Section 1. Amend Title 11 of the Delaware Code by adding a new §4209B thereto, to read as follows:

"§4209B. Sexually violent offenders; punishment; procedure for determining punishment.

(a) Definitions. As used in this section:

(1) 'Sexual act' includes any act of sexual intercourse, sexual penetration, or sexual contact as those terms are defined in §761 of this title.

(2) 'Sexually violent offense' or 'asexual violence' means an act which involves:

(A) the commission or attempted commission of any felony designated as a sexual offense by §761 of this title involving a victim who is less than thirteen years of age at the time of the commission of the offense; or

(B) the commission or attempted commission of rape in the first degree as defined by §773 of this title, rape in the second degree as defined by §772 of this title, or rape in the third degree as defined by §771(a)(2) of this title; or

(C) the commission or attempted commission of any felony designated as a sexual offense by §761 of this title which involves engaging in or attempting to engage in a sexual act or sexual contact with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if:

i. the victim is compelled to submit by force or by a threat of force or threat of death, serious physical injury, or kidnapping directed toward the victim or any other person by the defendant, or if the victim was menaced by what appeared to be a deadly weapon during the course of the commission of the crime, or if the victim was compelled to submit by any threat that would render an individual of reasonable firmness incapable of resisting; or

ii. the victim suffers death or physical injury during the course of the commission of the crime, or while the defendant is in immediate flight therefrom; or

iii. the victim's power to appraise or control the victim's conduct has been substantially impaired by the administration or employment, without the victim's knowledge, of intoxicants or other means for purposes of preventing resistance; or

iv. the defendant knows or should have known that the victim is unaware that a sexual act is being committed upon the victim; or

v. the defendant knows or should have known that the victim is an infirm adult or has a disability that substantially impairs the victim's understanding of the nature of the sexual act or contact.

(D) the commission of any offense equivalent to those described in paragraphs (1), (2), or (3) of this subsection defined by the previous laws of this State, or by the laws of the United States, or by any other state or territory thereof.

(3) 'Sexually violent offender' means a person who has been convicted of or charged with a sexually violent offense and who is reasonably likely to engage in one or more repeat acts of sexual violence if not confined in a secure facility.

(b) Punishment for sexually violent offenders. Notwithstanding any provision of this title to the contrary, any person who is convicted of a sexually violent offense and who is thereafter deemed to be a sexually violent offender pursuant to this section shall be punished by imprisonment for the remainder of the person's natural life without benefit of probation or parole or any other reduction.

(1) Upon a conviction of guilt of a defendant of a sexually violent offense upon motion of the State or upon its own motion, the Superior Court shall conduct a separate hearing to determine whether the defendant should be sentenced to life imprisonment without benefit of probation or parole as a sexually violent offender as defined in subsection (a)(3) of this section. If the defendant was convicted of a sexually violent offense by a jury, this hearing shall be conducted by the trial judge before that jury as soon as practicable after the return of the verdict of guilty. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict on guilt is entered. If the verdict of the trial jury is that the defendant is guilty of a sexually violent offense, the alternates shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the Court, any member of the trial jury is excused from participation in the hearing on punishment, the trial judge shall replace such juror or jurors with alternate juror or jurors. If a jury of 12 jurors cannot participate in the hearing, a separate and new jury, plus alternates, shall be selected for the hearing in accordance with the applicable rules of the Superior Court and laws of Delaware, unless the defendant(s) and the State stipulate to the use of a lesser number of jurors.

(2) If a defendant was convicted of a sexually violent offense by the Court, after a trial and waiver of a jury trial or after a plea of guilty or nolo contendere, the sentencing hearing shall be conducted by the trial judge before a jury, plus alternates, empanelled for that purpose and selected in accordance with the applicable rules of the Superior Court and laws of Delaware, unless the sentencing jury is waived by the State and the defendant, in which case the sentencing hearing shall be conducted, if possible, by and before the trial judge who entered the finding of guilty or accepted the plea of guilty or nolo contendere.

(d) Procedure at sentencing hearing.

(1) The sole determination for the jury or judge at the hearing provided for by this section shall be whether the defendant is to be sentenced as a sexually violent offender. At the hearing, evidence may be presented as to any matter that the Court deems relevant and admissible to the penalty to be imposed. Notwithstanding any other provision of law to the contrary, in any proceeding pursuant to this section, evidence of prior sexually violent conduct or criminal conduct, including a record of juvenile proceedings, is admissible. The Court may further consider any evidence of prior behavior by a person who is subject to proceedings under this section if the evidence is relevant to proving that the person is a sexually violent person. The record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant or the absence of any such prior criminal convictions and pleas is also admissible in evidence.

(2) At the sentencing hearing the Court shall permit argument by the State and the defense on the punishment to be imposed. Argument shall consist of opening statements by each, unless waived, opening summation by the State, rebuttal summation by the defense, and closing summation by the State.

(3) Upon the conclusion of the evidence and arguments, the judge shall give the jury, if empanelled, appropriate instructions and the jury shall retire to deliberate and report to the Court an answer to the following questions:

1. Whether the evidence shows beyond a reasonable doubt that the defendant has been convicted of a sexually violent offense; and

2. Whether the evidence shows beyond a reasonable doubt that the defendant is reasonably likely to engage in one or more repeat acts of sexual violence if not confined in a secure facility.

(4) If practicable, prior to the beginning of any trial upon an indictment or information which alleges that the defendant committed one or more sexually violent offenses, the State shall provide the defense and the Court with written notice of its intent to have the defendant sentenced as a sexually violent offender.

(e) Determination of sentence.

(1) If a jury is impaneled for a sentencing hearing and after the hearing it finds beyond a reasonable doubt that the defendant has been convicted of a sexually violent offense and that the defendant is reasonably likely to engage in one or more repeat acts of sexual violence if not confined in a secure facility, the Court shall impose a sentence of life imprisonment for the remainder of the person's natural life without benefit of probation or parole or any other reduction. If a jury is not impaneled, if after the hearing the Court finds beyond a reasonable doubt that the defendant has been convicted of a sexually violent offense and that the defendant is reasonably likely to engage in one or more repeat acts of sexual violence if not confined in a secure facility, the Court shall impose a sentence of life imprisonment for the remainder of the defendant's natural life without benefit of probation or parole or any other reduction.

(2) Otherwise, the Court shall sentence the defendant in accord with the relevant provisions this title, excepting those set forth in this section.".

SPONSOR:	Rep. Spence & Sen. McBride