HB1640 (2008)

(2nd New Title) relative to the classification of convicted sex offenders and offenders against children.


Status: SIGNED BY GOVERNOR No/unknown committee assignment (Details)
Length: 7487 words.


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Revisions of this bill in our system:

 HouseSenate
Public hearing:2008-02-05 10:30:00 LOB 2042008-04-15 00:00:00
Executive session:2008-02-21 10:00:00(unscheduled)
Floor vote:2008-03-05 00:00:002008-05-08 00:00:00

CHAPTER 334

HB 1640-FN – FINAL VERSION

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05/08/08 1644s

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04Jun2008… 2151cofc

04Jun2008… 2186eba

2008 SESSION

08-2819

04/10

HOUSE BILL 1640-FN

AN ACT relative to the classification of convicted sex offenders and offenders against children.

SPONSORS: Rep. Dokmo, Hills 6; Rep. Charron, Rock 7; Rep. Shurtleff, Merr 10; Rep. L. Hammond, Graf 11; Sen. Roberge, Dist 9

COMMITTEE: Criminal Justice and Public Safety

AMENDED ANALYSIS

This bill:

I. Creates a tier system for classification of sexual offenders and offenders against children and revises the type of information which must be collected, the duration of registration, the verification of sex offender registry information, public access to such information, and penalties for failure to register.

II. Revises the definitions of “sexual contact” and “sexual penetration” for the purposes of sexual assault crimes.

III. Amends the elements of the crime of incest.

IV. Is a request of the study committee formed pursuant to 2006, 327:26 (HB 1692-FN).

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05Mar2008… 0742h

05/08/08 1644s

05/08/08 1770s

05/08/08 1794s

05/08/08 1778s

04Jun2008… 2151cofc

04Jun2008… 2186eba

08-2819

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT relative to the classification of convicted sex offenders and offenders against children.

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

334:1 Registration of Criminal Offenders. RSA 651-B:1 is repealed and reenacted to read as follows:

651-B:1 Definitions. In this chapter:

I. “Department” means the department of safety.

II. “Division” means the division of state police, department of safety.

III. “Local law enforcement agency” means the chief of police in the city or town where the person resides or is temporarily domiciled, or, if the municipality has no police chief or if the person resides in an unincorporated place, the division.

IV. “Sexual offender” means a person who is required to register for any sexual offense.

V. “Sexual offense” means the following offenses where the victim was 18 years of age or older at the time of the offense:

(a) Capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, I(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, 632-A:3; sexual assault, 632-A:4, I(a) or RSA 632-A:4, III; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I(a).

(b) A law of another state, country, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a). For purposes of this section, the term “country” refers to Canada, Great Britain, Australia, and New Zealand, as well as any other country that the United States State Department has determined has an independent judiciary that generally enforces the right to a fair trial.

(c) Any offense for which the offender is required to register in the state where the conviction occurred.

(d) Any other criminal offense which is not specifically listed in subparagraph (a) if the court finds by clear and convincing evidence at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification and protection of the public would be furthered by requiring the person to register. In determining whether the offender should be required to register, the court may consider the offender’s prior criminal history and any other relevant information. If the court determines that the offender should be required to register, the court shall determine whether the offender should be required to register pursuant to the requirements of a tier I, tier II, or tier III offender. In determining in which tier the offender should register, the court shall consider the nature of other offenses that are currently listed in each tier; the extent to which public safety would be furthered; whether the victim was a minor when the offense occurred; and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the finding. The court shall provide the defendant an opportunity to be heard on the issue prior to the imposition of the registration requirement and shall state on the record the reasons for its findings and the reasons for requiring registration.

VI. “Offender against children” means a person who is required to register for an offense against a child.

VII. “Offense against a child” means the following offenses:

(a) Any of the following offenses, where the victim was under the age of 18 at the time of the offense: capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, 1(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, RSA 632-A:3; sexual assault, RSA 632-A:4, I(a) or RSA 632-A:4, III; kidnapping, RSA 633:1; criminal restraint, RSA 633:2; false imprisonment, RSA 633:3; incest, RSA 639:2; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, 1(a); indecent exposure and lewdness, RSA 645:1, I(b), RSA 645:1, II, and RSA 645:1, III; or prostitution, RSA 645:2.

