be directed to Post Office Box 6209, Pine Bluff AR 71611-6209, faxed to 870-267-6610, or E-mailed to adc.sosra@mail.state.ar.us

The Sex Offender Assessment Committee is charged with promulgating guidelines and procedures for disclosure of relevant and necessary information to the public when the release of the information is necessary for the public protection. Those guidelines include protocols for risk assessment and criteria to assist the courts in determining whether a person convicted of a sexual or violent offense is a sexually violent predator. The committee qualifies examiners to perform assessments under this law, and certifies treatment providers.

The agency primarily responsible for implementing Acts 1740 and 1743 of 2001 is the Arkansas Department of Correction, acting under the direction of the Board of Corrections with advice from the Sex Offender Assessment Committee.

OVERVIEW OF THE REGISTRATION, ASSESSMENT & NOTIFICTATION PROCESS

* Adults found guilty or found not guilty by reason of insanity, or who were incarcerated, on parole or probation, or were in the state hospital related to a target offense on or after August 1, 1997 are required to register and submit to risk assessment. (In the case of adjudication in juvenile court, the judge determines whether or not registration is to be required.) Individuals who are rearrested for a subsequent target offense must be reassessed.

* Adults and juveniles who are or would be required to register by the laws of the jurisdiction in which they were adjudicated are required to be reassessed and to register if they spend more than 14 consecutive days or more than 30 aggregate days a year residing in Arkansas or entering Arkansas for employment, education or training.

* Risk assessments may be done only by examiners gualified by the Sex Offender Assessment Committee.

* Sexually Violent Offense: Any actual or attempted rape or rape-like offenses-i.e., non-consensual sexual assault crimes involving penetration-regardless of the age of the victim (18 U.S.C. 2241 & 2242)

* The prosecutor should seek a determination as to whether an individual is a Sexually Violent Predator if he or she as committed previous sex offenses sexually violent offenses,, and/or has multiple victims, and/or caused serious physical or psychological harm to his/her victim. Following a finding of guilt or acquittal on the grounds of a mental disease or defect, of a target offense, the court will request a recommendation from the Sex Offender Assessment Committee. The Sex Offender Assessment Committee may make unsolicited recommendations to the court which retains jurisdiction to make the determination as to whether or not and individual is a sexually violent predator for one year after adjudication or prior to completion of a term of incarceration, whichever is interval is longer.

* Aggravated sex offenses are those offenses that involve penetration of a child younger than 12 years of age, or the penetration of a person of any age by force or threat of serious violence. The sentencing court must indicate on the judgment and commitment order or judgment and disposition form whether the offense qualifies as an aggravated sex offense (U.S.C. Title 18, Section 2241).

* Each individual required to register is provided a Sex Offender Screening Advisement that details the risk assessment process along with the forms notifying t him/her of the duty to register. The Department of Community Correction provides advisements to known sex offenders moving into Arkansas, if the offender is under supervision.

* The assessment produces an estimate of level of risk to the community, a report regarding factors that appear to influence the manifestation of inappropriate sexual behavior, and the age(s) and genders(s) of known victims. A copy of the Offender Fact Sheet is provided to the offender, law enforcement having jurisdiction, and any licensing or certification board having the offender's credentials under consideration.

* The actuarially based portion of the risk assessment is subject to overrides and departures related to special circumstances, facts and psychological disorders affecting the level of risk posed by an individual. All overrides and departures must be approved by a licensed psychologist or psychiatrist.

* The offender has ten days from the receipt of notification or risk level to request administrative review of his/her risk assessment. He or she must present documentary evidence justifying that review. Reviews are justified only on the basis of previously unavailable information or allegations that these guidelines were not followed.

* Any offender, adult or juvenile who would be required to register in the jurisdiction in which he or she was adjudicated, who is newly convicted or previously convicted and moving into an area, is responsible for presenting himself or herself to the Chief Law Enforcement Officer who will see that he or she is registered with, and tracked by, the Arkansas Crime Information Center (ACIC). (Failure to maintain registration is a Class D felony.) Questions about registration should be directed to ACIC.

Notification guidelines based on level of risk are provided with each assessment. The Chief Law Enforcement Officer must meet the minimum requirements of notification, but may modify optional parts of the plan to fit the needs of the community.

* An offender fact sheet and risk assessment report is sent to the chief of police, sheriff and prosecutor who have jurisdiction where the offender resides, and to ACIC and the Arkansas State Police. Certified law enforcement authorities, licensing and certification boards and ACIC may access offender fact sheets through a web site or request database searches for aid in solving crimes.

