Florida Senate - 2016 SB 1294
By Senator Grimsley
21-01365-16 20161294__
1 A bill to be entitled
2 An act relating to offenses involving minors and
3 vulnerable persons; amending s. 92.54, F.S.;
4 increasing the maximum age at which a victim or
5 witness may be allowed to testify via closed circuit
6 television rather than in a courtroom in certain
7 circumstances; amending s. 782.04, F.S.; including
8 human trafficking as an underlying felony offense to
9 support a felony murder conviction; amending s.
10 787.06, F.S.; providing increased criminal penalties
11 for human trafficking offenses if the victim suffers
12 great bodily harm, permanent disability, or permanent
13 disfigurement; specifying that penalties for branding
14 must be for the purpose of committing the offense of
15 human trafficking; prohibiting certain defense to
16 prosecution; amending s. 794.022, F.S.; including
17 human trafficking and lewd and lascivious offenses in
18 the rules of evidence applicable to sexually-related
19 offenses; amending ss. 90.404, 775.21, 943.0435,
20 944.606, and 944.607, F.S.; conforming provisions to
21 changes made by the act; providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Section 92.54, Florida Statutes, is amended to
26 read:
27 92.54 Use of closed circuit television in proceedings
28 involving a victim or witness under the age of 18 16 or who has
29 an intellectual disability.—
30 (1) Upon motion and hearing in camera and upon a finding
31 that there is a substantial likelihood that a victim or witness
32 under the age of 18 16 or who has an intellectual disability
33 will suffer at least moderate emotional or mental harm due to
34 the presence of the defendant if such victim or witness is
35 required to testify in open court, or is unavailable as defined
36 in s. 90.804(1), the trial court may order that the testimony of
37 the victim or witness be taken outside of the courtroom and
38 shown by means of closed circuit television.
39 (2) The motion may be filed by the victim or witness; the
40 attorney, parent, legal guardian, or guardian ad litem of the
41 victim or witness; the prosecutor; the defendant or the
42 defendant’s counsel; or the trial judge on his or her own
43 motion.
44 (3) Only the judge, the prosecutor, the defendant, the
45 attorney for the defendant, the operators of the videotape
46 equipment, an interpreter, and some other person who, in the
47 opinion of the court, contributes to the well-being of the child
48 or the person who has an intellectual disability and who will
49 not be a witness in the case may be in the room during the
50 recording of the testimony.
51 (4) During the victim’s or witness’s testimony by closed
52 circuit television, the court may require the defendant to view
53 the testimony from the courtroom. In such a case, the court
54 shall permit the defendant to observe and hear the testimony of
55 the victim or witness, but must ensure that the victim or
56 witness cannot hear or see the defendant. The defendant’s right
57 to assistance of counsel, which includes the right to immediate
58 and direct communication with counsel conducting cross
59 examination, must be protected and, upon the defendant’s
60 request, such communication must be provided by any appropriate
61 electronic method.
62 (5) The court shall make specific findings of fact, on the
63 record, as to the basis for its ruling under this section.
64 Section 2. Subsections (1), (3), and (4) of section 782.04,
65 Florida Statutes, are amended to read:
66 782.04 Murder.—
67 (1)(a) The unlawful killing of a human being:
68 1. When perpetrated from a premeditated design to effect
69 the death of the person killed or any human being;
70 2. When committed by a person engaged in the perpetration
71 of, or in the attempt to perpetrate, any:
72 a. Trafficking offense prohibited by s. 893.135(1),
73 b. Arson,
74 c. Sexual battery,
75 d. Robbery,
76 e. Burglary,
77 f. Kidnapping,
78 g. Escape,
79 h. Aggravated child abuse,
80 i. Aggravated abuse of an elderly person or disabled adult,
81 j. Aircraft piracy,
82 k. Unlawful throwing, placing, or discharging of a
83 destructive device or bomb,
84 l. Carjacking,
85 m. Home-invasion robbery,
86 n. Aggravated stalking,
87 o. Murder of another human being,
88 p. Resisting an officer with violence to his or her person,
89 q. Aggravated fleeing or eluding with serious bodily injury
90 or death,
91 r. Felony that is an act of terrorism or is in furtherance
92 of an act of terrorism,; or
93 s. Human trafficking; or
94 3. Which resulted from the unlawful distribution of any
95 substance controlled under s. 893.03(1), cocaine as described in
96 s. 893.03(2)(a)4., opium or any synthetic or natural salt,
97 compound, derivative, or preparation of opium, or methadone by a
98 person 18 years of age or older, when such drug is proven to be
99 the proximate cause of the death of the user,
100
101 is murder in the first degree and constitutes a capital felony,
102 punishable as provided in s. 775.082.
