Florida Senate - 2016                                    SB 1294
       
       
        
       By Senator Grimsley
       
       21-01365-16                                           20161294__
    1                        A bill to be entitled                      
    2         An act relating to offenses involving minors and
    3         vulnerable persons; amending s. 92.54, F.S.;
    4         increasing the maximum age at which a victim or
    5         witness may be allowed to testify via closed circuit
    6         television rather than in a courtroom in certain
    7         circumstances; amending s. 782.04, F.S.; including
    8         human trafficking as an underlying felony offense to
    9         support a felony murder conviction; amending s.
   10         787.06, F.S.; providing increased criminal penalties
   11         for human trafficking offenses if the victim suffers
   12         great bodily harm, permanent disability, or permanent
   13         disfigurement; specifying that penalties for branding
   14         must be for the purpose of committing the offense of
   15         human trafficking; prohibiting certain defense to
   16         prosecution; amending s. 794.022, F.S.; including
   17         human trafficking and lewd and lascivious offenses in
   18         the rules of evidence applicable to sexually-related
   19         offenses; amending ss. 90.404, 775.21, 943.0435,
   20         944.606, and 944.607, F.S.; conforming provisions to
   21         changes made by the act; providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Section 92.54, Florida Statutes, is amended to
   26  read:
   27         92.54 Use of closed circuit television in proceedings
   28  involving a victim or witness under the age of 18 16 or who has
   29  an intellectual disability.—
   30         (1) Upon motion and hearing in camera and upon a finding
   31  that there is a substantial likelihood that a victim or witness
   32  under the age of 18 16 or who has an intellectual disability
   33  will suffer at least moderate emotional or mental harm due to
   34  the presence of the defendant if such victim or witness is
   35  required to testify in open court, or is unavailable as defined
   36  in s. 90.804(1), the trial court may order that the testimony of
   37  the victim or witness be taken outside of the courtroom and
   38  shown by means of closed circuit television.
   39         (2) The motion may be filed by the victim or witness; the
   40  attorney, parent, legal guardian, or guardian ad litem of the
   41  victim or witness; the prosecutor; the defendant or the
   42  defendant’s counsel; or the trial judge on his or her own
   43  motion.
   44         (3) Only the judge, the prosecutor, the defendant, the
   45  attorney for the defendant, the operators of the videotape
   46  equipment, an interpreter, and some other person who, in the
   47  opinion of the court, contributes to the well-being of the child
   48  or the person who has an intellectual disability and who will
   49  not be a witness in the case may be in the room during the
   50  recording of the testimony.
   51         (4) During the victim’s or witness’s testimony by closed
   52  circuit television, the court may require the defendant to view
   53  the testimony from the courtroom. In such a case, the court
   54  shall permit the defendant to observe and hear the testimony of
   55  the victim or witness, but must ensure that the victim or
   56  witness cannot hear or see the defendant. The defendant’s right
   57  to assistance of counsel, which includes the right to immediate
   58  and direct communication with counsel conducting cross
   59  examination, must be protected and, upon the defendant’s
   60  request, such communication must be provided by any appropriate
   61  electronic method.
   62         (5) The court shall make specific findings of fact, on the
   63  record, as to the basis for its ruling under this section.
   64         Section 2. Subsections (1), (3), and (4) of section 782.04,
   65  Florida Statutes, are amended to read:
   66         782.04 Murder.—
   67         (1)(a) The unlawful killing of a human being:
   68         1. When perpetrated from a premeditated design to effect
   69  the death of the person killed or any human being;
   70         2. When committed by a person engaged in the perpetration
   71  of, or in the attempt to perpetrate, any:
   72         a. Trafficking offense prohibited by s. 893.135(1),
   73         b. Arson,
   74         c. Sexual battery,
   75         d. Robbery,
   76         e. Burglary,
   77         f. Kidnapping,
   78         g. Escape,
   79         h. Aggravated child abuse,
   80         i. Aggravated abuse of an elderly person or disabled adult,
   81         j. Aircraft piracy,
   82         k. Unlawful throwing, placing, or discharging of a
   83  destructive device or bomb,
   84         l. Carjacking,
   85         m. Home-invasion robbery,
   86         n. Aggravated stalking,
   87         o. Murder of another human being,
   88         p. Resisting an officer with violence to his or her person,
   89         q. Aggravated fleeing or eluding with serious bodily injury
   90  or death,
   91         r. Felony that is an act of terrorism or is in furtherance
   92  of an act of terrorism,; or
   93         s.Human trafficking; or
   94         3. Which resulted from the unlawful distribution of any
   95  substance controlled under s. 893.03(1), cocaine as described in
   96  s. 893.03(2)(a)4., opium or any synthetic or natural salt,
   97  compound, derivative, or preparation of opium, or methadone by a
   98  person 18 years of age or older, when such drug is proven to be
   99  the proximate cause of the death of the user,
  100  
  101  is murder in the first degree and constitutes a capital felony,
  102  punishable as provided in s. 775.082.
