I join in that part of the majority’s opinion which vacates appellant’s conviction for endangering the welfare of children. However, I respectfully dissent from the majority’s determination that 42 Pa.C.S.A. § 9794 is unconstitutional.

Initially, I too thought that the rebuttable presumption imposed upon appellant pursuant to § 9794(b) had serious due process implications. However, I am now firmly convinced that the Pennsylvania Act, a subchapter of the Sentencing Code, satisfies due process. "Although sentencing proceedings must comport with due process, the convicted defendant need not be accorded ‘the entire panoply of criminal trial procedural rights.’" Commonwealth v. Wright, 508 Pa. 25,      , 494 A.2d 354, 359-360 (1985), affirmed sub nom. McMillan v. Pennsylvania, 477 U.S. 79 (1986), quoting Gardner v. Florida, 430 U.S. 349, 358 n.9 (1977). It has always been "the province of the legislature to determine the punishment . . . for criminal conduct." Wright, supra at      , 494 at 361 (citation omitted). Moreover, it is normally within the legislature’s power to assign burdens of production and persuasion in criminal matters, so long as its decision does not offend fundamental principles of justice. McMillan, 477 U.S. at 85.

Under the provisions of § 9794,1 the status of an offender as a sexually violent predator occurs after the defendant’s conviction of a crime of sexual violence specifically identified by the legislature in § 9793(b). The legislature has, unremarkably, determined that anyone convicted of a crime involving sexual violence can be considered a sexually violent predator. Once a defendant has been convicted of a sexually violent crime, the court orders an assessment of the offender’s status by the State Board to Assess Sexually Violent Predators (as constituted in § 9799.3). The assessment board considers the various factors set forth in § 9794(c) and provides the court with a written report as to its assessment of the offender. These factors have a striking similarity to the information contained in any pre-sentence report,2 specifically, the circumstances surrounding the crime and the defendant’s psychological evaluations. In fact, the Comment to Pa.R.Crim.P. 1403, governing the preparation and basic content of pre-sentence reports references § 9791-9799.5. As with any pre-sentence report, fact-finding is necessary and the report is prepared at the direction of and for the aid of the court in determining the defendant’s status for sentencing and notification purposes.

Although a defendant may object to matters contained in a pre-sentence report, the Commonwealth has no burden to prove any matter contained in the report. This is true even when a sentence enhancement hinges on additional facts not otherwise in evidence in the guilt-determining phase. McMillan, supra (finding by sentencing court of visible possession of a firearm in commission of crime is a constitutional sentencing enhancement factor and not an element of the crime which required proof beyond a reasonable doubt), affirming Wright, supra; Commonwealth v. Allen, 508 Pa. 114,      , 494 A.2d 1067, 1070 (1985) (evidence of prior violent felony conviction pursuant to 42 Pa.C.S. § 9714 (repealed) could be introduced at sentencing to allow imposition of increased sentence for repeat violent offenders). In each of these cases, the defendants raised a due process concern similar to the one addressed in E. B. v. Verniero, 119 F.3d 1077 (1997), relied upon by the majority in this case, regarding the evidentiary burden.

Undeniably, the risk of re-offense is at the heart of the Pennsylvania legislation. The Legislative Findings and declaration of policy set forth in § 9791 make it clear that the entire Act is directed to protecting communities against the risks posed by a particular class of sexual offender: those who commit crimes of sexual violence. However, unlike the New Jersey law at issue in Verniero, our Legislature has not made risk of re-offense a fact-finding determination under § 9794. As a review of § 9794(c), supra, indicates, the factors considered by the court and the assessment board are strikingly similar to the factors considered in any pre-sentence investigation. In contrast, the New Jersey statute requires prosecutors to utilize extensive guidelines and to assess the risk of re-offense. It is the prosecutors who weigh such factors as whether the offender is under supervision or receiving counseling, therapy, or treatment; whether the offender’s physical condition makes re-offense unlikely; and whether the offender’s conduct was characterized by compulsive or repetitive behavior. Verniero, 119 F.3d at 1083, citing N.J.S.A. § 2C:7-8b. The Third Circuit found it particularly significant that prosecutors assessed the risk of re-offense; that the offender bore the burden of persuasion in a summary in camera proceeding potentially held years after conviction; and that the court’s review was limited to deciding only whether the prosecutors selected the correct Tier classification. Within the context of the New Jersey hearing, the offender’s ability to test the prosecutors’ determination was severely limited, as was his ability to call and confront witnesses.