103 (b) In all cases under this section, the procedure set
104 forth in s. 921.141 shall be followed in order to determine
105 sentence of death or life imprisonment.
106 (3) When a human being is killed during the perpetration
107 of, or during the attempt to perpetrate, any:
108 (a) Trafficking offense prohibited by s. 893.135(1),
109 (b) Arson,
110 (c) Sexual battery,
111 (d) Robbery,
112 (e) Burglary,
113 (f) Kidnapping,
114 (g) Escape,
115 (h) Aggravated child abuse,
116 (i) Aggravated abuse of an elderly person or disabled
117 adult,
118 (j) Aircraft piracy,
119 (k) Unlawful throwing, placing, or discharging of a
120 destructive device or bomb,
121 (l) Carjacking,
122 (m) Home-invasion robbery,
123 (n) Aggravated stalking,
124 (o) Murder of another human being,
125 (p) Aggravated fleeing or eluding with serious bodily
126 injury or death,
127 (q) Resisting an officer with violence to his or her
128 person, or
129 (r) Felony that is an act of terrorism or is in furtherance
130 of an act of terrorism, or
131 (s) Human trafficking,
132
133 by a person other than the person engaged in the perpetration of
134 or in the attempt to perpetrate such felony, the person
135 perpetrating or attempting to perpetrate such felony commits
136 murder in the second degree, which constitutes a felony of the
137 first degree, punishable by imprisonment for a term of years not
138 exceeding life or as provided in s. 775.082, s. 775.083, or s.
139 775.084.
140 (4) The unlawful killing of a human being, when perpetrated
141 without any design to effect death, by a person engaged in the
142 perpetration of, or in the attempt to perpetrate, any felony
143 other than any:
144 (a) Trafficking offense prohibited by s. 893.135(1),
145 (b) Arson,
146 (c) Sexual battery,
147 (d) Robbery,
148 (e) Burglary,
149 (f) Kidnapping,
150 (g) Escape,
151 (h) Aggravated child abuse,
152 (i) Aggravated abuse of an elderly person or disabled
153 adult,
154 (j) Aircraft piracy,
155 (k) Unlawful throwing, placing, or discharging of a
156 destructive device or bomb,
157 (l) Unlawful distribution of any substance controlled under
158 s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or
159 opium or any synthetic or natural salt, compound, derivative, or
160 preparation of opium by a person 18 years of age or older, when
161 such drug is proven to be the proximate cause of the death of
162 the user,
163 (m) Carjacking,
164 (n) Home-invasion robbery,
165 (o) Aggravated stalking,
166 (p) Murder of another human being,
167 (q) Aggravated fleeing or eluding with serious bodily
168 injury or death,
169 (r) Resisting an officer with violence to his or her
170 person, or
171 (s) Felony that is an act of terrorism or is in furtherance
172 of an act of terrorism, or
173 (t) Human trafficking,
174
175 is murder in the third degree and constitutes a felony of the
176 second degree, punishable as provided in s. 775.082, s. 775.083,
177 or s. 775.084.
178 Section 3. Paragraph (h) is added to subsection (3) of
179 section 787.06, Florida Statutes, paragraph (b) of subsection
180 (4) is amended, subsections (5) through (9) are renumbered as
181 subsections (6) through (10), respectively, and a new subsection
182 (5) is added to that section, to read:
183 787.06 Human trafficking.—
184 (3) Any person who knowingly, or in reckless disregard of
185 the facts, engages in human trafficking, or attempts to engage
186 in human trafficking, or benefits financially by receiving
187 anything of value from participation in a venture that has
188 subjected a person to human trafficking:
189 (h) And during the commission or attempt to commit the
190 offense of human trafficking causes great bodily harm, permanent
191 disability, or permanent disfigurement to the victim of the
192 human trafficking offense or attempted offense commits a felony
193 of the first degree, punishable for a term of years not
194 exceeding life, as provided in s. 775.082, s. 775.083, or s.
195 775.084.
