PRIOR PRINTER'S NOS. 1462, 3040 PRINTER'S NO. 3245
No. 1259 Session of 2001
INTRODUCED BY L. I. COHEN, THOMAS, BELARDI, BROWNE, CORRIGAN,
CRUZ, DAILEY, EGOLF, J. EVANS, FRANKEL, GABIG, HENNESSEY,
HORSEY, JAMES, LAUGHLIN, LEDERER, MACKERETH, MELIO, MICOZZIE,
R. MILLER, MUNDY, PIPPY, ROSS, RUBLEY, SATHER, SAYLOR,
SOLOBAY, STEELMAN, STERN, SURRA, VANCE, YOUNGBLOOD, HARPER,
C. WILLIAMS AND TRAVAGLIO, APRIL 3, 2001
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
FEBRUARY 5, 2002
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, reenacting provisions
3 relating to child victims and witnesses; and updating a
4 policy declaration.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. The heading of Subchapter D of Chapter 59 of
8 Title 42 of the Pennsylvania Consolidated Statutes is reenacted
9 to read:
10 SUBCHAPTER D
11 CHILD VICTIMS AND WITNESSES
12 Section 2. Section 5981 of Title 42 is reenacted and amended
13 to read:
14 § 5981. Declaration of policy.
15 In order to promote the best interests of the children of
16 this Commonwealth, especially those children who are material
1 witnesses to or victims of crimes, [and in order to implement
2 the constitutional amendment adopted on November 7, 1995,] the
3 General Assembly declares its intent, in this subchapter, to
4 provide these children, where necessity is shown, procedures
5 which will protect them during their involvement with the
6 criminal justice system. The General Assembly urges the news
7 media to use SIGNIFICANT restraint AND CAUTION in revealing the <--
8 identity or address of children who are victims of or witnesses
9 to crimes OR OTHER INFORMATION THAT WOULD REVEAL THE NAME OR <--
10 ADDRESS OF THE CHILD VICTIM OR WITNESS.
11 Section 3. Sections 5982, 5983, 5984, 5984.1, 5985, 5985.1,
12 5986, 5987 and 5988 of Title 42 are reenacted to read:
13 § 5982. Definitions.
14 The following words and phrases when used in this subchapter
15 shall have the meanings given to them in this section unless the
16 context clearly indicates otherwise:
17 "Child" or "children." An individual or individuals under 16
18 years of age.
19 "Qualified shorthand reporter." An individual engaged in the
20 active practice of general shorthand reporting who is skilled in
21 the art of verbatim reporting by the use of a written shorthand
22 system, whether manual or machine; or any individual who is an
23 official court or legislative reporter; or any individual who is
24 the holder of a certified shorthand reporter certificate
25 mandated by State or Federal law.
26 § 5983. Rights and services.
27 (a) Designation of persons to act on behalf of children.--
28 Courts of common pleas may designate one or more persons as a
29 child advocate to provide the following services on behalf of
30 children who are involved in criminal proceedings as victims or
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1 material witnesses:
2 (1) To explain, in language understood by the child, all
3 legal proceedings in which the child will be involved.
4 (2) As a friend of the court, to advise the judge,
5 whenever appropriate, of the child's ability to understand
6 and cooperate with any court proceedings.
7 (3) To assist or secure assistance for the child and the
8 child's family in coping with the emotional impact of the
9 crime and subsequent criminal proceedings in which the child
10 is involved.
11 (b) Qualifications.--Persons designated under subsection (a)
12 may be attorneys at law or other persons who, by virtue of
13 service as rape crisis or domestic violence counselors or by
14 virtue of membership in a community service organization or of
15 other experience acceptable to the court, possess education,
16 experience or training in child or sexual abuse and a basic
17 understanding of the criminal justice system.
18 § 5984. Videotaped depositions.
