AL
Alabama House Bill HB68

Alabama 2022 Regular Session

Alabama House Bill HB68 Compare Versions

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11 1 HB68
2-2 215888-3
2+2 215888-2
33 3 By Representative Simpson
44 4 RFD: Judiciary
55 5 First Read: 11-JAN-22
66 6 PFD: 01/06/2022
77
8-Page 0 HB68
9-1
10-2 ENROLLED, An Act,
11-3 Relating to criminal procedure; to amend Sections
12-4 15-25-1, 15-25-2, as last amended by Act 2021-373, 2021
13-5 Regular Session, 15-25-3, 15-25-5, and 15-25-6, Code of
14-6 Alabama 1975, to allow a protected person to be offered
15-7 protections in criminal prosecutions for physical offenses,
16-8 sexual offenses, and violent offenses; to define a protected
17-9 person; to define a physical offense, sexual offense, and
18-10 violent offense; to allow use of anatomically correct dolls or
19-11 mannequins during testimony of a child under the age of 12 or
20-12 a protected person; to amend Sections 15-25-30, 15-25-31,
21-13 15-25-32, 15-25-34, 15-25-36, 15-25-37, 15-25-38, and
22-14 15-25-39, Code of Alabama 1975, to allow out-of-court
23-15 statements to be admissible if the witness is a protected
24-16 person; to amend Sections 13A-6-81 and 13A-6-82, Code of
25-17 Alabama 1975, to further provide for school employees engaging
26-18 in sexual acts with students; to add Section 15-25-7 to the
27-19 Code of Alabama 1975, to allow leading questions of certain
28-20 witnesses in a criminal proceeding; to repeal Section
29-21 15-25-33, Code of Alabama 1975, relating to expert testimony
30-22 as to unavailability of a child to testify; to make
31-23 nonsubstantive, technical revisions to update the existing
32-24 code language to current style.
33-25 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
34-Page 1 HB68
35-1 Section 1. Sections 15-25-1, 15-25-2, as last
36-2 amended by Act 2021-373, 2021 Regular Session, 15-25-3,
37-3 15-25-5, and 15-25-6, Code of Alabama 1975, are amended to
38-4 read as follows:
39-5 "§15-25-1.
40-6 "(a) This article shall apply to In any criminal
41-7 prosecution for a physical offense or a sexual offense
42-8 wherein, or a violent offense where the alleged victim or
43-9 witness is a child under the age of 16 years and in any
44-10 criminal prosecution involving the sexual exploitation of a
45-11 child under the age of 16, the court may allow leading
46-12 questions at trial by the prosecution or defense of any victim
47-13 or witness in a case who is under the age of 10, if the court
48-14 determines that the allowance of leading questions will
49-15 further the interests of justice. The court may on motion of
50-16 the prosecution or the defense, or on its own motion, limit
51-17 the scope and extent of any leading questions or a protected
52-18 person.
53-19 "(b) For the purposes of this article, a "physical
54-20 offense, a sexual offense, or a violent offense," is defined
55-21 to include all of the following crimes:
56-22 "(1) A sex offense as provided in Section 15-20A-5.
57-23 "(2) A violent offense as provided in Section
58-24 12-25-32.
59-Page 2 HB68
60-1 "(3) Aggravated child abuse as provided in Section
61-2 26-15-3.1.
62-3 "(4) Assault in any degree.
63-4 "(5) Any offense involving domestic violence, elder
64-5 abuse, or a violation of a protection order.
65-6 "(6) Any attempt to commit any of the offenses
66-7 listed in subdivisions (1) to (5), inclusive.
67-8 "(c) For the purposes of this article, "child" means
68-9 a person who is under the age of 16 years at the time of
69-10 trial.
70-11 "(d) For the purposes of this article, "protected
71-12 person" means a person who has a developmental disability
72-13 attributable to an intellectual disability, autism, cerebral
73-14 palsy, epilepsy, or other disabling neurological condition
74-15 that requires training or support similar to that required by
75-16 a person with an intellectual disability, if any of the
76-17 following apply:
77-18 "(1) The disability originates before the person
78-19 attains 22 years of age, the disability can be expected to
79-20 continue indefinitely, and the disability constitutes a
80-21 substantial handicap to the ability of the person to function
81-22 in society.
82-23 "(2) If the disability is attributable to an
83-24 intellectual disability, the condition is manifested before
84-25 the person attains 18 years of age, the disability can be
85-Page 3 HB68
86-1 expected to continue indefinitely, and the disability
87-2 constitutes a substantial handicap to the ability of the
88-3 person to function in society.
89-4 "(3) The disability results in significant
90-5 subaverage intellectual functioning with concurrent deficits
91-6 in adaptive behavior that are manifested during the
92-7 developmental period.
93-8 "§15-25-2.
94-9 "(a) In any criminal prosecution referred to in
95-10 Section 15-25-1, the court, upon motion of the district
96-11 attorney or Attorney General, for good cause shown and after
97-12 notice to the defendant, may order the taking of a video
98-13 deposition of an alleged victim of or witness to the crime who
99-14 is under the age of 16 a child or a protected person at the
100-15 time of the order.
101-16 "(b) On any motion for a video deposition of the
102-17 victim or a witness, the court shall consider the age and
103-18 maturity of the child, the nature of the offense, the nature
104-19 of testimony that may be expected, and the possible effect
105-20 that the testimony in person at trial may have on the victim
106-21 or witness, along with any other relevant matters that may be
107-22 required by Supreme Court rule.
108-23 "(c) During the recording of a video deposition
109-24 authorized pursuant to this section, the following persons
110-25 shall be in the room with the child or the protected person:
111-Page 4 HB68
112-1 "(1) The prosecuting attorney, the.
113-2 "(2) The attorney for the defendant, and a.
