Victims with Disabilities- At Age of Consent but Have Diminished Capacity July 28, 2011

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1 Victims with Disabilities- At Age of Consent but Have Diminished Capacity July 28, 2011 This compilation contains legislation, session laws, and codified statutes. Al statutes, laws, and bills listed in this compilation have been signed by the relevant governor and enacted into law. This report was compiled using State Net and Lexis Search Services. This compilation is up-to-date as of the month it was created. However, please note that we recommend checking both case law and current legislation for any possible modifications to the statutes listed below. TABLE OF CONTENTS TABLE OF CONTENTS... 1 ARKANSAS... 4 ARK. CODE ANN (2011) ARK. CODE ANN (2011) CALIFORNIA... 7 WEST'S ANN.CAL.WELF. & INST.CODE 4512 (2011) CAL. PENAL CODE (2011) CAL. PENAL CODE 261 (2011) CAL. PENAL CODE 368 (2011) CAL. PENAL CODE (2011) DELAWARE...20 DEL. CODE ANN. TIT. 11, 9421 (2011) DEL. CODE ANN. TIT. 11, 9422 (2011) DEL. CODE ANN. TIT. 11, 9423 (2011) DEL. CODE ANN. TIT. 11, 9424 (2011) FLORIDA...22 FLA. STAT. ANN (2011) FLA. STAT. ANN (2011) FLA. STAT. ANN (2011) FLA. STAT. ANN (2011) GEORGIA

2 GA. CODE ANN (2011) IOWA...28 IOWA CODE (2011) LOUISIANA...29 LA. REV. STAT. ANN (2010) MICHIGAN...30 MICH. COMP. LAWS D (2011) MINNESOTA...31 MINN. STAT (2011) MISSISSIPPI...34 MISS. CODE ANN (2010) NORTH DAKOTA...35 N.D. CENT. CODE (2009)...35 OHIO...36 OHIO REV. CODE ANN (2011) OHIO REV. CODE ANN (2011) OHIO REV. CODE ANN (2011) OHIO REV. CODE ANN (2011) OKLAHOMA...47 OKLA. STAT. ANN. TIT. 21, 1111 (2011) PENNSYLVANIA PA. CONS. STAT. ANN (2011) PA. CONS. STAT. ANN (2011) SOUTH DAKOTA...51 S.D. CODIFIED LAWS (2011) TENNESSEE...52 TENN. CODE ANN (2011) UTAH...55 UTAH CODE ANN (2011) VIRGINIA...57 VA. CODE ANN (2011) WASHINGTON...58 WASH. REV. CODE ANN. 9.94A.838 (2011) WYOMING...59 WYO. STAT. ANN (2011) GUAM...59 GUAM CODE ANN. TIT. X, 2957 (2010)

3 PUERTO RICO...60 P.R. LAWS ANN. TIT. 8, 450C (2008). ABUSE

4 ARKANSAS ARK. CODE ANN (2011). Definitions As used in this chapter: (1) Deviate sexual activity means any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) The penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person; (2) Forcible compulsion means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person; (3) Guardian means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor; (4)(A) Mentally defective means that a person suffers from a mental disease or defect that renders the person: (i) Incapable of understanding the nature and consequences of a sexual act; or (ii) Unaware a sexual act is occurring. (B) A determination that a person is mentally defective shall not be based solely on the person's intelligence quotient; (5) Mentally incapacitated means that a person is temporarily incapable of appreciating or controlling the person's conduct as a result of the influence of a controlled or intoxicating substance: (A) Administered to the person without the person's consent; or 4

5 (B) That renders the person unaware a sexual act is occurring; (6) Minor means a person who is less than eighteen (18) years of age; (7) Physically helpless means that a person is: (A) Unconscious; (B) Physically unable to communicate a lack of consent; or (C) Rendered unaware a sexual act is occurring; (8) Public place means a publicly or privately owned place to which the public or a substantial number of people have access; (9) Public view means observable or likely to be observed by a person in a public place; (10) Sexual contact means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female; and (11) Sexual intercourse means penetration, however slight, of the labia majora by a penis. ARK. CODE ANN (2011). Rape (a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: (1) By forcible compulsion; (2) Who is incapable of consent because he or she is: (A) Physically helpless; (B) Mentally defective; or 5