(b) Intentional contribution to the delinquency of a minor, RSA 169-B:41, II; sexual assault, RSA 632-A:4, I(b) if the actor was 18 years of age or older at the time of the offense, endangering the welfare of a child, RSA 639:3, III; child pornography, RSA 649-A:3; computer pornography, RSA 649-B:3; certain uses of computer services prohibited, RSA 649-B:4; or obscene matters, RSA 650:2, II.

(c) A law of another state, country, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a) or (b). For purposes of this section, the term “country” refers to Canada, Great Britain, Australia, and New Zealand, as well as any other country that the United States State Department has determined has an independent judiciary that generally enforces the right to a fair trial.

(d) Any offense involving a victim under the age of 18 for which the offender is required to register in the state where the conviction occurred.

(e) Any other criminal offense which is not specifically listed in subparagraph (a) if the court finds by clear and convincing evidence at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification and protection of the public would be furthered by requiring the person to register. In determining whether the offender is required to register, the court may consider the offender’s prior criminal history and any other relevant information. If the court determines that the offender is required to register, the court shall determine if the offender shall register as a tier I, tier II, or tier III offender. In determining the tier in which the offender is to be registered, the court shall consider the nature of other offenses that are currently listed in each tier, the extent to which public safety would be furthered, whether the victim was a minor when the offense occurred, and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the findings. The defendant shall have the opportunity to be heard prior to the imposition of the registration requirement, and the court shall state on the record the reasons for its findings and the reasons for requiring registration.

VIII. “Tier I offender” means a sexual offender or offender against children who is required to register pursuant to RSA 651-B:1, V(d) or RSA 651-B:1, VII(e), or is required to register as a result of any of the following offenses:

(a) RSA 632-A:4, I(a); RSA 632-A:4, I(b); RSA 632-A:4, III; RSA 644:9, I(a); RSA 644:9, III-a; a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I(a); or RSA 645:1, I(b).

(b) A law of another state, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a).

(c) Any out-of-state offense for which the offender is required to register in the state where the conviction occurred and the division determines the offender is a tier I offender.

(d) Any offense not listed in subparagraph (a) where the court determined the offender is a tier I offender and required the offender to register.

IX. “Tier II offender” means a sexual offender or offender against children who is required to register pursuant to RSA 651-B:1, V(d) or RSA 651-B:1, VII(e), or is required to register as a result of any of the following offenses:

(a) RSA 169-B:41, II; RSA 632-A:3, I; RSA 632-A:3, II; RSA 632-A:3, IV; RSA 633:2; RSA 633:3; RSA 639:3, III; RSA 645:1, II; RSA 645:1, III; RSA 645:2; RSA 649-A:3; RSA 649-B:3; RSA 649-B:4; or RSA 650:2.

(b) A law of another state, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a).

(c) Any out-of-state offense for which the offender is required to register in the state where the conviction occurred and the division determines the offender is a tier II offender.

(d) The offender is required to register as a result of more than one sexual offense or offense against a child.

(e) Any offense not listed in subparagraph (a) where the court determined the offender is a tier II offender and required the offender to register.

X. “Tier III offender” means a sexual offender or offender against children who is required to register pursuant to RSA 651-B:1, V(d) or RSA 651-B:I, VII(e), or is required to register as a result of any of the following:

(a) RSA 630:1, I(e), RSA 630:1-a, I(b)(1), RSA 632-A:2, RSA 632-A:3, III, or RSA 633:1.

(b) Any sexual offense or offense against a child if the offender was sentenced to an extended term of imprisonment pursuant to RSA 651:6.

(c) Any person civilly committed as a sexually violent predator pursuant to RSA 135-E.

(d) A law of another state, territory, tribal territory, or the federal government reasonably equivalent to a violation listed in subparagraph (a).

(e) Any out-of-state offense for which the offender is required to register in the state where the conviction occurred, and the division determines the offender is a tier III offender.

(f) The offender is required to register as a result of more than 2 sexual offenses or offenses against a child.

(g) Any offense not listed in subparagraph (a) where the court determined the offender is a tier III offender and required the offender to register.

