SB 04-060

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	The Amendment to the Bill
	Second Regular Session Sixty-fourth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 04-0392.01 Michael Dohr SENATE BILL 04-060 SENATE SPONSORSHIP Cairns HOUSE SPONSORSHIP Crane Senate Committees House Committees Judiciary A BILL FOR AN ACT CONCERNING THE PROTECTION OF A VICTIM OF UNLAWFUL SEXUAL BEHAVIOR. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Applies the rape shield law to all hearings. Allows the prosecution, in an unlawful sexual behavior case, to motion the court for a protective order protecting the identity of the victim and requiring the use of a pseudonym in court filings and proceedings. Requires the court to grant the motion upon cause shown. Gives the victim a private civil right of action for violations of the protective order. Provides a victim of unlawful sexual behavior the right to have a victim advocate and support person present during an interview by a law enforcement official, district attorney, defense attorney, or defense investigator or agent. Requires the law enforcement official or district attorney, prior to the initial interview, to inform the victim of that right and to inform the victim that he or she has the right to refuse to answer irrelevant questions regarding private matters and questions from the defendant's attorney or investigator. Makes a victim advocate's notes from the interview privileged. Gives the victim the right to have 2 support persons in the courtroom during the victim's testimony at a preliminary hearing and trial. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. The introductory portion to 18-3-407 (2), Colorado Revised Statutes, is amended, and the said 18-3-407 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 18-3-407. Victim's and witness' prior history - evidentiary hearing. (2) In any criminal prosecution under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness' sexual conduct, or reputation evidence of the victim's or a witness' sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial OR AT A HEARING, the following procedure shall be followed: (3) (a) IN A CASE CHARGING AN OFFENSE DESCRIBED IN THIS PART 4, THE PROSECUTION MAY MOTION THE COURT FOR A PROTECTIVE ORDER REQUIRING THE VICTIM'S IDENTITY BE KEPT CONFIDENTIAL AND REQUIRING EACH PARTY TO REFER TO THE VICTIM, IN ALL FILINGS AND PROCEEDINGS,BY THE PSEUDONYM "JOHN DOE" OR "JANE DOE". (b) THE COURT SHALL, UPON CAUSE SHOWN, ISSUE THE PROTECTIVE ORDER OR ISSUE ANOTHER ORDER THAT IS APPROPRIATE AFTER REVIEW OF THE MOTION, A RESPONSE IF ANY, AND OTHER RELEVANT INFORMATION. IF THE COURT DETERMINES A HEARING ON THE MOTION IS NECESSARY, THE COURT SHALL HOLD THE HEARING IN CAMERA. SECTION 2. Part 1 of article 21 of title 13, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 13-21-122. Civil action - protective order violation. A VICTIM WHOSE IDENTITY IS PROTECTED BY A PROTECTIVE ORDER ISSUED PURSUANT TO SECTION 18-3-407 (3), C.R.S., SHALL HAVE A PRIVATE CIVIL RIGHT OF ACTION AGAINST A PARTY WHO WILLFULLY VIOLATES THE PROTECTIVE ORDER. IF THE VICTIM PREVAILS IN THE ACTION, HE OR SHE SHALL BE ENTITLED TO ACTUAL DAMAGES, A CIVIL PENALTY IN THE AMOUNT OF FIVE THOUSAND DOLLARS, AND ATTORNEY FEES AND COSTS. SECTION 3. Part 4 of article 3 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 18-3-417. Sexual assault victim's rights - victim advocate and support person presence - interview - testimony. (1) (a) A VICTIM OF AN OFFENSE DESCRIBED IN THIS PART 4 SHALL HAVE THE RIGHT TO HAVE A VICTIM ADVOCATE AND A SUPPORT PERSON OF THE VICTIM'S CHOOSING PRESENT AT ANY INTERVIEW BY LAW ENFORCEMENT AUTHORITIES, DISTRICT ATTORNEYS, DEFENSE ATTORNEYS, OR INVESTIGATORS OR AGENTS OF THE DEFENSE ATTORNEY. HOWEVER, THE SUPPORT PERSON MAY BE EXCLUDED FROM AN INTERVIEW BY A LAW ENFORCEMENT AUTHORITY OR THE DISTRICT ATTORNEY, IF THE LAW ENFORCEMENT AUTHORITY