HO-CHUNK NATION CODE (HCC)

HO-CHUNK NATION CODE (HCC)

TITLE 9 – CRIMINAL CODE

SECTION 975 – SEX CRIMES

ENACTED BY LEGISLATURE: May 23, 2017

CITE AS: 9 HCC § 975

TABLE OF CONTENTS

975.001 Definition…………………………………………………………………………….... 1

975.01 End of commitments; declaration of policy…………………………………………….. 1

975.06 Commitment to the department………………………………………………………… 1

975.07 The effect of appeal from a judgment of conviction……………………………………. 3

975.08 Notice of commitments; treatment, transfer, use of other facilities…………………….. 3

975.09 Periodic examination………………………………………………………………….... 4

975.10 Parole………………………………………………………………………………….... 5

975.11 Duration of control……………………………………………………………………… 5

975.12 Termination of control………………………………………………………………..… 5

975.15 Review by court of orders of the department…………………………………………... 5

975.16 Appeal from judgment of committing court………………………………………….… 5

975.17 Option for resentencing…………………………………………………………………. 6

975.001

Definition. In this chapter, "department" means the department of health services.

975.01 End of commitments; declaration of policy.

(1) The Ho-Chunk Nation finds and declares that persons violating s. 940.225, 948.02, 948.025

or 948.06 or committing crimes when motivated by a desire for sexual excitement may be in

need of specialized treatment. The Ho-Chunk Nation intends that the department should provide

treatment for those persons.

975.06 Commitment to the department.

(1) (a) If the department recommends specialized treatment for the defendant's mental or

physical aberrations, the court shall order a hearing on the issue of the need for specialized

treatment unless such hearing is expressly waived by the defendant. The hearing shall be

conducted by the court or as provided in par. (b). The court may consider any department rule

establishing criteria for recommending specialized treatment. The defendant shall be afforded the

opportunity to appear with counsel; process to compel the attendance of witnesses and the

production of evidence; and a physician, or clinical psychologist of defendant's choosing to

examine the defendant and testify in defendant's behalf. If unable to provide counsel or expert

witness, the court shall appoint such to represent or examine the defendant.

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(b) The hearing shall be to a jury, unless the defendant waives a jury. The procedure shall

be substantially like a jury trial in a civil action. The judge may instruct the jurors in the law. No

verdict is valid or received unless agreed to and signed by five-sixths of the jurors. At the time of

ordering a jury to be summoned, the court shall fix the date of hearing, which date shall be not

less than 30 days nor more than 40 days after the demand for the jury was made. The court shall

submit to the jury the following form of verdict:

HO-CHUNK NATION

.... Court

Members of the Jury:

Do you find from the evidence that the defendant .... (Insert name) .... is in need of specialized

treatment? Answer "Yes" or "No".

(2) If, upon completion of the hearing as required in sub. (1), it is found that the defendant is in

need of specialized treatment the court shall commit the defendant to the department. The court

may stay execution of the commitment and place the defendant on probation under ch. 973 with

a condition of probation that the defendant receive treatment in a manner to be prescribed by the

court. If the defendant is not placed on probation, the court shall order the defendant conveyed

by the proper authorities, at Nation’s expense, to the sex crimes law facility designated by the

department.

(3) Probation under sub. (2) shall be construed as a commitment to the department for the

purposes of continuation of control as provided in this chapter.

(4) If, upon the completion of the hearing required in sub. (1), it is found that the defendant is

not in need of such specialized treatment the court shall sentence the defendant as provided in ch.

973.

(5) If records of the department are required for any hearing under this chapter, they shall be

made available upon a subpoena directed to the coordinator of the special review board of the

department, who may respond in person or designate an agent to produce the records of the

department.

(6) Persons committed under this section who are also encumbered with other sentences,

whether concurrent with or consecutive to the commitment, may be placed by the department in

any of the facilities listed in s. 975.08 (2) or (3) (a). Such facilities may be regarded as state

prisons for the purpose of beginning the other sentences, crediting time served on them, and

computing parole eligibility dates.