114-3 "(3) A person whose presence, in the judgment of the
115-4 court, contributes to the well-being of the child or protected
116-5 person and who has dealt with the child or the protected
117-6 person in a therapeutic setting regarding the abuse.
118-7 "(4) Additional persons, other than the defendant,
119-8 may be admitted into the room in the discretion of the court.
120-9 "(d) Examination and cross-examination of the
121-10 alleged victim or witness shall proceed at the taking of the
122-11 video deposition as though the alleged victim or witness were
123-12 testifying personally in the trial of the case. The state
124-13 shall provide the attorney for the defendant with reasonable
125-14 access and means to view and hear a copy of the video
126-15 deposition at a suitable and reasonable time prior to the
127-16 trial of the case. The court shall enter a protective order
128-17 prohibiting the attorney for the defendant from copying,
129-18 reproducing, or distributing the video deposition. Objections
130-19 to the introduction into the record of the deposition shall be
131-20 heard by the judge in whose presence the deposition was taken,
132-21 and unless the court determines that its introduction in lieu
133-22 of the victim's or witness's actual appearance as a witness at
134-23 the trial will unfairly prejudice the defendant, the video
135-24 deposition shall be entered into the record by the state in
136-Page 5 HB68
137-1 lieu of the direct testimony of the alleged victim or witness
138-2 and shall be viewed and heard at the trial of the case.
139-3 "(e) For the purposes of this section, "video
140-4 deposition" means the recording of video, with sound, of
141-5 witness testimony made under oath to be entered in the record
142-6 in a judicial proceeding.
143-7 "(f) The Supreme Court may adopt rules of procedure
144-8 regarding the taking and use of video depositions in criminal
145-9 proceedings and juvenile cases, as well as transcription of
146-10 video depositions in appeals of those cases.
147-11 "(g) All costs associated with the recording of a
148-12 deposition ordered pursuant to this article shall be paid by
149-13 the state. The district attorney shall submit all related cost
150-14 bills to the state Comptroller for approval and payment from
151-15 the fund entitled Court Costs Not Otherwise Provided For.
152-16 "(h) All recordings of video depositions ordered
153-17 pursuant to this article shall be subject to any protective
154-18 order of the court for the purpose of protecting the privacy
155-19 of the victim of the offense.
156-20 "(i) When necessary, the operator of the equipment
157-21 used to record video depositions may also be in the room
158-22 during the taking of the deposition and the operator shall
159-23 make every effort to be unobtrusive.
160-24 "(j) Only the court, the prosecuting attorney, and
161-25 the attorney for the defendant may question the child victim
162-Page 6 HB68
163-1 or witness. During the testimony of the child or protected
164-2 person, the defendant shall be provided access to view the
165-3 testimony out of the presence of the child or protected person
166-4 and shall be allowed to communicate with his or her attorney
167-5 by any appropriate election method.
168-6 "(k) This section shall not apply when the defendant
169-7 is an attorney pro se In circumstances where a defendant in a
170-8 proceeding has elected to proceed without counsel, the court
171-9 may appoint counsel for the defendant and may order counsel to
172-10 question a child or a protected person on behalf of the pro se
173-11 defendant if the court finds that there is substantial
174-12 likelihood that the child or protected person would experience
175-13 emotional harm if the defendant were allowed to question the
176-14 child or protected person.
177-15 "§15-25-3.
178-16 "(a) In those criminal prosecutions set out in
179-17 Section 15-25-1, the court, on motion of the state or the
180-18 defendant prior to the trial of the case, may order that the
181-19 testimony of any alleged victim of the crime or a witness
182-20 thereto to the crime who is under the age of 16 a child or
183-21 protected person at the time of the order shall be viewed and
184-22 heard at trial by the court and the finder of fact by closed
185-23 circuit equipment. In ruling on the motion the court shall
186-24 take into consideration those matters set out in Section
187-25 15-25-2 the nature of the offense, the nature of the testimony
188-Page 7 HB68
189-1 that may be expected, and the possible effect that the
190-2 testimony in person at trial may have on the victim or
191-3 witness, along with any other relevant matters that may be
192-4 required by Supreme Court rule.
193-5 "(b) If the court orders that the victim's or
194-6 witness's testimony in court shall be by closed circuit
195-7 equipment, the testimony shall be taken outside the courtroom
196-8 in the judge's chambers or in another suitable location
197-9 designated by the judge.
198-10 "(c) Examination and cross-examination of the
199-11 alleged child victim or witness shall proceed as though he or
200-12 she were testifying in the courtroom. Present in the room with
201-13 the child or the protected person during his or her testimony
202-14 shall be the any of the following:
203-15 "(1) The prosecuting attorney, the.
204-16 "(2) The attorney of the defendant, and a.
205-17 "(3) A person whose presence, in the judgment of the
206-18 court, contributes to the well-being of the child or protected
207-19 person and who has dealt with the child or protected person in
208-20 a therapeutic setting regarding the abuse.
209-21 "(4) Additional persons, such as the parent or
210-22 parents or legal guardian, except the defendant, may be
211-23 admitted into the room in the discretion of the court.
212-24 "(d) All costs incurred by the district attorney to
213-25 make it possible for the court and the trier of the fact to
214-Page 8 HB68
215-1 view the testimony of the victim or witness by closed circuit
8+Page 0 1 215888-2:n:12/21/2021:CNB/bm LSA2021-2561R1
9+2
10+3
11+4
12+5
13+6
14+7
15+8 SYNOPSIS: Under existing law, in a criminal
16+9 prosecution for a physical or sexual offense there
17+10 are certain protections offered to victims and
18+11 witnesses who are under the age of 16 at the time
19+12 of trial.
20+13 This bill would provide these additional
21+14 protections to a victim or a witness who is a
22+15 protected person.
23+16 This bill would also define child and
24+17 protected person.
25+18 Under existing law, additional protections
26+19 are available in cases involving a physical
27+20 offense, sexual offense, or sexual exploitation of
28+21 a child.