196
197 For each instance of human trafficking of any individual under
198 this subsection, a separate crime is committed and a separate
199 punishment is authorized.
200 (4)
201 (b) Any person who permanently brands, or directs to be
202 permanently branded, for the purpose of committing an offense
203 under this section, a victim of an offense under this section
204 commits a second degree felony, punishable as provided in s.
205 775.082, s. 775.083, or s. 775.084. For purposes of this
206 subsection, the term “permanently branded” means a mark on the
207 individual’s body that, if it can be removed or repaired at all,
208 can only be removed or repaired by surgical means, laser
209 treatment, or other medical procedure.
210 (5) A victim’s lack of chastity or the willingness or
211 consent of a victim is not a defense to prosecution under this
212 section if the victim was under 18 years of age at the time of
213 the offense.
214 Section 4. Section 794.022, Florida Statutes, is amended to
215 read:
216 794.022 Rules of evidence.—
217 (1) The testimony of the victim need not be corroborated in
218 a prosecution under s. 787.06, s. 794.011, or s. 800.04.
219 (2) Specific instances of prior consensual sexual activity
220 between the victim and any person other than the offender may
221 shall not be admitted into evidence in a prosecution under s.
222 787.06, s. 794.011, or s. 800.04. However, such evidence may be
223 admitted if it is first established to the court in a proceeding
224 in camera that such evidence may prove that the defendant was
225 not the source of the semen, pregnancy, injury, or disease; or,
226 when consent by the victim is at issue, such evidence may be
227 admitted if it is first established to the court in a proceeding
228 in camera that such evidence tends to establish a pattern of
229 conduct or behavior on the part of the victim which is so
230 similar to the conduct or behavior in the case that it is
231 relevant to the issue of consent.
232 (3) Notwithstanding any other provision of law, reputation
233 evidence relating to a victim’s prior sexual conduct or evidence
234 presented for the purpose of showing that manner of dress of the
235 victim at the time of the offense incited the sexual battery may
236 shall not be admitted into evidence in a prosecution under s.
237 787.06, s. 794.011, or s. 800.04.
238 (4) When consent of the victim is a defense to prosecution
239 under s. 787.06, s. 794.011, or s. 800.04, evidence of the
240 victim’s mental incapacity or defect is admissible to prove that
241 the consent was not intelligent, knowing, or voluntary; and the
242 court shall instruct the jury accordingly.
243 (5) An offender’s use of a prophylactic device, or a
244 victim’s request that an offender use a prophylactic device, is
245 not, by itself, relevant to either the issue of whether or not
246 the offense was committed or the issue of whether or not the
247 victim consented.
248 Section 5. Paragraphs (b) and (c) of subsection (2) of
249 section 90.404, Florida Statutes, are amended to read:
250 90.404 Character evidence; when admissible.—
251 (2) OTHER CRIMES, WRONGS, OR ACTS.—
252 (b)1. In a criminal case in which the defendant is charged
253 with a crime involving child molestation, evidence of the
254 defendant’s commission of other crimes, wrongs, or acts of child
255 molestation is admissible and may be considered for its bearing
256 on any matter to which it is relevant.
257 2. For the purposes of this paragraph, the term “child
258 molestation” means conduct proscribed by s. 787.025(2)(c), s.
259 787.06(3)(g), former s. 787.06(3)(h), Florida Statutes 2012, s.
260 794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
261 former s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s.
262 847.0145, or s. 985.701(1) when committed against a person 16
263 years of age or younger.
264 (c)1. In a criminal case in which the defendant is charged
265 with a sexual offense, evidence of the defendant’s commission of
266 other crimes, wrongs, or acts involving a sexual offense is
267 admissible and may be considered for its bearing on any matter
268 to which it is relevant.
269 2. For the purposes of this paragraph, the term “sexual
270 offense” means conduct proscribed by s. 787.025(2)(c), s.
271 787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), Florida
272 Statutes 2012, s. 794.011, excluding s. 794.011(10), s. 794.05,
273 former s. 796.03, former s. 796.035, s. 825.1025(2)(b), s.
274 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1).