6 (C) Mentally incapacitated; (3)(A) Who is less than fourteen (14) years of age. (B) It is an affirmative defense to a prosecution under subdivision (a)(3)(a) of this section that the actor was not more than three (3) years older than the victim; or (4)(A) Who is a minor and the actor is the victim's: (i) Guardian; (ii) Uncle, aunt, grandparent, step-grandparent, or grandparent by adoption; (iii) Brother or sister of the whole or half blood or by adoption; or (iv) Nephew, niece, or first cousin. (B) It is an affirmative defense to a prosecution under subdivision (a)(4)(a) of this section that the actor was not more than three (3) years older than the victim. (b) It is no defense to a prosecution under subdivisions (a)(3) or (4) of this section that the victim consented to the conduct. (c)(1) Rape is a Class Y felony. (2) Any person who pleads guilty or nolo contendere to or is found guilty of rape involving a victim who is less than fourteen (14) years of age shall be sentenced to a minimum term of imprisonment of twenty-five (25) years. (d)(1) A court may issue a permanent no contact order when: (A) A defendant pleads guilty or nolo contendere; or (B) All of the defendant's appeals have been exhausted and the defendant remains convicted. 6

7 (2) If a judicial officer has reason to believe that mental disease or defect of the defendant will or has become an issue in the case, the judicial officer shall enter such orders as are consistent with CALIFORNIA WEST'S ANN.CAL.WELF. & INST.CODE 4512 (2011). Definitions As used in this division: (a) Developmental disability means a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature. (b) Services and supports for persons with developmental disabilities means specialized services and supports or special adaptations of generic services and supports directed toward the alleviation of a developmental disability or toward the social, personal, physical, or economic habilitation or rehabilitation of an individual with a developmental disability, or toward the achievement and maintenance of independent, productive, normal lives. The determination of which services and supports are necessary for each consumer shall be made through the individual program plan process. The determination shall be made on the basis of the needs and preferences of the consumer or, when appropriate, the consumer's family, and shall include consideration of a range of service options proposed by individual program plan participants, the effectiveness of each option in meeting the goals stated in the individual program plan, and the costeffectiveness of each option. Services and supports listed in the individual program plan may include, but are not limited to, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical, occupational, and speech therapy, training, education, supported and sheltered employment, mental health services, recreation, counseling of the individual with a developmental disability and of his or her family, protective and other social and sociolegal services, information and referral services, follow-along services, adaptive equipment and supplies, advocacy assistance, including self-advocacy training, facilitation and peer advocates, assessment, assistance in locating a home, child care, behavior training and behavior modification programs, camping, community integration services, community support, daily living skills training, emergency and crisis intervention, facilitating circles of support, habilitation, homemaker services, infant stimulation programs, paid roommates, paid neighbors, respite, short-term 7