29+22 This bill would also provide for additional
30+23 protections in violent offenses.
31+24 This bill would define physical offense,
32+25 sexual offense, and violent offense.
33+26 Under existing law, anatomically correct
34+27 dolls or mannequins may be used to assist a witness
35+Page 1 1 during testimony when the witness is under the age
36+2 of 10 at the time of the trial.
37+3 This bill would allow the use of
38+4 anatomically correct dolls or mannequins to be used
39+5 to assist a witness during testimony when the
40+6 witness is under the age of 12 or a protected
41+7 person at the time of the offense.
42+8 Under existing law, out-of-court statements
43+9 made by a child under the age of 12 may be admitted
44+10 into evidence as long as certain criteria are met.
45+11 This bill would also allow out-of-court
46+12 statements made by a protected person to be
47+13 admissible as long as certain criteria are met.
48+14 This bill would also make nonsubstantive,
49+15 technical revisions to update the existing code
50+16 language to current style.
51+17
52+18 A BILL
53+19 TO BE ENTITLED
54+20 AN ACT
55+21
56+22 Relating to criminal procedure; to amend Sections
57+23 15-25-1, 15-25-2, as last amended by Act 2021-373, 2021
58+24 Regular Session, 15-25-3, 15-25-5, and 15-25-6, Code of
59+25 Alabama 1975, to allow a protected person to be offered
60+26 protections in criminal prosecutions for physical offenses,
61+27 sexual offenses, and violent offenses; to define a protected
62+Page 2 1 person; to define a physical offense, sexual offense, and
63+2 violent offense; to allow use of anatomically correct dolls or
64+3 mannequins during testimony of a child under the age of 12 or
65+4 a protected person; to amend Sections 15-25-30, 15-25-31,
66+5 15-25-32, 15-25-34, 15-25-36, 15-25-37, 15-25-38, and
67+6 15-25-39, Code of Alabama 1975, to allow out-of-court
68+7 statements to be admissible if the witness is a protected
69+8 person; to add Section 15-25-7 to the Code of Alabama 1975, to
70+9 allow leading questions of certain witnesses in a criminal
71+10 proceeding; to repeal Section 15-25-33, Code of Alabama 1975,
72+11 relating to expert testimony as to unavailability of a child
73+12 to testify; to make nonsubstantive, technical revisions to
74+13 update the existing code language to current style.
75+14 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
76+15 Section 1. Sections 15-25-1, 15-25-2, as last
77+16 amended by Act 2021-373, 2021 Regular Session, 15-25-3,
78+17 15-25-5, and 15-25-6, Code of Alabama 1975, are amended to
79+18 read as follows:
80+19 "§15-25-1.
81+20 "(a) This article shall apply to In any criminal
82+21 prosecution for a physical offense or a sexual offense
83+22 wherein, or a violent offense where the alleged victim or
84+23 witness is a child under the age of 16 years and in any
85+24 criminal prosecution involving the sexual exploitation of a
86+25 child under the age of 16, the court may allow leading
87+26 questions at trial by the prosecution or defense of any victim
88+27 or witness in a case who is under the age of 10, if the court
89+Page 3 1 determines that the allowance of leading questions will
90+2 further the interests of justice. The court may on motion of
91+3 the prosecution or the defense, or on its own motion, limit
92+4 the scope and extent of any leading questions or a protected
93+5 person.
94+6 "(b) For the purposes of this article, a "physical
95+7 offense, a sexual offense, or a violent offense," is defined
96+8 to include all of the following crimes:
97+9 "(1) A sex offense as provided in Section 15-20A-5.
98+10 "(2) A violent offense as provided in Section
99+11 12-25-32.
100+12 "(3) Aggravated child abuse as provided in Section
101+13 26-15-3.1.
102+14 "(4) Assault in any degree.
103+15 "(5) Any offense involving domestic violence, elder
104+16 abuse, or a violation of a protection order.
105+17 "(6) Any attempt to commit any of the offenses
106+18 listed in subdivisions (1) to (5), inclusive.
107+19 "(c) For the purposes of this article, "child" means
108+20 a person who is under the age of 16 years at the time of
109+21 trial.
110+22 "(d) For the purposes of this article, "protected
111+23 person" means a person who has a developmental disability
112+24 attributable to an intellectual disability, autism, cerebral
113+25 palsy, epilepsy, or other disabling neurological condition
114+26 that requires training or support similar to that required by
115+Page 4 1 a person with an intellectual disability, if any of the
116+2 following apply:
117+3 "(1) The disability originates before the person
118+4 attains 22 years of age, the disability can be expected to
119+5 continue indefinitely, and the disability constitutes a
120+6 substantial handicap to the ability of the person to function
121+7 in society.
122+8 "(2) If the disability is attributable to an
123+9 intellectual disability, the condition is manifested before
124+10 the person attains 18 years of age, the disability can be
125+11 expected to continue indefinitely, and the disability
126+12 constitutes a substantial handicap to the ability of the
127+13 person to function in society.
128+14 "(3) The disability results in significant
129+15 subaverage intellectual functioning with concurrent deficits
130+16 in adaptive behavior that are manifested during the
131+17 developmental period.
132+18 "§15-25-2.
133+19 "(a) In any criminal prosecution referred to in
134+20 Section 15-25-1, the court, upon motion of the district
135+21 attorney or Attorney General, for good cause shown and after
136+22 notice to the defendant, may order the taking of a video
137+23 deposition of an alleged victim of or witness to the crime who
138+24 is under the age of 16 a child or a protected person at the
139+25 time of the order.
140+26 "(b) On any motion for a video deposition of the
141+27 victim or a witness, the court shall consider the age and
142+Page 5 1 maturity of the child, the nature of the offense, the nature
143+2 of testimony that may be expected, and the possible effect
144+3 that the testimony in person at trial may have on the victim
145+4 or witness, along with any other relevant matters that may be
146+5 required by Supreme Court rule.
