ENROLLED
       2016 Legislature                   CS for SB 1294, 2nd Engrossed
       
       
       
       
       
       
                                                             20161294er
    1  
    2         An act relating to victim and witness protection;
    3         amending ss. 92.53 and 92.54, F.S.; increasing the
    4         maximum age at which a victim or witness may be
    5         allowed to testify via closed circuit television
    6         rather than in a courtroom in certain circumstances;
    7         amending s. 92.55, F.S.; revising the definition of
    8         the term “sexual offense victim or witness”;
    9         increasing the maximum age of victims and witnesses
   10         for whom the court may enter protective orders;
   11         authorizing certain advocates to file motions for such
   12         orders on behalf of certain persons; amending s.
   13         787.06, F.S.; prohibiting certain defenses to
   14         prosecution under certain circumstances; amending s.
   15         794.022, F.S.; including human trafficking and lewd
   16         and lascivious offenses in the rules of evidence
   17         applicable to sexually-related offenses; providing an
   18         effective date.
   19          
   20  Be It Enacted by the Legislature of the State of Florida:
   21  
   22         Section 1. Section 92.53, Florida Statutes, is amended to
   23  read:
   24         92.53 Videotaping the testimony of a victim or witness
   25  under age 18 16 or who has an intellectual disability.—
   26         (1) On motion and hearing in camera and a finding that
   27  there is a substantial likelihood that a victim or witness who
   28  is under the age of 18 16 or who has an intellectual disability
   29  as defined in s. 393.063 would suffer at least moderate
   30  emotional or mental harm due to the presence of the defendant if
   31  such victim or witness is required to testify in open court, or
   32  is unavailable as defined in s. 90.804(1), the trial court may
   33  order the videotaping of the testimony of the victim or witness
   34  in a case, whether civil or criminal in nature, in which
   35  videotaped testimony is to be used at trial in lieu of trial
   36  testimony in open court.
   37         (2) The motion may be filed by:
   38         (a) The victim or witness, or the victim’s or witness’s
   39  attorney, parent, legal guardian, or guardian ad litem;
   40         (b) A trial judge on his or her own motion;
   41         (c) Any party in a civil proceeding; or
   42         (d) The prosecuting attorney or the defendant, or the
   43  defendant’s counsel.
   44         (3) The judge shall preside, or shall appoint a special
   45  master to preside, at the videotaping unless:
   46         (a) The child or the person who has the intellectual
   47  disability is represented by a guardian ad litem or counsel;
   48         (b) The representative of the victim or witness and the
   49  counsel for each party stipulate that the requirement for the
   50  presence of the judge or special master may be waived; and
   51         (c) The court finds at a hearing on the motion that the
   52  presence of a judge or special master is not necessary to
   53  protect the victim or witness.
   54         (4) The defendant and the defendant’s counsel must be
   55  present at the videotaping unless the defendant has waived this
   56  right. The court may require the defendant to view the testimony
   57  from outside the presence of the child or the person who has an
   58  intellectual disability by means of a two-way mirror or another
   59  similar method that ensures that the defendant can observe and
   60  hear the testimony of the victim or witness in person, but the
   61  victim or witness cannot hear or see the defendant. The
   62  defendant and the attorney for the defendant may communicate by
   63  any appropriate private method.
   64         (5) Any party, or the court on its own motion, may request
   65  the aid of an interpreter, as provided in s. 90.606, to aid the
   66  parties in formulating methods of questioning the child or
   67  person who has the intellectual disability and in interpreting
   68  the answers of the child or person during proceedings conducted
   69  under this section.
   70         (6) The motion referred to in subsection (1) may be made at
   71  any time with reasonable notice to each party to the cause, and
   72  videotaping of testimony may be made any time after the court
   73  grants the motion. The videotaped testimony is admissible as
   74  evidence in the trial of the cause; however, such testimony is
   75  not admissible in any trial or proceeding in which such witness
   76  testifies by use of closed circuit television pursuant to s.
   77  92.54.
   78         (7) The court shall make specific findings of fact, on the
   79  record, as to the basis for its ruling under this section.
