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.