147+6 "(c) During the recording of a video deposition
148+7 authorized pursuant to this section, the following persons
149+8 shall be in the room with the child or the protected person:
150+9 "(1) The prosecuting attorney, the.
151+10 "(2) The attorney for the defendant, and a.
152+11 "(3) A person whose presence, in the judgment of the
153+12 court, contributes to the well-being of the child or protected
154+13 person and who has dealt with the child or the protected
155+14 person in a therapeutic setting regarding the abuse.
156+15 "(4) Additional persons, other than the defendant,
157+16 may be admitted into the room in the discretion of the court.
158+17 "(d) Examination and cross-examination of the
159+18 alleged victim or witness shall proceed at the taking of the
160+19 video deposition as though the alleged victim or witness were
161+20 testifying personally in the trial of the case. The state
162+21 shall provide the attorney for the defendant with reasonable
163+22 access and means to view and hear a copy of the video
164+23 deposition at a suitable and reasonable time prior to the
165+24 trial of the case. The court shall enter a protective order
166+25 prohibiting the attorney for the defendant from copying,
167+26 reproducing, or distributing the video deposition. Objections
168+27 to the introduction into the record of the deposition shall be
169+Page 6 1 heard by the judge in whose presence the deposition was taken,
170+2 and unless the court determines that its introduction in lieu
171+3 of the victim's or witness's actual appearance as a witness at
172+4 the trial will unfairly prejudice the defendant, the video
173+5 deposition shall be entered into the record by the state in
174+6 lieu of the direct testimony of the alleged victim or witness
175+7 and shall be viewed and heard at the trial of the case.
176+8 "(e) For the purposes of this section, "video
177+9 deposition" means the recording of video, with sound, of
178+10 witness testimony made under oath to be entered in the record
179+11 in a judicial proceeding.
180+12 "(f) The Supreme Court may adopt rules of procedure
181+13 regarding the taking and use of video depositions in criminal
182+14 proceedings and juvenile cases, as well as transcription of
183+15 video depositions in appeals of those cases.
184+16 "(g) All costs associated with the recording of a
185+17 deposition ordered pursuant to this article shall be paid by
186+18 the state. The district attorney shall submit all related cost
187+19 bills to the state Comptroller for approval and payment from
188+20 the fund entitled Court Costs Not Otherwise Provided For.
189+21 "(h) All recordings of video depositions ordered
190+22 pursuant to this article shall be subject to any protective
191+23 order of the court for the purpose of protecting the privacy
192+24 of the victim of the offense.
193+25 "(i) When necessary, the operator of the equipment
194+26 used to record video depositions may also be in the room
195+Page 7 1 during the taking of the deposition and the operator shall
196+2 make every effort to be unobtrusive.
197+3 "(j) Only the court, the prosecuting attorney, and
198+4 the attorney for the defendant may question the child victim
199+5 or witness. During the testimony of the child or protected
200+6 person, the defendant shall be provided access to view the
201+7 testimony out of the presence of the child or protected person
202+8 and shall be allowed to communicate with his or her attorney
203+9 by any appropriate election method.
204+10 "(k) This section shall not apply when the defendant
205+11 is an attorney pro se In circumstances where a defendant in a
206+12 proceeding has elected to proceed without counsel, the court
207+13 may appoint counsel for the defendant and may order counsel to
208+14 question a child or a protected person on behalf of the pro se
209+15 defendant if the court finds that there is substantial
210+16 likelihood that the child or protected person would experience
211+17 emotional harm if the defendant were allowed to question the
212+18 child or protected person.
213+19 "§15-25-3.
214+20 "(a) In those criminal prosecutions set out in
215+21 Section 15-25-1, the court, on motion of the state or the
216+22 defendant prior to the trial of the case, may order that the
217+23 testimony of any alleged victim of the crime or a witness
218+24 thereto to the crime who is under the age of 16 a child or
219+25 protected person at the time of the order shall be viewed and
220+26 heard at trial by the court and the finder of fact by closed
221+27 circuit equipment. In ruling on the motion the court shall
222+Page 8 1 take into consideration those matters set out in Section
223+2 15-25-2 the nature of the offense, the nature of the testimony
224+3 that may be expected, and the possible effect that the
225+4 testimony in person at trial may have on the victim or
226+5 witness, along with any other relevant matters that may be
227+6 required by Supreme Court rule.
228+7 "(b) If the court orders that the victim's or
229+8 witness's testimony in court shall be by closed circuit
230+9 equipment, the testimony shall be taken outside the courtroom
231+10 in the judge's chambers or in another suitable location
232+11 designated by the judge.
233+12 "(c) Examination and cross-examination of the
234+13 alleged child victim or witness shall proceed as though he or
235+14 she were testifying in the courtroom. Present in the room with
236+15 the child or the protected person during his or her testimony
237+16 shall be the any of the following:
238+17 "(1) The prosecuting attorney, the.
239+18 "(2) The attorney of the defendant, and a.
240+19 "(3) A person whose presence, in the judgment of the
241+20 court, contributes to the well-being of the child or protected
242+21 person and who has dealt with the child or protected person in
243+22 a therapeutic setting regarding the abuse.
244+23 "(4) Additional persons, such as the parent or
245+24 parents or legal guardian, except the defendant, may be
246+25 admitted into the room in the discretion of the court.
247+26 "(d) All costs incurred by the district attorney to
248+27 make it possible for the court and the trier of the fact to
249+Page 9 1 view the testimony of the victim or witness by closed circuit
216250 2 equipment as provided in this article shall be paid by the
217251 3 state. The district attorney shall submit all bills for costs
218252 4 to the state Comptroller for approval and payment from the
219253 5 fund entitled Court Costs Not Otherwise Provided For.