XI.(a) “Required to register” means that a sexual offender or offender against children was charged with an offense or an attempt, conspiracy, solicitation, or as an accomplice to commit a sexual offense or offense against a child that resulted in one of the following outcomes:

(1) Conviction.

(2) A finding of not guilty by reason of insanity.

(3) An adjudication as a juvenile delinquent and the court at the time of the dispositional hearing finds, pursuant to RSA 169-B:19, that the juvenile is required to register.

(4) An adjudication of juvenile delinquency or its equivalent in another state or territory of the United States if the juvenile is required to register under the laws of that jurisdiction.

(5) An order committing the person as a sexually violent predator pursuant to RSA 135-E.

(b) A juvenile certified to stand trial as an adult, who is convicted, found not guilty by reason of insanity, or committed as a sexually violent predator, shall be treated as an adult for all purposes under this chapter.

XII. “SOR system” means the division of state police sex offender registry system.

XIII. Notwithstanding RSA 21:6-a, “residence” means a place where a person is living or temporarily staying for more than a total of 5 days during a one-month period, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.

334:2 Registration of Criminal Offenders; Registration. Amend RSA 651-B:2, II-III to read as follows:

II. Upon receipt of information pursuant to RSA 106-B:14 concerning the disposition of any charges against any sex offender or offender against children, the division shall register such person and shall include the relevant information in the [law enforcement name search (LENS)] SOR system.

III. Upon receipt from any out-of-state law enforcement agency of information that a sex offender or offender against children has moved to New Hampshire, the division shall register such person and shall include the relevant information in the [LENS] SOR system.

334:3 Registration of Criminal Offenders; Release of Certain Sexual Offenders into the Community. Amend RSA 651-B:3 to read as follows:

651-B:3 Release of Certain Sexual Offenders Into the Community; Duties.

I.(a) When a person is convicted of a sexual offense or offense against a child that results in the person being required to register, the court shall notify the offender in writing and advise the offender of his or her duty to report under this chapter. The offender shall acknowledge in writing that he or she has received such notice. The court shall forward a copy of the notice to the division along with a copy of each offense for which he or she was convicted, including a copy of any indictment, complaint, juvenile petition, mittimus, or other court orders. The division shall enter such information into the SOR system.

(b) Upon release of any sexual offender or offender against children required to register, whether on probation, parole, conditional or unconditional release, completion of sentence, release from secure psychiatric care, release into the community after involuntary commitment, release from a juvenile detention facility, or for any other reason, the official in charge of such release shall notify the offender of the offender’s duty to report under this chapter. The offender shall acknowledge in writing that he has received such notice. The official shall obtain the address at which the offender expects to reside upon release and shall report such address to the department. The department shall inform the local law enforcement agency in the city or town where the offender expects to reside. The local law enforcement agency in the city or town where the offender expects to reside may notify the superintendent of the school administrative unit and the principal of any school within its jurisdiction of the address at which the offender expects to reside. If such notification occurs, the local law enforcement agency shall also notify the superintendent of the school administrative unit and the principal of any school within its jurisdiction of any changes to the offender’s information made pursuant to RSA 651-B:5. The division shall enter the information concerning the offender’s release and notification in the [LENS] SOR system.

II. Upon receipt from any out-of-state law enforcement agency of information that a sex offender or offender against children has moved to New Hampshire, the department shall obtain the address at which the offender expects to reside and shall inform the local law enforcement agency. The local law enforcement agency in the city or town where the offender expects to reside may notify the superintendent of the school administrative unit and the principal of any school within its jurisdiction of the address at which the offender expects to reside. The department shall locate and shall serve notice upon such offender of the offender’s duty to report under this chapter. Service by the department is not required if the offender has already registered with the local law enforcement agency in which the offender resides or is located as required by this chapter. At the time of the initial registration, the offender shall acknowledge in writing that the offender has received notice of the duty to report. The division shall enter the information concerning the offender’s location in New Hampshire and notification in the [LENS] SOR system. This paragraph shall not apply to a sexual offender or offender against children who has moved to New Hampshire and has registered with a local law enforcement agency.