* The Chief Law Enforcement Officer having jurisdiction is responsible for notification of the appropriate agencies and citizens according to the notification plan. (Notification must reoccur as demanded by circumstances.)

* Reassessment may be requested at any time by the court, Post Prison Transfer Board or law enforcement, or every 5 years by the offender. Any juvenile offender may request reassessment every two years until he/she is eighteen years of age.

* The registration requirement for sexually violent predators, recidivists and those convicted of an aggravated sex offense, is for life and may not be terminated. The registration requirement for other sex offenders may be terminated upon order of the sentencing court, or order of the court in the jurisdiction in which the offender lives, if the offender was sentenced by an authority other than an Arkansas court. Additional flexibility is allowed for termination of the registration requirement for juveniles.

* Continuous efforts will be made to better understand and assess the risks associated with sex offending through research.

* Individuals carrying out the tasks prescribed by law and these regulations are provided immunity for their good-faith actions under the law.

TARGET OFFENSES

Generally target offenses include (42 U.S.C. 14071 a, (3) A and B):

* Kidnapping of a minor, except by a parent

* False imprisonment of a minor, except by a parent

* Criminal sexual conduct toward a minor

* Solicitation of a minor to engage in sexual conduct

* Use of a minor in a sexual performance

* Solicitation of a minor to practice prostitution

* Any conduct that by its nature is a sexual offense against a minor

* Any sexually violent offense regardless of the age of the victim (18 U.S.C. Sections 2241 and 2242)

* An attempt to commit any of the above offenses if the legislature chooses to make such an attempt a criminal offense requiring registration.

* Exceptions to the above may be made if the act is criminal based on the age of the victim and the perpetrator is 18 years of age or younger.

* ANY other offense that the Arkansas Legislature chooses to include as a sexual offense or violent offense against a child.

Some offenses such as "stalking" may not have sexually motivated component. In such cases the Court upon the advice of the Sex Offender Screening and Risk Assessment Report will determine whether or not the individual should be required to register.

1.

Kidnapping of a minor

§ 5-11-102

2.

False imprisonment 1st

§ 5-11-103

3.

False imprisonment 2nd degree

§ 5-11-104

4.

Permanent detention or restraint of a minor, not by a parent

§ 5-11-106

5.

Rape

§ 5-14-103

6.

Sexual indecency with a child

§ 5-14-110

7.

Public Sexual Indecency

§ 5-14-111

8.

Exposing another person to HIV

§ 5-14-123

9.

Sexual Assault 1st degree

§ 5-14-124

10.

Sexual Assault 2nd degree

§ 5-14-125

11.

Sexual Assault 3rd degree

§ 5-14-126

12.

Sexual Assault 4th degree

§ 5-14-127

13.

Incest

§ 5-26-202

14.

Permitting abuse of a child

§ 5-27-221

15.

Engaging children in sexually explicit Conduct for use in visual or print medium

§ 5-27-303

16.

Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child,

§ 5-27-304

17.

Transportation of minors for prohibited sexual conduct

§ 5-27-305

18.

Employing of consenting to the use of a child in a sexual performance

§ 5-27-402

19.

Producing, directing or promoting a sexual performance

§ 5-27-403

20.

Distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child

§ 5-27-602

21.

Computer child pornography

§ 5-27-603

22.

Computer exploitation of a child

§ 5-27-605

23.

Promoting prostitution in the first degree

§ 5-70-104

24.

Stalking

§ 5-71-229

25.

False attempt, solicitation, or conspiracy to commit any of the above offenses.

  

This list of target offenses is not exclusive. The registration requirement extends to the requirements of other states, and similar juvenile, tribal, military or other federal offenses. Newly enacted sex offenses or current target offenses subsequently modified by legislation will be considered target offenses unless otherwise specified by the legislature. Any individual, living in or moving into Arkansas, who has been convicted of a target offense or a differently titled, but equivalent offense by a federal court, tribal court, military court, or the court of another state, that is the substantial equivalent of a target offense, is required to register, and to submit to risk assessment.

QUALIFICATION OF EXAMINERS

Risk assessments of adult offenders are currently done through the Arkansas Department of Correction. The Family Treatment Program, through Children's Hospital and the University of Arkansas for Medical Sciences does assessments of juvenile offenders according to standards and procedures developed by that organization and approved by the Sex Offender Assessment Committee.