  103         (b) In all cases under this section, the procedure set
  104  forth in s. 921.141 shall be followed in order to determine
  105  sentence of death or life imprisonment.
  106         (3) When a human being is killed during the perpetration
  107  of, or during the attempt to perpetrate, any:
  108         (a) Trafficking offense prohibited by s. 893.135(1),
  109         (b) Arson,
  110         (c) Sexual battery,
  111         (d) Robbery,
  112         (e) Burglary,
  113         (f) Kidnapping,
  114         (g) Escape,
  115         (h) Aggravated child abuse,
  116         (i) Aggravated abuse of an elderly person or disabled
  117  adult,
  118         (j) Aircraft piracy,
  119         (k) Unlawful throwing, placing, or discharging of a
  120  destructive device or bomb,
  121         (l) Carjacking,
  122         (m) Home-invasion robbery,
  123         (n) Aggravated stalking,
  124         (o) Murder of another human being,
  125         (p) Aggravated fleeing or eluding with serious bodily
  126  injury or death,
  127         (q) Resisting an officer with violence to his or her
  128  person, or
  129         (r) Felony that is an act of terrorism or is in furtherance
  130  of an act of terrorism, or
  131         (s)Human trafficking,
  132  
  133  by a person other than the person engaged in the perpetration of
  134  or in the attempt to perpetrate such felony, the person
  135  perpetrating or attempting to perpetrate such felony commits
  136  murder in the second degree, which constitutes a felony of the
  137  first degree, punishable by imprisonment for a term of years not
  138  exceeding life or as provided in s. 775.082, s. 775.083, or s.
  139  775.084.
  140         (4) The unlawful killing of a human being, when perpetrated
  141  without any design to effect death, by a person engaged in the
  142  perpetration of, or in the attempt to perpetrate, any felony
  143  other than any:
  144         (a) Trafficking offense prohibited by s. 893.135(1),
  145         (b) Arson,
  146         (c) Sexual battery,
  147         (d) Robbery,
  148         (e) Burglary,
  149         (f) Kidnapping,
  150         (g) Escape,
  151         (h) Aggravated child abuse,
  152         (i) Aggravated abuse of an elderly person or disabled
  153  adult,
  154         (j) Aircraft piracy,
  155         (k) Unlawful throwing, placing, or discharging of a
  156  destructive device or bomb,
  157         (l) Unlawful distribution of any substance controlled under
  158  s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or
  159  opium or any synthetic or natural salt, compound, derivative, or
  160  preparation of opium by a person 18 years of age or older, when
  161  such drug is proven to be the proximate cause of the death of
  162  the user,
  163         (m) Carjacking,
  164         (n) Home-invasion robbery,
  165         (o) Aggravated stalking,
  166         (p) Murder of another human being,
  167         (q) Aggravated fleeing or eluding with serious bodily
  168  injury or death,
  169         (r) Resisting an officer with violence to his or her
  170  person, or
  171         (s) Felony that is an act of terrorism or is in furtherance
  172  of an act of terrorism, or
  173         (t)Human trafficking,
  174  
  175  is murder in the third degree and constitutes a felony of the
  176  second degree, punishable as provided in s. 775.082, s. 775.083,
  177  or s. 775.084.
  178         Section 3. Paragraph (h) is added to subsection (3) of
  179  section 787.06, Florida Statutes, paragraph (b) of subsection
  180  (4) is amended, subsections (5) through (9) are renumbered as
  181  subsections (6) through (10), respectively, and a new subsection
  182  (5) is added to that section, to read:
  183         787.06 Human trafficking.—
  184         (3) Any person who knowingly, or in reckless disregard of
  185  the facts, engages in human trafficking, or attempts to engage
  186  in human trafficking, or benefits financially by receiving
  187  anything of value from participation in a venture that has
  188  subjected a person to human trafficking:
  189         (h)And during the commission or attempt to commit the
  190  offense of human trafficking causes great bodily harm, permanent
  191  disability, or permanent disfigurement to the victim of the
  192  human trafficking offense or attempted offense commits a felony
  193  of the first degree, punishable for a term of years not
  194  exceeding life, as provided in s. 775.082, s. 775.083, or s.