III. Semi-annually, the department shall verify, in person, the address at which the offender resides or by sending a letter by certified non-forwarding mail to the offender. The address verification shall [be sent to the offender] occur prior to the offender’s birthday and again prior to the offender’s 6-month semi-annual registration. The address verification shall remind the offender of the obligation to register in person [on a semi-annual basis]. The offender shall sign the address verification [letter] and return it to the officer, if the address verification was made in person, or to the department within 10 business days of receipt. [If the offender’s mailing address is to a post-office box, the department shall deliver by other means as determined by the department a letter to the offender’s residence. The offender shall sign and return the letter within 10 business days of receipt.]

334:4 Registration of Criminal Offenders. RSA 651-B:4 through RSA 651-B:7 are repealed and reenacted to read as follows:

651-B:4 Duty to Report.

I. Any sexual offender or offender against children residing in this state shall report in person to the local law enforcement agency. The offender shall report in person as set forth in this section within 5 business days after the person’s release, or within 5 business days after the person’s date of establishment of residence, employment, or schooling in New Hampshire. If an offender has more than one residence, the offender shall report in person to the local law enforcement agency having jurisdiction over his or her primary residence and report the addresses of all his or her residences, including those outside of New Hampshire. The division shall notify the local law enforcement agencies having jurisdiction over the offender’s other residences of the offender’s address in their jurisdiction. Thereafter, the offender shall report as follows:

(a) Every tier III offender shall report in person quarterly, within 5 business days after each anniversary of the offender’s date of birth and every 3 months thereafter.

(b) Every tier I and tier II offender shall report in person semi-annually, within 5 business days after each anniversary of the offender’s date of birth and every 6 months thereafter.

II. Any nonresident offender shall report in person to the local law enforcement agency having jurisdiction over the place of employment or school. In the event a nonresident offender required to register under this paragraph does not have a principal place of employment in this state, the offender shall register in person with the department in Concord.

III. Each time a sexual offender or offender against children is required to report, the offender shall provide the following information:

(a) Name, aliases, electronic mail addresses, and any instant messaging, chat, or other Internet communication name identities.

(b) Address of any permanent residence and address of any current temporary residence, within the state or out-of-state, and mailing address. A post office box shall not be provided in lieu of a physical residential address. If the offender cannot provide a definite address, he or she shall provide information about all places where he or she habitually lives.

(c) Name, address, and date of any employment or schooling. For purposes of this section, the term “employment” includes volunteer work or work without remuneration. If the offender does not have a fixed place of work, he or she shall provide information about all places he or she generally works, and any regular routes of travel.

(d) Any professional licenses or certifications that authorize the offender to engage in an occupation or carry out a trade or business.

(e) Vehicle make, model, color, and license plate number and state of registration of any vehicle owned or regularly driven by the offender, and the place or places where such vehicles are regularly kept.

(f) Date of birth, including any alias date of birth used by the offender.

(g) Social security number.

(h) Physical description to include identifying marks such as scars and tattoos.

(i) Telephone numbers for both fixed location and cell phones.

(j) Passport, travel, and immigration documents.

(k) The name, address, and phone number of any landlord, if the offender resides in rental property.

IV. In addition to the information required pursuant to paragraph III, the department, at the time of the offender’s registration, may require the offender to submit the following:

(a) 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) A DNA sample, if such sample has not already been provided.

(c) A set of major case prints, including fingerprints and palm prints of the offender.

(d) A photocopy of a valid driver’s license or identification card issued to the offender. The consent of the registrant shall not be necessary to obtain this information. Such information may be used in the performance of any valid law enforcement function.

V. At periodic intervals, not less frequently than once each month, the commissioner of the department of corrections, the superintendent of each county department of corrections, and the commissioner of the department of health and human services shall forward to the division a statement identifying every sexual offender and offender against children who is confined in a facility under its control and who is eligible for any unsupervised work detail, release into the community following secure psychiatric care, or other assignment which may bring the offender into contact with members of the public. These statements shall include the information required in paragraph III and may include the information set forth in paragraph IV. In no event shall the statements include the identity of any victim.

VI. In addition to the requirements imposed under this section, the following provisions shall apply to any sexual offender or offender against children who is sentenced to an extended term of imprisonment pursuant to RSA 651:6, I(b):

(a) Every 90 days after the date of the offender’s initial release or commencement of parole, the department shall mail a nonforwardable verification form to the offender’s last reported address.

(b) The offender shall mail the verification form to the department within 10 days after receipt of the form.