   80         Section 2. Section 92.54, Florida Statutes, is amended to
   81  read:
   82         92.54 Use of closed circuit television in proceedings
   83  involving a victim or witness under the age of 18 16 or who has
   84  an intellectual disability.—
   85         (1) Upon motion and hearing in camera and upon a finding
   86  that there is a substantial likelihood that a victim or witness
   87  under the age of 18 16 or who has an intellectual disability
   88  will suffer at least moderate emotional or mental harm due to
   89  the presence of the defendant if such victim or witness is
   90  required to testify in open court, or is unavailable as defined
   91  in s. 90.804(1), the trial court may order that the testimony of
   92  the victim or witness be taken outside of the courtroom and
   93  shown by means of closed circuit television.
   94         (2) The motion may be filed by the victim or witness; the
   95  attorney, parent, legal guardian, or guardian ad litem of the
   96  victim or witness; the prosecutor; the defendant or the
   97  defendant’s counsel; or the trial judge on his or her own
   98  motion.
   99         (3) Only the judge, the prosecutor, the defendant, the
  100  attorney for the defendant, the operators of the videotape
  101  equipment, an interpreter, and some other person who, in the
  102  opinion of the court, contributes to the well-being of the child
  103  or the person who has an intellectual disability and who will
  104  not be a witness in the case may be in the room during the
  105  recording of the testimony.
  106         (4) During the victim’s or witness’s testimony by closed
  107  circuit television, the court may require the defendant to view
  108  the testimony from the courtroom. In such a case, the court
  109  shall permit the defendant to observe and hear the testimony of
  110  the victim or witness, but must ensure that the victim or
  111  witness cannot hear or see the defendant. The defendant’s right
  112  to assistance of counsel, which includes the right to immediate
  113  and direct communication with counsel conducting cross
  114  examination, must be protected and, upon the defendant’s
  115  request, such communication must be provided by any appropriate
  116  electronic method.
  117         (5) The court shall make specific findings of fact, on the
  118  record, as to the basis for its ruling under this section.
  119         Section 3. Section 92.55, Florida Statutes, is amended to
  120  read:
  121         92.55 Judicial or other proceedings involving victim or
  122  witness under the age of 18 16, a person who has an intellectual
  123  disability, or a sexual offense victim or witness; special
  124  protections; use of registered service or therapy animals.—
  125         (1) For purposes of this section, the term:
  126         (a) “Sexual offense victim or witness” means a person who
  127  was under the age of 18 16 when he or she was the victim of or a
  128  witness to a sexual offense.
  129         (b) “Sexual offense” means any offense specified in s.
  130  775.21(4)(a)1. or s. 943.0435(1)(a)1.a.(I).
  131         (2) Upon motion of any party, upon motion of a parent,
  132  guardian, attorney, or guardian ad litem, or other advocate
  133  appointed by the court under s. 914.17 for a victim or witness
  134  under the age of 18 16, a person who has an intellectual
  135  disability, or a sexual offense victim or witness, or upon its
  136  own motion, the court may enter any order necessary to protect
  137  the victim or witness in any judicial proceeding or other
  138  official proceeding from severe emotional or mental harm due to
  139  the presence of the defendant if the victim or witness is
  140  required to testify in open court. Such orders must relate to
  141  the taking of testimony and include, but are not limited to:
  142         (a) Interviewing or the taking of depositions as part of a
  143  civil or criminal proceeding.
  144         (b) Examination and cross-examination for the purpose of
  145  qualifying as a witness or testifying in any proceeding.
  146         (c) The use of testimony taken outside of the courtroom,
  147  including proceedings under ss. 92.53 and 92.54.
  148         (3) In ruling upon the motion, the court shall consider:
  149         (a) The age of the child, the nature of the offense or act,
  150  the relationship of the child to the parties in the case or to
  151  the defendant in a criminal action, the degree of emotional
  152  trauma that will result to the child as a consequence of the
  153  defendant’s presence, and any other fact that the court deems
  154  relevant;
  155         (b) The age of the person who has an intellectual
  156  disability, the functional capacity of such person, the nature
  157  of the offenses or act, the relationship of the person to the
  158  parties in the case or to the defendant in a criminal action,
  159  the degree of emotional trauma that will result to the person as
  160  a consequence of the defendant’s presence, and any other fact
  161  that the court deems relevant; or
  162         (c) The age of the sexual offense victim or witness when
  163  the sexual offense occurred, the relationship of the sexual
  164  offense victim or witness to the parties in the case or to the
  165  defendant in a criminal action, the degree of emotional trauma
  166  that will result to the sexual offense victim or witness as a
  167  consequence of the defendant’s presence, and any other fact that
  168  the court deems relevant.