OR THE DISTRICT ATTORNEY DETERMINES THAT THE PRESENCE OF THE SUPPORT PERSON WOULD BE DETRIMENTAL TO THE PURPOSE OF THE INTERVIEW. (b) PRIOR TO THE COMMENCEMENT OF THE INITIAL INTERVIEW BY LAW ENFORCEMENT AUTHORITIES OR THE DISTRICT ATTORNEY PERTAINING TO ANY CRIMINAL ACTION INVOLVING A VICTIM OF AN OFFENSE DESCRIBED IN THIS PART 4, THE ATTENDING LAW ENFORCEMENT AUTHORITY OR DISTRICT ATTORNEY SHALL NOTIFY THE VICTIM ORALLY OR IN WRITING THAT THE VICTIM HAS THE RIGHT TO HAVE A VICTIM ADVOCATE AND A SUPPORT PERSON OF THE VICTIM'S CHOOSING PRESENT AT THE INTERVIEW AND AT ANY SUBSEQUENT INTERVIEWS BY LAW ENFORCEMENT AUTHORITIES, DISTRICT ATTORNEYS, DEFENSE ATTORNEYS, OR INVESTIGATORS OR AGENTS OF THE DEFENSE ATTORNEY. IN ADDITION, THE ATTENDING LAW ENFORCEMENT AUTHORITY OR DISTRICT ATTORNEY SHALL ADVISE THE VICTIM THAT THE VICTIM HAS THE RIGHT TO REFUSE TO ANSWER IRRELEVANT QUESTIONS INVOLVING THE VICTIM'S PRIVATE MATTERS AND THAT THE VICTIM HAS THE RIGHT TO REFUSE TO ANSWER QUESTIONS FROM THE DEFENDANT'S ATTORNEY OR INVESTIGATOR UNLESS THE VICTIM IS SUBPOENAED. (c) AN INITIAL INVESTIGATION BY A LAW ENFORCEMENT AGENCY TO DETERMINE WHETHER A CRIME HAS BEEN COMMITTED AND THE IDENTITY OF THE SUSPECTS SHALL NOT CONSTITUTE A LAW ENFORCEMENT INTERVIEW FOR PURPOSES OF THIS SECTION. (d) THE NOTES TAKEN BY A VICTIM'S ADVOCATE DURING AN INTERVIEW DESCRIBED IN PARAGRAPH (a) OF THIS SUBSECTION (1) SHALL BE PRIVILEGED. (2) (a) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A VICTIM IN A CASE INVOLVING AN OFFENSE DESCRIBED IN THIS PART 4 SHALL BE ENTITLED, FOR SUPPORT, TO THE ATTENDANCE OF UP TO TWO PERSONS OF HIS OR HER OWN CHOOSING, ONLY ONE OF WHOM MAY BE A WITNESS, AT THE PRELIMINARY HEARING AND AT THE TRIAL, OR AT A JUVENILE COURT PROCEEDING, DURING THE TESTIMONY OF THE VICTIM. ONLY ONE OF THE SUPPORT PERSONS MAY ACCOMPANY THE VICTIM TO THE WITNESS STAND, ALTHOUGH THE OTHER MAY REMAIN IN THE COURTROOM DURING THE VICTIM'S TESTIMONY; EXCEPT THAT A SUPPORT PERSON WHO IS A PROSECUTION WITNESS MAY BE EXCLUDED IN PARAGRAPH (b) OF THIS SUBSECTION (2). (b) IF ONE OF THE PERSONS CHOSEN AS SUPPORT IS A PROSECUTION WITNESS, THE PROSECUTION SHALL PRESENT EVIDENCE THAT THE PERSON'S ATTENDANCE IS BOTH DESIRED BY THE VICTIM FOR SUPPORT AND WILL BE HELPFUL TO THE VICTIM. UPON THAT SHOWING, THE COURT SHALL GRANT THE REQUEST, UNLESS INFORMATION PRESENTED BY THE DEFENDANT OR NOTICED BY THE COURT ESTABLISHES THAT THE SUPPORT PERSON'S PRESENCE DURING THE TESTIMONY OF THE VICTIM POSES A SUBSTANTIAL RISK OF INFLUENCING OR AFFECTING THE CONTENT OF THAT TESTIMONY. (c) THE TESTIMONY OF A PERSON CHOSEN AS SUPPORT WHO IS ALSO A PROSECUTION WITNESS SHALL BE PRESENTED BEFORE THE TESTIMONY OF THE VICTIM. THE VICTIM SHALL BE EXCLUDED FROM THE COURTROOM DURING THAT TESTIMONY. WHENEVER THE EVIDENCE GIVEN BY A SUPPORT PERSON WOULD BE SUBJECT TO EXCLUSION BECAUSE IT HAS BEEN GIVEN BEFORE THE CORPUS DELICTI HAS BEEN ESTABLISHED, THE EVIDENCE SHALL BE ADMITTED SUBJECT TO THE COURT'S OR THE DEFENDANT'S MOTION TO STRIKE THAT EVIDENCE FROM THE RECORD IF THE CORPUS DELICTI IS NOT LATER ESTABLISHED BY THE TESTIMONY OF THE VICTIM. (d) IN THE CASE OF A JUVENILE PROCEEDING, THE COURT SHALL INSTRUCT THE SUPPORTING PERSON OR PERSONS THAT JUVENILE COURT PROCEEDINGS ARE CONFIDENTIAL AND MAY NOT BE DISCUSSED WITH ANYONE NOT IN ATTENDANCE AT THE PROCEEDINGS. IN ALL CASES, THE JUDGE SHALL ADMONISH THE SUPPORT PERSON OR PERSONS PRESENT TO NOT PROMPT, SWAY, OR INFLUENCE THE VICTIM IN ANY WAY. NOTHING IN THIS SECTION SHALL PRECLUDE A COURT FROM EXERCISING ITS OWN DISCRETION TO REMOVE A PERSON FROM THE COURTROOM WHOM IT BELIEVES IS PROMPTING, SWAYING, OR INFLUENCING THE VICTIM. SECTION 4. Effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution (August 4, 2004, if adjournment sine die is on May 5, 2004); except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor. Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute.