Florida Senate - 2016                                     SB 634
       
       
        
       By Senator Benacquisto
       
       
       
       
       
       30-00590-16                                            2016634__
    1                        A bill to be entitled                      
    2         An act relating to sexual offense victim or witness
    3         testimony; amending s. 92.53, F.S.; authorizing a
    4         trial court to order the videotaping of the testimony
    5         of a victim of sexual battery under certain
    6         circumstances; expanding who may stipulate that the
    7         requirement for the presence of the judge at the
    8         videotaping of testimony may be waived; amending s.
    9         92.54, F.S.; authorizing a trial court to order the
   10         use of closed circuit television in proceedings
   11         involving a victim of sexual battery under certain
   12         circumstances; permitting certain persons to be
   13         present in the room during the recording of testimony;
   14         amending s. 92.55, F.S.; redefining the term “sexual
   15         offense victim or witness”; conforming provisions to
   16         changes made by the act; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Section 92.53, Florida Statutes, is amended to
   21  read:
   22         92.53 Videotaping the testimony of a victim of sexual
   23  battery, a victim or witness under age 16, or a victim or
   24  witness who has an intellectual disability.—
   25         (1) On motion and hearing in camera and a finding that
   26  there is a substantial likelihood that a victim of sexual
   27  battery or a victim or witness who is under the age of 16 or who
   28  has an intellectual disability as defined in s. 393.063 would
   29  suffer at least moderate emotional or mental harm due to the
   30  presence of the defendant if such victim or witness is required
   31  to testify in open court, or is unavailable as defined in s.
   32  90.804(1), the trial court may order the videotaping of the
   33  testimony of the victim or witness in a case, whether civil or
   34  criminal in nature, in which videotaped testimony is to be used
   35  at trial in lieu of trial testimony in open court.
   36         (2) The motion may be filed by:
   37         (a) The victim or witness, or the victim’s or witness’s
   38  attorney, parent, legal guardian, or guardian ad litem;
   39         (b) A trial judge on his or her own motion;
   40         (c) Any party in a civil proceeding; or
   41         (d) The prosecuting attorney or the defendant, or the
   42  defendant’s counsel.
   43         (3) The judge shall preside, or shall appoint a special
   44  master to preside, at the videotaping unless:
   45         (a) The child or the person who has the intellectual
   46  disability is represented by a guardian ad litem or counsel;
   47         (b) The victim or a representative of the victim or witness
   48  and the counsel for each party stipulate that the requirement
   49  for the presence of the judge or special master may be waived;
   50  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 victim of sexual battery, the
   58  child, or the person who has an intellectual disability by means
   59  of a two-way mirror or another similar method that ensures that
   60  the defendant can observe and hear the testimony of the victim
   61  or witness in person, but the victim or witness cannot hear or
   62  see the defendant. The defendant and the attorney for the
   63  defendant may communicate by 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 of sexual battery, a victim or witness under
   84  the age of 16, or a victim or witness who has an intellectual
   85  disability.—
   86         (1) Upon motion and hearing in camera and upon a finding
   87  that there is a substantial likelihood that a victim of sexual
   88  battery, a victim or witness under the age of 16, or a victim or
   89  witness who has an intellectual disability will suffer at least
   90  moderate emotional or mental harm due to the presence of the
   91  defendant if such victim or witness is required to testify in
   92  open court, or is unavailable as defined in s. 90.804(1), the
   93  trial court may order that the testimony of the victim or
   94  witness be taken outside of the courtroom and shown by means of
   95  closed circuit television.
   96         (2) The motion may be filed by the victim or witness; the
   97  attorney, parent, legal guardian, or guardian ad litem of the
   98  victim or witness; the prosecutor; the defendant or the
   99  defendant’s counsel; or the trial judge on his or her own
  100  motion.
  101         (3) Only the judge, the prosecutor, the defendant, the
  102  attorney for the defendant, the operators of the videotape
  103  equipment, an interpreter, and some other person who, in the
  104  opinion of the court, contributes to the well-being of the
  105  victim, the child, or the person who has an intellectual
  106  disability and who will not be a witness in the case may be in
  107  the room during the recording of the testimony.
  108         (4) During the victim’s or witness’s testimony by closed
  109  circuit television, the court may require the defendant to view
  110  the testimony from the courtroom. In such a case, the court
  111  shall permit the defendant to observe and hear the testimony of
  112  the victim or witness, but must ensure that the victim or
  113  witness cannot hear or see the defendant. The defendant’s right
  114  to assistance of counsel, which includes the right to immediate
  115  and direct communication with counsel conducting cross
  116  examination, must be protected and, upon the defendant’s
  117  request, such communication must be provided by any appropriate
  118  electronic method.
  119         (5) The court shall make specific findings of fact, on the
  120  record, as to the basis for its ruling under this section.
  121         Section 3. Subsections (1) and (3) of section 92.55,
  122  Florida Statutes, are amended to read:
  123         92.55 Judicial or other proceedings involving a victim or
  124  witness under the age of 16, a person who has an intellectual
  125  disability, or a sexual offense victim of any age or a witness
  126  to a sexual offense; special protections; use of registered
  127  service or therapy animals.—
  128         (1) For purposes of this section, the term:
  129         (a) “Sexual offense victim or witness” means a person who
  130  was under the age of 16 when he or she was the victim of or a
  131  witness to a sexual offense.
  132         (b) “Sexual offense” means any offense specified in s.
  133  775.21(4)(a)1. or s. 943.0435(1)(a)1.a.(I).
  134         (3) In ruling upon the motion, the court shall consider:
  135         (a) The age of the victim or witness child, the nature of
  136  the offense or act, the relationship of the victim or witness
  137  child to the parties in the case or to the defendant in a
  138  criminal action, the degree of emotional trauma that will result
  139  to the victim or witness child as a consequence of the
  140  defendant’s presence, and any other fact that the court deems
  141  relevant;
  142         (b) The age of the person who has an intellectual
  143  disability, the functional capacity of such person, the nature
  144  of the offenses or act, the relationship of the person to the
  145  parties in the case or to the defendant in a criminal action,
  146  the degree of emotional trauma that will result to the person as
  147  a consequence of the defendant’s presence, and any other fact
  148  that the court deems relevant; or
  149         (c) The age of the sexual offense victim or witness when
  150  the sexual offense occurred, the relationship of the sexual
  151  offense victim or witness to the parties in the case or to the
  152  defendant in a criminal action, the degree of emotional trauma
  153  that will result to the sexual offense victim or witness as a
  154  consequence of the defendant’s presence, and any other fact that
  155  the court deems relevant.
  156         Section 4. This act shall take effect July 1, 2016.