  169         (4) In addition to such other relief provided by law, the
  170  court may enter orders limiting the number of times that a
  171  child, a person who has an intellectual disability, or a sexual
  172  offense victim or witness may be interviewed, prohibiting
  173  depositions of the victim or witness, requiring the submission
  174  of questions before the examination of the victim or witness,
  175  setting the place and conditions for interviewing the victim or
  176  witness or for conducting any other proceeding, or permitting or
  177  prohibiting the attendance of any person at any proceeding. The
  178  court shall enter any order necessary to protect the rights of
  179  all parties, including the defendant in any criminal action.
  180         (5) The court may set any other conditions it finds just
  181  and appropriate when taking the testimony of a child victim or
  182  witness or a sexual offense victim or witness, including the use
  183  of a service or therapy animal that has been evaluated and
  184  registered according to national standards, in any proceeding
  185  involving a sexual offense. When deciding whether to permit a
  186  child victim or witness or sexual offense victim or witness to
  187  testify with the assistance of a registered service or therapy
  188  animal, the court shall consider the age of the child victim or
  189  witness, the age of the sexual offense victim or witness at the
  190  time the sexual offense occurred, the interests of the child
  191  victim or witness or sexual offense victim or witness, the
  192  rights of the parties to the litigation, and any other relevant
  193  factor that would facilitate the testimony by the child victim
  194  or witness or sexual offense victim or witness.
  195         Section 4. Subsection (10) is added to section 787.06,
  196  Florida Statutes, to read:
  197         787.06 Human trafficking.—
  198         (10) A victim’s lack of chastity or the willingness or
  199  consent of a victim is not a defense to prosecution under this
  200  section if the victim was under 18 years of age at the time of
  201  the offense.
  202         Section 5. Section 794.022, Florida Statutes, is amended to
  203  read:
  204         794.022 Rules of evidence.—
  205         (1) The testimony of the victim need not be corroborated in
  206  a prosecution under s. 787.06, s. 794.011, or s. 800.04.
  207         (2) Specific instances of prior consensual sexual activity
  208  between the victim and any person other than the offender may
  209  shall not be admitted into evidence in a prosecution under s.
  210  787.06, s. 794.011, or s. 800.04. However, such evidence may be
  211  admitted if it is first established to the court in a proceeding
  212  in camera that such evidence may prove that the defendant was
  213  not the source of the semen, pregnancy, injury, or disease; or,
  214  when consent by the victim is at issue, such evidence may be
  215  admitted if it is first established to the court in a proceeding
  216  in camera that such evidence tends to establish a pattern of
  217  conduct or behavior on the part of the victim which is so
  218  similar to the conduct or behavior in the case that it is
  219  relevant to the issue of consent.
  220         (3) Notwithstanding any other provision of law, reputation
  221  evidence relating to a victim’s prior sexual conduct or evidence
  222  presented for the purpose of showing that manner of dress of the
  223  victim at the time of the offense incited the sexual battery may
  224  shall not be admitted into evidence in a prosecution under s.
  225  787.06, s. 794.011, or s. 800.04.
  226         (4) When consent of the victim is a defense to prosecution
  227  under s. 787.06, s. 794.011, or s. 800.04, evidence of the
  228  victim’s mental incapacity or defect is admissible to prove that
  229  the consent was not intelligent, knowing, or voluntary; and the
  230  court shall instruct the jury accordingly.
  231         (5) An offender’s use of a prophylactic device, or a
  232  victim’s request that an offender use a prophylactic device, is
  233  not, by itself, relevant to either the issue of whether or not
  234  the offense was committed or the issue of whether or not the
  235  victim consented.
  236         Section 6. This act shall take effect July 1, 2016.