We often get calls from individuals who are classified as sexually violent predators under Indiana law. Oftentimes people are confused about why they are classified as a sexually violent predator when they were never told that at their sentencing hearing. A person can be classified as a sexually violent predator under Indiana Code 35-38-1-7.5 if certain circumstances exist.
Under Indiana Code 35-38-1-7.5(a), a sexually violent predator is defined as a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense (as defined in Indiana Code 11-8-8-5.2). A prosecuting attorney can request a hearing to determine whether a person is a sexually violent predator under that definition. After that hearing request is made, the court will appoint two psychologists or psychiatrists with expertise in criminal behavioral disorders to evaluate the defendant. Those doctors will then testify at the hearing, and the judge will determine whether or not the defendant is a sexually violent predator.
However, more commonly, someone becomes a sexually violent predator by operation of law. Indiana Code 35-38-1-7.5(b) states that if a person 18 years or older was convicted of one or more specified offenses, and was released from incarceration, secure detention, probation, or parole for the offense(s) after June 30, 1994, the person is automatically classified as a sexually violent predator. Those offenses include certain convictions for rape, sexual deviate conduct, child molesting, and vicarious sexual gratification. Substantially similar offenses from other jurisdictions may also result in a sexually violent predator designation if the person later relocates to Indiana. In addition, a person convicted of one of these offenses while having a prior unrelated conviction requiring registration as a sex or violent offender is also automatically designated as a sexually violent predator.
Fortunately for people designated as sexually violent predators, Indiana law contains a pathway to eliminate the lifetime obligations (such as parole or GPS monitoring) that follow a sexually violent predator. Except for people who have two or more unrelated sex offense convictions, a person may file a petition in the trial court to determine whether the person should still be considered a sexually violent predator. However, such a petition cannot be filed until ten years after the hearing at which the person was determined to be a sexually violent predator, or the person was released from incarceration or secure detention.
Indiana Code 35-38-1-7.5(g) permits a sexually violent predator to file one such petition a year. After the petition is filed, a court may simply dismiss the petition or conduct the hearing as requested. If the court elects to hold a hearing, the court will appoint two psychologists or psychiatrists with expertise in criminal behavioral disorders to evaluate the defendant. These doctors will then testify at the hearing, and the court will determine whether or not to grant the petition.
If the court grants the petition and eliminates the sexually violent predator designation, the court must send notice to the Department of Correction that the person is no longer considered a sexually violent predator or offender against children. In addition, any conditions imposed on the person because of the sexually violent predator designation will no longer apply.
While Indiana law establishes this process and possibility for relief, a person is by no means guaranteed to have the petition granted or even to have a hearing. Perhaps recognizing that courts may be reluctant to grant such requests, the legislature, as noted above, gave a person the ability to file a petition once a year with no limit on the number of petitions which may be ultimately filed. So while the first petition may be denied, all hope is not lost.
It is important to hire an experienced Indianapolis criminal defense attorney if you are trying to eliminate your sexually violent predator determination. An attorney can help highlight all the compelling reasons why the court should set a hearing and ultimately grant your petition. Filing a petition to remove a sexually violent predator designation is no small ask, so it is crucial to establish to the court’s satisfaction that you are not a threat and pose no risk of reoffending. If you or someone you know is saddled by a sexually violent predator designation and qualify to seek its termination, call the attorneys at Banks & Brower to discuss your case and receive a free consultation.