Florida Senate - 2021                                    SB 1328
       
       
        
       By Senator Book
       
       
       
       
       
       32-01571-21                                           20211328__
    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; providing an effective date.
   18          
   19  Be It Enacted by the Legislature of the State of Florida:
   20  
   21         Section 1. Section 92.55, Florida Statutes, is amended to
   22  read:
   23         92.55 Judicial or other proceedings involving certain
   24  victims and witnesses victim or witness under the age of 18, a
   25  person who has an intellectual disability, or a sexual offense
   26  victim or witness; special protections; use of therapy animals
   27  or facility dogs.—
   28         (1) For purposes of this section, the term:
   29         (c)(a) “Sexual offense victim or witness” means a person
   30  who was under the age of 18 when he or she was the victim of or
   31  a witness to a sexual offense.
   32         (a)“Facility dog” means a dog that has been trained,
   33  evaluated, and certified as a facility dog pursuant to industry
   34  standards and provides unobtrusive emotional support to children
   35  and adults in facility settings.
   36         (b) “Sexual offense” means any offense specified in s.
   37  775.21(4)(a)1. or s. 943.0435(1)(h)1.a.(I).
   38         (d)“Therapy animal” means an animal that has been trained,
   39  evaluated, and certified as a therapy animal pursuant to
   40  industry standards by an organization that certifies animals as
   41  appropriate to provide animal therapy.
   42         (2) Upon motion of any party;, upon motion of a parent,
   43  guardian, attorney, guardian ad litem, or other advocate
   44  appointed by the court under s. 914.17 for a victim or witness
   45  under the age of 18, a person who has an intellectual
   46  disability, or a sexual offense victim or witness;, or upon its
   47  own motion, the court may enter any order necessary to protect
   48  the person victim or witness in any judicial proceeding or other
   49  official proceeding from moderate or severe emotional or mental
   50  harm due to the presence of the defendant if the victim or
   51  witness is required to testify in open court. Such orders must
   52  relate to the taking of testimony and include, but are not
   53  limited to:
   54         (a) Interviewing or the taking of depositions as part of a
   55  civil or criminal proceeding.
   56         (b) Examination and cross-examination for the purpose of
   57  qualifying as a witness or testifying in any proceeding.
   58         (c) The use of testimony taken outside of the courtroom,
   59  including proceedings under ss. 92.53 and 92.54.
   60         (3)(a)Depositions are not permitted, except upon a showing
   61  of good cause, of victims or witnesses younger than the age of
   62  18, persons who have intellectual disabilities, or sexual
   63  offense victims in judicial proceedings or other official
   64  proceedings involving any of the following:
   65         1.Murder under s. 782.04.
   66         2.Manslaughter under s. 782.07.
   67         3.Sexual battery under s. 794.011.
   68         4.Lewd or lascivious offenses under s. 800.04.
   69         5.Computer pornography under s. 847.0135 or the
   70  transmission of pornography by electronic device or equipment
   71  under s. 847.0137.
   72         6.Human trafficking under s. 787.06.
   73         7.Kidnapping under s. 787.01.
   74         8.False imprisonment under s. 787.02.
   75         9.Aggravated cyberstalking under s. 784.048.
   76         10.Child abuse or neglect of a child under s. 827.03.
   77         11.Use of a child in a sexual performance under s.
   78  827.071.
   79         12.Any offense constituting domestic violence, as defined
   80  in s. 741.28.
   81         13.Abuse, abandonment, or neglect of children under
   82  chapter 39 or chapter 827.
   83         (b)Upon written motion and written findings that a
   84  deposition is necessary to assist a trial, that the evidence
   85  sought is not reasonably available by any other means, and that
   86  the probative value of the testimony outweighs the potential
   87  detriment to the person to be deposed, the court may authorize
   88  the taking of a deposition and may order protections deemed
   89  necessary, including those provided in this section.
   90         (4)(3) In ruling upon a the motion filed under this
   91  section, the court may shall consider:
   92         (a) The age of the victim or witness. child,
   93         (b) The nature of the offense or act.,
   94         (c)The complexity of the issues involved.
   95         (d) The relationship of the victim or witness child to the
   96  parties in the case or to the defendant in a criminal action.,
   97         (e) The degree of emotional or mental harm trauma that will
   98  result to the child as a consequence of the examination,
   99  interview, or testimony. defendant’s presence, and
  100         (f)The functional capacity of the victim or witness if he
  101  or she has an intellectual disability.