(7) If the defendant is not subject to a court order determining the defendant to be not competent

to refuse medication or treatment for the defendant's mental condition and if the facility to which

the defendant is conveyed under sub. (2) determines that the defendant should be subject to such

a court order, the facility may file with the court with notice to the counsel for the defendant, the

defendant and the tribal prosecutor, a motion for a hearing on whether the defendant is not

competent to refuse medication or treatment. A report on which the motion is based shall

accompany the motion and notice of motion and shall include a statement signed by a licensed

physician that asserts that the defendant needs medication or treatment and that the defendant is

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not competent to refuse medication or treatment, based on an examination of the defendant by a

licensed physician. Within 10 days after a motion is filed under this subsection, the court without

a jury shall determine the defendant's competency to refuse medication or treatment. At the

request of the defendant, the defendant's counsel or the tribal prosecutor, the hearing may be

postponed, but in no case may the postponed hearing be held more than 20 days after a motion is

filed under this subsection. If the tribal prosecutor, the defendant and defense counsel waive their

respective opportunities to present other evidence on the issue, the court shall determine without

a jury the defendant's competency to refuse medication or treatment on the basis of the report

accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary

hearing on the issue. Upon consent of all parties and approval by the court for good cause shown,

testimony may be received into the record of the hearing by telephone or live audiovisual means.

If the Nation proves by evidence that is clear and convincing that the defendant is not competent

to refuse medication or treatment, the court shall make a determination and issue as part of the

defendant's commitment order an order that the defendant is not competent to refuse medication

or treatment and that whoever administers the medication or treatment to the defendant shall

observe appropriate medical standards.

975.07 The effect of appeal from a judgment of conviction.

(1) The right of a defendant to appeal from the judgment of conviction is not affected by this

chapter.

(2) If a person who has been convicted and committed to the department appeals from a

conviction, the execution of the commitment to the department shall not be stayed by the appeal

except as provided in sub. (3).

(3) If the committing court is of the opinion that the appeal was taken in good faith and that the

question raised merits review by the appellate court, or when there has been filed with the court a

certificate that a judge of an appellate court is of the opinion that questions have been raised that

merit review, the judge of the court in which the person was convicted, or in the case of the

judge's incapacity to act, the judge by whom the certificate was filed, may direct that such person

be released on bond under such conditions as, in the judge's opinion, will insure the person's

submission to the control of the department at the proper time if it is determined on the appeal

that the department is entitled to custody.

975.08 Notice of commitments; treatment, transfer, use of other facilities.

(1) If a court commits a person to the department under s. 975.06 it shall at once notify the

department of such action in writing.

(2) The department shall then arrange for the person's treatment in the institution best suited in

its judgment to care for him or her. It may transfer him or her to or from any institution,

including any correctional institution with an authorized agreement approved by the legislature,

to provide for his or her needs and to protect the public. The department may irrespective of the

person's consent require him or her to participate in vocational, physical, educational and

correctional training and activities; may require such modes of life and conduct as seem best

adapted to fit him or her for return to full liberty without danger to the public; and may make use

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of other methods of treatment and any treatment conducive to the correction of the person and to

the prevention of future violations of law by him or her.

(3) (a) The department may make use of law enforcement, detention, parole, medical,

psychiatric, psychological, educational, correctional, segregative and other resources, institutions

and agencies, public or private, within the Nation. The department may enter into agreements

with public officials for separate care and special treatment, in existing institutions, of persons

subject to the control of the department under this chapter.

(b) Nothing contained in par. (a) gives the department any of the following:

1. Control over existing institutions or agencies not already under its control.

2. Power to make use of any private agency or institution without that agency's or

institution's consent.

(4) Placement of a person by the department in any institution or agency, not operated by the

department, or the person's discharge by such institution or agency, shall not terminate the

control of the department over the person. No person placed in such institution or agency may be

released therefrom except to the department or after approval of such release by the department.

975.09 Periodic examination.

(1) The department shall make periodic examinations of all persons within its control under s.

975.06 for the purpose of determining whether existing orders and dispositions in individual

cases should be modified or continued in force. These examinations may be made as frequently

as the department considers desirable and shall be made with respect to every person at intervals

not exceeding one year. The department shall keep written records of all examinations and of

conclusions predicated thereon, and of all orders concerning the disposition or treatment of every

person under its control. Failure of the department to examine a person committed to it or to

make periodic examination does not entitle the person to a discharge from the control of the

department, but does entitle the person to petition the committing court for an order of discharge,

and the court shall discharge the person unless it appears in accordance with sub. (3) that there is

necessity for further control.

