Art. 313. Gwen's Law; bail hearings; detention without bail

A.(1) This Paragraph may be cited as and referred to as "Gwen's Law".

(2) A contradictory bail hearing, as provided for in this Paragraph, may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the defendant's family member, as defined in R.S. 46:2132 or upon the defendant's household member as defined in R.S. 14:35.3, or upon the defendant's dating partner, as defined in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays. At the contradictory hearing, the court shall determine the conditions of bail or whether the defendant should be held without bail pending trial. If the court decides not to hold a contradictory hearing, it shall notify the prosecuting attorney prior to setting bail.

(3) In addition to the factors listed in Article 316, in determining whether the defendant should be admitted to bail pending trial, or in determining the conditions of bail, the judge or magistrate shall consider the following:

(a) The criminal history of the defendant.

(b) The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children.

(c) Documented history or records of any of the following: substance abuse by the defendant; threats of suicide by the defendant; the defendant's use of force or threats of use of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the defendant; or threats to kill. Documented history or records may include but are not limited to sworn affidavits, police reports, and medical records.

(4) Following the contradictory hearing and based upon the judge's or magistrate's review of the factors set forth in Subparagraph(A)(3) of this Article, the judge or magistrate may order that the defendant not be admitted to bail, upon proof by clear and convincing evidence either that the defendant might flee, or that the defendant poses an imminent danger to any other person or the community.

(5) If bail is granted, with or without a contradictory hearing, the judge or magistrate shall comply with the provisions of Article 320, as applicable. The judge or magistrate shall consider, as a condition of bail, a requirement that the defendant wear an electronic monitoring device and be placed under active electronic monitoring and house arrest. The conditions of the electronic monitoring and house arrest shall be determined by the court and may include but are not limited to limitation of the defendant's activities outside the home and a curfew. The defendant may be required to pay a reasonable supervision fee to the supervising agency to defray the cost of the required electronic monitoring and house arrest. A violation of the conditions of bail may be punishable by revocation of the bail undertaking and the issuance of a bench warrant for the defendant's arrest or remanding of the defendant to custody or a modification of the terms of bail.

B. Upon motion of the prosecuting attorney, the judge or magistrate may order the temporary detention of a person in custody who is charged with the commission of an offense, for a period of not more than five days, exclusive of weekends and legal holidays, pending the conducting of a contradictory bail hearing. Following the contradictory hearing, upon proof by clear and convincing evidence either that there is a substantial risk that the defendant might flee or that the defendant poses an imminent danger to any other person or the community, the judge or magistrate may order the defendant held without bail pending trial.

C.(1) A contradictory bail hearing, as provided for in this Article, shall be held prior to setting bail for a person in custody who is charged with the commission of a sex offense and who has been previously convicted of a sex offense.

(2) The court, after having been given notice of an applicable prior conviction as described in Subparagraph (5) of this Paragraph, shall order a contradictory hearing to be held within five days of receiving notice of the prior conviction, exclusive of weekends and legal holidays.

(3) At the contradictory hearing the court, in addition to hearing whatever evidence it finds relevant, shall, on motion of the prosecuting attorney, perform an in camera examination of the evidence against the accused.

(4) In addition to the factors listed in Article 316, the court shall take into consideration the previous criminal record of the defendant; any potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children; and the court shall give ample consideration to any statistical evidence prepared by the United States Department of Justice relative to the likelihood of the defendant, or any person in general who has been convicted of sexually inappropriate conduct with a prepubescent child under the age of thirteen, to commit similar offenses against juvenile victims in the future.

(5) For purposes of this Paragraph, "sex offense" means any offense as defined as a sex offense in R.S. 15:541 when the victim is under the age of thirteen at the time of commission of the offense and less than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction.

D.(1) A person charged with the commission of a capital offense shall not be admitted to bail if the proof is evident and the presumption great that he is guilty of the capital offense. When a person charged with the commission of a capital offense makes an application for admission to bail, the judge shall hold a hearing contradictorily with the state.

(2) The burden of proof at the contradictory bail hearing:

(a) Prior to indictment is on the state to show that the proof is evident and the presumption great that the defendant is guilty of the capital offense.

(b) After indictment is on the defendant to show that the proof is not evident or the presumption is not great that he is guilty of the capital offense.

Amended by Acts 1974, Ex.Sess. No. 17, §1, eff. Jan. 1, 1975; Acts 1993, No. 834, §1, eff. June 22, 1993; Acts 2010, No. 914, §1; Acts 2016, No. 613, §1, eff. Jan. 1, 2017.