  195  775.084.
  196  
  197  For each instance of human trafficking of any individual under
  198  this subsection, a separate crime is committed and a separate
  199  punishment is authorized.
  200         (4)
  201         (b) Any person who permanently brands, or directs to be
  202  permanently branded, for the purpose of committing an offense
  203  under this section, a victim of an offense under this section
  204  commits a second degree felony, punishable as provided in s.
  205  775.082, s. 775.083, or s. 775.084. For purposes of this
  206  subsection, the term “permanently branded” means a mark on the
  207  individual’s body that, if it can be removed or repaired at all,
  208  can only be removed or repaired by surgical means, laser
  209  treatment, or other medical procedure.
  210         (5)A victim’s lack of chastity or the willingness or
  211  consent of a victim is not a defense to prosecution under this
  212  section if the victim was under 18 years of age at the time of
  213  the offense.
  214         Section 4. Section 794.022, Florida Statutes, is amended to
  215  read:
  216         794.022 Rules of evidence.—
  217         (1) The testimony of the victim need not be corroborated in
  218  a prosecution under s. 787.06, s. 794.011, or s. 800.04.
  219         (2) Specific instances of prior consensual sexual activity
  220  between the victim and any person other than the offender may
  221  shall not be admitted into evidence in a prosecution under s.
  222  787.06, s. 794.011, or s. 800.04. However, such evidence may be
  223  admitted if it is first established to the court in a proceeding
  224  in camera that such evidence may prove that the defendant was
  225  not the source of the semen, pregnancy, injury, or disease; or,
  226  when consent by the victim is at issue, such evidence may be
  227  admitted if it is first established to the court in a proceeding
  228  in camera that such evidence tends to establish a pattern of
  229  conduct or behavior on the part of the victim which is so
  230  similar to the conduct or behavior in the case that it is
  231  relevant to the issue of consent.
  232         (3) Notwithstanding any other provision of law, reputation
  233  evidence relating to a victim’s prior sexual conduct or evidence
  234  presented for the purpose of showing that manner of dress of the
  235  victim at the time of the offense incited the sexual battery may
  236  shall not be admitted into evidence in a prosecution under s.
  237  787.06, s. 794.011, or s. 800.04.
  238         (4) When consent of the victim is a defense to prosecution
  239  under s. 787.06, s. 794.011, or s. 800.04, evidence of the
  240  victim’s mental incapacity or defect is admissible to prove that
  241  the consent was not intelligent, knowing, or voluntary; and the
  242  court shall instruct the jury accordingly.
  243         (5) An offender’s use of a prophylactic device, or a
  244  victim’s request that an offender use a prophylactic device, is
  245  not, by itself, relevant to either the issue of whether or not
  246  the offense was committed or the issue of whether or not the
  247  victim consented.
  248         Section 5. Paragraphs (b) and (c) of subsection (2) of
  249  section 90.404, Florida Statutes, are amended to read:
  250         90.404 Character evidence; when admissible.—
  251         (2) OTHER CRIMES, WRONGS, OR ACTS.—
  252         (b)1. In a criminal case in which the defendant is charged
  253  with a crime involving child molestation, evidence of the
  254  defendant’s commission of other crimes, wrongs, or acts of child
  255  molestation is admissible and may be considered for its bearing
  256  on any matter to which it is relevant.
  257         2. For the purposes of this paragraph, the term “child
  258  molestation” means conduct proscribed by s. 787.025(2)(c), s.
  259  787.06(3)(g), former s. 787.06(3)(h), Florida Statutes 2012, s.
  260  794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
  261  former s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s.
  262  847.0145, or s. 985.701(1) when committed against a person 16
  263  years of age or younger.
  264         (c)1. In a criminal case in which the defendant is charged
  265  with a sexual offense, evidence of the defendant’s commission of
  266  other crimes, wrongs, or acts involving a sexual offense is
  267  admissible and may be considered for its bearing on any matter
  268  to which it is relevant.
  269         2. For the purposes of this paragraph, the term “sexual
  270  offense” means conduct proscribed by s. 787.025(2)(c), s.
  271  787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), Florida
  272  Statutes 2012, s. 794.011, excluding s. 794.011(10), s. 794.05,
  273  former s. 796.03, former s. 796.035, s. 825.1025(2)(b), s.
  274  827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1).
