Section 980.01. Definitions.

  In this chapter:

(1b)  “Act of sexual violence" means conduct that constitutes the commission of a sexually violent offense.

(1d)  “Agency with jurisdiction" means the agency with the authority or duty to release or discharge the person.

(1e)  “Assisted living facility" has the meaning given in s. 101.123 (1) (ab) .

(1g)  “Child care facility" means a child care facility that is operated by a person licensed under s. 48.65 or certified under s. 48.651 or that is established or contracted for under s. 120.13 (14) .

(1h)  “Department" means the department of health services.

(1j)  “Incarceration" includes confinement in a juvenile correctional facility, as defined in s. 938.02 (10p) , or a secured residential care center for children and youth, as defined in s. 938.02 (15g) , if the person was placed in the facility for being adjudicated delinquent under s. 48.34 , 1993 stats., or under s. 938.183 or 938.34 on the basis of a sexually violent offense.

(1m)  “Likely" means more likely than not.

(2)  “Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.

(2m)  “Nursing home" has the meaning given in s. 50.01 (3) .

(3)  “Petitioner" means the agency or person that filed a petition under s. 980.02 .

(3d)  “Place of worship" means a church building where religious services are held.

(3g)  “Public park" means a park or playground that is owned or maintained by the state or by a city, village, town, or county.

(3m)  “School premises" has the meaning given in s. 948.61 (1) (c) .

(4)  “Secretary" means the secretary of health services.

(4m)  “Serious child sex offender" means a person who has been convicted, adjudicated delinquent or found not guilty or not responsible by reason of insanity or mental disease, defect or illness for committing a violation of a crime specified in s. 948.02 (1) or (2) , 948.025 (1) , or 948.085 against a child who had not attained the age of 13 years.

(5)  “Sexually motivated" means that one of the purposes for an act is for the actor's sexual arousal or gratification or for the sexual humiliation or degradation of the victim.

(6)  “Sexually violent offense" means any of the following:

(a) Any crime specified in s. 940.225 (1) , (2) , or (3) , 948.02 (1) or (2) , 948.025 , 948.06 , 948.07 , or 948.085 .

(am) An offense that, prior to June 2, 1994, was a crime under the law of this state and that is comparable to any crime specified in par. (a) .

(b) Any crime specified in s. 940.01 , 940.02 , 940.03 , 940.05 , 940.06 , 940.19 (2) , (4) , (5) , or (6) , 940.195 (4) or (5) , 940.30 , 940.305 , 940.31 , 941.32 , 943.10 , 943.32 , or 948.03 that is determined, in a proceeding under s. 980.05 (3) (b) , to have been sexually motivated.

(bm) An offense that, prior to June 2, 1994, was a crime under the law of this state, that is comparable to any crime specified in par. (b) and that is determined, in a proceeding under s. 980.05 (3) (b) , to have been sexually motivated.

(c) Any solicitation, conspiracy, or attempt to commit a crime under par. (a) , (am) , (b) , or (bm) .

(7)  “Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.

(8)  “Significant progress in treatment" means that the person is doing all of the following:

(a) Meaningfully participating in the treatment program specifically designed to reduce his or her risk to reoffend offered at a facility described under s. 980.065 .

(b) Participating in the treatment program at a level that is sufficient to allow the identification of his or her specific treatment needs and demonstrating, through overt behavior, a willingness to work on addressing the specific treatment needs.

(c) Demonstrating an understanding of the thoughts, attitudes, emotions, behaviors, and sexual arousal linked to his or her sexual offending and an ability to identify when the thoughts, emotions, behaviors, or sexual arousal occur.

(d) Demonstrating sufficiently sustained change in the thoughts, attitudes, emotions, and behaviors and sufficient management of sexual arousal such that one could reasonably assume that, with continued treatment, the change could be maintained.

(9)  “Substantially probable" means much more likely than not.

(10)  “Treating professional" means a licensed physician, licensed psychologist, licensed social worker, or other mental health professional who provides, or supervises the provision of, sex offender treatment at a facility described under s. 980.065 .

