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2003 SESSION

03-0132

04/09

HOUSE BILL 615-FN

COMMITTEE: Criminal Justice and Public Safety

AMENDED ANALYSIS

This bill:

I. Requires certain information to be included in the sexual offender database and provides that other information such as a photograph or physical description of the offender shall be included, if available.

II. Provides a procedure for an individual required to be registered to review such requirement.

III. Prohibits the department of safety from maintaining records of individuals who access or attempt to access the LENS system database.

IV. Provides that an actor is guilty of class A misdemeanor sexual assault when, absent any act that would constitute aggravated felonious sexual assault, such actor engages in sexual penetration with a person other than a legal spouse who is 13 years of age or older and under 16 years of age where the age difference between the actor and the victim is 3 years or less.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

25mar03... 0818h

05/22/03 1569s

05/22/03 1790s

24jun03... 2100CofC

30jun03... 2313eba

03-0132

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Be it Enacted by the Senate and House of Representatives in General Court convened:

316:1 Registration of Criminal Offenders; Duty to Report. Amend RSA 651-B:4, I to read as follows:

I.(a)(1) Any person required to be registered under this chapter shall [be required to] report such person's current mailing address, place of residence or temporary domicile, and place of employment or schooling to the local law enforcement agency within 30 days after the person's release from custody following conviction, or within 30 days after the person's date of establishment of residence in New Hampshire if convicted elsewhere. Such report shall also be made annually within 30 days after each anniversary of the person's date of birth[,] and additionally within 30 days after any change of address or place of residence.

(2) Such person shall also be required to submit to a photograph taken by the law enforcement agency each time the person is required to report to the law enforcement agency under this section.

(b) Any nonresident sexual offender or offender against children who enters this state for the purpose of employment, with or without compensation, or to attend any public or private educational institution for a period exceeding 14 consecutive days or for an aggregate period of time exceeding 30 days during any calendar year [is required to] shall report to the local law enforcement agency having jurisdiction over the place of employment or school within 10 days of the nonresident offender entering the state for employment or schooling, and additionally within 10 days after any change of place of employment or schooling. In the event a nonresident offender required to register under this paragraph does not have a principal place of employment, the offender shall register with the department in Concord. Upon the nonresident offender's initial registration, the local law enforcement agency or the department shall notify the offender of the offender's duty to report under this chapter. The offender shall report the address of the offender's place of employment or schooling while in the state, the address where the offender resides out of state, and other information required by department rules adopted in accordance with RSA 651-B:8. Such report shall also be made annually within 30 days after each anniversary of the person's date of birth, and additionally within 10 days after any change of address or place of employment or schooling.

316:2 Registration of Criminal Offenders; Record of Information Disclosure. Amend RSA 651-B:7, IV(a) as follows:

IV.(a) The division shall provide a copy of the list described in this section to each local law enforcement agency at periodic intervals, through written, electronic, computerized, or other accessible means, but in no event less frequently than once each month. The list shall be made available to interested members of the public upon request to a local law enforcement agency. The department of safety may make the list available to interested members of the public through the use of the department's official public Internet access site. The department shall adopt rules, pursuant to RSA 541-A, establishing procedures for the collection of information described in this section, the transmission of the information from the division to the local law enforcement agencies, and the conditions under which the list shall be made available to the public. These rules shall enable the public to request information about a named individual or about all listed individuals residing or confined in the state. The rules [shall] may also include provisions for [identifying and maintaining a record of the parties to whom information from the list has been disclosed, and may also provide for] the imposition of a reasonable fee to defray the administrative costs of collecting the information and making the information available to the public.

316:3 Registration of Criminal Offenders; Availability of Information. RSA 651-B:7, II is repealed and reenacted to read as follows:

II.(a) The division shall maintain a separate list of all individuals registered pursuant to this chapter who have been convicted of any violation or attempted violation of one of the following offenses, or of any law of another state or the federal government reasonably equivalent to one of the following offenses:

(1) RSA 632-A:2, I(l).

(2) RSA 632-A:2, II-III.

(3) RSA 632-A:3, II, provided that the age difference between the convicted individual and the victim was more than 3 years at the time of the offense.

(4) RSA 632-A:3, III.

(5) RSA 645:1, II-III.

(6) Any offense described in RSA 651-B:1, V.

(b)(1) The list described in subparagraph (a) shall include:

(A) The name, address, and date of birth of the registered individual.

(B) The offense for which the individual was convicted.

(C) The date and court of the conviction for which the individual is registered.

(D) Outstanding arrest warrants, and the information listed in subparagraphs (b)(1)(A)-(C), for any sexual offender or offender against children who has not complied with the obligation to register under this chapter.

(E) A photograph or physical description of the individual, if available.

(2) Where such information is available, the list may also include:

(A) The date and court of the individual's other convictions, if any.

(B) Information on the profile of the victim or victims of the individual's offense or offenses.

