109 HR 3129 IH: Foster Child Protection and Child Sexual Predator Sentencing Act of 2005 U.S. House of Representatives 2005-06-30 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 1st Session H. R. 3129 IN THE HOUSE OF REPRESENTATIVES June 30, 2005 Mr. DeLay introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To protect foster children and provide appropriate sentencing for child sex predators, and for other purposes.

1.

Short title

This title may be cited as the Foster Child Protection and Child Sexual Predator Sentencing Act of 2005.

2.

Requirement to complete background checks before approval of any foster or adoptive placement and to check national crime information databases and state child abuse registries; suspension and subsequent elimination of opt-out

(a)

Requirement to complete background checks before approval of any foster or adoptive placement and to check national crime information databases and State child abuse registries; suspension of opt-Out

(1)

Requirement to check national crime information databases and state child abuse registries

Section 471(a)(20) of the Social Security Act (42 U.S.C. 671(a)(20)) is amended— (A)in subparagraph (A)— (i)in the matter preceding clause (i)— (I)by inserting , including checks of national crime information databases (as defined in section 534(e)(3)(A) of title 28, United States Code), after criminal records checks; and (II)by striking on whose behalf foster care maintenance payments or adoption assistance payments are to be made and inserting regardless of whether foster care maintenance payments or adoption assistance payments are to be made on behalf of the child; and (ii)in each of clauses (i) and (ii), by inserting involving a child on whose behalf such payments are to be so made after in any case; (B)by adding and at the end of subparagraph (B); and (C)by adding at the end the following: (C)provides that the State shall— (i)check any child abuse and neglect registry maintained by the State for information on any prospective foster or adoptive parent and on any other adult living in the home of such a prospective parent, and request any other State in which any such prospective parent or other adult has resided in the preceding 5 years, to enable the State to check any child abuse and neglect registry maintained by such other State for such information, before the prospective foster or adoptive parent may be finally approved for placement of a child, regardless of whether foster care maintenance payments or adoption assistance payments are to be made on behalf of the child under the State plan under this part; (ii)comply with any request described in clause (i) that is received from another State; and (iii)have in place safeguards to prevent the unauthorized disclosure of information in any child abuse and neglect registry maintained by the State, and to prevent any such information obtained pursuant to this subparagraph from being used for a purpose other than the conducting of background checks in foster or adoptive placement cases;. (2)

Suspension of opt-out

Section 471(a)(20)(B) of such Act (42 U.S.C. 671(a)(20)(B)) is amended— (A)by inserting , on or before September 30, 2005, after plan if; and (B)by inserting , on or before such date, after or if. (b)

Elimination of opt-Out

Section 471(a)(20) of such Act (42 U.S.C. 671(a)(20)), as amended by subsection (a) of this section, is amended— (1)in subparagraph (A)— (A)in the matter preceding clause (i), by striking unless an election provided for in subparagraph (B) is made with respect to the State,; and (B)by adding and at the end of clause (ii); and (2)by striking subparagraph (B) and redesignating subparagraph (C) as subparagraph (B). (c)

Effective date

(1)

In general

The amendments made by subsection (a) shall take effect on October 1, 2005, and shall apply with respect to payments under part E of title IV of the Social Security Act for calendar quarters beginning on or after such date, without regard to whether regulations to implement the amendments are promulgated by such date. (2)

Elimination of opt-out

The amendments made by subsection (b) shall take effect on October 1, 2007, and shall apply with respect to payments under part E of title IV of the Social Security Act for calendar quarters beginning on or after such date, without regard to whether regulations to implement the amendments are promulgated by such date. (3)

Delay permitted if State legislation required

If the Secretary of Health and Human Services determines that State legislation (other than legislation appropriating funds) is required in order for a State plan under section 471 of the Social Security Act to meet the additional requirements imposed by the amendments made by a subsection of this section, the plan shall not be regarded as failing to meet any of the additional requirements before the first day of the first calendar quarter beginning after the first regular session of the State legislature that begins after the otherwise applicable effective date of the amendments. If the State has a 2-year legislative session, each year of the session is deemed to be a separate regular session of the State legislature.

3.

