Tender years exception and mandatory minimums proposed
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On today’s list of bills was S.B. 1458 (”An Act Concerning Jessica’s Law”). This bill has several new proposals, most important of which is the “tender years exception” [see previous coverage below]. According to the proposed bill,
Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.
This provision applies to a statement of a child under the age of 13, not the testimony itself. The court has to find that the statement is trustworthy (fine), the proponent has to make known the intent to offer the statement (fine) at such a time that the opponent has the time to prepare to meet it (good) and either the child testifies (okay, a reluctant witness) or is unavailable (again, reluctant or otherwise) AND there is independent, non-testimonial admissible evidence of the alleged act. Uh. I’m not sure what that would be…but I’ll wait till the public hearing to form an opinion.
The other provisions of this bill create the offense of “aggravated sexual assault of a minor”, where the victim is under 13. It would carry a minimum mandatory sentence of 25 years. The other provisions create mandatory minimums of 2-10 years for a variety of sex offenses, including repeat offenders.
Previous coverage:
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