Once a protocol is established, and the backlog of unassessed offenders is eliminated, the Sex Offender Assessment Committee may arrange for training and qualification of professionals in the community to perform risk assessments. Any professional so qualified must agree to comply with all provisions of the law and these regulations. This includes providing a complete copy of all assessment materials and reports to the Sex Offender Assessment Committee.

SEXUALLY VIOLENT PREDATOR

"Sexually Violent Predator" refers to a person who has been convicted of a sexually violent offense and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of predatory sexual violence. The designation is intended to identify those individuals who pose the highest level of threat to the community. The prosecutor should consider asking the court to determine whether an individual is a Sexually Violent Predator, if the offense

* Involved multiple victims,

* Was carried on for months or years with any victim,

* Caused or threatened serious harm to the victim,

* Involved bizarre, ritualistic or sadistic behaviors,

* Is the second or subsequent offense against a person

* Is associated with a mental disorder, developmental disability, or personality disorder.

* Involved attempts on the part of the offender to manipulate him/herself into a position of power or authority over, or establish a relationship with the victim for the primary purpose of violation, exploitation, or victimization.

The prosecutor will notify the court in the prosecutor's information that a determination is being sought as to whether an individual is a Sexually Violent Predator. Upon adjudication of guilt for a sex offense, the Court shall have the individual sent to the Arkansas Department of Correction for evaluation pursuant to § 12-12-918, or request that a member of the assessment team come to the local or regional detention facility where the offender is being housed. In either case the prosecutor is asked to fax or e-mail the prosecutor's Information and any associated documentation needed in preparation for the interview of the offender. Alternatively the court may hold making the determination as to whether and individual is a Sexually Violent Predator in abeyance, sentence the offender, and await the completion of Sex Offender Screening and Risk Assessments evaluation of the incarcerated offender. Any individual convicted of a second or subsequent sex offense will have a new risk screening done, unless that individual has already been found by the court to be a Sexually Violent Predator.

Scheduling for offenders in the custody of the County shall be arranged between the sheriff and Sex Offender Screening and Risk Assessment (SOSRA). The evaluation will take place in a secure setting either at the Diagnostic Unit or the local or regional detention facility. The interview and testing will usually be completed within a day; this may take longer if a polygraph is warranted. Should additional time be needed, the individual may be housed at the Diagnostic Unit for up to three days.

Sex offenders moving into the State of Arkansas from other states will be considered Sexually Violent Predators, if that, or an equivalent, determination has been made by the sending state. If terminologies or criteria differ, Sex Offender Screening and Risk Assessment (SOSRA) will request the offender's risk assessment file. SOSRA may make a determination based on that file, or may require the offender to submit to risk assessment in Arkansas. All sex offenders at other levels who are moving into

Arkansas must be reassessed. The Department of Community Correction will provide the probationer or parolee a copy of the Sex Offender Screening and Risk Assessment advisement, and will ensure that the ACIC's registration form has been completed.

The recommendation of the Sex Offender Assessment Committee will be provided to the court, as quickly as possible, usually within thirty (30) days of the examiner's gaining access to the offender. Should difficulty in obtaining documents slow the process, or should the next meeting of the Sex Offender Assessment Committee not be scheduled inside that 30 day window, the court will be notified when to expect the report. The risk assessment will not be admissible for purposes of sentencing. Should the offender refuse to cooperate or attempt deception at any point during the assessment, the Court will be notified.

The court retains jurisdiction to make a determination as to whether or not an individual is a Sexually Violent Predator for one year after sentencing or for the duration of incarceration whichever period of time is longer. Should the Sex Offender Screening and Risk Assessment team develop information that demonstrates the likelihood that an offender is a Sexually Violent Predator; this information will be provided to the Prosecuting Attorney who will determine whether a hearing on the matter is warranted.

Any Judgment and Commitment Order or Judgment and Disposition order received by the Arkansas Department of Correction or the Arkansas Department of Community Correction, on which the Sexually Violent Predator indicator is checked will be called to the attention of Sex Offender Screening and Risk Assessment. SOSRA will check whether the Sex Offender Assessment Committee has made a recommendation to the Court and a hearing has occurred. If there has been a breakdown in procedure, the Court will be immediately notified so that corrective action may be taken.

SEX OFFENDER SCREENING ADVISEMENT

Upon receipt of the Judgment and Disposition the Department of Community Correction provides the offender who is being released to community supervision copies of the ACIC Sex Offender Registration Form and the document "Sex Offender Screening Advisement." This document is intended to inform the offender of the requirements and procedures for risk assessment, and the limits on confidentiality. Having read the document, the offender indicates his/her willingness or refusal to undergo risk assessment. Should the offender refuse risk assessment, he/she is classified at the "high" level of risk. DCC then mails a copy of the signed document to SOSRA. P.O. Box 6209, Pine Bluff, AR 71611-6209.