220254 6 "(e) Notwithstanding any other provision of law or
221255 7 rule of evidence, a child or protected person victim of a
222256 8 physical offense, sexual offense, or sexual exploitation
223257 9 violent offense, shall be considered a competent witness and
224258 10 shall be allowed to testify without prior qualification in any
225259 11 judicial proceeding. The trier of fact shall be permitted to
226260 12 determine the weight and credibility to be given to the
227261 13 testimony. The court may also allow leading questions of the
228262 14 child witnesses or protected person victim or witness in the
229263 15 interest of justice.
230264 16 "(f) The operators of the closed circuit equipment
231265 17 may also be in the room and shall make every effort to be
232266 18 unobtrusive.
233267 19 "(g) Only the court, the prosecuting attorney, and
234268 20 the attorney for the defendant may question the child or
235269 21 protected person. During the child's testimony by closed
236270 22 circuit equipment, the defendant, the judge, and the jury
237271 23 shall remain in the courtroom. The video feed showing the
238272 24 child or protected person shall remain visible to the
239273 25 defendant, the judge, and the jury at all times during the
240-Page 9 HB68
241-1 testimony and cross-examination of the child victim or witness
242-2 or protected person.
243-3 "(h) The judge and the defendant shall be allowed to
244-4 communicate with the attorneys in the room where the child or
245-5 protected person is testifying by any appropriate electronic
246-6 method. The party making the motion that the testimony shall
247-7 be by closed circuit equipment shall make all necessary
248-8 arrangements regarding the equipment and the operation thereof
249-9 during the course of the proceeding.
250-10 "(i) This section may not be interpreted to
251-11 preclude, for purposes of identification of a defendant, the
252-12 presence of both the victim and the defendant in the courtroom
253-13 at the same time. The testimony shall be limited to purposes
254-14 of identification only.
255-15 "(j) The provisions of this section shall not apply
256-16 if the defendant is not represented by an attorney In
257-17 circumstances where a defendant in a proceeding has elected to
258-18 proceed without counsel, the court may appoint counsel for the
259-19 defendant and may order counsel to question a child or a
260-20 protected person on behalf of the pro se defendant if the
261-21 court finds that there is substantial likelihood that the
262-22 child or protected person would experience emotional harm if
263-23 the defendant were allowed to question the child or protected
264-24 person.
265-25 "§15-25-5.
266-Page 10 HB68
267-1 "In any criminal proceeding and juvenile cases
268-2 wherein where the defendant is alleged to have had unlawful
269-3 sexual contact or penetration with or on with a child or a
270-4 protected person, the court shall permit the use of
271-5 anatomically correct dolls or mannequins to assist an alleged
272-6 victim or witness who is under the age of 10 12 at the time of
273-7 trial, or who is a protected person, in testifying on direct
274-8 and cross-examination at trial, or in a videotaped video
275-9 deposition as provided in this article.
276-10 "§15-25-6.
277-11 "In all criminal cases and juvenile proceedings
278-12 involving offenses set out in Section 15-25-1, wherein where
279-13 the victim hereof or a witness to the offense is under the age
280-14 of 16 years a child or a protected person, the court and the
281-15 district prosecuting attorney shall take appropriate action to
282-16 ensure a speedy trial in order to minimize the length of time
283-17 the child or the protected person must endure the stress of
284-18 involvement in the proceedings. In ruling on any motion or
285-19 other request for a delay or continuance of proceedings, the
286-20 court shall consider and give weight to any adverse impact the
287-21 delay or continuance may have on the well-being of a child
288-22 victim or witness or protected person.
289-23 Section 2. Sections 15-25-30, 15-25-31, 15-25-32,
290-24 15-25-34, 15-25-36, 15-25-37, 15-25-38, and 15-25-39, Code of
291-25 Alabama 1975, are amended to read as follows:
292-Page 11 HB68
293-1 "§15-25-30.
294-2 "This article shall be entitled "The Child and
295-3 Protected Person Physical and Sexual Abuse, and Violent
296-4 Offense Victim Protection Act."
297-5 "§15-25-31.
298-6 "An out-of-court statement made by a child under 12
299-7 years of age at the time the statement is made, or by a
300-8 protected person as defined in Section 15-25-1, concerning an
301-9 act that is a material element of any crime involving child a
302-10 physical offense, a sexual offense, and exploitation or a
303-11 violent offense, as defined in Section 15-25-39, which
304-12 statement is not otherwise admissible in evidence, is
305-13 admissible in evidence in criminal proceedings, if the
306-14 requirements of Section 15-25-32 are met.
307-15 "§15-25-32.
308-16 "An out-of-court statement may be admitted as
309-17 provided in Section 15-25-31, if either of the following
310-18 occur:
311-19 "(1) The child witness testifies at the proceeding,
312-20 or testifies by means of video tape deposition as provided by
313-21 Section 15-25-2, or testifies by means of closed circuit
314-22 television as is provided in Section 15-25-3, and at the time
315-23 of such the testimony is subject to cross-examination about
316-24 the out-of-court statements; or.
317-Page 12 HB68
318-1 "(2)a. The child is found by the court to be
319-2 unavailable to testify on any of these grounds:
320-3 "1. The child's death;
321-4 "(2) 2. The court finds that the witness's
322-5 out-of-court statement is shown to the reasonable satisfaction
323-6 of the court to possess particularized guarantees of
324-7 trustworthiness and there are reasonable grounds to believe
325-8 that the defendant or someone acting on behalf of the
326-9 defendant has intentionally removed the child witness from the
327-10 jurisdiction of the court; or that the defendant engaged in
328-11 wrongdoing that was intended to, and did, procure the
329-12 unavailability of the witness.
330-13 "3. The child's total failure of memory;
331-14 "4. The child's physical or mental disability;
332-15 "5. The child's incompetency, including the child's
333-16 inability to communicate about the offense because of fear or
334-17 a similar reason; or
335-18 "6. Substantial likelihood that the child would
336-19 suffer severe emotional trauma from testifying at the
337-20 proceeding or by means of closed circuit television; and
338-21 "b. The child's out-of-court statement is shown to
339-22 the reasonable satisfaction of the court to possess
340-23 particularized guarantees of trustworthiness.