Additionally, to the degree that risk of re-offense is always an issue in any sentencing proceeding, I do not believe a defendant confronted with a Megan’s Law determination is entitled to a heightened form of procedural due process. A defendant’s liberty interest is no more threatened by the Megan’s Law registration, notification, and maximum sentence provisions than it is by any other mandatory incarceration provision. See Allen, supra at      , 494 A.2d at 1071, quoting Wright, supra at      , 494 A.2d at 361 ("The liberty interest of a defendant facing a sentencing proceeding pursuant to [an enhanced sentencing provision] is similar to that of other convicted defendants awaiting sentence.").

I find a helpful analogy in the Sentencing Guidelines promulgated by our Legislature. 42 Pa.C.S.A. §9721. The Legislature developed these Guidelines based on the research of criminologists, sociologists, psychologists, public policy analysts, and others involved in the criminal justice system. These Guidelines provide a court with a consistent starting-point, a presumption if you will, when sentencing a particular defendant convicted of a particular crime, and take into account the gravity of the offense and the defendant’s prior record. The court may then order a pre-sentence investigation report, which evaluates the factors noted supra. At the sentencing hearing, the defendant may challenge the accuracy of the report, and, at the court’s discretion, may call witnesses to testify as to his good character, or to other mitigating circumstances. The court then exercises its discretion and imposes a sentence, either within or outside the Guidelines, so long as it is not greater than the statutory maximum for the offense.

Likewise, under the Megan’s Law provision of the Sentencing Code, the legislature has determined, after consulting with experts in criminal justice and human psychology, that the starting point for violent sexual offenders is a presumption that they will offend again. The idea that the board should presume sexually violent predator status based on a conviction for a sexually violent crime is a reasonable starting point. The court then orders the board to assess the particular offender, pursuant to § 9794(a) and (c). After receiving the board’s assessment, the court then holds a full and complete hearing, at which the offender is entitled to an opportunity to be heard on the issue of whether he is a sexually violent predator.3 The court then exercises its discretion and finds either that the offender is not a sexually violent predator, and is therefore only subject to the registration provisions, Commonwealth v. Mountain, 711 A.2d 473 (Pa.Super. 1998), or that he is a sexually violent predator, in which case he is also subject to the notification and maximum sentence provisions.

The Verniero court and the majority hold, however, that the determination of sexually violent predator status is a fact-finding function; and to reduce the risk of error, the burden of proof must be on the prosecution by clear and convincing evidence. For the reasons that follow, I disagree.

In McMillan, the Supreme Court upheld the constitutionality of the Pennsylvania Mandatory Minimum Sentencing Act of 1982. This statute required a mandatory minimum sentence to be imposed if the sentencing court found by a mere preponderance of the evidence that the defendant visibly possessed a firearm in commission of the offense. This fact was not an element of the underlying crime. In making such a finding, the sentencing judge could consider the evidence introduced at trial and any additional evidence offered by the defendant or the Commonwealth at the sentencing hearing. The defendant argued that to satisfy due process, this fact must be found by at least clear and convincing evidence. The Supreme Court, "[h]aving concluded that States may treat ‘visible possession of a firearm’ as a sentencing consideration rather than an element of a particular offense," rejected this due process claim:

McMillan, 477 U.S. at 91-93 (emphasis added) (footnote omitted). McMillan cited with approval United States v. Davis, 710 F.2d 104, 106 (3^d Cir. 1983) (collecting cases), cert. denied, 464 U.S. 1001 (1983), which rejected a due process challenge to the federal ‘dangerous special offender’ statute, 18 U.S.C. § 3575. This statute allows courts to increase sentences if they find by a preponderance of the evidence that the defendant is a dangerous special offender.