19 (a) Depositions.--Subject to subsection (a.1), in any
20 prosecution or adjudication involving a child victim or child
21 material witness, the court may order the taking of a videotaped
22 deposition of the child victim or child material witness. Such
23 videotaped depositions, if taken for use at the preliminary
24 hearing, may be used only at the preliminary hearing in lieu of
25 the testimony of the child. If such videotaped deposition is
26 taken for use at trial, it may be used only at the trial in lieu
27 of the testimony of the child. The depositions shall be taken
28 under oath or affirmation before the court in chambers or in a
29 special facility designed for taking the depositions of
30 children. Only the attorneys for the defendant and for the
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1 Commonwealth, persons necessary to operate the equipment, a
2 qualified shorthand reporter and any person whose presence would
3 contribute to the welfare and well-being of the child, including
4 persons designated under section 5983 (relating to rights and
5 services), may be present in the room with the child during his
6 deposition. The court shall permit the defendant to observe and
7 hear the testimony of the child but shall ensure that the child
8 cannot hear or see the defendant. Examination and cross-
9 examination of the child shall proceed in the same manner as
10 permitted at trial. The court shall make certain that the
11 defendant and defense counsel have adequate opportunity to
12 communicate for the purposes of providing an effective defense.
13 (a.1) Determination.--Before the court orders the child
14 victim or the child material witness to testify by videotaped
15 deposition, the court must determine, based on evidence
16 presented to it, that testifying in the defendant's presence
17 will result in the child suffering serious emotional distress
18 such that the child victim or child material witness cannot
19 reasonably communicate. In making this determination, the court
20 may do all of the following:
21 (1) Observe and question the child victim or child
22 material witness, either inside or outside the courtroom.
23 (2) Hear testimony of a parent or custodian or any other
24 person, such as a person who has dealt with the child victim
25 or child material witness in a medical or therapeutic
26 setting.
27 (a.2) Counsel and confrontation.--
28 (1) If the court observes or questions the child victim
29 or child material witness under subsection (a.1)(1), the
30 attorney for the defendant and the attorney for the
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1 Commonwealth have the right to be present, but the court
2 shall not permit the defendant to be present.
3 (2) If the court hears testimony under subsection
4 (a.1)(2), the defendant, the attorney for the defendant and
5 the attorney for the Commonwealth have the right to be
6 present.
7 (b) Effect of order.--If the court orders the deposition of
8 a child to be taken under subsection (a), the child may not be
9 required to testify in court at the proceeding for which the
10 deposition was taken.
11 § 5984.1. Testimony by videotaped recording.
12 (a) Videotape.--Subject to subsection (b), in any
13 prosecution or adjudication involving a child victim or child
14 material witness, the court may order the taking of the child
15 victim's or child material witness's testimony by videotaped
16 recording. The testimony shall be taken under oath or
17 affirmation before the court in chambers or in a special
18 facility designed for taking the videotaped testimony of
19 children. Only the attorneys for the defendant and for the
20 Commonwealth, persons necessary to operate the equipment, a
21 qualified shorthand reporter and any person whose presence would
22 contribute to the welfare and well-being of the child, including
23 persons designated under section 5983 (relating to rights and
24 services), may be present in the room with the child during
25 testimony. The court shall permit the defendant to observe and
26 hear the testimony of the child but shall ensure that the child
27 cannot hear or see the defendant. Examination and cross-
28 examination of the child shall proceed in the same manner as
29 permitted at trial. The court shall make certain that the
30 defendant and defense counsel have adequate opportunity to
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1 communicate for the purpose of providing an effective defense.
2 (b) Determination.--Before the court orders the child victim
3 or the child material witness to testify by videotaped
4 recording, the court must determine, based on evidence presented
5 to it, that testifying in the defendant's presence will result
6 in the child suffering serious emotional distress such that the
7 child victim or child material witness cannot reasonably
8 communicate. In making this determination, the court may do any
9 of the following:
10 (1) Observe and question the child victim or child
11 material witness, either inside or outside the courtroom.
12 (2) Hear testimony of a parent or custodian or any other
13 person, such as a person who has dealt with the child victim
14 or child material witness in a medical or therapeutic
15 setting.
16 (c) Counsel and confrontation.--
17 (1) If the court observes or questions the child victim
18 or child material witness under subsection (b)(1), the
19 attorney for the defendant and the attorney for the
20 Commonwealth have the right to be present, but the court
21 shall not permit the defendant to be present.