341-24 "§15-25-34.
342-Page 13 HB68
343-1 "Before a statement may be admitted pursuant to this
344-2 article on the grounds that the child declarant is unavailable
345-3 as a witness, such the statement may be admitted only if there
346-4 is corroborative evidence of the act.
347-5 "§15-25-36.
348-6 "The court shall inform the jury that the
349-7 out-of-court statement was taken without the defendant being
350-8 afforded cross examination of such the out-of-court statement.
351-9 "§15-25-37.
352-10 "In determining whether a statement possesses
353-11 particularized guarantees of trustworthiness under pursuant to
354-12 Section 15-25-32(2)b 15-25-32, the court shall consider any
355-13 one, but is not limited to, of the following factors:
356-14 "(1) The child's witness's personal knowledge of the
357-15 event;.
358-16 "(2) The age and maturity of the child; witness.
359-17 "(3) Certainty that the statement was made,
360-18 including the credibility of the person testifying about the
361-19 statement;.
362-20 "(4) Any apparent motive the child witness may have
363-21 to falsify or distort the event, including bias, corruption,
364-22 or coercion;.
365-23 "(5) The timing of the child's witness's statement;.
366-24 "(6) Whether more than one person heard the
367-25 statement;.
368-Page 14 HB68
369-1 "(7) Whether the child witness was suffering from
370-2 pain or distress when making the statement;.
371-3 "(8) The nature and duration of any alleged abuse;.
372-4 "(9) Whether the child's witness's young age or
373-5 status as a protected person pursuant to Section 15-25-1 makes
374-6 it unlikely that the child witness fabricated a statement that
375-7 represents a graphic, detailed account beyond the child's
376-8 witness's knowledge and experience;.
377-9 "(10) Whether the statement has a "ring of verity,"
378-10 has an internal consistency or coherence, and uses terminology
379-11 appropriate to the child's age;
380-12 "(10) (11) Whether the statement is spontaneous or
381-13 directly responsive to questions;.
382-14 "(11) (12) Whether the statement is suggestive due
383-15 to improperly leading questions;.
384-16 "(12) (13) Whether extrinsic evidence exists to show
385-17 the defendant's opportunity to commit the act complained of in
386-18 the child's witness's statement.
387-19 "§15-25-38.
388-20 "The court shall support with findings and record
389-21 any rulings pertaining to the child's witness's unavailability
390-22 and the trustworthiness of the out-of-court statement.
391-23 "§15-25-39.
392-24 "For purposes of this article, "a child physical
393-25 offense, sexual offense, and exploitation or violent offense"
394-Page 15 HB68
395-1 is defined to include the following crimes, when one or more
396-2 of the victims is a child under 12 years of age or is a
397-3 protected person as provided in Section 15-25-1:
398-4 "(1) Rape in any degree A sex offense pursuant to
399-5 Section 15-20A-5.
400-6 "(2) Sodomy in any degree A violent offense pursuant
401-7 to Section 12-25-32.
402-8 "(3) Sexual abuse in any degree Aggravated child
403-9 abuse as provided in Section 26-15-3.1.
404-10 "(4) Sexual misconduct.
405-11 "(5) Enticing a child to enter a vehicle, room,
406-12 house, office, or other place, for immoral purposes.
407-13 "(6) Any crime involving the production of child
408-14 pornography.
409-15 "(7) Torture and willful abuse of a child under 18
410-16 years of age by responsible person as defined in Section
411-17 26-15-3.
412-18 "(8) Sexual torture as defined in Section
413-19 13A-6-65.1.
414-20 "(9) Attempted murder.
415-21 "(4) (10) Assault first in any degree.
416-22 "(11) Assault second degree.
417-23 "(12) Assault third degree.
418-24 "(13) Harassment.
419-Page 16 HB68
420-1 "(5) Any offense involving domestic violence, elder
421-2 abuse, or a violation of a protection order.
422-3 "(6) Any attempt to commit any of the offenses
423-4 listed in subdivisions (1) to (5), inclusive."
424-5 Section 3. Sections 13A-6-81 and 13A-6-82, Code of
425-6 Alabama 1975, are amended to read as follows:
426-7 "§13A-6-81.
427-8 "(a) A person commits the crime of a school employee
428-9 engaging in a sex act with a student under the age of 19 years
429-10 or engaging in a sex act with a student who is a protected
430-11 person, as defined in Section 15-25-1, under the age of 22
431-12 years if he or she is a school employee and engages in sexual
432-13 intercourse or sodomy, as defined in Section 13A-6-60, with a
433-14 student, or student protected person, regardless of whether
434-15 the student or student protected person is male or female.
435-16 Consent is not a defense to a charge under this section.
436-17 "(b) The crime of a school employee engaging in a
437-18 sex act with a student or student protected person is a Class
438-19 B felony.
439-20 "§13A-6-82.
440-21 "(a) A person commits the crime of a school employee
441-22 having sexual contact with a student under the age of 19 years
442-23 or having sexual contact with a student who is a protected
443-24 person, as defined in Section 15-25-1, under the age of 22
444-25 years if he or she is a school employee and engages in sexual
445-Page 17 HB68
446-1 contact, as defined by Section 13A-6-60, with a student or
447-2 student protected person, regardless of whether the student is
448-3 male or female. Consent is not a defense to a charge under
449-4 this section. The crime of a school employee having sexual
450-5 contact with a student or student protected person is a Class
451-6 C felony.