Just as voluntary possession of a firearm was a ‘sentencing consideration’ in McMillan, I believe the defendant’s status as a sexually violent predator is a ‘sentencing consideration’ here. In McMillan, the court astutely noted that "the Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment – the instrumentality used in committing a violent felony – and dictated the precise weight to be given that factor if the instrumentality is a firearm." 477 U.S. at 89-90. Naturally, a limited degree of fact-finding is necessary for the court to determine whether the enhancement should apply. Similarly, in this case the Legislature has taken one factor that has always been considered when sentencing: namely, the risk posed to society by a certain class of criminal, and has meted out certain consequences if the court finds that the defendant falls within that class.

Even the Verniero court recognized the difference between the hearing provided by the New Jersey statute and the due process requirements in sentencing proceedings, addressed by McMillan:

Verniero, 119 F.3d at 1111.4

I recognize that in this case it was the offender who was assigned a higher evidentiary burden to rebut the presumption that he is a sexually violent predator. However, since I can find nothing that would specifically preclude such a presumption at sentencing, I cannot conclude that it is unconstitutional. The presumption arises from the fact of a conviction, not from any burden of persuasion at sentencing. The Commonwealth has already met its burden of persuasion in securing the conviction on which the offender’s status is automatically based. As to whether the offender may be required to rebut the presumption by clear and convincing evidence, I refer to the McMillan court’s caveat regarding constitutionalizing burdens of proof at sentencing. Our Legislature has deemed a particular fact relevant, the conviction of a sexually violent offense, and prescribed a particular burden of proof to the offender to relieve himself of the more severe consequences of his actions. Because the Act merely provides specific consequences under certain designated circumstances (as the Legislature does in many other sentencing contexts), I find no constitutional infirmity.

Even if the Act were not a sentencing statute, however, I would find no due process violation here. In Specht v. Patterson, 386 U.S. 605 (1967), the Court found the Colorado Sex Offenders Act unconstitutional for its lack of due process protections. The defendant was convicted of a sex offense carrying a ten-year maximum sentence. However, the trial court, pursuant to the Act, subjected the defendant to a psychological examination without a hearing or right of confrontation. This examination was designed to help the court determine whether the defendant constituted, inter alia, a threat of bodily harm to the public. Based on the results of the examination, the court sentenced defendant to an indeterminate term of one day to life. The Supreme Court, in an opinion by Justice Douglas, first reaffirmed the general proposition that "the Due Process Clause of the Fourteenth Amendment did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed." Id. at 606. However, the Court then found that the psychological hearing was a separate criminal proceeding on a distinctly new factual issue leading to separate criminal punishment:

Specht, 386 U.S. at 610-611.5 The Court struck down the Colorado Act, not because it was an unconstitutional exercise of legislative authority, but because it lacked any procedural due process safeguards.

Specht also discussed, with approval, Gerchman v. Maroney, 355 F.2d 302 (3d Cir. 1966), which invalidated an almost identical Pennsylvania statute, the Barr-Walker Act. In Gerchman, the Third Circuit determined that due process was required at Barr-Walker proceedings because they represented a separate and distinct criminal proceeding on a new factual matter, rather than a simple sentencing proceeding resulting from the conviction:

Gerchman, 355 F.2d at 309. The court emphasized that the basis of punishment was "an essentially independent criminal offense" – namely, a determination that the defendant constitutes a threat of harm to the public. Id. at 311 (emphasis added). Conversely, in U.S. v. Davis, supra, the Third Circuit upheld the Federal Dangerous Special Offender Status Act, 18 U.S.C. § 3575(b), noting that it afforded all the procedural protections required by Specht: a hearing, counsel, compulsory process, cross-examination of witnesses, and findings on the record to allow meaningful appellate review.6 Davis, 710 F.2d at 106-107. Finally, in McMillan, supra, the Supreme Court held that Specht did not require the Commonwealth to prove facts at sentencing by clear and convincing evidence. The court noted that in Specht, "the defendant had a right to be present with counsel, to be heard, to be confronted with and to cross-examine the witnesses against him, and to offer evidence of his own." McMillan, 477 U.S. at 88-89.