(2) If the person petitions the court for discharge under sub. (1), the person may appear in court

with counsel and compel the attendance of witnesses and the production of evidence. The person

may have a physician or clinical psychologist of the person's choosing examine the person and

the medical records in the institution to which confined or at some suitable place designated by

the department. If unable to provide counsel, the court shall appoint counsel to represent the

person. Section 975.06 (1) governs the procedure of the hearing.

(3) If, after a hearing, it is found that discharge from the control of the department of the person

to whom the order applies would be dangerous to the public because of the person's mental or

physical deficiency, disorder or abnormality, the court shall dismiss the petition. If it is found

that discharge from the control of the department would not be dangerous to the public for the

causes stated, the court shall order that the person be discharged from the control of the

department.

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975.10 Parole.

(1) Any person committed as provided in this chapter may be paroled if it appears to the

satisfaction of the department of health services after recommendation by a special review board,

appointed by the department, a majority of whose members shall not be connected with the

department, that the person is capable of making an acceptable adjustment in society. Before a

person is released on parole under this section, the department of health services shall so notify

the Ho-Chunk police department, the municipal police department, and the county sheriff for the

area where the person will be residing. The notification requirement does not apply if a

municipal department or county sheriff submits to the department of health services a written

statement waiving the right to be notified. Probation, extended supervision and parole agents of

the Ho-Chunk Nation Probation and Parole shall supervise persons paroled under this section.

(2) If a parolee under sub. (1) violates the conditions of parole, probation and parole may initiate

a proceeding before the trial court. Unless waived by the parolee, the judge shall conduct a

hearing and enter an order either revoking or not revoking parole. If the parolee waives the

hearing, the judge shall enter an order either revoking or not revoking parole.

975.11 Duration of control. The department shall keep every person committed to it under s.

975.06 under its control and shall retain the person, subject to the limitations of s. 975.12 under

supervision and control, so long as in its judgment such control is necessary for the protection of

the public. The department shall discharge any such person as soon as in its opinion there is

reasonable probability that the person can be given full liberty without danger to the public, but

no person convicted of a felony shall, without the written approval of the committing court, be

discharged prior to 2 years after the date of the person's commitment.

975.12 Termination of control.

(1) Every person committed to the department under this chapter who has not been discharged

as provided in this chapter shall be discharged at the expiration of one year or the expiration of

the maximum term prescribed by the law for the offense for which he or she was committed

subject to sub. (2) and the credit provisions of s. 973.155, whichever period of time is greater,

unless the department has petitioned for civil commitment of the person under Wisconsin Statute

s. 51.20. For the purpose of this subsection, sentence shall begin at noon of the day of the

commitment by the court to the department.

(2) If the department is of the opinion that release would be dangerous to the public, it shall

petition for civil commitment under Wisconsin Statue s. 51.20.

975.15

Review by court of orders of the department. During any period of extended

control, but not more often than semiannually, a person may apply to the committing court for a

reexamination of his or her mental condition and the court shall fix a time for hearing the matter.

975.16 Appeal from judgment of committing court.

(1) If, under this chapter the court affirms an order of the department, the person whose liberty is

involved may appeal to the proper appellate court for a reversal or modification of the order. The

appeal shall be taken as provided by law for appeals to said court from the judgment of an

inferior court.

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(2) At the hearing of an appeal the appellate court may base its judgment upon the record, or it

may upon its own motion or at the request of either the appellant or the department refer the

matter back for the taking of additional evidence.

(3) The appellate court may confirm the order of the lower court, or modify it, or reverse it and

order the appellant to be discharged.

(4) Pending appeal the appellant shall remain under the control of the department.

975.17 Option for resentencing. A person who has been committed under ch. 975, or the

department, may petition the committing court for resentencing. A court shall act upon any

petition received, and resentencing shall be in accordance with ch. 973. The person shall be

given credit for time served pursuant to the commitment under this chapter.

Legislative History:

05/23/17

Legislature places the draft Sex Crimes Code out for 45 day public comment through

Resolution 02-21-17S.

05/23/17

Legislature enacts the Sex Crimes Code through Resolution 05/23/17J.