A bill allowing all sexual abuse victims to avoid going physically to court to give their testimony during a trial has passed its first Senate panel. But, not without some concerns.
Jennifer Dritt is the Executive Director of the Florida Council Against Sexual Violence. She says as a social worker, she often deals with cases where victims are afraid to face the alleged offender in court.
“Thinking of a case in particular that I know personally in which a serial rapist abducted women, battered them, raped them, and them forced them to walk the streets as if they were prostituted,” said Dritt. “These women—when they were finally able to confront their alleged offender—wet their pants, sitting in the courtroom because he was so frightening.”
That’s why Sen. Lizbeth Benacquisto (R-Fort Myers) says her bill is needed. It’s an expansion of a law already in place that applies to victims under the age of 16 or who have an intellectual disability.
“Currently, we allow minors who have been abused the right to face their accuser via video, rather than in open court because of the emotions it can trigger,” she said. “This bill would offer sexual battery victims who are older than 16 years of age the same courtroom safeguards that are statutorily available to younger victims. The bill provides a framework by which the presiding judge in the sexual battery case can consider and weigh the likelihood that the sexual battery victim would suffer at least moderate, emotional, or mental harm due to the presence of the defendant, while also protecting the defendant’s constitutional right to confront his accusers.”
But, the bill drew multiple questions as well as concerns. Sen. Jeff Clemens (D-Lake Worth) questioned how that process would work.
“Thank you for bringing this bill forward. I know this is always a sensitive and difficult subject. The last thing you said there about protecting the constitutional right to be able to confront your accuser. Can you talk about how that works within this framework,” he asked.
Benacquisto says it would work the same way it currently does for minors.
“The defendant’s attorney can cross examine the victim, but it would happen via close circuit TV or behind a two-way mirror, so that the defendant has the right to have the questions asked in order to prove their innocence, but the victim can have the protection of doing it without facing that person literally in a courtroom,” she replied.
The Florida Public Defenders Association is against the measure. Columbia County Public Defender Blair Payne, who represents the group, says their first concern is the bill assumes that there’s a victim.
“One of the things that this bill does, in our opinion, is assumes that there’s a victim,” he said. “That’s the whole purpose of a trial: to determine whether a crime has been committed and if so, who committed it.”
He adds he also has a problem with leaving it to the judge’s discretion to weigh whether the victim is suffering at least “moderate, emotional, or mental harm.”
“That’s not defined, and I would suggest to the committee is that term could very well be defined one way in Pensacola and a totally different way in Miami,” argued Payne. “You know, where I grew up in the country in North Florida, everybody’s got the crazy uncle that would sit on the front porch and you don’t consider him mentally impaired, but you take that same person to Tampa, and they may say, ‘he has a significant mental impairment.’”
Payne says public defenders also feel the bill infringes on the defendant’s right to confront their accuser. He says trials are normally fluid and juries can make determinations based on the alleged victim’s demeanor as they’re cross examined in the courtroom.
“We are taking away a jury’s right to see the witness when it is actually being confronted,” he concluded. ”And, I got asked a question about this earlier: Well, you’re entitled to cross examine the witness, maybe it’s by videotape before trial? And, that’s true, but that’s not true confrontation.”
But, Jennifer Dritt with the Florida Council Against Sexual Violence disagrees.
“You know this bill, as I understand it, doesn’t prevent a court from allowing the jury to view the testimony through video link,” she said. “I think it’s possible—and this is a good bill—that will protect both alleged victims and the rights of alleged offenders.”
Still, Sen. Jeff Brandes (R-St. Petersburg) had some concerns. He outlined a sexual abuse victim scenario versus someone who was an attempted murder victim.
“We’re giving a special right to someone because of a sexual abuse situation, but simply, if he had pulled out a gun and almost shot her and almost killed this woman, she wouldn’t have that right. Can you help me understand why there is a special place for this scenario, but not for the attempted murder scenario,” he asked.
And, Dritt says after working years with abuse survivors, she does see the two a bit differently.
“Most people who are, in my experience, who are victims of attempted murder do not face this relentless failure to be believed, which is already difficult for them,” she replied. “And, while attempted murder is clearly a horrible crime, it’s personal in a very different way. The crime of sexual violence is traumatizing in a very personal way and is deeply disturbing of the survivors of that assault in a way that affects their confidence over their lifetime, in addition to typically blaming themselves for the sexual assault.”
Some lawmakers also suggested the measure should include better guidelines for the judicial discretion.
But, despite those reservations, the Senate Criminal Justice Committee unanimously passed the measure. Meanwhile, its House companion has not yet had a hearing.
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