Returning to § 9794, and evaluating it in line with the dictates of Specht, supra, and Gerchman, supra, I believe it is in the court review of the findings of the board that Pennsylvania stands apart from New Jersey and the concerns of Verniero. Unlike the New Jersey Megan’s Law hearings at issue in Verniero, the court in Pennsylvania, before applying either the registration and notification procedures to a particular offender or imposing the mandatory maximum sentence, must allow very specific due process. Both the defendant and the Commonwealth are provided notice of the hearing, and an opportunity to be heard on the matters contained in the assessment report. There is a right to call and cross-examine witnesses without restriction, and the right to present expert witnesses. The offender also has the right to court-appointed counsel. After a full and complete hearing, the trial court must determine, considering all the evidence and the board’s assessment, whether the presumption has been rebutted that because the offender committed a sexually violent offense, he should be sentenced as a sexually violent predator. All the due process required by Specht is already provided by the Pennsylvania Act. As set forth supra, I suggest this is ample due process.

I believe the toughest issues involving so-called "Megan’s Law" legislation are the ones previously addressed by this court and ratified in this appeal; specifically, finding that the registration and notification provisions of the Act are non-punitive in nature and serve a substantial and important interest of the Commonwealth in protecting its citizens from the risks associated with a particular type of offender. Once we are satisfied that appellant’s substantive constitutional rights are not implicated with respect to these claims, then pursuant to § 9794, we are left with nothing more than a sentencing statute and the due process considerations relevant to sentencing proceedings. I do not believe a challenge to procedural due process at a sentencing proceeding can carry the day.

I have little doubt that were we only considering whether the mandatory maximum sentence for sexually violent predators was constitutional, we would have little trouble dismissing the due process claim and upholding the authority of Legislature to design sentencing enhancements.7 This conclusion should not be different with respect to registration and notification procedures, especially because we have determined them to be civil in nature and non-punitive. The fact that these provisions, for purposes of appellant, apply in the context of a sentencing proceeding does not change that result. See 42 Pa.C.S.A. § 9721(b) ("the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.") (emphasis added). As decided by Mountain, supra, Commonwealth v. Gaffney, 702 A.2d 565 (Pa.Super. 1997), appeal granted, 710 A.2d 605 (1998), Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), and Verniero, supra, such registration and notification requirements meet constitutional scrutiny. Moreover, the inclusion of civil consequences for convictions of certain crimes is not impermissible. See Commonwealth v. Wingait Farms, 547 Pa. 332, 690 A.2d 222 (1997) (in rem civil forfeiture following conviction on a drug offense was not excessive and therefore not punitive), cert. denied sub nom. Reitz v. Pennsylvania,       U.S.      , 118 S.Ct. 98 (1997); Krall v. Commonwealth of Pennsylvania Department of Transportation, 682 A.2d 63 (Pa.Commw. 1996) (license suspension for a conviction under 75 Pa.C.S. § 3731 is a remedial sanction and civil in nature).

Based on the foregoing, I firmly believe that the Pennsylvania Registration of Sexual Offenders Act meets constitutional muster. I find the sentencing procedures under the Pennsylvania Act to be very different procedurally from the law at issue in Verniero, and more akin to the enhanced sentencing provisions of McMillan. I also rely upon the Supreme Court’s admonition that we not constitutionalize burdens of proof in sentencing proceedings. Moreover, the Legislature was very careful to draft the legislation to afford the offender all the due process protection to which he would be entitled in a proceeding as directed by such decisions as Specht and Gerchman. For these reasons, I do not find "a clear, palpable and plain demonstration that [§ 9794] violates a constitutional provision[,]" Mountain, 711 A.2d at 475, and would uphold the constitutionality of the Act.

FOOTNOTES

1 The relevant provisions of § 9794 are as follows:

(e) Court review of findings.—Upon receipt of the board’s report, the court shall determine if the offender is a sexually

(f)violent predator. This determination shall be made based on evidence presented at a hearing held prior to sentencing and before the trial judge. The offender and district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. In addition, the offender shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one. After a review of all evidence presented at this hearing, the court may determine whether the presumption arising under subsection (b) has been rebutted and shall set forth this determination on the sentencing order. A copy of the sentencing order containing the determination shall be submitted to the Pennsylvania Board of Probation and Parole and the Department of Corrections.