(c) The verification form shall be signed by the offender, and state that the offender still resides at the address last reported to the local law enforcement agency.

651-B:5 Change of Registration Information; Duty to Inform.

I. When there is a change to any of the information that a sexual offender or offender against children is required to report pursuant to this chapter, the offender shall give written notification of the new information to the local law enforcement agency to which he or she last reported under RSA 651-B:4 within 5 business days of such change of information. In addition, any time a sex offender or offender against children changes residence, employment, or schooling, the offender shall report in person to the local law enforcement agency having jurisdiction over the offender’s previous place of residence, place of employment, or school within 5 business days. The local law enforcement agency receiving notice of the change of registration information shall forward a copy to the division within 5 days after receipt. The division shall notify the local law enforcement agency at the new place of residence, place of employment, or school, or the appropriate out-of-state law enforcement agency if the new place of residence, place of employment, or school is outside New Hampshire. The division shall include any new information in the SOR system.

II. Upon receipt of notice that an offender has changed residence, employment, or schooling to a place outside New Hampshire, the division shall notify the appropriate out-of-state law enforcement agency of that information. Within 10 business days after reporting the change of residence, employment, or schooling to the New Hampshire law enforcement agency, the offender shall report to the appropriate out-of-state law enforcement agency having jurisdiction over the new place of residence, place of employment, or school. If the offender fails to report to the appropriate out-of-state law enforcement agency the division shall maintain the offender’s information in the SOR system.

III. The local law enforcement agency in the city or town where the offender resides may notify the superintendent of the school administrative unit and the principal of any school within its jurisdiction of a new place of residence, a change of name, or a change of an alias, of a person required to be registered under this chapter.

651-B:6 Duration of Registration.

I. All tier II or tier III offenders shall be registered for life.

II. All tier I offenders shall be registered for a 10-year period from the date of release, provided that any such registration period shall not run concurrently with any registration period resulting from a subsequent violation or attempted violation of an offense for which the person is required to register.

III.(a)(1) All tier III offenders shall remain on the public list contained in RSA 651-B:7 for life.

(2) A tier II offender may petition the superior court to have his or her name and information removed from the public list. The petition shall not be filed prior to the completion of all the terms and conditions of the sentence and in no case earlier than 15 years after the date of release. The petition shall be accompanied by a risk assessment prepared by a qualified psychiatrist or psychologist at the offender’s expense. The court may grant the petition if the offender has not been convicted of any felony, class A misdemeanor, sex offense, or offense against a child, has successfully completed any periods of supervised release, probation, or parole, and has successfully completed an appropriate sex offender treatment program as determined by the court. If the court denies the petition, the offender shall not file another petition for 5 years from the date of denial.

(3) A tier I offender may petition the superior court to have his or her name and other information removed from the public list. The petition shall not be filed prior to the completion of all the terms and conditions of the sentence and in no case earlier than 5 years after the date of release. The petition shall be accompanied by a risk assessment prepared by a qualified psychiatrist or psychologist at the offender’s expense. The court may grant the petition if the offender has not been convicted of any felony, class A misdemeanor, sexual offense, or offense against a child, has successfully completed any periods of supervised release, probation, or parole, and has successfully completed an appropriate sex offender treatment program as determined by the court.

(b) Prior to granting any petition to remove an offender from the public list, the court shall provide notice to the county attorney who prosecuted the case, the victim advocate, and the victim or victim’s family, and permit those parties to be heard on the petition. 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, or may provide a written statement to reasonably express his or her views concerning the offense, the person responsible, and the need for maintaining the registration 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 registration requirements will assist the individual in the individual’s rehabilitation and will be consistent with the public welfare.

IV. Registration of any juvenile required to register pursuant to RSA 651-B:1, XI (a)(3) or (4) shall end when the juvenile turns 17 years of age unless the court which adjudicated the juvenile as a delinquent retains jurisdiction over the juvenile pursuant to RSA 169-B:4, V, in which case registration of the juvenile shall end when the court terminates jurisdiction over the juvenile’s case. When the registration of a juvenile terminates, the department shall remove information relating to the juvenile from the SOR system and records of the juvenile’s registration shall be handled in accordance with RSA 169-B:35 and RSA 169-B:36.

