Florida Senate - 2023 SB 134
By Senator Osgood
32-00413-23 2023134__
1 A bill to be entitled
2 An act relating to deposing victims of certain
3 offenses; creating s. 787.301, F.S.; prohibiting the
4 deposing of an individual who, at the time of the
5 request for the deposition, is 17 years of age or
6 younger and has been a victim of human trafficking or
7 specified sexual offenses; providing exceptions;
8 prohibiting a court from approving such depositions
9 unless it makes certain findings; requiring a court to
10 issue a protective order for the victim if the court
11 approves a deposition of the victim; providing
12 requirements for such depositions; authorizing the
13 protective order to include specified conditions;
14 providing that an individual who is 17 years of age or
15 younger at the time of the request for a deposition
16 and who is a victim in a prosecution of human
17 trafficking or specified sexual offenses is considered
18 a sensitive witness; providing requirements that must
19 be met before taking the deposition of a sensitive
20 witness; providing procedures if certain matters
21 pertaining to the deposition cannot be resolved;
22 authorizing a victim to have counsel and a victim
23 advocate present at the deposition; requiring that the
24 victim be treated as a party at hearings on motions
25 pertaining to the deposition; authorizing the victim
26 to apply to the court for a protective order;
27 requiring that a subpoena or other notice of the
28 deposition given to the victim include specified
29 information; authorizing a court to issue protective
30 orders, which may include specified conditions;
31 authorizing the court to consider any factor it deems
32 relevant in ruling on the protective order;
33 prohibiting certain self-represented defendants from
34 directly deposing a victim; requiring the court to
35 appoint counsel for the defendant for such
36 depositions; providing an effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40 Section 1. Section 787.301, Florida Statutes, is created to
41 read:
42 787.301 Deposing victims of human trafficking or specified
43 sexual offenses.—
44 (1)(a) An individual who is 17 years of age or younger at
45 the time of a request for a deposition and who is a victim of
46 any of the following offenses may not be deposed, except by
47 agreement of the parties or after approval of the court pursuant
48 to paragraph (b):
49 1. Section 787.06, relating to human trafficking.
50 2. Section 794.011, relating to sexual battery.
51 3. Section 800.04, relating to lewd or lascivious offenses
52 committed upon or in the presence of persons younger than 16
53 years of age.
54 (b) A court may not approve a deposition under this
55 subsection unless the court finds that the testimony of the
56 victim is necessary to assist the trial, that the evidence
57 sought is not reasonably available by other means, and that the
58 probative value of the testimony outweighs the potential
59 detriment to the victim of being deposed. In determining whether
60 to approve a deposition under this subsection, the court must
61 consider the availability of recorded statements of the victim
62 and the complexity of the issues involved.
63 (c) If a deposition is approved under this subsection, the
64 court must issue a protective order to protect the victim from
65 emotional harm, annoyance, embarrassment, oppression, invasion
66 of privacy, undue burden of expense, or waste of time. If a
67 deposition is approved, the court must appoint an attorney to
68 represent the victim at the deposition. The defendant may not be
69 physically present at the deposition, unless agreed to by the
70 parties or upon entry of an order by the court for good cause
71 shown.
72 (d) The protective order may include, but need not be
73 limited to, any of the following conditions, that the
74 deposition:
75 1. Be taken only on specified terms and conditions,
76 including a designation of the time, place, and manner of the
77 deposition;
78 2. Be taken only by written questions;
79 3. Specifically include, exclude, or be limited to inquiry
80 into certain matters;
81 4. Be conducted with only such persons present as the court
82 may designate; or
83 5. Be sealed after it has been taken, whether a tape or
84 transcript, until further order of the court.
85 (2)(a) An individual who is 17 years of age or younger at
86 the time of a request for a deposition and who is a victim in a
87 prosecution for any of the following offenses is considered a
88 sensitive witness:
89 1. Section 787.06, relating to human trafficking.
90 2. Section 794.011, relating to sexual battery.
91 3. Section 800.04, relating to lewd or lascivious offenses
92 committed upon or in the presence of persons younger than 16
93 years of age.
94 (b) Before taking the deposition of a sensitive witness,
95 the party seeking to take the deposition must consult with the
96 other parties and the victim in an effort to reach an agreement
97 on the time, place, manner, and scope of the deposition. If an
98 agreement cannot be reached, the party seeking to take the
99 deposition must so advise the court and specify the matters that
100 are in dispute. The court then shall issue an order regulating
101 the taking of the deposition, including, in its discretion, a
102 requirement that the deposition be taken in the presence of a
103 judge or special master.
104 (c) A victim may have counsel present at the deposition and
105 may make legal objections to questions. The victim must be
106 treated as a party at hearings on motions pertaining to the
107 deposition. A victim may have a victim advocate present during
108 the deposition. The victim may apply to the court for a
109 protective order if he or she believes that he or she is being
110 subjected to harassment or intimidation. A subpoena issued, or
111 any other notice of the deposition given to the victim, must
112 include notice that the victim may have the assistance of
113 counsel for the deposition, may have a victim advocate present
114 for the deposition, and may seek a protective order.
115 (d)1. At the request of a party or the victim, for good
116 cause shown, the court may issue any protective order that
117 justice requires to protect a party or the victim from emotional
118 harm, annoyance, embarrassment, oppression, invasion of privacy,
119 undue burden of expense, or waste of time. A protective order
120 may include, but need not be limited to, any of the following
121 conditions, that the deposition:
122 a. Be taken only on specified terms and conditions,
123 including a designation of the time, place, and manner of the
124 deposition;
125 b. Be taken only by written questions;
126 c. Specifically include, exclude, or be limited to inquiry
127 into certain matters;
128 d. Be conducted with only such persons present as the court
129 may designate;
130 e. Be sealed after it has been taken, whether a tape or
131 transcript, until further order of the court; or
132 f. Not be taken.
133 2. In ruling on such protective order, the court may
134 consider any factor it deems relevant, including, but not
135 limited to:
136 a. The age, health, level of intellectual function, and
137 emotional condition of the victim;
138 b. Whether the victim has knowledge material to the proof
139 of or defense to any essential element of the crime;
140 c. Whether the victim has provided a full written, taped,
141 or transcribed account of his or her proposed testimony at
142 trial;
143 d. Whether the victim’s testimony will relate only to a
144 peripheral issue in the case; or
145 e. Whether an informal interview or telephone conference
146 with the victim will suffice for the purposes of discovery in
147 the case.
148 (3) A self-represented defendant in a prosecution for an
149 offense specified in subsection (1) or subsection (2) may not
150 depose the victim directly. In such a case, the court must
151 appoint counsel for the defendant for the purpose of such
152 deposition.
153 Section 2. This act shall take effect July 1, 2023.