8 out-of-home care, social skills training, specialized medical and dental care, supported living arrangements, technical and financial assistance, travel training, training for parents of children with developmental disabilities, training for parents with developmental disabilities, vouchers, and transportation services necessary to ensure delivery of services to persons with developmental disabilities. Nothing in this subdivision is intended to expand or authorize a new or different service or support for any consumer unless that service or support is contained in his or her individual program plan. (c) Notwithstanding subdivisions (a) and (b), for any organization or agency receiving federal financial participation under the federal Developmental Disabilities Assistance and Bill of Rights Act, as amended developmental disability and services for persons with developmental disabilities means the terms as defined in the federal act to the extent required by federal law. (d) Consumer means a person who has a disability that meets the definition of developmental disability set forth in subdivision (a). (e) Natural supports means personal associations and relationships typically developed in the community that enhance the quality and security of life for people, including, but not limited to, family relationships, friendships reflecting the diversity of the neighborhood and the community, associations with fellow students or employees in regular classrooms and workplaces, and associations developed through participation in clubs, organizations, and other civic activities. (f) Circle of support means a committed group of community members, who may include family members, meeting regularly with an individual with developmental disabilities in order to share experiences, promote autonomy and community involvement, and assist the individual in establishing and maintaining natural supports. A circle of support generally includes a plurality of members who neither provide nor receive services or supports for persons with developmental disabilities and who do not receive payment for participation in the circle of support. (g) Facilitation means the use of modified or adapted materials, special instructions, equipment, or personal assistance by an individual, such as assistance with communications, that will enable a consumer to understand and participate to the maximum extent possible in the decisions and choices that effect his or her life. (h) Family support services means services and supports that are provided to a child with developmental disabilities or his or her family and that contribute to the ability of the family to reside together. 8

9 (i) Voucher means any authorized alternative form of service delivery in which the consumer or family member is provided with a payment, coupon, chit, or other form of authorization that enables the consumer or family member to choose his or her own service provider. (j) Planning team means the individual with developmental disabilities, the parents or legally appointed guardian of a minor consumer or the legally appointed conservator of an adult consumer, the authorized representative, including those appointed pursuant to subdivision (d) of Section 4548 and subdivision (e) of Section 4705, one or more regional center representatives, including the designated regional center service coordinator pursuant to subdivision (b) of Section , any individual, including a service provider, invited by the consumer, the parents or legally appointed guardian of a minor consumer or the legally appointed conservator of an adult consumer, or the authorized representative, including those appointed pursuant to subdivision (d) of Section 4548 and subdivision (e) of Section (k) Stakeholder organizations means statewide organizations representing the interests of consumers, family members, service providers, and statewide advocacy organizations. (l) Substantial disability means the existence of significant functional limitations in three or more of the following areas of major life activity, as determined by a regional center, and as appropriate to the age of the person: (1) Self-care. (2) Receptive and expressive language. (3) Learning. (4) Mobility. (5) Self-direction. (6) Capacity for independent living. (7) Economic self-sufficiency. Any reassessment of substantial disability for purposes of continuing eligibility shall utilize the same criteria under which the individual was originally made eligible. 9

10 CAL. PENAL CODE (2011). Conviction of certain crimes against persons 65 years of age or older, blind, deaf, developmentally disabled, paraplegic, quadriplegic, or under the age of 14 years; prior conviction; sentence enhancements (a) Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation. (b) Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 667. (c) Subdivisions (a) and (b) apply to the following crimes: (1) Mayhem, in violation of Section 203 or 205. (2) Kidnapping, in violation of Section 207, 209, or (3) Robbery, in violation of Section 211. (4) Carjacking, in violation of Section 215. (5) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (6) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262. (7) Rape, spousal rape, or sexual penetration in concert, in violation of Section (8) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (9) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (10) Sexual penetration, in violation of subdivision (a) of Section

11 (11) Burglary of the first degree, as defined in Section 460, in violation of Section 459. (d) As used in this section, developmentally disabled means a severe, chronic disability of a person, which is all of the following: (1) Attributable to a mental or physical impairment or a combination of mental and physical impairments. (2) Likely to continue indefinitely. (3) Results in substantial functional limitation in three or more of the following areas of life activity: (A) Self-care. (B) Receptive and expressive language. (C) Learning. (D) Mobility. (E) Self-direction. (F) Capacity for independent living. (G) Economic self-sufficiency. CAL. PENAL CODE 261 (2011). Rape defined (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a 11

12 mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, unconscious of the nature of the act means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, threatening to retaliate means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, public official means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. 12