651-B:7 Availability of Information to the Public and Law Enforcement.

I. Except as provided in this section, the records established and information collected pursuant to the provisions of this chapter shall not be considered “public records” subject to inspection under RSA 91-A:4. However, nothing in this chapter shall be construed to limit any law enforcement agency from making any use or disclosure of any such information as may be necessary for the performance of a valid law enforcement function. Nothing in this chapter shall be construed to limit an individual’s ability to obtain access to the individual’s own records, or to limit access to a person’s criminal record under the provisions of RSA 106-B:14, including address information obtained under the provisions of this chapter.

II. The division shall maintain a list of all tier I, tier II, and tier III offenders required to register pursuant to this chapter. The list shall also include all offenders about whom the division receives notice pursuant to RSA 651-B:4, V. In addition to the information contained on the public list pursuant to paragraph III, the law enforcement list shall include all information reported to the local law enforcement agency or the department pursuant to RSA 651-B:4. In addition, the information shall include the text of the statute under which the offender was convicted and the criminal history of the offender. The list maintained pursuant to this paragraph shall not be available to the public but shall be available to law enforcement officials for valid law enforcement purposes.

III.(a) The division shall maintain a separate public list of all tier I, tier II, and tier III offenders who are required to register as a result of an offense against a child, any offenders about whom the division receives notice pursuant to RSA 651-B:4, V that will be required to register as a result of an offense against children, and any offender who is required to register for more than one sexual offense or offense against a child. The public list shall include all of the following information:

(1) Offender’s name, alias, age, race, sex, date of birth, height, weight, hair and eye color, and any other relevant physical description.

(2) Address of any permanent residence and address of any temporary residence, within the state or out-of-state.

(3) The offense for which the individual is required to register and the text of the provision of law defining the offense, and any other sex offense for which the individual has been convicted.

(4) The date and court of the adjudication on the offense for which the individual is registered.

(5) Outstanding arrest warrants, and the information listed in subparagraphs (a)(1)-(3), for any sexual offender or offender against children who has not complied with the obligation to register under this chapter.

(6) Criminal history of the offender, including the date of all convictions and the status of parole, probation, or supervised release, and registration status.

(7) A photograph of the individual.

(8) The address of any place where the individual is or will be a student.

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

(1) Information on the profile of the victim of the individual’s offense.

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

(c) The public list shall not include:

(1) The identity of any victim either directly or indirectly. Sexual offenders convicted under RSA 632-A:2 shall be listed on the public list in a manner which does not disclose, directly or indirectly, that the victim and the defendant were related or members of the same household. For sexual offenders convicted under RSA 632-A:2, I, no specific reference to any statutory subparagraph shall appear on the public list.

(2) The social security number of the offender.

(3) Arrests of the offender which did not result in a conviction.

(4) The name of the employer or school which the offender attends.

(5) Information about a juvenile delinquent required to register pursuant to RSA 651-B:1, XI (a)(3) or (4).

IV.(a) The public list shall be made available to interested members of the public upon request to a local law enforcement agency. The department of safety shall also make the list available to the public through the use of the department’s official public Internet website. The Internet website shall be available to the public in a manner that will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user. The website may include additional search parameters as determined by the department.

(b) Local law enforcement agencies may photograph, at the time of the registration, any individual who is required to be registered pursuant to this chapter. The consent of the registrant shall not be necessary. Such photographs may be used in the performance of any valid law enforcement function.

(c) In the discretion of the local law enforcement agency, such agency may affirmatively notify the public that an offender who is included on the public list received by the agency pursuant to subparagraph IV(a) is residing in the community.

V. Local law enforcement agencies, employees of local law enforcement agencies, county and state officials, municipal and school officials, and municipalities and school districts shall be immune from civil and criminal liability for good faith conduct under this chapter, including any decision to provide or not provide affirmative notification to the public pursuant to subparagraph IV(c). Nothing in this paragraph shall be deemed to grant any such immunity to any person for that person’s reckless or wanton conduct.

