Florida Senate - 2022 SB 772
By Senator Diaz
36-00320A-22 2022772__
1 A bill to be entitled
2 An act relating to vulnerable victims and witnesses;
3 amending s. 92.55, F.S.; revising the standard for
4 orders to protect certain testifying victims and
5 witnesses; prohibiting depositions of certain victims
6 and witnesses in certain proceedings without a showing
7 of good cause; authorizing the court to allow such
8 depositions under certain circumstances; revising
9 factors to be considered by a court in a motion
10 seeking to protect a victim or witness; revising
11 provisions related to available relief; requiring the
12 court to appoint a guardian ad litem or other advocate
13 for the deponent under certain circumstances;
14 authorizing the court to request the aid of an
15 interpreter; requiring the court to make specific
16 findings of fact on the record for certain orders and
17 rulings; making technical changes; amending s.
18 943.0583, F.S.; revising the applicability of
19 provisions relating to human trafficking victims
20 seeking expunction of certain records; providing an
21 effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Section 92.55, Florida Statutes, is amended to
26 read:
27 92.55 Judicial or other proceedings involving certain
28 victims and witnesses victim or witness under the age of 18, a
29 person who has an intellectual disability, or a sexual offense
30 victim or witness; special protections; use of therapy animals
31 or facility dogs.—
32 (1) For purposes of this section, the term:
33 (a) “Facility dog” means a dog that has been trained,
34 evaluated, and certified as a facility dog pursuant to industry
35 standards and provides unobtrusive emotional support to children
36 and adults in facility settings.
37 (c)(a) “Sexual offense victim or witness” means a person
38 who was under the age of 18 when he or she was the victim of or
39 a witness to a sexual offense.
40 (b) “Sexual offense” means any offense specified in s.
41 775.21(4)(a)1. or s. 943.0435(1)(h)1.a.(I).
42 (d) “Therapy animal” means an animal that has been trained,
43 evaluated, and certified as a therapy animal pursuant to
44 industry standards by an organization that certifies animals as
45 appropriate to provide animal therapy.
46 (2) Upon motion of any party;, upon motion of a parent,
47 guardian, attorney, guardian ad litem, or other advocate
48 appointed by the court under s. 914.17 for a victim or witness
49 under the age of 18, a person who has an intellectual
50 disability, or a sexual offense victim or witness;, or upon its
51 own motion, the court may enter any order necessary to protect
52 the person victim or witness in any judicial proceeding or other
53 official proceeding from moderate severe emotional or mental
54 harm due to the presence of the defendant if the victim or
55 witness is required to testify in open court. Such orders must
56 relate to the taking of testimony and include, but are not
57 limited to:
58 (a) Interviewing or the taking of depositions as part of a
59 civil or criminal proceeding.
60 (b) Examination and cross-examination for the purpose of
61 qualifying as a witness or testifying in any proceeding.
62 (c) The use of testimony taken outside of the courtroom,
63 including proceedings under ss. 92.53 and 92.54.
64 (3)(a) Depositions are not allowed, except upon a showing
65 of good cause, of victims or witnesses younger than the age of
66 18, persons who have intellectual disabilities, or sexual
67 offense victims or witnesses in proceedings involving any of the
68 following:
69 1. Abuse, abandonment, or neglect of children under chapter
70 39.
71 2. Any offense constituting domestic violence as defined in
72 s. 741.28.
73 3. Murder under s. 782.04.
74 4. Manslaughter under s. 782.07.
75 5. Aggravated cyberstalking under s. 784.048.
76 6. Kidnapping under s. 787.01.
77 7. False imprisonment under s. 787.02.
78 8. Human trafficking under s. 787.06.
79 9. Sexual battery under s. 794.011.
80 10. Lewd or lascivious offenses under s. 825.1025.
81 11. Child abuse or neglect of a child under s. 827.03.
82 12. Use of a child in a sexual performance under s.
83 827.071.
84 13. Computer pornography under s. 847.0135 or the
85 transmission of pornography by electronic device or equipment
86 under s. 847.0137.
87 (b) Upon written motion and written findings that a
88 deposition is necessary to assist a trial, that the evidence
89 sought is not reasonably available by any other means, and that
90 the probative value of the testimony outweighs the potential
91 detriment to the person to be deposed, the court may authorize
92 the taking of a deposition and may order protections deemed
93 necessary, including those provided in this section.
94 (4)(3) In ruling upon a the motion filed under this
95 section, the court may shall consider:
96 (a) The age of the victim or witness. child,
97 (b) The nature of the offense or act.,
98 (c) The complexity of the issues involved.
99 (d) The relationship of the victim or witness child to the
100 parties in the case or to the defendant in a criminal action.,
101 (e) The degree of emotional or mental harm trauma that will
102 result to the child as a consequence of the examination,
103 interview, or testimony. defendant’s presence, and
104 (f) The functional capacity of the victim or witness if he
105 or she has an intellectual disability.
106 (g) The age of the sexual offense victim or witness when
107 the sexual offense occurred.