13 (b) As used in this section, duress means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (c) As used in this section, menace means any threat, declaration, or act which shows an intention to inflict an injury upon another. CAL. PENAL CODE 368 (2011). Crimes against elder or dependent adults <Section as amended by Stats.2011, c. 15 (A.B.109), eff. April 4, 2011, operative no earlier than July 1, 2011, and only upon the creation and funding of a community corrections grant program. See, also, section prior to amendment by Stats.2011, c. 15 (A.B.109), eff. April 4, 2011, operative no earlier than July 1, 2011, and only upon the creation and funding of a community corrections grant program.> (a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf. (b)(1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years. (2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section , the defendant shall receive an additional term in the state prison as follows: 13

14 (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age. (B) Seven years if the victim is 70 years of age or older. (c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. (d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170 for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950). (e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170 for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or 14

15 obtained is of a value exceeding nine hundred fifty dollars ($950), and by a fine not exceeding one thousand dollars ($1, 000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950). (f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years. (g) As used in this section, elder means any person who is 65 years of age or older. (h) As used in this section, dependent adult means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. Dependent adult includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, , and of the Health and Safety Code. (i) As used in this section, caretaker means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult. (j) Nothing in this section shall preclude prosecution under both this section and Section 187 or or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section and paragraph (2) or (3) of subdivision (b) for any single offense. (k) In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. Any defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay. CAL. PENAL CODE (2011). Testimony of disabled victims; closed-circuit TV; accommodations; legislative intent and construction of section; report to Legislature 15

16 (a) It is the intent of the Legislature, in enacting this section, to provide the court with discretion to modify court procedures, as a reasonable accommodation, to assure that adults and children with disabilities who have been victims of an alleged sexual or otherwise specified offense are able to participate effectively in criminal proceedings. In exercising its discretion, the court shall balance the rights of the defendant against the right of the victim who has a disability to full access and participation in the proceedings, while preserving the integrity of the court's truthfinding function. (1) For purposes of this section, the term disability is defined in paragraphs (1) and (2) of subdivision (c) of Section of the Government Code. (2) The right of the victim is not to confront the perpetrator, but derives under both Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. Sec. 794) and the Americans with Disabilities Act of 1990 (42 U.S.C. Sec and following) as a right to participate in or benefit from the same services or services that are equal or as effective as those enjoyed by persons without disabilities. (b) Notwithstanding any other law, in any criminal proceeding in which the defendant is charged with a violation of Section 220, 243.4, 261, 261.5, 264.1, 273a, 273d, 285, 286, 288, 288a, 288.5, or 289, subdivision (1) of Section 314, Section 368, 647.6, or with any attempt to commit a crime listed in this subdivision, committed with or upon a person with a disability, the court in its discretion may make accommodations to support the person with a disability, including, but not limited to, any of the following: (1) Allow the person with a disability reasonable periods of relief from examination and cross-examination during which he or she may retire from the courtroom. The judge may also allow other witnesses in the proceeding to be examined when the person with a disability retires from the courtroom. (2) Allow the person with a disability to utilize a support person pursuant to Section or a regional center representative providing services to a developmentally disabled individual pursuant to Article 1 (commencing with Section 4620) or Article 2 (commencing with Section 4640) of Chapter 5 of Division 4.5 of the Welfare and Institutions Code. In addition to, or instead of, allowing the person with a disability to utilize a support person or regional center representative pursuant to this paragraph, the court may allow the person with a disability to utilize a person necessary to facilitate the communication or physical needs of the person with a disability. (3) Notwithstanding Section of the Government Code, the judge may remove his or her robe if the judge believes that this formal attire prevents full participation of the person with a disability because it is intimidating to him or her. 16