  102         (g)The age of the sexual offense victim or witness when
  103  the sexual offense occurred.
  104         (h) Any other fact that the court deems relevant.;
  105         (b)The age of the person who has an intellectual
  106  disability, the functional capacity of such person, the nature
  107  of the offenses or act, the relationship of the person to the
  108  parties in the case or to the defendant in a criminal action,
  109  the degree of emotional trauma that will result to the person as
  110  a consequence of the defendant’s presence, and any other fact
  111  that the court deems relevant; or
  112         (c)The age of the sexual offense victim or witness when the
  113  sexual offense occurred, the relationship of the sexual offense
  114  victim or witness to the parties in the case or to the defendant
  115  in a criminal action, the degree of emotional trauma that will
  116  result to the sexual offense victim or witness as a consequence
  117  of the defendant’s presence, and any other fact that the court
  118  deems relevant.
  119         (5)(4) In addition to such other relief provided by law,
  120  the court may enter orders it deems just and appropriate for the
  121  protection of limiting the number of times that a child, a
  122  person who has an intellectual disability, or a sexual offense
  123  victim or witness, including limiting the number of times a
  124  victim or witness may be interviewed, limiting the length and
  125  scope of a deposition, requiring a deposition to be taken only
  126  by written questions, requiring a deposition to be in the
  127  presence of a trial judge or magistrate, sealing the tape or
  128  transcript of a deposition until further order of the court,
  129  allowing use of a therapy animal or facility dog prohibiting
  130  depositions of the victim or witness, requiring the submission
  131  of questions before the examination of the victim or witness,
  132  setting the place and conditions for interviewing the victim or
  133  witness or for conducting any other proceeding, or permitting or
  134  prohibiting the attendance of any person at any proceeding. The
  135  court shall enter any order necessary to protect the rights of
  136  all parties, including the defendant in any criminal action.
  137         (6) Section 794.022 applies to depositions taken pursuant
  138  to this section. If a deposition is taken pursuant to this
  139  section, the court shall appoint a guardian ad litem or other
  140  advocate pursuant to s. 914.17 to represent the deponent for the
  141  purposes of the deposition if the deponent does not already have
  142  counsel.
  143         (7) The court, on its own motion or that of any party, may
  144  request the aid of an interpreter, as provided in s. 90.606, to
  145  aid the parties in formulating methods of questioning the person
  146  who has an intellectual disability or the sexual offense victim
  147  or witness and in interpreting the answers of the person who has
  148  an intellectual disability or the sexual offense victim or
  149  witness during proceedings conducted under this section.
  150         (8) The court shall make specific findings of fact on the
  151  record as to the basis for its orders and rulings under this
  152  section.
  153         (5) The court may set any other conditions it finds just
  154  and appropriate when taking the testimony of a victim or witness
  155  under the age of 18, a person who has an intellectual
  156  disability, or a sexual offense victim or witness, including the
  157  use of a therapy animal or facility dog, in any proceeding
  158  involving a sexual offense or child abuse, abandonment, or
  159  neglect.
  160         (a) When deciding whether to permit a victim or witness
  161  under the age of 18, a person who has an intellectual
  162  disability, or a sexual offense victim or witness to testify
  163  with the assistance of a therapy animal or facility dog, the
  164  court shall consider the age of the child victim or witness, the
  165  age of the sexual offense victim or witness at the time the
  166  sexual offense occurred, the interests of the child victim or
  167  witness or sexual offense victim or witness, the rights of the
  168  parties to the litigation, and any other relevant factor that
  169  would facilitate the testimony by the victim or witness under
  170  the age of 18, person who has an intellectual disability, or
  171  sexual offense victim or witness.
  172         (b) For purposes of this subsection the term:
  173         1. “Facility dog” means a dog that has been trained,
  174  evaluated, and certified as a facility dog pursuant to industry
  175  standards and provides unobtrusive emotional support to children
  176  and adults in facility settings.
  177         2. “Therapy animal” means an animal that has been trained,
  178  evaluated, and certified as a therapy animal pursuant to
  179  industry standards by an organization that certifies animals as
  180  appropriate to provide animal therapy.
  181         Section 2. This act shall take effect upon becoming a law.