  275         Section 6. Paragraph (a) of subsection (4) of section
  276  775.21, Florida Statutes, is amended to read:
  277         775.21 The Florida Sexual Predators Act.—
  278         (4) SEXUAL PREDATOR CRITERIA.—
  279         (a) For a current offense committed on or after October 1,
  280  1993, upon conviction, an offender shall be designated as a
  281  “sexual predator” under subsection (5), and subject to
  282  registration under subsection (6) and community and public
  283  notification under subsection (7) if:
  284         1. The felony is:
  285         a. A capital, life, or first degree felony violation, or
  286  any attempt thereof, of s. 787.01 or s. 787.02, where the victim
  287  is a minor and the defendant is not the victim’s parent or
  288  guardian, or s. 794.011, s. 800.04, or s. 847.0145, or a
  289  violation of a similar law of another jurisdiction; or
  290         b. Any felony violation, or any attempt thereof, of s.
  291  393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.
  292  787.025(2)(c), where the victim is a minor and the defendant is
  293  not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f),
  294  or (g); former s. 787.06(3)(h), Florida Statutes 2012; s.
  295  794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03;
  296  former s. 796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s.
  297  827.071; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; s.
  298  916.1075(2); or s. 985.701(1); or a violation of a similar law
  299  of another jurisdiction, and the offender has previously been
  300  convicted of or found to have committed, or has pled nolo
  301  contendere or guilty to, regardless of adjudication, any
  302  violation of s. 393.135(2); s. 394.4593(2); s. 787.01, s.
  303  787.02, or s. 787.025(2)(c), where the victim is a minor and the
  304  defendant is not the victim’s parent or guardian; s.
  305  787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
  306  Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
  307  former s. 796.03; former s. 796.035; s. 800.04; s. 825.1025; s.
  308  827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s.
  309  847.0145; s. 916.1075(2); or s. 985.701(1); or a violation of a
  310  similar law of another jurisdiction;
  311         2. The offender has not received a pardon for any felony or
  312  similar law of another jurisdiction that is necessary for the
  313  operation of this paragraph; and
  314         3. A conviction of a felony or similar law of another
  315  jurisdiction necessary to the operation of this paragraph has
  316  not been set aside in any postconviction proceeding.
  317         Section 7. Paragraph (a) of subsection (1) of section
  318  943.0435, Florida Statutes, is amended to read:
  319         943.0435 Sexual offenders required to register with the
  320  department; penalty.—
  321         (1) As used in this section, the term:
  322         (a)1. “Sexual offender” means a person who meets the
  323  criteria in sub-subparagraph a., sub-subparagraph b., sub
  324  subparagraph c., or sub-subparagraph d., as follows:
  325         a.(I) Has been convicted of committing, or attempting,
  326  soliciting, or conspiring to commit, any of the criminal
  327  offenses proscribed in the following statutes in this state or
  328  similar offenses in another jurisdiction: s. 393.135(2); s.
  329  394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where
  330  the victim is a minor and the defendant is not the victim’s
  331  parent or guardian; s. 787.06(3)(b), (d), (f), or (g); former s.
  332  787.06(3)(h), Florida Statutes 2012; s. 794.011, excluding s.
  333  794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s.
  334  800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s.
  335  847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s.
  336  847.0145; s. 916.1075(2); or s. 985.701(1); or any similar
  337  offense committed in this state which has been redesignated from
  338  a former statute number to one of those listed in this sub-sub
  339  subparagraph; and
  340         (II) Has been released on or after October 1, 1997, from
  341  the sanction imposed for any conviction of an offense described
  342  in sub-sub-subparagraph (I). For purposes of sub-sub
  343  subparagraph (I), a sanction imposed in this state or in any
  344  other jurisdiction includes, but is not limited to, a fine,
  345  probation, community control, parole, conditional release,
  346  control release, or incarceration in a state prison, federal
  347  prison, private correctional facility, or local detention
  348  facility;
  349         b. Establishes or maintains a residence in this state and
  350  who has not been designated as a sexual predator by a court of
  351  this state but who has been designated as a sexual predator, as
  352  a sexually violent predator, or by another sexual offender
  353  designation in another state or jurisdiction and was, as a
  354  result of such designation, subjected to registration or
  355  community or public notification, or both, or would be if the
  356  person were a resident of that state or jurisdiction, without
  357  regard to whether the person otherwise meets the criteria for
  358  registration as a sexual offender;
  359         c. Establishes or maintains a residence in this state who
  360  is in the custody or control of, or under the supervision of,
  361  any other state or jurisdiction as a result of a conviction for
  362  committing, or attempting, soliciting, or conspiring to commit,
  363  any of the criminal offenses proscribed in the following
  364  statutes or similar offense in another jurisdiction: s.
  365  393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.