22 (2) If the court hears testimony under subsection
23 (b)(2), the defendant, the attorney for the defendant and the
24 attorney for the Commonwealth have the right to be present.
25 (d) Effect of order.--If the court orders the testimony of a
26 child to be taken under subsection (a), the child may not be
27 required to testify in court at the proceeding for which the
28 testimony was taken.
29 § 5985. Testimony by closed-circuit television.
30 (a) Closed-circuit television.--Subject to subsection (a.1),
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1 in any prosecution or adjudication involving a child victim or a
2 child material witness, the court may order that the testimony
3 of the child victim or child material witness be taken under
4 oath or affirmation in a room other than the courtroom and
5 televised by closed-circuit equipment to be viewed by the court
6 and the finder of fact in the proceeding. Only the attorneys for
7 the defendant and for the Commonwealth, the court reporter, the
8 judge, persons necessary to operate the equipment and any person
9 whose presence would contribute to the welfare and well-being of
10 the child, including persons designated under section 5983
11 (relating to rights and services), may be present in the room
12 with the child during his testimony. The court shall permit the
13 defendant to observe and hear the testimony of the child but
14 shall ensure that the child cannot hear or see the defendant.
15 The court shall make certain that the defendant and defense
16 counsel have adequate opportunity to communicate for the
17 purposes of providing an effective defense. Examination and
18 cross-examination of the child shall proceed in the same manner
19 as permitted at trial.
20 (a.1) Determination.--Before the court orders the child
21 victim or the child material witness to testify by closed-
22 circuit television, the court must determine, based on evidence
23 presented to it, that testifying in the defendant's presence
24 will result in the child suffering serious emotional distress
25 such that the child victim or child material witness cannot
26 reasonably communicate. In making this determination, the court
27 may do all of the following:
28 (1) Observe and question the child victim or child
29 material witness, either inside or outside the courtroom.
30 (2) Hear testimony of a parent or custodian or any other
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1 person, such as a person who has dealt with the child victim
2 or child material witness in a medical or therapeutic
3 setting.
4 (a.2) Counsel and confrontation.--
5 (1) If the court observes or questions the child victim
6 or child material witness under subsection (a.1)(1), the
7 attorney for the defendant and the attorney for the
8 Commonwealth have the right to be present, but the court
9 shall not permit the defendant to be present.
10 (2) If the court hears testimony under subsection
11 (a.1)(2), the defendant, the attorney for the defendant and
12 the attorney for the Commonwealth have the right to be
13 present.
14 (b) Effect of order.--If the court orders the testimony of a
15 child to be taken under subsection (a), the child may not be
16 required to testify in court at the proceeding for which the
17 testimony was taken.
18 § 5985.1. Admissibility of certain statements.
19 (a) General rule.--An out-of-court statement made by a child
20 victim or witness, who at the time the statement was made was 12
21 years of age or younger, describing physical abuse, indecent
22 contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31
23 (relating to sexual offenses) performed with or on the child by
24 another, not otherwise admissible by statute or rule of
25 evidence, is admissible in evidence in any criminal or civil
26 proceeding if:
27 (1) the court finds, in an in camera hearing, that the
28 evidence is relevant and that the time, content and
29 circumstances of the statement provide sufficient indicia of
30 reliability; and
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1 (2) the child either:
2 (i) testifies at the proceeding; or
3 (ii) is unavailable as a witness.
4 (a.1) Emotional distress.--Before the court makes a finding
5 under subsection (a)(2)(ii), the court must determine, based on
6 evidence presented to it, that testimony by the child as a
7 witness will result in the child suffering serious emotional
8 distress such that the child cannot reasonably communicate. In
9 making this determination, the court may do all of the
10 following:
11 (1) Observe and question the child victim or child
12 material witness, either inside or outside the courtroom.
13 (2) Hear testimony of a parent or custodian or any other
14 person, such as a person who has dealt with the child victim
15 or child material witness in a medical or therapeutic
16 setting.