(C) The method of approach utilized by the individual.

(3) In no event shall the list include the identity of any victim.

316:4 New Paragraph; Registration of Criminal Offenders; Availability of Information. Amend RSA 651-B:7 by inserting after paragraph V the following new paragraph:

VI.(a) Notwithstanding the provisions of this section, any individual required to be registered whose name and information is contained on the list described in subparagraph II(a) and who has been convicted of any violation or attempted violation of RSA 632-A:2, III or RSA 632-A:3, II, provided that the age difference between the convicted individual and the victim was more than 3 years at the time of the offense and the person has no prior convictions requiring registration under RSA 651-B:2, may file with the clerk of the superior court for the county in which the judgment was rendered an application for review of the public registration requirement contained in RSA 651-B:7. This application shall not be filed prior to the completion of all the terms and conditions of the sentence and in no case earlier than 10 years after the date of release following conviction. After review of the application, the court may schedule a hearing.

(b) The court shall provide notice of the application for review under this section to the victim within 30 days of any hearing. Prior to any decision granting the application, the court shall provide the victim with the opportunity to address the court. The victim may appear personally or by counsel and may reasonably express his or her views concerning the offense, the person responsible, and the need for maintaining the public registry requirement. The judge shall consider the statements of the victim pursuant to this section when making a decision regarding the application. The judge shall grant the application, after a hearing, only where, in the opinion of the court, removal from the public registry requirement under this section will assist the individual in the individual's rehabilitation and will be consistent with the public welfare. If an application for review is denied, any subsequent application may be filed only where good cause is shown, consistent with the provisions of this section. A decision granting an application for review under this section shall not remove any of the registration requirements contained in RSA 651-B:6.

316:5 New Section; Registration of Criminal Offenders; Hearing. Amend RSA 651-B by inserting after section 9 the following new section:

651-B:10 Hearing. Any offender convicted of an offense in another state or under federal law who wishes to appeal a decision of the division regarding the division's determination that the offense is reasonably equivalent to an offense requiring registration under this chapter, including the duration of the duty to report may, within 10 days of notification, request a hearing on the matter before the commissioner. If such a request is made, the commissioner shall promptly schedule and conduct a hearing pursuant to rules adopted under RSA 541-A. After hearing, the decision of the commissioner shall be final, and the offender shall have a right to appeal the decision in superior court.

316:6 Applicability. The provisions of this act shall apply to any person required to be registered pursuant to RSA 651-B:2 as of the effective date of this act.

316:7 Sexual Assault and Related Offenses; Sexual Assault. RSA 632-A:4 is repealed and reenacted to read as follows:

632-A:4 Sexual Assault.

I. A person is guilty of a class A misdemeanor under any of the following circumstances:

(a) When the actor subjects another person who is 13 years of age or older to sexual contact under any of the circumstances named in RSA 632-A:2.

(b) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 3 years or less.

II. A person found guilty under subparagraph I(b) of this section shall not be required to register as a sexual offender under RSA 651-B.

III. A person is guilty of a misdemeanor if such person engages in sexual contact or sexual penetration with another person when the actor is in a position of authority over the person under any of the following circumstances:

(a) When the actor has direct supervisory or disciplinary authority over the victim by virtue of the victim being incarcerated in a correctional institution, the secure psychiatric unit, or juvenile detention facility where the actor is employed; or

(b) When the actor is a probation or parole officer or a juvenile probation and parole officer who has direct supervisory or disciplinary authority over the victim while the victim is on parole or probation or under juvenile probation.

Consent of the victim under any of the circumstances set forth in paragraph III shall not be considered a defense.

316:8 Registration of Criminal Offenders; Exception Inserted. Amend RSA 651-B:1, III (a) to read as follows:

(a) RSA 632-A:2, 632-A:3, [632-A:4] 632-A:4, I(a), 645:1, II, or 645:1, III; or

316:9 Registration of Sexual Offenders; Duration of Registration; Exception Inserted. Amend RSA 651-B:6, II to read as follows:

II. Any sexual offender convicted of a violation or attempted violation of RSA [632-A:4] 632-A:4, I(a) or RSA 645:1, II, and any offender against children convicted of a violation or attempted violation of RSA 633:3 or 645:2, I, or of an equivalent offense in an out-of-state jurisdiction, shall be registered for a 10-year period from the date of release following conviction, provided that any such registration period shall not run concurrently with any registration period resulting from a subsequent conviction.

316:10 Effective Date.

I. Section 7 of this act shall take effect January 1, 2004 at 12:02 a.m.

II. Sections 8 and 9 of this act shall take effect January 1, 2004.

III. The remainder of this act shall take effect 60 days after its passage.

(Approved: Enacted in accordance with Article 44, Part II, N.H. Constitution, without signature of Governor, July 22, 2003)

(Effective Date: I. Section 7 shall take effect January 1, 2004 at 12:01 a.m.