  366  787.025(2)(c), where the victim is a minor and the defendant is
  367  not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f),
  368  or (g); former s. 787.06(3)(h), Florida Statutes 2012; s.
  369  794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03;
  370  former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s.
  371  827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s.
  372  847.0137; s. 847.0138; s. 847.0145; s. 916.1075(2); or s.
  373  985.701(1); or any similar offense committed in this state which
  374  has been redesignated from a former statute number to one of
  375  those listed in this sub-subparagraph; or
  376         d. On or after July 1, 2007, has been adjudicated
  377  delinquent for committing, or attempting, soliciting, or
  378  conspiring to commit, any of the criminal offenses proscribed in
  379  the following statutes in this state or similar offenses in
  380  another jurisdiction when the juvenile was 14 years of age or
  381  older at the time of the offense:
  382         (I) Section 794.011, excluding s. 794.011(10);
  383         (II) Section 800.04(4)(a)2. where the victim is under 12
  384  years of age or where the court finds sexual activity by the use
  385  of force or coercion;
  386         (III) Section 800.04(5)(c)1. where the court finds
  387  molestation involving unclothed genitals; or
  388         (IV) Section 800.04(5)(d) where the court finds the use of
  389  force or coercion and unclothed genitals.
  390         2. For all qualifying offenses listed in sub-subparagraph
  391  (1)(a)1.d., the court shall make a written finding of the age of
  392  the offender at the time of the offense.
  393  
  394  For each violation of a qualifying offense listed in this
  395  subsection, except for a violation of s. 794.011, the court
  396  shall make a written finding of the age of the victim at the
  397  time of the offense. For a violation of s. 800.04(4), the court
  398  shall also make a written finding indicating whether the offense
  399  involved sexual activity and indicating whether the offense
  400  involved force or coercion. For a violation of s. 800.04(5), the
  401  court shall also make a written finding that the offense did or
  402  did not involve unclothed genitals or genital area and that the
  403  offense did or did not involve the use of force or coercion.
  404         Section 8. Paragraph (b) of subsection (1) of section
  405  944.606, Florida Statutes, is amended to read:
  406         944.606 Sexual offenders; notification upon release.—
  407         (1) As used in this section:
  408         (b) “Sexual offender” means a person who has been convicted
  409  of committing, or attempting, soliciting, or conspiring to
  410  commit, any of the criminal offenses proscribed in the following
  411  statutes in this state or similar offenses in another
  412  jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s.
  413  787.02, or s. 787.025(2)(c), where the victim is a minor and the
  414  defendant is not the victim’s parent or guardian; s.
  415  787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
  416  Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
  417  former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8);
  418  s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
  419  847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s.
  420  916.1075(2); or s. 985.701(1); or any similar offense committed
  421  in this state which has been redesignated from a former statute
  422  number to one of those listed in this subsection, when the
  423  department has received verified information regarding such
  424  conviction; an offender’s computerized criminal history record
  425  is not, in and of itself, verified information.
  426         Section 9. Paragraph (a) of subsection (1) of section
  427  944.607, Florida Statutes, is amended to read:
  428         944.607 Notification to Department of Law Enforcement of
  429  information on sexual offenders.—
  430         (1) As used in this section, the term:
  431         (a) “Sexual offender” means a person who is in the custody
  432  or control of, or under the supervision of, the department or is
  433  in the custody of a private correctional facility:
  434         1. On or after October 1, 1997, as a result of a conviction
  435  for committing, or attempting, soliciting, or conspiring to
  436  commit, any of the criminal offenses proscribed in the following
  437  statutes in this state or similar offenses in another
  438  jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s.
  439  787.02, or s. 787.025(2)(c), where the victim is a minor and the
  440  defendant is not the victim’s parent or guardian; s.
  441  787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
  442  Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
  443  former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8);
  444  s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
  445  847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s.
  446  916.1075(2); or s. 985.701(1); or any similar offense committed
  447  in this state which has been redesignated from a former statute
  448  number to one of those listed in this paragraph; or
  449         2. Who establishes or maintains a residence in this state
  450  and who has not been designated as a sexual predator by a court
  451  of this state but who has been designated as a sexual predator,
  452  as a sexually violent predator, or by another sexual offender
  453  designation in another state or jurisdiction and was, as a
  454  result of such designation, subjected to registration or
  455  community or public notification, or both, or would be if the
  456  person were a resident of that state or jurisdiction, without
  457  regard as to whether the person otherwise meets the criteria for
  458  registration as a sexual offender.
  459         Section 10. This act shall take effect July 1, 2016.