Access to Federal crime information databases by child welfare agencies for certain purposes

(a)

In general

The Attorney General shall, upon request of the chief executive of a State, ensure that appropriate officers of child welfare agencies have the authority for read only online access to the databases of the national crime information databases (as defined in section 534 of title 28, United States Code) to carry out criminal history records checks, subject to subsection (b). (b)

Limitation

An officer may use the authority under subsection (a) only in furtherance of the purposes of the agency and only on an individual relevant to casework of the agency. (c)

Protection of information

An individual having information derived as a result of a check under subsection (a) may release that information only to appropriate officers of child welfare agencies or another person authorized by law to receive that information. (d)

Criminal penalties

An individual who knowingly exceeds the authority in subsection (a), or knowingly releases information in violation of subsection (c), shall be imprisoned not more than 10 years or fined under title 18, United States Code, or both. (e)

Child welfare agency defined

In this section, the term child welfare agency means— (1)the State or local agency responsible for administering the plan under part B or part E of title IV of the Social Security Act; and (2)any other public agency, or any other private agency under contract with the State or local agency responsible for administering the plan under part B or part E of title IV of the Social Security Act, that is responsible for the placement of foster or adoptive children.

4.

Penalties for coercion and enticement by sex offenders

Section 2422(a) of title 18, United States Code, is amended by striking or imprisoned not more than 20 years, or both and inserting and imprisoned not less than 10 years nor more than 30 years.

5.

Penalties for conduct relating to child prostitution

Section 2423 of title 18, United States Code, is amended— (1)in subsection (a), by striking 5 years and not more than 30 years and inserting 30 years or for life; (2)in subsection (b), by striking or imprisoned not more than 30 years, or both and inserting and imprisoned for not less than 10 years and not more than 30 years; (3)in subsection (c), by striking or imprisoned not more than 30 years, or both and inserting and imprisoned for not less than 10 years and not more than 30 years; and (4)in subsection (d), by striking imprisoned not more than 30 years, or both and inserting and imprisoned for not less than 10 nor more than 30 years.

6.

Penalties for sexual abuse

(a)

Aggravated sexual abuse

Section 2241 of title 18, United States Code, is amended— (1)in subsection (a), by striking , imprisoned for any term of years or life, or both and inserting and imprisoned for any term of years not less than 30 or for life; and (2)in subsection (b), by striking , imprisoned for any term of years or life, or both and inserting and imprisoned for any term of years not less than 25 or for life. (b)

Sexual abuse

Section 2242 of title 18, United States Code, is amended by striking , imprisoned not more than 20 years, or both and inserting and imprisoned not less than 15 years nor more than 40 years. (c)

Abusive sexual contact

Section 2244(a) of title 18, United States Code, is amended— (1)in paragraph (2), by striking , imprisoned not more than three years, or both and inserting and imprisoned not less than 5 years nor more than 30 years; (2)in paragraph (3), by striking , imprisoned not more than two years, or both and inserting and imprisoned not less than 4 years nor more than 20 years; and (3)in paragraph (4), by striking , imprisoned not more than six months, or both and inserting and imprisoned not less than 2 years nor more than 10 years.

7.

Sex offender submission to search as condition of release

(a)

Conditions of probation

Section 3563(a) of title 18, United States Code, is amended—— (1)in paragraph (8), by striking and at the end; (2)in paragraph (9), by striking the period and inserting ; and; and (3)by inserting after paragraph (9) the following: (10)for a person who is a felon or required to register under the Sex Offender Registration and Notification Act, that the person submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.. (b)

Supervised release

Section 3583(d) of title 18, United States Code, is amended by inserting after 1994). the following: The court shall order, as an explicit condition of supervised release for a person who is a felon or required to register under the Sex Offender Registration and Notification Act, that the person submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.

8.

Kidnapping penalties and jurisdiction

Section 1201 of title 18, United States Code, is amended— (1)in subsection (a)(1), by striking if the person was alive when the transportation began and inserting , or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense; and (2)in subsection (b), by striking to interstate and inserting in interstate.

9.

Marital communication and adverse spousal privilege

(a)

In general

Chapter 119 of title 28, United States Code, is amended by inserting after section 1826 the following:

1826A.

Marital communications and adverse spousal privilege

The confidential marital communication privilege and the adverse spousal privilege shall be inapplicable in any Federal proceeding in which a spouse is charged with a crime against— (1)a child of either spouse; or (2)a child under the custody or control of either spouse.

. (b)

Technical and conforming amendment

The table of sections for chapter 119 of title 28, United States Code, is amended by inserting after the item relating to section 1826 the following: 1826A. Marital communications and adverse spousal privilege.

10.

Abuse and neglect of Indian children

Section 1153(a) of title 18, United States Code, is amended by inserting felony child abuse or neglect, after years,.

11.