108 (h) Any other fact that the court deems relevant;
109 (b) The age of the person who has an intellectual
110 disability, the functional capacity of such person, the nature
111 of the offenses or act, the relationship of the person to the
112 parties in the case or to the defendant in a criminal action,
113 the degree of emotional trauma that will result to the person as
114 a consequence of the defendant’s presence, and any other fact
115 that the court deems relevant; or
116 (c)The age of the sexual offense victim or witness when the
117 sexual offense occurred, the relationship of the sexual offense
118 victim or witness to the parties in the case or to the defendant
119 in a criminal action, the degree of emotional trauma that will
120 result to the sexual offense victim or witness as a consequence
121 of the defendant’s presence, and any other fact that the court
122 deems relevant.
123 (5)(4) In addition to such other relief provided by law,
124 the court may enter orders it deems just and appropriate for the
125 protection of limiting the number of times that a child, a
126 person who has an intellectual disability, or a sexual offense
127 victim or witness, including limiting the number of times a
128 victim or witness may be interviewed, limiting the length and
129 scope of a deposition, requiring a deposition to be taken only
130 by written questions, requiring a deposition to be in the
131 presence of a trial judge or magistrate, sealing the tape or
132 transcript of a deposition until further order of the court,
133 allowing use of a therapy animal or facility dog prohibiting
134 depositions of the victim or witness, requiring the submission
135 of questions before the examination of the victim or witness,
136 setting the place and conditions for interviewing the victim or
137 witness or for conducting any other proceeding, or permitting or
138 prohibiting the attendance of any person at any proceeding. The
139 court shall enter any order necessary to protect the rights of
140 all parties, including the defendant in any criminal action.
141 (6) Section 794.022 applies to depositions taken pursuant
142 to this section. If a deposition is taken pursuant to this
143 section, the court must appoint a guardian ad litem or other
144 advocate pursuant to s. 914.17 to represent the deponent for the
145 purposes of the deposition if the deponent does not already have
146 counsel.
147 (7) The court, on its own motion or that of any party, may
148 request the aid of an interpreter, as provided in s. 90.606, to
149 aid the parties in formulating methods of questioning the person
150 who has an intellectual disability or the sexual offense victim
151 or witness and in interpreting his or her answers during
152 proceedings conducted under this section.
153 (8) The court shall make specific findings of fact on the
154 record as to the basis for its orders and rulings under this
155 section
156 (5) The court may set any other conditions it finds just
157 and appropriate when taking the testimony of a victim or witness
158 under the age of 18, a person who has an intellectual
159 disability, or a sexual offense victim or witness, including the
160 use of a therapy animal or facility dog, in any proceeding
161 involving a sexual offense or child abuse, abandonment, or
162 neglect.
163 (a) When deciding whether to permit a victim or witness
164 under the age of 18, a person who has an intellectual
165 disability, or a sexual offense victim or witness to testify
166 with the assistance of a therapy animal or facility dog, the
167 court shall consider the age of the child victim or witness, the
168 age of the sexual offense victim or witness at the time the
169 sexual offense occurred, the interests of the child victim or
170 witness or sexual offense victim or witness, the rights of the
171 parties to the litigation, and any other relevant factor that
172 would facilitate the testimony by the victim or witness under
173 the age of 18, person who has an intellectual disability, or
174 sexual offense victim or witness.
175 (b) For purposes of this subsection the term:
176 1. “Facility dog” means a dog that has been trained,
177 evaluated, and certified as a facility dog pursuant to industry
178 standards and provides unobtrusive emotional support to children
179 and adults in facility settings.
180 2. “Therapy animal” means an animal that has been trained,
181 evaluated, and certified as a therapy animal pursuant to
182 industry standards by an organization that certifies animals as
183 appropriate to provide animal therapy.
184 Section 2. Subsection (3) of section 943.0583, Florida
185 Statutes, is amended to read:
186 943.0583 Human trafficking victim expunction.—
187 (3) A person who is a victim of human trafficking may
188 petition for the expunction of a criminal history record
189 resulting from the arrest or filing of charges for one or more
190 offenses committed or reported to have been committed while the
191 person was a victim of human trafficking, which offense was
192 committed or reported to have been committed as a part of the
193 human trafficking scheme of which the person was a victim or at
194 the direction of an operator of the scheme, including, but not
195 limited to, violations under chapters 796 and 847, without
196 regard to the disposition of the arrest or of any charges.
197 However, this section does not apply to any offense listed in s.
198 775.084(1)(b)1. if the defendant was found guilty of, or pled
199 guilty or nolo contendere to, any such offense. Determination of
200 the petition under this section should be by a preponderance of
201 the evidence. A conviction expunged under this section is deemed
202 to have been vacated due to a substantive defect in the
203 underlying criminal proceedings. If a person is adjudicated not
204 guilty by reason of insanity or is found to be incompetent to
205 stand trial for any such charge, the expunction of the criminal
206 history record may not prevent the entry of the judgment or
207 finding in state and national databases for use in determining
208 eligibility to purchase or possess a firearm or to carry a
209 concealed firearm, as authorized in s. 790.065(2)(a)4.c. and 18
210 U.S.C. s. 922(t), nor shall it prevent any governmental agency
211 that is authorized by state or federal law to determine
212 eligibility to purchase or possess a firearm or to carry a
213 concealed firearm from accessing or using the record of the
214 judgment or finding in the course of such agency’s official
215 duties.
216 Section 3. This act shall take effect upon becoming a law.