17 (4) The judge, parties, witnesses, support persons, and court personnel may be relocated within the courtroom to facilitate a more comfortable and personal environment for the person with a disability as well as accommodating any specific requirements for communication by that person. (c) The prosecutor may apply for an order that the testimony of the person with a disability at the preliminary hearing, in addition to being stenographically recorded, be recorded and preserved on videotape. (1) The application for the order shall be in writing and made three days prior to the preliminary hearing. (2) Upon timely receipt of the application, the judge shall order that the testimony of the person with a disability given at the preliminary hearing be taken and preserved on videotape. The videotape shall be transmitted to the clerk of the court in which the action is pending. (3) If at the time of trial the court finds that further testimony would cause the person with a disability emotional trauma so that he or she is medically unavailable or otherwise unavailable within the meaning of Section 240 of the Evidence Code, the court may admit the videotape of his or her testimony at the preliminary hearing as former testimony under Section 1291 of the Evidence Code. (4) Any videotape that is taken pursuant to this subdivision is subject to a protective order of the court for the purpose of protecting the privacy of the person with a disability. This subdivision does not affect the provisions of subdivision (b) of Section (d) Notwithstanding any other law, the court in any criminal proceeding, upon written notice of the prosecutor made at least three days prior to the date of the preliminary hearing or trial date on which the testimony of the person with a disability is scheduled, or during the course of the proceeding on the court's own motion, may order that the testimony of the person with a disability be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, and defendant, and communicated to the courtroom by means of two-way closed-circuit television, if the court makes all of the following findings: (1) The person with a disability will be called on to testify concerning facts of an alleged sexual offense, or other crime as specified in subdivision (b), committed on or with that person. (2) The impact on the person with a disability of one or more of the factors enumerated in subparagraphs (A) to (D), inclusive, is shown by clear and convincing evidence to be so substantial as to make the person with a disability unavailable as a witness unless closed- 17

18 circuit television is used. The refusal of the person with a disability to testify shall not alone constitute sufficient evidence that the special procedure described in this subdivision is necessary in order to accommodate the disability. The court may take into consideration the relationship between the person with a disability and the defendant or defendants. (A) Threats of serious bodily injury to be inflicted on the person with a disability or a family member, of incarceration, institutionalization, or deportation of the person with a disability or a family member, or of removal of the person with a disability from his or her residence by withholding needed services when the threats come from a service provider, in order to prevent or dissuade the person with a disability from attending or giving testimony at any trial or court proceeding or to prevent that person from reporting the alleged offense or from assisting in criminal prosecution. (B) Use of a firearm or any other deadly weapon during the commission of the crime. (C) Infliction of great bodily injury upon the person with a disability during the commission of the crime. (D) Conduct on the part of the defendant or defense counsel during the hearing or trial that causes the person with a disability to be unable to continue his or her testimony. (e)(1) The hearing on the motion brought pursuant to this subdivision shall be conducted out of the presence of the jury. (2) Notwithstanding Section 804 of the Evidence Code or any other law, the court, in determining the merits of the motion, shall not compel the person with a disability to testify at the hearing; nor shall the court deny the motion on the ground that the person with a disability has not testified. (3) In determining whether the impact on an individual person with a disability of one or more of the factors enumerated under paragraph (2) of subdivision (d) is so substantial that the person is unavailable as a witness unless the closed-circuit television procedure is employed, the court may question the person with a disability in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the support person described under paragraph (2) of subdivision (b), the prosecutor, and defense counsel present. At this time the court shall explain the process to the person with a disability. The defendant or defendants shall not be present; however, the defendant or defendants shall have the opportunity to contemporaneously observe the proceedings by closed-circuit television. Defense counsel shall be afforded a reasonable opportunity to consult with the defendant or defendants prior to the conclusion of the session in chambers. 18