(11)  “Youth center" means any center that provides, on a regular basis, recreational, vocational, academic, or social services activities for persons younger than 18 years old or for those persons and their families.

Chapter 980 creates a civil commitment procedure primarily intended to provide treatment and protect the public, not to punish the offender. As such the chapter does not provide for “punishment" in violation of the constitutional prohibitions against double jeopardy or ex post facto laws. State v. Carpenter, 197 Wis. 2d 252 , 541 N.W.2d 105 (1995), 94-1898 .

Chapter 980 does not violate substantive due process guarantees. The definitions of “mental disorder" and “dangerous" are not overbroad. The treatment obligations under ch. 980 are consistent with the nature and duration of commitments under the chapter. The lack of a precommitment finding of treatability is not offensive to due process requirements. State v. Post, 197 Wis. 2d 279 , 541 N.W.2d 115 (1995), 94-2356 .

Chapter 980 does not violate equal protection guarantees. The state's compelling interest in protecting the public justifies the differential treatment of the sexually violent persons subject to the chapter. State v. Post, 197 Wis. 2d 279 , 541 N.W.2d 115 (1995), 94-2356 .

A child enticement conviction under a statute that had been repealed and recreated under a new statute number was a sexually violent offense under sub. (6), although the former number was not listed in the new statute. State v. Irish, 210 Wis. 2d 107 , 565 N.W.2d 161 (Ct. App. 1997), 96-2303 .

Under [former] sub. (7), a “mental disorder that makes it substantially probable that the person will engage in acts of sexual violence" is a disorder that predisposes the affected person to sexual violence. A diagnosis of “antisocial personality disorder," uncoupled with any other diagnosis but coupled with sufficient evidence establishing that a defendant is a “sexually violent person," may constitute a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence under [former] sub. (7). State v. Adams, 223 Wis. 2d 60 , 588 N.W.2d 336 (Ct. App. 1998), 96-3136 .

Definitions in ch. 980 serve a legal, and not medical, function. The court will not adopt a definition of pedophilia for ch. 980 purposes. State v. Zanelli, 223 Wis. 2d 545 , 589 N.W.2d 687 (Ct. App. 1998), 98-0733 .

That the state's expert opined that pedophilia is a lifelong disorder did not mean that commitment was based solely on prior bad acts rather than a present condition. Jury instructions are discussed. State v. Matek, 223 Wis. 2d 611 , 589 N.W.2d 441 (Ct. App. 1998), 96-3524 .

As used in this chapter, “substantial probability" and “substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel, 227 Wis. 2d 389 , 597 N.W.2d 697 (1999), 97-1337 .

The definition of “sexually violent person" includes conduct prohibited by a previous version of a statute enumerated in sub. (6) as long as the conduct prohibited under the predecessor statute remains prohibited under the current statute. State v. Pharm, 2000 WI App 167 , 238 Wis. 2d 97 , 617 N.W.2d 163 , 98-1542 .

Chapter 980 is not facially unconstitutional. Due process does not require proof of a recent overt act in evaluating the dangerousness of the offender when there has been a break in the offender's incarceration and the offender is reincarcerated for nonsexual behavior. Substantive due process allows for a ch. 980 commitment when there is sufficient evidence of current dangerousness. There is no bright-line rule that requires current dangerousness to be proven by a particular type of evidence. State v. Bush, 2005 WI 103 , 283 Wis. 2d 90 , 699 N.W.2d 80 , 03-2306 .

Exclusion of the conditions of a person's probation supervision from his ch. 980 trial was proper as under sub. (7) as such evidence was irrelevant in determining whether he was a sexually violent person. State v. Mark, 2006 WI 78 , 292 Wis. 2d 1 , 718 N.W.2d 90 , 03-2068 .

The legislature's replacement of “substantially probable" in sub. (7) with “likely," lowered the level of dangerousness required to commit a person under ch. 980 but did not violate the constitution on either due process or equal protection grounds. State v. Nelson, 2007 WI App 2 , 298 Wis. 2d 453 , 727 N.W.2d 364 , 05-0810 .