42 Pa.C.S.A. § 9794.

2 Pursuant to Pa.R.Crim.P. 1403(3) "the pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the judge in determining sentence." In Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), our supreme court noted with approval the ABA project on Minimum Standards of Justice essential and adequate elements of a pre-sentence report.

ABA Project on Minimum Standards of Justice, Standards Relating to Probation, § 2.3 (Approved Draft, 1970). See also, Advisory Council of Judges of the National Probation and Parole Association, Guides for Sentencing, 33-47 (1957).

Martin, supra at       n.26, 351 A.2d at 658 n.26.

3 Interestingly, not all individuals who commit crimes of sexual violence are ultimately "sexually violent predators" under the Pennsylvania Act. Rather, the Act defines a sexually violent predator as a person who has been convicted of an enumerated offense and who has been found to be a sexually violent predator under § 9794(e) "due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. §  9792 (emphasis added).

4 Verniero analogized the New Jersey proceedings to the civil proceedings in Addington v. Texas, 441 U.S. 418 (1979), and Santosky v. Kramer, 455 U.S. 745 (1982). Those cases held that the ‘clear and convincing evidence’ standard applied where the state sought involuntary commitment to a mental institution and involuntary termination of parental rights, respectively. Importantly, McMillan distinguished Addington and Santosky as follows:

McMillan, 477 U.S. at 92 n.8 (emphasis added).

5 Specht distinguished the statute at issue in Minnesota v. Probate Court, 309 U.S. 270 (1940), where "in a proceeding to have a person adjudged a ‘psychopathic personality’ there was a hearing where he was represented by counsel and could compel the production of witnesses on his behalf." Specht, supra at 610, citing Minnesota, 309 U.S. at 275.

6 Davis rejected the defendant’s argument that due process required all findings made by the sentencing judge to be based on proof beyond a reasonable doubt. The court upheld the preponderance standard utilized under the statute. Davis held that Specht and Gerchman do not require proof at sentencing beyond a reasonable doubt, and noted that the standard of proof question was not at issue in those cases. Davis, 710 F.2d at 107 n.1.

7 In Almendarez-Torres v. U.S.,       U.S.      , 118 S.Ct. 1219 (1998), the Supreme Court held that a recidivist sentencing enhancement which increased the permissible maximum to life imprisonment was not unconstitutional. Based on this analysis, I can see no practical distinction between increased penalties, which allow a permissive maximum of life imprisonment and a mandatory maximum of life imprisonment.

I agree with the majority's conclusions regarding the constitutionality of 42 Pa.C.S.A. § 9794 and join in this part of the majority opinion. However, as I believe that the evidence was sufficient to sustain Appellant's conviction for endangering the welfare of children, I respectfully dissent as to this issue.

Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).

A person commits the crime of endangering the welfare of a child if he is a parent, guardian or other person supervising the welfare of a child under 18 years of age and knowingly endangers the child by violating a duty of care, protection and support.1 18 Pa.C.S.A. § 4304(a). In applying this statute, this Court has held that the Commonwealth satisfies its evidentiary burden by proving that: (1) the accused is aware of his or her duty to protect the child; (2) the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and (3) that the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare. Commonwealth v. Martir, 712 A.2d 327, 328-329 (Pa. Super. 1998).

Appellant asserts that the evidence is inadequate because he was not asked to "supervise" the welfare of the victim. Appellant's Brief at 12. While the majority accepts this position, see Majority Opinion, ante at 4, the statute does not identify explicit parental request for supervision as an element of the crime. Nor would I read this requirement into the statute.

The appellate courts have recognized that section 4304 is a juvenile statute which is basically protective in nature and designed to cover a broad range of conduct in order to safeguard the welfare and security of our children. Commonwealth v. Mack, 467 Pa. 613, 617, 359 A.2d 770, 772 (1976). Commonwealth v. Ogin, 540 A.2d 549, 553 (Pa. Super. 1988) (en banc). The statute therefore must be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Commonwealth v. Mack, 467 Pa. at 618, 359 A.2d at 772; Commonwealth v. Ogin, 540 A.2d at 553. The term "supervise" is defined to mean "to oversee with the powers of direction and decision the implementation of one's own or another's intentions." Webster's Third New International Dictionary 2296 (1976). See also Black's Law Dictionary 1438 (6^th ed. 1990) (defining supervise as to have general oversight over, to superintend or to inspect). In essence then, supervision entails oversight of and the power to direct the actions of another. Utilizing this definition, the evidence sufficiently proved Appellant's supervision of the welfare of the victim.

