Florida Senate - 2022 SB 772 By Senator Diaz 36-00320A-22 2022772__ 1 A bill to be entitled 2 An act relating to vulnerable victims and witnesses; 3 amending s. 92.55, F.S.; revising the standard for 4 orders to protect certain testifying victims and 5 witnesses; prohibiting depositions of certain victims 6 and witnesses in certain proceedings without a showing 7 of good cause; authorizing the court to allow such 8 depositions under certain circumstances; revising 9 factors to be considered by a court in a motion 10 seeking to protect a victim or witness; revising 11 provisions related to available relief; requiring the 12 court to appoint a guardian ad litem or other advocate 13 for the deponent under certain circumstances; 14 authorizing the court to request the aid of an 15 interpreter; requiring the court to make specific 16 findings of fact on the record for certain orders and 17 rulings; making technical changes; amending s. 18 943.0583, F.S.; revising the applicability of 19 provisions relating to human trafficking victims 20 seeking expunction of certain records; providing an 21 effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1.Section 92.55, Florida Statutes, is amended to 26 read: 27 92.55Judicial or other proceedings involving certain 28 victims and witnesses victim or witness under the age of 18, a 29 person who has an intellectual disability, or a sexual offense 30 victim or witness; special protections; use of therapy animals 31 or facility dogs. 32 (1)For purposes of this section, the term: 33 (a)Facility dog means a dog that has been trained, 34 evaluated, and certified as a facility dog pursuant to industry 35 standards and provides unobtrusive emotional support to children 36 and adults in facility settings. 37 (c)(a)Sexual offense victim or witness means a person 38 who was under the age of 18 when he or she was the victim of or 39 a witness to a sexual offense. 40 (b)Sexual offense means any offense specified in s. 41 775.21(4)(a)1. or s. 943.0435(1)(h)1.a.(I). 42 (d)Therapy animal means an animal that has been trained, 43 evaluated, and certified as a therapy animal pursuant to 44 industry standards by an organization that certifies animals as 45 appropriate to provide animal therapy. 46 (2)Upon motion of any party;, upon motion of a parent, 47 guardian, attorney, guardian ad litem, or other advocate 48 appointed by the court under s. 914.17 for a victim or witness 49 under the age of 18, a person who has an intellectual 50 disability, or a sexual offense victim or witness;, or upon its 51 own motion, the court may enter any order necessary to protect 52 the person victim or witness in any judicial proceeding or other 53 official proceeding from moderate severe emotional or mental 54 harm due to the presence of the defendant if the victim or 55 witness is required to testify in open court. Such orders must 56 relate to the taking of testimony and include, but are not 57 limited to: 58 (a)Interviewing or the taking of depositions as part of a 59 civil or criminal proceeding. 60 (b)Examination and cross-examination for the purpose of 61 qualifying as a witness or testifying in any proceeding. 62 (c)The use of testimony taken outside of the courtroom, 63 including proceedings under ss. 92.53 and 92.54. 64 (3)(a)Depositions are not allowed, except upon a showing 65 of good cause, of victims or witnesses younger than the age of 66 18, persons who have intellectual disabilities, or sexual 67 offense victims or witnesses in proceedings involving any of the 68 following: 69 1.Abuse, abandonment, or neglect of children under chapter 70 39. 71 2.Any offense constituting domestic violence as defined in 72 s. 741.28. 73 3.Murder under s. 782.04. 74 4.Manslaughter under s. 782.07. 75 5.Aggravated cyberstalking under s. 784.048. 76 6.Kidnapping under s. 787.01. 77 7.False imprisonment under s. 787.02. 78 8.Human trafficking under s. 787.06. 79 9.Sexual battery under s. 794.011. 80 10.Lewd or lascivious offenses under s. 825.1025. 81 11.Child abuse or neglect of a child under s. 827.03. 82 12.Use of a child in a sexual performance under s. 83 827.071. 84 13.Computer pornography under s. 847.0135 or the 85 transmission of pornography by electronic device or equipment 86 under s. 847.0137. 87 (b)Upon written motion and written findings that a 88 deposition is necessary to assist a trial, that the evidence 89 sought is not reasonably available by any other means, and that 90 the probative value of the testimony outweighs the potential 91 detriment to the person to be deposed, the court may authorize 92 the taking of a deposition and may order protections deemed 93 necessary, including those provided in this section. 94 (4)(3)In ruling upon a the motion filed under this 95 section, the court may shall consider: 96 (a)The age of the victim or witness. child, 97 (b)The nature of the offense or act., 98 (c)The complexity of the issues involved. 99 (d)The relationship of the victim or witness child to the 100 parties in the case or to the defendant in a criminal action., 101 (e)The degree of emotional or mental harm trauma that will 102 result to the child as a consequence of the examination, 103 interview, or testimony. defendants presence, and 104 (f)The functional capacity of the victim or witness if he 105 or she has an intellectual disability. 106 (g)The age of the sexual offense victim or witness when 107 the sexual offense occurred. 108 (h)Any other fact that the court deems relevant; 109 (b)The age of the person who has an intellectual 110 disability, the functional capacity of such person, the nature 111 of the offenses or act, the relationship of the person to the 112 parties in the case or to the defendant in a criminal action, 113 the degree of emotional trauma that will result to the person as 114 a consequence of the defendants presence, and any other fact 115 that the court deems relevant; or 116 (c)The age of the sexual offense victim or witness when the 117 sexual offense occurred, the relationship of the sexual offense 118 victim or witness to the parties in the case or to the defendant 119 in a criminal action, the degree of emotional trauma that will 120 result to the sexual offense victim or witness as a consequence 121 of the defendants presence, and any other fact that the court 122 deems relevant. 