Offenders who are sentenced to the Arkansas Department of Correction will be given the advisement and complete the ACIC Sex Offender Registration Form at the point of intake, or as soon as possible thereafter.

Individuals found Not Guilty by Reason of Insanity will complete the ACIC Sex Offender Registration Form at the State Hospital and be given the Sex Offender Screening Advisement. The evaluation interview and testing will usually be conducted at the State Hospital when in the opinion of ASH clinical staff, the mental status of the individual allows.

To prevent gaps, SOSRA will request the ACIC to provide a monthly listing of target offense convictions.

SEX OFFENDER SCREENING AND RISK ASSESSMENT

Sex Offender Reassessment

Sex Offender Registration Form

Arkansas Crime Information Center

State Sex Offender Registry

Copies of the Offender Fact Sheet are made available by the Arkansas Department of Correction to:

* The Arkansas Crime Information Center (ACIC)

* The sheriff and/or chief of police of the city and/or county in which the offender resides.

* Parole or probation (if the offender is under Department of Community Correction supervision or Juvenile Probation).

* The Post Prison Transfer Board (if the offender is currently incarcerated).

* Any therapeutic program in which the offender is enrolled.

* The offender.

* Any law enforcement agency requesting the Offender Fact Sheet.

* Any court in which the offender is a party to the proceedings.

* the chief law enforcement officer having primary jurisdiction over the campus of an institution for training or education, in those cases in which Sex Offender Screening and Risk Assessment is aware that the offender is a student, part or full-time employee, or volunteer on a campus covered by this act.

The Chief Law Enforcement Officer must make the Offender Fact Sheet available to the victim and members of the community indicated in the Notification Guidelines. An abbreviated version of the Offender Fact Sheet will be available off the Internet for this purpose.

The following is a cover letter suggested as a model to be provided with any Offender Fact Sheet:

The [insert name of the law enforcement agency] is releasing the attached information pursuant to Act 1740 and 1743 of 2001 and guidelines provided by the Sex Offender Assessment Committee established by that law.

The individual who appears on the attached Fact Sheet has been convicted of an offense that requires registration with the Arkansas Crime Information Center. This individual is not wanted by law enforcement at this time. No action on your part is required other than the type of alertness and caution that increases the safety of individuals, families, neighborhoods and communities. Should you observe suspicious behavior on the part of this individual, do not take action on your own, but immediately notify law enforcement. You may not share this information with others, except those who have a need to know (other adult members of your family, if this is a family notification; coworkers in a position to prevent harm, if this is an agency notification).

This notification is not intended to cause alarm. Nor may you use this information to intimidate or harass the person identified. Harassment of any individual is against the law. We are all better protected if this individual makes a successful adjustment and maintains control over deviant sexual impulses.

If you feel you need further information about the dynamics of sex offending, you may contact the Arkansas Commission on Child Abuse, Rape and Domestic Violence, 4301 w. Markham, slot 606, Little Rock, AR 72205.

NOTIFICATION

The law enforcement officer having jurisdiction over an offender shall review the notification guidelines and procedures, and the offender fact sheet. Prior to notification, the law enforcement agency should visit the listed address to ensure that the subject of the notification is, in fact, residing or about to reside there. Any discrepancies on the Offender Fact Sheet should be immediately brought to the attention of Sex Offender Screening and Risk Assessment (Phone (870) 267-6660 or FAX: (870) 267-6610).

The sheriff or chief of police has the authority to go beyond notification guidelines in consultation with multidisciplinary teams, the prosecuting attorney, parole and probation officers, social service agencies, and any other agency or individual who has direct involvement in protecting the community from sex crimes. Any step beyond the notification guidelines should have a strong rationale behind it, which should be clearly stated in the notification plan.

Notification regarding juvenile offenders will only occur if ordered by the juvenile court, taking into account the juvenile's compliance with the recommended safety and supervision plan.

Should the individual relocate to a new address outside the area covered by the previous notification but remain within the jurisdiction of the Chief Law Enforcement Officer, the notification plan should be modified, and notifications reissued 10 days prior to the move, or as soon as possible following the move. Should the offender move outside the jurisdiction, it is the responsibility of the offender to notify ACIC prior to the move. ACIC will notify the sheriff and chief of police of the new jurisdiction.