VI.(a) Any individual required to be registered whose name and information is contained on the public list described in paragraph III and who is required to register as a result of any violation or attempted violation of RSA 632-A:3, II in effect prior to January 1, 2007, or RSA 632-A:2, III if the acts constituting the pattern were in violation of RSA 632-A:3, II in effect prior to January 1, 2007, provided that the age difference between the individual required to register and the victim was 4 years or less at the time of the offense and the person has no prior adjudications 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 5 years after the date of release. After review of the application, the court may schedule a hearing. Prior to granting any petition to remove an offender from the public list, the court shall provide notice to the county attorney who prosecuted the case, the victim advocate, and the victim or victim’s family and permit those parties to be heard on the petition. If the court denies the offender’s petition, the offender may not file another application pursuant to this paragraph for 5 years from the date of the denial and shall include a risk assessment prepared at the offender’s expense.

(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.

334:5 Registration of Criminal Offenders. Amend RSA 651-B:9, IV to read as follows:

IV. The penalties imposed under paragraphs I-III shall not apply to juveniles required to register pursuant to RSA 651-B:1, [VII(a)(3) or (4)] XI(a)(3) or (4). The court with jurisdiction over such juveniles may impose an appropriate disposition for a violation of this section.

334:6 Registration of Criminal Offenders; Hearing and Fees. RSA 651-B:10 and RSA 651-B:11 are repealed and reenacted to read as follows:

651-B:10 Hearing.

I. Any offender required to register for an offense committed in another state, country, territory, or tribal territory, or under federal law that is determined to be a reasonably equivalent offense to an offense listed RSA 651-B:1, V(a) or RSA 651-B:1, VII(a) or (b) may appeal that determination to the commissioner. The offender shall, 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. The offender shall have the right to appeal the commissioner’s decision in superior court.

II. Any offender required to register for an offense in the state of conviction pursuant to RSA 651-B:1, V(c), RSA 651-B:1, VII(d), or RSA 651-B:1, XI(a)(4) may petition the superior court for a hearing to review the registration requirement. In determining whether the offender should be required to register, the court may consider the facts of underlying the out-of-state conviction, the offender’s prior criminal history, the extent to which public safety would be furthered by requiring the offender to register, and any other relevant information. If the court determines that the offender is required to register, the court shall determine whether the offender is required to register as a tier I, tier II, or tier III offender. In determining the appropriate tier, the court shall consider the nature of other offenses that are currently listed in each tier, the seriousness of the offender’s offense, the extent to which public safety would be furthered, whether the victim was a minor when the offense occurred, and any other relevant factors. The hearing at which such a determination is made shall comply with due process requirements, including a right to appeal the findings. The court shall provide the defendant an opportunity to be heard on the issue and shall state on the record the reasons for its findings and the reasons for requiring registration.

651-B:11 Registration Fee.

I. An offender shall pay a fee of $50 to the department within 10 days of the registration that occurs within the month of the anniversary of his or her birth. Such payment shall be made in person or shall be mailed to the department. The department shall retain $40 of this amount to be used to defray the costs of maintaining the sex offender registry. Such funds shall be nonlapsing and shall be continually appropriated to the department for such use. The department shall forward the remaining $10 to the law enforcement agency which registered the offender within the month of the anniversary of the offender’s birth to defray any costs associated with implementing the provisions of this chapter. The department shall forward these fees to the registering law enforcement agencies in a manner determined by the department but no less frequently than once a year.

II. An offender who cannot afford to pay the fee shall, within 10 days of registration, request a waiver of the fee and a hearing on the matter before the commissioner. In order to be considered for a waiver, the offender shall submit a financial affidavit on a form provided by the department. The division may at its discretion request such a waiver on behalf of an offender. If such a request is made, the commissioner shall promptly schedule and conduct a hearing pursuant to rules adopted under RSA 541-A, unless the commissioner or commissioner’s designee determines a hearing is not necessary and waives the fee based on the offender’s financial affidavit, or at the written request of the division. At the hearing, the burden shall be on the offender to prove that he or she is indigent. The offender may appeal the commissioner’s decision to the superior court. Under no circumstances shall the offender’s request for a hearing or indigency relieve the offender of the obligation to register as required pursuant to this chapter.

III. Notwithstanding RSA 651-B:9, an offender who violates the provisions of this section shall be guilty of a violation for a first offense and a misdemeanor for a second or subsequent offense.