275 Section 6. Paragraph (a) of subsection (4) of section
276 775.21, Florida Statutes, is amended to read:
277 775.21 The Florida Sexual Predators Act.—
278 (4) SEXUAL PREDATOR CRITERIA.—
279 (a) For a current offense committed on or after October 1,
280 1993, upon conviction, an offender shall be designated as a
281 “sexual predator” under subsection (5), and subject to
282 registration under subsection (6) and community and public
283 notification under subsection (7) if:
284 1. The felony is:
285 a. A capital, life, or first degree felony violation, or
286 any attempt thereof, of s. 787.01 or s. 787.02, where the victim
287 is a minor and the defendant is not the victim’s parent or
288 guardian, or s. 794.011, s. 800.04, or s. 847.0145, or a
289 violation of a similar law of another jurisdiction; or
290 b. Any felony violation, or any attempt thereof, of s.
291 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.
292 787.025(2)(c), where the victim is a minor and the defendant is
293 not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f),
294 or (g); former s. 787.06(3)(h), Florida Statutes 2012; s.
295 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03;
296 former s. 796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s.
297 827.071; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; s.
298 916.1075(2); or s. 985.701(1); or a violation of a similar law
299 of another jurisdiction, and the offender has previously been
300 convicted of or found to have committed, or has pled nolo
301 contendere or guilty to, regardless of adjudication, any
302 violation of s. 393.135(2); s. 394.4593(2); s. 787.01, s.
303 787.02, or s. 787.025(2)(c), where the victim is a minor and the
304 defendant is not the victim’s parent or guardian; s.
305 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
306 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
307 former s. 796.03; former s. 796.035; s. 800.04; s. 825.1025; s.
308 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s.
309 847.0145; s. 916.1075(2); or s. 985.701(1); or a violation of a
310 similar law of another jurisdiction;
311 2. The offender has not received a pardon for any felony or
312 similar law of another jurisdiction that is necessary for the
313 operation of this paragraph; and
314 3. A conviction of a felony or similar law of another
315 jurisdiction necessary to the operation of this paragraph has
316 not been set aside in any postconviction proceeding.
317 Section 7. Paragraph (a) of subsection (1) of section
318 943.0435, Florida Statutes, is amended to read:
319 943.0435 Sexual offenders required to register with the
320 department; penalty.—
321 (1) As used in this section, the term:
322 (a)1. “Sexual offender” means a person who meets the
323 criteria in sub-subparagraph a., sub-subparagraph b., sub
324 subparagraph c., or sub-subparagraph d., as follows:
325 a.(I) Has been convicted of committing, or attempting,
326 soliciting, or conspiring to commit, any of the criminal
327 offenses proscribed in the following statutes in this state or
328 similar offenses in another jurisdiction: s. 393.135(2); s.
329 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where
330 the victim is a minor and the defendant is not the victim’s
331 parent or guardian; s. 787.06(3)(b), (d), (f), or (g); former s.
332 787.06(3)(h), Florida Statutes 2012; s. 794.011, excluding s.
333 794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s.
334 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s.
335 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s.
336 847.0145; s. 916.1075(2); or s. 985.701(1); or any similar
337 offense committed in this state which has been redesignated from
338 a former statute number to one of those listed in this sub-sub
339 subparagraph; and
340 (II) Has been released on or after October 1, 1997, from
341 the sanction imposed for any conviction of an offense described
342 in sub-sub-subparagraph (I). For purposes of sub-sub
343 subparagraph (I), a sanction imposed in this state or in any
344 other jurisdiction includes, but is not limited to, a fine,
345 probation, community control, parole, conditional release,
346 control release, or incarceration in a state prison, federal
347 prison, private correctional facility, or local detention
348 facility;
349 b. Establishes or maintains a residence in this state and
350 who has not been designated as a sexual predator by a court of
351 this state but who has been designated as a sexual predator, as
352 a sexually violent predator, or by another sexual offender
353 designation in another state or jurisdiction and was, as a
354 result of such designation, subjected to registration or
355 community or public notification, or both, or would be if the
356 person were a resident of that state or jurisdiction, without
357 regard to whether the person otherwise meets the criteria for
358 registration as a sexual offender;
359 c. Establishes or maintains a residence in this state who
360 is in the custody or control of, or under the supervision of,
361 any other state or jurisdiction as a result of a conviction for
362 committing, or attempting, soliciting, or conspiring to commit,
363 any of the criminal offenses proscribed in the following
364 statutes or similar offense in another jurisdiction: s.
365 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.
