PDAA Support Letter for HB 2321, 2324, and 2325
June 4, 2018
Dear House Judiciary Committee Member:
I am writing to highlight three important pieces of legislation that will be before you in the House Judiciary Committee on Tuesday. HB 2321 by Representative Bloom, HB 2324 by Representative Barbin, and HB 2325 by Representative Everett are designed to help our most vulnerable testify in court when they have been victims of serious crimes.
Having to testify in court as a victim of crime is hard enough. But when the victim has an intellectual disability and the crime committed against him or her is a serious felony, or when a victim may be asked about having been sexually assaulted in the past in order damage her character or reputation, testifying can be terrifying or even impossible. These bills address these very real situations so that reliable evidence from these vulnerable victims can be introduced at trial. Below are reasons why believe each bill is critically important.
HB 2321 and HB 2325 (Tender Years Exception Improvements)
Out-of-court statements, or hearsay, are generally not permitted to be introduced into evidence at trial. There are, however, a number of exceptions to this rule, typically when the statements are made under reliable circumstances. One such exception is the “tender years exception,” which provides that a hearsay statement of a child sexual abuse victim under the age of twelve is admissible provided the evidence is relevant and the time, content and circumstances of the statement provide sufficient indicia of reliability, and the young victim is not able or available to testify.
The tender years exception recognizes that some child victims of sexual assaults and other violent crimes may be unable to testify at trial and that sometimes, if their out of court statements have been made under reliable circumstances, they may be admitted into evidence.
Tender Years Exception Fails to Protect Enough Vulnerable Victims
Unfortunately, the tender years exception covers an incomplete number of sexual or violent offenses: homicide, assault, kidnapping, certain sexual offenses like rape, burglary and robbery. It fails to cover many significant other serious sexual offenses involving children: human trafficking, incest, endangering the welfare of children if the conduct involved sexual contact with the child, corruption of minors, sexual abuse of children, and sexual exploitation of children. Each of these crimes is serious and significant and often has deleterious consequences on its young victims.
What HB 2321 Does
HB 2321 is simple, straightforward and significant: it remedies the scope of this problem by including these very serious crimes in the list of crimes that the tender years exception covers, if the out of court statement is relevant and the time, content and circumstances of the statement provide sufficient indicia of reliability, and the victim is not able or available to testify.
Tender Years Exception Fails to Cover Those With Intellectual Disabilties and Autism
The tender years exception has an additional significant shortcoming: it does not include those with intellectual disabilities or autism. HB 2325 would expand the scope of the tender years doctrine to cover those with intellectual disabilities or autism, so long as the evidence is relevant and the time, content and circumstances of the statement provide sufficient indicia of reliability, and the victim is not able or available to testify.
According to the US Department of Justice, people with intellectual disabilities are sexually assaulted at a rate seven times higher than those without disabilities. We also know that predators target people with disabilities because they know they can be manipulated and may very well have difficulty testifying later. Victims of these horrific crimes should not be made to suffer more because they cannot necessarily communicate in court or testifying would cause unreasonable emotional distress. If victims who are intellectually disabled have made statements outside of court that are deemed by a judge to be reliable (in other words, a non-reliable statement would remain inadmissible), then these statements should be admissible. A similar analysis applies to some victims who are autistic.
Improving the Rape Shield Law to Protect Victims From Being Cross-Examined About Prior Sexual Abuse and Assaults
HB 2324 is similarly focused on vulnerable victims. It would make critical improvements to our rape shield law, which like the tender years exception, is inadequate. Presently, the rape shield law excludes evidence of a victim’s prior sexual history when that evidence is intended to be used to undermine his or her credibility. But under current law an attorney can attack the credibility of a victim of a sexual assault by asking about any prior incidents when the victim was sexually victimized.
This is a significant problem that is wholly unfair and damaging to our victims. We tend to see this line of questioning in human trafficking cases, cases where a defendant has previously assaulted the victim, cases involving children in the foster care system who have been moved around, cases involving sex workers, and cases involving children who have been previously assaulted by other family members.
HB 2324 would make prior sexual victimizations subject to the protections of the rape shield law. There is no credible reason why the rape shield law should protect against questions regarding prior consensual sex but not protect against questions regarding prior nonconsensual sex.
It is worth noting that there should be no concerns that this legislation would hinder a defendant’s ability to put on an adequate defense. Under the rape shield law, admission of prior sexual history is permitted under many circumstances, including when it is used to argue consent for the act of intercourse with which the defendant has been charged; to establish bias; or to explain away physical indicia of sexual contact. The bill would not change any of this. It only covers instances when evidence is used to attack the character or reputation of the victim. And the court, after considering all these factors, would make the admissibility determination.
Finally, HB 2324 expands the crimes that rape shield generally covers. For example, it presently does not cover child endangerment of a sexual nature, human trafficking, sexual exploitation of children, or corruption of minors involving sexual contact.
We thank you for your attention to these three critical bills, focused on helping our especially vulnerable victims of crime.
John T. Adams