334:7 New Paragraph; Violation of Privacy. Amend RSA 644:9 by inserting after paragraph III the following new paragraph:

III-a. A person is guilty of a misdemeanor if, for the purpose of arousing or gratifying the person’s sexual desire, he or she knowingly views another person, without that person’s knowledge or consent, in a place where one would have a reasonable expectation of privacy. For purposes of this paragraph, “views” means looking at another person with the unaided eye or any device intended to improve visual acuity.

334:8 Sexual Assault and Related Offenses; Definitions. Amend RSA 632-A:1, IV-V to read as follows:

IV. “Sexual contact” means the intentional touching whether directly, through clothing, or otherwise, of the victim’s or actor’s sexual or intimate parts, including emissions, tongue, anus, breasts, and buttocks. Sexual contact includes only that aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification.

V.(a) “Sexual penetration” means:

[(a)] (1) Sexual intercourse; or

[(b)] (2) Cunnilingus; or

[(c)] (3) Fellatio; or

[(d)] (4) Anal intercourse; or

[(e)] (5) Any intrusion, however slight, of any part of the actor’s body, including emissions, or any object manipulated by the actor into genital or anal openings of the victim’s body; or

[(f)] (6) Any intrusion, however slight, of any part of the victim’s body, including emissions, or any object manipulated by the victim into the oral, genital, or anal openings of the actor’s body; or

[(g)] (7) Any act which forces, coerces, or intimidates the victim to perform any sexual penetration as defined in subparagraphs [(a)-(f)] (1)-(6) on the actor, on another person, or on himself.

[(h)] (b) Emissions include semen, urine, and feces. Emission is not required as an element of any form of sexual penetration.

(c) “Objects” include animals as defined in RSA 644:8, II.

334:9 Felonious Sexual Assault. Amend RSA 632-A:3, II to read as follows:

II. Engages in sexual penetration with a person, other than his 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] 4 years or more; or

334:10 Offenses Against the Family; Incest. Amend RSA 639:2, I to read as follows:

I. A person is guilty of a class B felony if he or she marries or [has sexual intercourse] engages in sexual penetration as defined in RSA 632-A:1, V, or lives together with, under the representation of being married, a person 18 years or older whom he or she knows to be his or her ancestor, descendant, brother, or sister, of the whole or half blood, or an uncle, aunt, nephew, or niece; provided, however, that no person under the age of 18 shall be liable under this section if the other party is at least 3 years older at the time of the act. The relationships referred to herein include blood relationships without regard to legitimacy, stepchildren, and relationships of parent and child by adoption.

334:11 License Suspension and Revocation. Amend the section heading of RSA 263:56-a to read as follows:

263:56-a Suspension or Revocation for Default, Noncompliance, or Nonpayment of Fine.

334:12 New Subparagraph; License Suspension and Revocation. Amend RSA 263:56-a, I by inserting after subparagraph (d) the following new subparagraph:

(e) Is a sexual offender as defined in RSA 651-B:1, IV or an offender against children as defined in RSA 651-B:1, VI, and fails to comply with the registration requirements under RSA 651-B, and where the failure to comply persists for more than 30 days, the offender’s driver’s license or resident or nonresident driving privileges shall be suspended or revoked by the director under this section, provided, that the department shall first attempt to notify the offender in person, or by first class mail, return receipt requested, sent to the offender’s last known address, that he or she is in violation of the registration requirements and that his or her driving privileges will be suspended or revoked if he or she fails to comply with the registration requirements within 15 days of the department’s attempted notice of noncompliance.

334:13 New Paragraph; Aggravated Felonious Sexual Assault; Blood Relationships. Amend RSA 632-A:2 by inserting after paragraph III the following new paragraph:

IV. A person is guilty of aggravated felonious sexual assault when such person engages in sexual penetration as defined in RSA 632-A:1, V with another person under 18 years of age whom such person knows to be his or her ancestor, descendant, brother or sister of the whole or half blood, uncle, aunt, nephew, or niece. The relationships referred to herein include blood relationships without regard to legitimacy, stepchildren, and relationships of parent and child by adoption.

334:14 Sexual Assault. Amend RSA 632-A:4, I(c) to read as follows:

(c) 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] 4 years or less.

334:15 Effective Date. This act shall take effect January 1, 2009.

Approved: July 7, 2008

Effective Date: January 1, 2009