123 (5)(4)In addition to such other relief provided by law, 124 the court may enter orders it deems just and appropriate for the 125 protection of limiting the number of times that a child, a 126 person who has an intellectual disability, or a sexual offense 127 victim or witness, including limiting the number of times a 128 victim or witness may be interviewed, limiting the length and 129 scope of a deposition, requiring a deposition to be taken only 130 by written questions, requiring a deposition to be in the 131 presence of a trial judge or magistrate, sealing the tape or 132 transcript of a deposition until further order of the court, 133 allowing use of a therapy animal or facility dog prohibiting 134 depositions of the victim or witness, requiring the submission 135 of questions before the examination of the victim or witness, 136 setting the place and conditions for interviewing the victim or 137 witness or for conducting any other proceeding, or permitting or 138 prohibiting the attendance of any person at any proceeding. The 139 court shall enter any order necessary to protect the rights of 140 all parties, including the defendant in any criminal action. 141 (6)Section 794.022 applies to depositions taken pursuant 142 to this section. If a deposition is taken pursuant to this 143 section, the court must appoint a guardian ad litem or other 144 advocate pursuant to s. 914.17 to represent the deponent for the 145 purposes of the deposition if the deponent does not already have 146 counsel. 147 (7)The court, on its own motion or that of any party, may 148 request the aid of an interpreter, as provided in s. 90.606, to 149 aid the parties in formulating methods of questioning the person 150 who has an intellectual disability or the sexual offense victim 151 or witness and in interpreting his or her answers during 152 proceedings conducted under this section. 153 (8)The court shall make specific findings of fact on the 154 record as to the basis for its orders and rulings under this 155 section 156 (5)The court may set any other conditions it finds just 157 and appropriate when taking the testimony of a victim or witness 158 under the age of 18, a person who has an intellectual 159 disability, or a sexual offense victim or witness, including the 160 use of a therapy animal or facility dog, in any proceeding 161 involving a sexual offense or child abuse, abandonment, or 162 neglect. 163 (a)When deciding whether to permit a victim or witness 164 under the age of 18, a person who has an intellectual 165 disability, or a sexual offense victim or witness to testify 166 with the assistance of a therapy animal or facility dog, the 167 court shall consider the age of the child victim or witness, the 168 age of the sexual offense victim or witness at the time the 169 sexual offense occurred, the interests of the child victim or 170 witness or sexual offense victim or witness, the rights of the 171 parties to the litigation, and any other relevant factor that 172 would facilitate the testimony by the victim or witness under 173 the age of 18, person who has an intellectual disability, or 174 sexual offense victim or witness. 175 (b)For purposes of this subsection the term: 176 1.Facility dog means a dog that has been trained, 177 evaluated, and certified as a facility dog pursuant to industry 178 standards and provides unobtrusive emotional support to children 179 and adults in facility settings. 180 2.Therapy animal means an animal that has been trained, 181 evaluated, and certified as a therapy animal pursuant to 182 industry standards by an organization that certifies animals as 183 appropriate to provide animal therapy. 184 Section 2.Subsection (3) of section 943.0583, Florida 185 Statutes, is amended to read: 186 943.0583Human trafficking victim expunction. 187 (3)A person who is a victim of human trafficking may 188 petition for the expunction of a criminal history record 189 resulting from the arrest or filing of charges for one or more 190 offenses committed or reported to have been committed while the 191 person was a victim of human trafficking, which offense was 192 committed or reported to have been committed as a part of the 193 human trafficking scheme of which the person was a victim or at 194 the direction of an operator of the scheme, including, but not 195 limited to, violations under chapters 796 and 847, without 196 regard to the disposition of the arrest or of any charges. 197 However, this section does not apply to any offense listed in s. 198 775.084(1)(b)1. if the defendant was found guilty of, or pled 199 guilty or nolo contendere to, any such offense. Determination of 200 the petition under this section should be by a preponderance of 201 the evidence. A conviction expunged under this section is deemed 202 to have been vacated due to a substantive defect in the 203 underlying criminal proceedings. If a person is adjudicated not 204 guilty by reason of insanity or is found to be incompetent to 205 stand trial for any such charge, the expunction of the criminal 206 history record may not prevent the entry of the judgment or 207 finding in state and national databases for use in determining 208 eligibility to purchase or possess a firearm or to carry a 209 concealed firearm, as authorized in s. 790.065(2)(a)4.c. and 18 210 U.S.C. s. 922(t), nor shall it prevent any governmental agency 211 that is authorized by state or federal law to determine 212 eligibility to purchase or possess a firearm or to carry a 213 concealed firearm from accessing or using the record of the 214 judgment or finding in the course of such agencys official 215 duties. 216 Section 3.This act shall take effect upon becoming a law.