366 787.025(2)(c), where the victim is a minor and the defendant is
367 not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f),
368 or (g); former s. 787.06(3)(h), Florida Statutes 2012; s.
369 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03;
370 former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s.
371 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s.
372 847.0137; s. 847.0138; s. 847.0145; s. 916.1075(2); or s.
373 985.701(1); or any similar offense committed in this state which
374 has been redesignated from a former statute number to one of
375 those listed in this sub-subparagraph; or
376 d. On or after July 1, 2007, has been adjudicated
377 delinquent for committing, or attempting, soliciting, or
378 conspiring to commit, any of the criminal offenses proscribed in
379 the following statutes in this state or similar offenses in
380 another jurisdiction when the juvenile was 14 years of age or
381 older at the time of the offense:
382 (I) Section 794.011, excluding s. 794.011(10);
383 (II) Section 800.04(4)(a)2. where the victim is under 12
384 years of age or where the court finds sexual activity by the use
385 of force or coercion;
386 (III) Section 800.04(5)(c)1. where the court finds
387 molestation involving unclothed genitals; or
388 (IV) Section 800.04(5)(d) where the court finds the use of
389 force or coercion and unclothed genitals.
390 2. For all qualifying offenses listed in sub-subparagraph
391 (1)(a)1.d., the court shall make a written finding of the age of
392 the offender at the time of the offense.
393
394 For each violation of a qualifying offense listed in this
395 subsection, except for a violation of s. 794.011, the court
396 shall make a written finding of the age of the victim at the
397 time of the offense. For a violation of s. 800.04(4), the court
398 shall also make a written finding indicating whether the offense
399 involved sexual activity and indicating whether the offense
400 involved force or coercion. For a violation of s. 800.04(5), the
401 court shall also make a written finding that the offense did or
402 did not involve unclothed genitals or genital area and that the
403 offense did or did not involve the use of force or coercion.
404 Section 8. Paragraph (b) of subsection (1) of section
405 944.606, Florida Statutes, is amended to read:
406 944.606 Sexual offenders; notification upon release.—
407 (1) As used in this section:
408 (b) “Sexual offender” means a person who has been convicted
409 of committing, or attempting, soliciting, or conspiring to
410 commit, any of the criminal offenses proscribed in the following
411 statutes in this state or similar offenses in another
412 jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s.
413 787.02, or s. 787.025(2)(c), where the victim is a minor and the
414 defendant is not the victim’s parent or guardian; s.
415 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
416 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
417 former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8);
418 s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
419 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s.
420 916.1075(2); or s. 985.701(1); or any similar offense committed
421 in this state which has been redesignated from a former statute
422 number to one of those listed in this subsection, when the
423 department has received verified information regarding such
424 conviction; an offender’s computerized criminal history record
425 is not, in and of itself, verified information.
426 Section 9. Paragraph (a) of subsection (1) of section
427 944.607, Florida Statutes, is amended to read:
428 944.607 Notification to Department of Law Enforcement of
429 information on sexual offenders.—
430 (1) As used in this section, the term:
431 (a) “Sexual offender” means a person who is in the custody
432 or control of, or under the supervision of, the department or is
433 in the custody of a private correctional facility:
434 1. On or after October 1, 1997, as a result of a conviction
435 for committing, or attempting, soliciting, or conspiring to
436 commit, any of the criminal offenses proscribed in the following
437 statutes in this state or similar offenses in another
438 jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s.
439 787.02, or s. 787.025(2)(c), where the victim is a minor and the
440 defendant is not the victim’s parent or guardian; s.
441 787.06(3)(b), (d), (f), or (g); former s. 787.06(3)(h), Florida
442 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05;
443 former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8);
444 s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s.
445 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s.
446 916.1075(2); or s. 985.701(1); or any similar offense committed
447 in this state which has been redesignated from a former statute
448 number to one of those listed in this paragraph; or
449 2. Who establishes or maintains a residence in this state
450 and who has not been designated as a sexual predator by a court
451 of this state but who has been designated as a sexual predator,
452 as a sexually violent predator, or by another sexual offender
453 designation in another state or jurisdiction and was, as a
454 result of such designation, subjected to registration or
455 community or public notification, or both, or would be if the
456 person were a resident of that state or jurisdiction, without
457 regard as to whether the person otherwise meets the criteria for
458 registration as a sexual offender.
459 Section 10. This act shall take effect July 1, 2016.