17 (a.2) Counsel and confrontation.--If the court hears
18 testimony in connection with making a finding under subsection
19 (a)(2)(ii), all of the following apply:
20 (1) Except as provided in paragraph (2), the defendant,
21 the attorney for the defendant and the attorney for the
22 Commonwealth or, in the case of a civil proceeding, the
23 attorney for the plaintiff has the right to be present.
24 (2) If the court observes or questions the child, the
25 court shall not permit the defendant to be present.
26 (b) Notice required.--A statement otherwise admissible under
27 subsection (a) shall not be received into evidence unless the
28 proponent of the statement notifies the adverse party of the
29 proponent's intention to offer the statement and the particulars
30 of the statement sufficiently in advance of the proceeding at
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1 which the proponent intends to offer the statement into evidence
2 to provide the adverse party with a fair opportunity to prepare
3 to meet the statement.
4 § 5986. Hearsay.
5 (a) General rule.--A statement made by a child describing
6 acts and attempted acts of indecent contact, sexual intercourse
7 or deviate sexual intercourse performed with or on the child by
8 another, not otherwise admissible by statute or court ruling, is
9 admissible in evidence in a dependency proceeding initiated
10 under Chapter 63 (relating to juvenile matters), involving that
11 child or other members of that child's family, if:
12 (1) the court finds, in an in camera hearing, that the
13 evidence is relevant and that the time, content and
14 circumstances of the statement provide sufficient indicia of
15 reliability; and
16 (2) the child either:
17 (i) testifies at the proceeding; or
18 (ii) is found by the court to be unavailable as a
19 witness.
20 (b) Emotional distress.--In order to make a finding under
21 subsection (a)(2)(ii) that the child is unavailable as a
22 witness, the court must determine, based on evidence presented
23 to it, that testimony by the child as a witness will result in
24 the child suffering serious emotional distress such that the
25 child cannot reasonably communicate. In making this
26 determination, the court may do all of the following:
27 (1) Observe and question the child victim or child
28 material witness, either inside or outside the courtroom.
29 (2) Hear testimony of a parent or custodian or any other
30 person, such as a person who has dealt with the child victim
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1 or child material witness in a medical or therapeutic
2 setting.
3 (c) Counsel and confrontation.--If the court hears testimony
4 in connection with making a finding under subsection (a)(2)(ii),
5 all of the following apply:
6 (1) Except as provided in paragraph (2), the defendant,
7 the attorney for the defendant and the attorney for the
8 Commonwealth have the right to be present.
9 (2) If the court observes or questions the child, the
10 court shall not permit the defendant to be present.
11 § 5987. Use of dolls.
12 In any criminal proceeding charging physical abuse, indecent
13 contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31
14 (relating to sexual offenses), the court shall permit the use of
15 anatomically correct dolls or mannequins to assist an alleged
16 victim in testifying on direct examination and cross-
17 examination.
18 § 5988. Victims of sexual or physical abuse.
19 (a) Release of name prohibited.--In a prosecution involving
20 a child victim of sexual or physical abuse, unless the court
21 otherwise orders, the name of the child victim shall not be
22 disclosed by officers or employees of the court to the public,
23 and any records revealing the name of the child victim will not
24 be open to public inspection.
25 (b) Penalty.--Any person who violates this section commits a
26 misdemeanor of the third degree.
27 Section 4. If separate amendments to section 9 of Article I
28 and section 10(c) of Article XI V of the Constitution of <--
29 Pennsylvania authorizing videotaped depositions and closed-
30 circuit television for child victims and child material
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1 witnesses are adopted under section 1 of Article XI of the
2 Constitution of Pennsylvania, the Secretary of the Commonwealth
3 shall transmit notice of the approval to the Legislative
4 Reference Bureau for publication in the Pennsylvania Bulletin.
5 Section 5. This act shall take effect as follows:
6 (1) The reenactment of 42 Pa.C.S. Ch. 59 Subch. D shall
7 take effect upon publication of the notice under section 4.
8 (2) The remainder of this act shall take effect
9 immediately.
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