19 (f) When the court orders the testimony of a victim who is a person with a disability to be taken in another place outside of the courtroom, the court shall do all of the following: (1) Make a brief statement on the record, outside of the presence of the jury, of the reasons in support of its order. While the statement need not include traditional findings of fact, the reasons shall be set forth with sufficient specificity to permit meaningful review and to demonstrate that discretion was exercised in a careful, reasonable, and equitable manner. (2) Instruct the members of the jury that they are to draw no inferences from the use of closed-circuit television as a means of assuring the full participation of the victim who is a person with a disability by accommodating that individual's disability. (3) Instruct respective counsel, outside of the presence of the jury, that they are to make no comment during the course of the trial on the use of closed-circuit television procedures. (4) Instruct the support person, if the person is part of the court's accommodation of the disability, outside of the presence of the jury, that he or she is not to coach, cue, or in any way influence or attempt to influence the testimony of the person with a disability. (5) Order that a complete record of the examination of the person with a disability, including the images and voices of all persons who in any way participate in the examination, be made and preserved on videotape in addition to being stenographically recorded. The videotape shall be transmitted to the clerk of the court in which the action is pending and shall be made available for viewing to the prosecuting attorney, the defendant, and his or her attorney, during ordinary business hours. The videotape shall be destroyed after five years have elapsed from the date of entry of judgment. If an appeal is filed, the tape shall not be destroyed until a final judgment on appeal has been ordered. Any videotape that is taken pursuant to this section is subject to a protective order of the court for the purpose of protecting the privacy of the person with a disability. This subdivision does not affect the provisions of subdivision (b) of Section (g) When the court orders the testimony of a victim who is a person with a disability to be taken in another place outside the courtroom, nothing in this section shall prohibit the court from ordering the victim to appear in the courtroom for a limited purpose, including the identification of the defendant or defendants as the court deems necessary. (h) The examination shall be under oath, and the defendant shall be able to see and hear the person with a disability. If two-way closed-circuit television is used, the defendant's image shall be transmitted live to the person with a disability. 19

20 (i) Nothing in this section shall affect the disqualification of witnesses pursuant to Section 701 of the Evidence Code. (j) The cost of examination by contemporaneous closed-circuit television ordered pursuant to this section shall be borne by the court out of its existing budget. (k) This section shall not be construed to obviate the need to provide other accommodations necessary to ensure accessibility of courtrooms to persons with disabilities nor prescribe a lesser standard of accessibility or usability for persons with disabilities than that provided by Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec and following) and federal regulations adopted pursuant to that act. (l) The Judicial Council shall report to the Legislature, no later than two years after the enactment of this subdivision, on the frequency of the use and effectiveness of admitting the videotape of testimony by means of closed-circuit television. DELAWARE DEL. CODE ANN. TIT. 11, 9421 (2011). Legislative intent The General Assembly finds that it is necessary to provide every victim and witness with a cognitive disability, particularly those whose disability renders them the emotional or mental equivalent of a child, with additional consideration and different treatment than that usually required for adult victims and witnesses who are not cognitively disabled. It is therefore the intent of the General Assembly to provide each victim and witness with a cognitive disability who is involved in a criminal proceeding with certain fundamental rights and protections. DEL. CODE ANN. TIT. 11, 9422 (2011). Definitions The following words, terms and phrases, when used in this subchapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (1) Cognitive disability means a developmental disability that substantially impairs an individual's cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as 20

21 nonorganic brain disorders commonly called functional disorders. Cognitive disability also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation. (2) Victim or witness shall not include any person with a cognitive disability accused of committing a felony; provided however, that the word victim or witness may, in the court's discretion, include: a. A person with a cognitive disability where such person's participation in a felony appears to have been induced, coerced or unwilling; or b. A person with a cognitive disability who has participated in the felony, but who has subsequently and voluntarily agreed to testify on behalf of the State. DEL. CODE ANN. TIT. 11, 9423 (2011). Expedited proceedings In all criminal proceedings involving a victim or witness with a cognitive disability, the court and the prosecution shall take appropriate action to ensure a prompt trial in order to minimize the length of time the victim or witness must endure the stress of the victim's or witness's involvement in the proceedings. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact such delay or continuance might have on the well-being of any victim or witness with a cognitive disability. DEL. CODE ANN. TIT. 11, 9424 (2011). Additional rights and services (a) A victim or witness with a cognitive disability is entitled to an explanation, in language the victim or witness understands, of all legal proceedings in which the victim or witness is to be involved. (b) A victim or witness with a cognitive disability is entitled to be accompanied, in all proceedings, by a friend or other person in whom the victim or witness trusts, which person shall be permitted to advise the judge, when appropriate and as a friend of the court, regarding the cognitively disabled person's ability to understand proceedings and questions. 21