452-7 "(b) A person commits the crime of a school employee
453-8 soliciting a sex act with a student under the age of 19 years
454-9 or soliciting a sex act with a student who is a protected
455-10 person, as defined in Section 15-25-1, under the age of 22
456-11 years if he or she is a school employee and solicits,
457-12 persuades, encourages, harasses, or entices a student or
458-13 student protected person to engage in a sex act including, but
459-14 not limited to, sexual intercourse, sodomy, or sexual contact,
460-15 as defined by Section 13A-6-60. The crime of soliciting a
461-16 student or a student protected person to perform a sex act is
462-17 a Class A misdemeanor.
463-18 Section 4. Section 15-25-7 is added to the Code of
464-19 Alabama 1975, to read as follows:
465-20 §15-25-7.
466-21 In any criminal prosecution referred to in Section
467-22 15-25-1, the court may allow leading questions at trial by the
468-23 prosecution or defense of any victim or witness in a case who
469-24 is under the age of 12 or is a protected person, if the court
470-25 determines that the allowance of leading questions will
471-Page 18 HB68
472-1 further the interests of justice. The court, on motion of the
473-2 prosecution or the defense, or on its own motion, may limit
474-3 the scope and extent of any leading questions.
475-4 Section 5. Section 15-25-33 of the Code of Alabama
476-5 1975, relating to use expert testimony as to unavailability of
477-6 the child to testify, is repealed.
478-7 Section 6. This act shall become effective on the
479-8 first day of the third month following its passage and
480-9 approval by the Governor, or its otherwise becoming law.
481-Page 19 HB68
482-1
483-2
484-3
485-4
486-Speaker of the House of Representatives
487-
488-5
489-6 President and Presiding Officer of the Senate
490-House of Representatives7
491-I hereby certify that the within Act originated in8
492-9 and was passed by the House 09-FEB-22.
493-10
494-11 Jeff Woodard
495-12 Clerk
496-13
497- 14
498-Senate15 17-MAR-22 Amended and Passed
499-House16 29-MAR-22
500-Concurred in Sen-
501-ate Amendment
502- 17
503-Page 20
274+26 testimony and cross-examination of the child victim or witness
275+27 or protected person.
276+Page 10 1 "(h) The judge and the defendant shall be allowed to
277+2 communicate with the attorneys in the room where the child or
278+3 protected person is testifying by any appropriate electronic
279+4 method. The party making the motion that the testimony shall
280+5 be by closed circuit equipment shall make all necessary
281+6 arrangements regarding the equipment and the operation thereof
282+7 during the course of the proceeding.
283+8 "(i) This section may not be interpreted to
284+9 preclude, for purposes of identification of a defendant, the
285+10 presence of both the victim and the defendant in the courtroom
286+11 at the same time. The testimony shall be limited to purposes
287+12 of identification only.
288+13 "(j) The provisions of this section shall not apply
289+14 if the defendant is not represented by an attorney In
290+15 circumstances where a defendant in a proceeding has elected to
291+16 proceed without counsel, the court may appoint counsel for the
292+17 defendant and may order counsel to question a child or a
293+18 protected person on behalf of the pro se defendant if the
294+19 court finds that there is substantial likelihood that the
295+20 child or protected person would experience emotional harm if
296+21 the defendant were allowed to question the child or protected
297+22 person.
298+23 "§15-25-5.
299+24 "In any criminal proceeding and juvenile cases
300+25 wherein where the defendant is alleged to have had unlawful
301+26 sexual contact or penetration with or on with a child or a
302+27 protected person, the court shall permit the use of
303+Page 11 1 anatomically correct dolls or mannequins to assist an alleged
304+2 victim or witness who is under the age of 10 12 at the time of
305+3 trial, or who is a protected person, in testifying on direct
306+4 and cross-examination at trial, or in a videotaped video
307+5 deposition as provided in this article.
308+6 "§15-25-6.
309+7 "In all criminal cases and juvenile proceedings
310+8 involving offenses set out in Section 15-25-1, wherein where
311+9 the victim hereof or a witness to the offense is under the age
312+10 of 16 years a child or a protected person, the court and the
313+11 district prosecuting attorney shall take appropriate action to
314+12 ensure a speedy trial in order to minimize the length of time
315+13 the child or the protected person must endure the stress of
316+14 involvement in the proceedings. In ruling on any motion or
317+15 other request for a delay or continuance of proceedings, the
318+16 court shall consider and give weight to any adverse impact the
319+17 delay or continuance may have on the well-being of a child
320+18 victim or witness or protected person.
321+19 Section 2. Sections 15-25-30, 15-25-31, 15-25-32,
322+20 15-25-34, 15-25-36, 15-25-37, 15-25-38, and 15-25-39, Code of
323+21 Alabama 1975, are amended to read as follows:
324+22 "§15-25-30.
325+23 "This article shall be entitled "The Child and
326+24 Protected Person Physical and Sexual Abuse, and Violent
327+25 Offense Victim Protection Act."
328+26 "§15-25-31.
329+Page 12 1 "An out-of-court statement made by a child under 12
330+2 years of age at the time the statement is made, or by a
331+3 protected person as defined in Section 15-25-1, concerning an
332+4 act that is a material element of any crime involving child a
333+5 physical offense, a sexual offense, and exploitation or a
334+6 violent offense, as defined in Section 15-25-39, which
335+7 statement is not otherwise admissible in evidence, is
336+8 admissible in evidence in criminal proceedings, if the
337+9 requirements of Section 15-25-32 are met.
338+10 "§15-25-32.
339+11 "An out-of-court statement may be admitted as
340+12 provided in Section 15-25-31, if either of the following
341+13 occur:
342+14 "(1) The child witness testifies at the proceeding,
343+15 or testifies by means of video tape deposition as provided by
344+16 Section 15-25-2, or testifies by means of closed circuit
345+17 television as is provided in Section 15-25-3, and at the time
346+18 of such the testimony is subject to cross-examination about
347+19 the out-of-court statements; or.