Civil commitment

Chapter 313 of title 18, United States Code, is amended— (1)in the chapter analysis— (A)in the item relating to section 4241, by inserting or to undergo postrelease proceedings after trial; and (B)by inserting at the end the following: 4248. Civil commitment of a sexually dangerous person; (2)in section 4241— (A)in the heading, by inserting or to undergo postrelease proceedings after trial; (B)in the first sentence of subsection (a), by inserting or at any time after the commencement of probation or supervised release and prior to the completion of the sentence, after defendant,; (C)in subsection (d)— (i)by striking trial to proceed each place it appears and inserting proceedings to go forward; and (ii)by striking section 4246 and inserting sections 4246 and 4248; and (D)in subsection (e)— (i)by inserting or other proceedings after trial; and (ii)by striking chapter 207 and inserting chapters 207 and 227; (3)in section 4247— (A)by striking , or 4246 each place it appears and inserting , 4246, or 4248; (B)in subsections (g) and (i), by striking 4243 or 4246 each place it appears and inserting 4243, 4246, or 4248; (C)in subsection (a)— (i)by amending subparagraph (1)(C) to read as follows: (C)drug, alcohol, and sex offender treatment programs, and other treatment programs that will assist the individual in overcoming a psychological or physical dependence or any condition that makes the individual dangerous to others; and; (ii)in paragraph (2), by striking and at the end; (iii)in paragraph (3), by striking the period at the end and inserting ; and; and (iv)by inserting at the end the following: (4)bodily injury includes sexual abuse; (5)sexually dangerous person means a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others; and (6)sexually dangerous to others means that a person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.; (D)in subsection (b), by striking 4245 or 4246 and inserting 4245, 4246, or 4248; and (E)in subsection (c)(4)— (i)by redesignating subparagraphs (D) and (E) as subparagraphs (E) and (F) respectively; and (ii)by inserting after subparagraph (C) the following: (D)if the examination is ordered under section 4248, whether the person is a sexually dangerous person;; and (4)by inserting at the end the following:

4248.

Civil commitment of a sexually dangerous person

(a)

Institution of proceedings

In relation to a person who is in the custody of the Bureau of Prisons, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined. The clerk shall send a copy of the certificate to the person, and to the attorney for the Government, and, if the person was committed pursuant to section 4241(d), to the clerk of the court that ordered the commitment. The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section. (b)

Psychiatric or psychological examination and report

Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). (c)

Hearing

The hearing shall be conducted pursuant to the provisions of section 4247(d). (d)

Determination and disposition

If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until— (1)such a State will assume such responsibility; or (2)the person’s condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment;whichever is earlier. The Attorney General shall make all reasonable efforts to have a State to assume such responsibility for the person’s custody, care, and treatment. (e)

Discharge

When the Director of the facility in which a person is placed pursuant to subsection (d) determines that the person’s condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person’s counsel and to the attorney for the Government. The court shall order the discharge of the person or, on motion of the attorney for the Government or on its own motion, shall hold a hearing, conducted pursuant to the provisions of section 4247(d), to determine whether he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the person’s condition is such that— (1)he will not be sexually dangerous to others if released unconditionally, the court shall order that he be immediately discharged; or (2)he will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the court shall— (A)order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility in which he is committed, and that has been found by the court to be appropriate; and (B)order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment. (f)

Revocation of conditional discharge

The director of a facility responsible for administering a regimen imposed on a person conditionally discharged under subsection (e) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that he is sexually dangerous to others in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment. (g)

Release to state of certain other persons

If the director of the facility in which a person is hospitalized or placed pursuant to this chapter certifies to the Attorney General that a person, against him all charges have been dismissed for reasons not related to the mental condition of the person, is a sexually dangerous person, the Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried for the purpose of institution of State proceedings for civil commitment. If neither such State will assume such responsibility, the Attorney General shall release the person upon receipt of notice from the State that it will not assume such responsibility, but not later than 10 days after certification by the director of the facility.

.

12.

Mandatory penalties for sex-trafficking of children

Section 1591(b) of title 18, United States Code, is amended— (1)in paragraph (1)— (A)by striking or imprisonment and inserting and imprisonment; (B)by inserting not less than 20 after any term of years; and (C)by striking , or both; and (2)in paragraph (2)— (A)by striking or imprisonment for not and inserting and imprisonment for not less than 10 years nor; and (B)by striking , or both.

13.

Sexual abuse of wards

Chapter 109A of title 18, United States Code, is amended— (1)in section 2243(b), by striking “one year” and inserting “five years”; (2)in section 2244(a)(4), by striking “six months” and inserting “two years”; (3)in section 2244(b), by striking “six months” and inserting “two years”; and (4)by inserting after “Federal prison,” each place it appears , other than the second sentence of section 2241(c), the following: “, or being in the custody of the Attorney General or the Bureau of Prisons or confined in any institution or facility by direction of the Attorney General or the Bureau of Prisons,”.