A ch. 980 commitment did not violate equal protection or due process guarantees when the person was released to the community upon a finding that he was ineligible for commitment and subsequently committed after parole violations that did not involve overt acts of sexual violence. State v. Feldmann, 2007 WI App 35 , 300 Wis. 2d 474 , 730 N.W.2d 440 , 05-2347 .

“More likely than not," as used in sub. (1m), is not an obscure or specialized term of art, but a commonly-used expression. An expert witness's ambiguous and confusing misstatement regarding the meaning of “more likely than not" could not have convinced a reasonable person the phrase meant other than more likely to happen than not to happen. State v. Smalley, 2007 WI App 219 , 305 Wis. 2d 709 , 741 N.W.2d 286 , 06-1475 .

Under sub. (7), a sexually violent person is one who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence. Actuarial instruments that measure dangerousness without regard to the defendant's mental illness were relevant to determining whether the defendant was a sexually violent person. Dangerousness was a fact of consequence to the proceedings although not the only fact that needed to be shown. Evidence need not go to every facet of a party's case in order to be relevant. State v. Smalley, 2007 WI App 219 , 305 Wis. 2d 709 , 741 N.W.2d 286 , 06-1475 .

Under the reasoning of Mark that conditions of supervision that a person will be subject to if released are irrelevant to the determination of whether the person is a sexually violent person under sub. (7), that a person will be subject to supervision if released is also irrelevant to whether the person is a sexually violent person. State v. Budd, 2007 WI App 245 , 306 Wis. 2d 167 , 742 N.W.2d 887 , 07-0011 .

Evidence of the department of correction's screening process for potential ch. 980 cases was irrelevant as to the determination of whether a defendant was a sexually violent person under sub. (7) when the evidence did not establish why the defendant was selected for ch. 980 proceedings. State v. Budd, 2007 WI App 245 , 306 Wis. 2d 167 , 742 N.W.2d 887 , 07-0011 .

Postcommitment annual reviews do not, generally, bear on the factual issues the jury must resolve in order to determine whether a person is a sexually violent person, but there is not a blanket exclusion for all testimony of annual reviews. Rather, the question of relevancy of such evidence needs to be examined in the particular context in which the evidence is offered. State v. Sugden, 2010 WI App 166 , 330 Wis. 2d 628 , 795 N.W.2d 456 , 09-2445 .

The existence of treatment for committed persons is a consequence of commitment and, generally, is not relevant in determining whether a person is a sexually violent person. State v. Sugden, 2010 WI App 166 , 330 Wis. 2d 268 , 795 N.W.2d 456 , 09-2445 .

The proportion of about-to-be released sex offenders who are referred for a special purpose evaluation to determine whether they meet the requirements of ch. 980 is not, in itself, relevant to whether a particular person referred meets the requirements of being a sexually violent person. This is true whether that proportion is expressed in terms of a specific percentage or a more general description of the relative size of the group. State v. Sugden, 2010 WI App 166 , 330 Wis. 2d 628 , 795 N.W.2d 456 , 09-2445 .

The Kansas Sexually Violent Predator Act comports with due process requirements, does not run afoul of double jeopardy principles, and is not an ex post facto law. Kansas v. Hendricks, 521 U.S. 346 , 138 L. Ed. 2d 501 (1997).

Civil commitment upon a finding of a “mental disorder" does not violate due process when the predicate diagnosis is not found within the four corners of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. A factfinder may have stronger confidence in his or her conclusions when the examining mental health professionals rely upon authoritative, consensus materials in the field, and a particular diagnosis may be so devoid of content, or so near-universal in its rejection by mental health professionals, that a court's reliance on it to satisfy the “mental disorder" prong of the statutory requirements for commitment would violate due process. McGee v. Bartow, 594 F.3d 555 (2010).

The constitutionality of Wisconsin's Sexual Predator Law. Straub & Kachelski. Wis. Law. July, 1995.