348+20 "(2)a. The child is found by the court to be
349+21 unavailable to testify on any of these grounds:
350+22 "1. The child's death;
351+23 "(2) 2. The court finds that the witness's
352+24 out-of-court statement is shown to the reasonable satisfaction
353+25 of the court to possess particularized guarantees of
354+26 trustworthiness and there are reasonable grounds to believe
355+27 that the defendant or someone acting on behalf of the
356+Page 13 1 defendant has intentionally removed the child witness from the
357+2 jurisdiction of the court; or that the defendant engaged in
358+3 wrongdoing that was intended to, and did, procure the
359+4 unavailability of the witness.
360+5 "3. The child's total failure of memory;
361+6 "4. The child's physical or mental disability;
362+7 "5. The child's incompetency, including the child's
363+8 inability to communicate about the offense because of fear or
364+9 a similar reason; or
365+10 "6. Substantial likelihood that the child would
366+11 suffer severe emotional trauma from testifying at the
367+12 proceeding or by means of closed circuit television; and
368+13 "b. The child's out-of-court statement is shown to
369+14 the reasonable satisfaction of the court to possess
370+15 particularized guarantees of trustworthiness.
371+16 "§15-25-34.
372+17 "Before a statement may be admitted pursuant to this
373+18 article on the grounds that the child declarant is unavailable
374+19 as a witness, such the statement may be admitted only if there
375+20 is corroborative evidence of the act.
376+21 "§15-25-36.
377+22 "The court shall inform the jury that the
378+23 out-of-court statement was taken without the defendant being
379+24 afforded cross examination of such the out-of-court statement.
380+25 "§15-25-37.
381+26 "In determining whether a statement possesses
382+27 particularized guarantees of trustworthiness under pursuant to
383+Page 14 1 Section 15-25-32(2)b 15-25-32, the court shall consider any
384+2 one, but is not limited to, of the following factors:
385+3 "(1) The child's witness's personal knowledge of the
386+4 event;.
387+5 "(2) The age and maturity of the child; witness.
388+6 "(3) Certainty that the statement was made,
389+7 including the credibility of the person testifying about the
390+8 statement;.
391+9 "(4) Any apparent motive the child witness may have
392+10 to falsify or distort the event, including bias, corruption,
393+11 or coercion;.
394+12 "(5) The timing of the child's witness's statement;.
395+13 "(6) Whether more than one person heard the
396+14 statement;.
397+15 "(7) Whether the child witness was suffering from
398+16 pain or distress when making the statement;.
399+17 "(8) The nature and duration of any alleged abuse;.
400+18 "(9) Whether the child's witness's young age or
401+19 status as a protected person pursuant to Section 15-25-1 makes
402+20 it unlikely that the child witness fabricated a statement that
403+21 represents a graphic, detailed account beyond the child's
404+22 witness's knowledge and experience;.
405+23 "(10) Whether the statement has a "ring of verity,"
406+24 has an internal consistency or coherence, and uses terminology
407+25 appropriate to the child's age;
408+26 "(10) (11) Whether the statement is spontaneous or
409+27 directly responsive to questions;.
410+Page 15 1 "(11) (12) Whether the statement is suggestive due
411+2 to improperly leading questions;.
412+3 "(12) (13) Whether extrinsic evidence exists to show
413+4 the defendant's opportunity to commit the act complained of in
414+5 the child's witness's statement.
415+6 "§15-25-38.
416+7 "The court shall support with findings and record
417+8 any rulings pertaining to the child's witness's unavailability
418+9 and the trustworthiness of the out-of-court statement.
419+10 "§15-25-39.
420+11 "For purposes of this article, "a child physical
421+12 offense, sexual offense, and exploitation or violent offense"
422+13 is defined to include the following crimes, when one or more
423+14 of the victims is a child under 12 years of age or is a
424+15 protected person as provided in Section 15-25-1:
425+16 "(1) Rape in any degree A sex offense pursuant to
426+17 Section 15-20A-5.
427+18 "(2) Sodomy in any degree A violent offense pursuant
428+19 to Section 12-25-32.
429+20 "(3) Sexual abuse in any degree Aggravated child
430+21 abuse as provided in Section 26-15-3.1.
431+22 "(4) Sexual misconduct.
432+23 "(5) Enticing a child to enter a vehicle, room,
433+24 house, office, or other place, for immoral purposes.
434+25 "(6) Any crime involving the production of child
435+26 pornography.
436+Page 16 1 "(7) Torture and willful abuse of a child under 18
437+2 years of age by responsible person as defined in Section
438+3 26-15-3.
439+4 "(8) Sexual torture as defined in Section
440+5 13A-6-65.1.
441+6 "(9) Attempted murder.
442+7 "(4) (10) Assault first in any degree.
443+8 "(11) Assault second degree.
444+9 "(12) Assault third degree.
445+10 "(13) Harassment.
446+11 "(5) Any offense involving domestic violence, elder
447+12 abuse, or a violation of a protection order.
448+13 "(6) Any attempt to commit any of the offenses
449+14 listed in subdivisions (1) to (5), inclusive."
450+15 Section 3. Section 15-25-7 is added to the Code of
451+16 Alabama 1975, to read as follows:
452+17 §15-25-7.
453+18 In any criminal prosecution referred to in Section
454+19 15-25-1, the court may allow leading questions at trial by the
455+20 prosecution or defense of any victim or witness in a case who
456+21 is under the age of 12 or is a protected person, if the court
457+22 determines that the allowance of leading questions will
458+23 further the interests of justice. The court, on motion of the
459+24 prosecution or the defense, or on its own motion, may limit
460+25 the scope and extent of any leading questions.
461+Page 17 1 Section 4. Section 15-25-33 of the Code of Alabama
462+2 1975, relating to use expert testimony as to unavailability of
463+3 the child to testify, is repealed.
464+4 Section 5. This act shall become effective on the
465+5 first day of the third month following its passage and
466+6 approval by the Governor, or its otherwise becoming law.
467+Page 18