REASSESSMENT

The adult offender may request reassessment five years after the date of the most recent risk assessment. The juvenile offender may request reassessment two years after the date of the most recent risk assessment. Once the juvenile offender reaches age 18, the guidelines for adult offenders are to be followed. The files of such offenders will be transferred from the Family Treatment Program to Sex Offender Screening and Risk Assessment, which will conduct any further assessments.

Reassessment may be requested by parole or probation, any law enforcement agency, the court, or the Sex Offender Assessment Committee at any time, by submission of a statement of reason to Sex Offender Screening and Risk Assessment. Reassessment of a juvenile may be requested by social service agencies having proper authority.

Reassessments, particularly those done on the basis of suspicion of recent deviant sexual activity, may include administration of a polygraph and/or plethysmograph (measure of sexual interest) examination.

Refusal of, or non-compliance with, reassessment will result in a written notification to law enforcement in the area in which the offender resides, and to any supervising agency.

TERMINATION

The offender whose offenses do not require lifetime registration, and who has maintained registration for fifteen years, may apply to the sentencing court for an order terminating the registration requirement.

Juvenile courts may order termination of the registration requirement at any point during the court's jurisdiction.

The termination procedure involves reassessment ordered by the court and an evidentiary hearing.

RECORDS

Sex Offender Screening and Risk Assessment will maintain all documentation gathered and all assessments administered. Original documents will be maintained for at least one year, during which time case files may be digitally imaged. When a year has passed and accuracy of the digital images is demonstrated, the original documents may be destroyed.

Access to documents may be granted to ACIC, and to any law enforcement agency or court of competent jurisdiction. These documents are not subject to the Freedom of Information Act.

RESEARCH

The assessment process will be the subject of ongoing research in an effort to develop an Arkansas specific actuarial tool, and to improve the accuracy of the overall risk assessment process.

Access for the purpose of research must be requested in writing and is subject to approval by the Arkansas Department of Correction with recommendation by the Sex Offender Assessment Committee.

IMMUNITY

Public officials, public employees, public agencies, and members of the Sex Offender Assessment Committee are immune from civil liability for good faith conduct under Act 1353.

Nothing in Act 1353 shall be deemed to impose any liability upon, or give rise to a cause of action against, any public official, public employee, public agency, or member of the Sex Offender Assessment Committee for any discretionary decision to release relevant and necessary information, unless it is shown that the official, employee, agency or Committee member acted with gross negligence or in bad faith.

DISCLAIMER

There is no foolproof method of predicting human behavior.

The best prediction of general risk is based on actuarial studies of large groups. For example, the insurance industry predicts higher rates of automobile accidents for males less than 27 years of age (and charges accordingly). Given a large enough group, the prediction of the rate of accidents will be highly accurate. However, this prediction does not extend to identifying the individuals in that group who will have the accidents. Prediction can be improved by taking into account what we know about an individual. A young person who drinks heavily, has had speeding tickets, skips school and likes to show off his red sports car can be predicted to be a somewhat higher risk than a well behaved, drug free, honor student who is only allowed to drive the family car to school and on errands for mom. Even so, either of these individuals can have an accident.

While the system being used is state-of-the-art and will be improved as statistical and psychological prediction is further refined, there will be Level 4, sexually violent predators who do not reoffend. And there will be Level 1, low risk offenders who commit heinous crimes. The prediction being made is the risk posed to the community if the individual reoffends. For example, an offender with multiple victims or violence associated with a sex crime is likely to put a broader segment of the community at more serious risk than an offender with an underage girl friend. Similarly an offender with compulsive sexual habits (E.g. exhibitionism) is prone to repeat acts, but does not pose the same overall level of risk to the community as does an offender who offends less frequently, but who is inclined to sadistically or ritually torture his/her victim.

All law enforcement officers involved in the process should make it clear during the process of notification, that the protection afforded by enhanced tracking, awareness, supervision and treatment of sex offenders, is not absolute protection. All parents should be encouraged to teach their children about appropriate and inappropriate touching by family, friends, baby sitters, teachers and others with whom their children come into contact.

Assistance and information regarding this is available through the Commission on Child Abuse, Rape and Domestic Violence, 4301 W. Markham, Slot 606, Little Rock AR 72205. (Phone 501-661-7975, Fax 501-661-7976)

REVIEWED UNDER THE ADMINISTRATIVE PROCEDURES ACT, October 1, 2002

January 2002 (revised October 2002)

(10/25/2002)

The following state regulations pages link to this page.