22 (c) A victim or witness with a cognitive disability is entitled to information about, and referrals to, appropriate social services and programs to assist the victim or witness, and the victim's or witness's family, in coping with the emotional impact of the crime, and the subsequent court proceedings in which the victim or witness is to become involved. FLORIDA FLA. STAT. ANN (2011). Sex offenses; testimony of person under age 16 or person with mental retardation; testimony of victim; courtroom cleared; exceptions (1) Except as provided in subsection (2), in the trial of any case, civil or criminal, when any person under the age of 16 or any person with mental retardation as defined in s is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney's office. (2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the victim's age or mental capacity, except that parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney may remain in the courtroom. FLA. STAT. ANN (2011). Definitions As used in this chapter: (1) Business relationship means a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services. (2) Caregiver means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or disabled adult. Caregiver includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities as defined in subsection (7). (3) Deception means: 22

23 (a) Misrepresenting or concealing a material fact relating to: 1. Services rendered, disposition of property, or use of property, when such services or property are intended to benefit an elderly person or disabled adult; 2. Terms of a contract or agreement entered into with an elderly person or disabled adult; or 3. An existing or preexisting condition of any property involved in a contract or agreement entered into with an elderly person or disabled adult; or (b) Using any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit an elderly person or disabled adult to enter into a contract or agreement. (4) Disabled adult means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living. (5) Elderly person means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired. (6) Endeavor means to attempt or try. (7) Facility means any location providing day or residential care or treatment for elderly persons or disabled adults. The term facility may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community. (8) Intimidation means the communication by word or act to an elderly person or disabled adult that the elderly person or disabled adult will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence. (9) Lacks capacity to consent means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or 23

24 communicate reasonable decisions concerning the elderly person's or disabled adult's person or property. (10) Obtains or uses means any manner of: (a) Taking or exercising control over property; or (b) Making any use, disposition, or transfer of property. (11) Position of trust and confidence with respect to an elderly person or a disabled adult means the position of a person who: (a) Is a parent, spouse, adult child, or other relative by blood or marriage of the elderly person or disabled adult; (b) Is a joint tenant or tenant in common with the elderly person or disabled adult; (c) Has a legal or fiduciary relationship with the elderly person or disabled adult, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; (d) Is a caregiver of the elderly person or disabled adult; or (e) Is any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly person's or disabled adult's funds, assets, or property. (12) Property means anything of value and includes: (a) Real property, including things growing on, affixed to, and found in land. (b) Tangible or intangible personal property, including rights, privileges, interests, and claims. (c) Services. (13) Services means anything of value resulting from a person's physical or mental labor or skill, or from the use, possession, or presence of property, and includes: (a) Repairs or improvements to property. 24

25 (b) Professional services. (c) Private, public, or governmental communication, transportation, power, water, or sanitation services. (d) Lodging accommodations. (e) Admissions to places of exhibition or entertainment. (14) Value means value determined according to any of the following: (a)1. The market value of the property at the time and place of the offense or, if the market value cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the offense. 2. In the case of a written instrument such as a check, draft, or promissory note, which does not have a readily ascertainable market value, the value is the amount due or collectible. The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by the loss of the instrument. 3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing advantage over those who do not know of or use the trade secret. (b) If the value of the property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100. (c) Amounts of value of separate properties involved in exploitation committed pursuant to one scheme or course of conduct, whether the exploitation involves the same person or several persons, may be aggregated in determining the degree of the offense. FLA. STAT. ANN (2011). Exploitation of an elderly person or disabled adult; penalties (1) Exploitation of an elderly person or disabled adult means: 25