The evidence presented at trial established that Appellant was the cousin of the victim's mother. N.T. 1/20/97 at 67. Appellant came to the victim's residence to visit. Id. at 67-68. Appellant, who was apparently speaking with the adults, excused himself and went to the bathroom. Id. at 69.

After using the bathroom, Appellant went into the bedroom where the victim and his sister were playing. Id. at 29-30, 38-39 and 68-69. Appellant asked the victim to sit on his lap. Id. at 30. When he refused, Appellant placed the child on his lap. Id. Appellant then asked the victim's sister if she could play the game by herself. Id. at 49. Upon receiving her affirmative response, Appellant got up and entered the bedroom closet. Id. at 30 and 49.

Appellant repeatedly asked the victim to accompany him in the closet. Id. at 30 and 39. The victim refused. Id. at 30. Appellant then grabbed the victim by his arm and pulled him into the closet where he forcibly pulled down the victim's shorts and underpants and proceeded to molest the victim. Id. at 30-33, 44-45 and 47.

While Appellant was not specifically asked to oversee or supervise the children, he voluntarily arrogated that role to himself by entering the children's bedroom and involving himself in their games. He then directed and forced the victim to enter the closet and submit to Appellant's unwanted sexual acts. This evidence was sufficient to prove that Appellant oversaw or supervised the victim. To hold the evidence insufficient merely because the victim's mother did not specifically ask Appellant to supervise the children ignores Appellant's status as an adult relative who assumed a position of authority over the victim. Because the evidence was sufficient to sustain Appellant's conviction I would affirm the judgment of sentence.

FOOTNOTE

1 It is undisputed that Appellant was not the parent or guardian of the victim. Accordingly, my analysis will focus on the supervision element.

CONCURRING OPINION BY ORIE MELVIN, J.:

While I join this en banc opinion, I write separately to express my belief that despite the procedural due process infirmity of § 9794 of Title 42 the purpose of such a law remains a laudable and achievable goal which should not be discarded nor its implementation abandoned. I would therefore encourage our General Assembly to act expeditiously in making revisions that will comport with the constitutional mandates expressed in the majority opinion.

While not addressed by the majority, it is noteworthy to mention that similar legislation has withstood constitutional scrutiny by the United States Supreme Court on substantive due process, double jeopardy and ex post facto grounds. See Kansas v. Hendricks, ___ U.S. ___, 117 S. Ct. 2072, 138 L. Ed.2d 501 (1997). Unlike our law, the Kansas Sexually Violent Predator Act places1 the burden of proof upon the State and was therefore not assailable on procedural due process grounds. Moreover, the Kansas Act provides an alternative method for dealing with violent sexual predators. Rather than increasing an offender’s maximum term of imprisonment or imposing a mandatory life sentence the Kansas law establishes a procedure for the civil commitment of such persons. As outlined by the United States Supreme Court in Kansas v. Hendricks, supra,

Id. 117 S. Ct. at 2077.

When a petition seeking civil commitment is filed under the Kansas Act, the court must first determine whether "probable cause" exists to support a finding that the person is a "sexually violent predator" and thus eligible for civil commitment. If such a determination is made then the individual is transferred to a facility for professional evaluation. § 59-29a05. Following the evaluation, a trial would be held to determine whether the individual was a sexually violent predator with the proof being beyond a reasonable doubt. If found to be a predator, the person is transferred to the custody of the Secretary of Social and Rehabilitation Services for "control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large." § 59-29a07(a). Therefore I believe, in addition to the criminal sanctions provided by the instant legislation, our Commonwealth would be well-served by a closer examination into the viability of a civil commitment alternative.

FOOTNOTE

1 Kan. Stat. Ann. 59-29a01 to 59-29a15 (1994 & Supp. 1996).