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