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42 USC 13024.
SEC. 224. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this chapter
(1) $10,000,000 in fiscal year 1991; and
(2) such sums as may be necessary to carry out this chapter in each of fiscal years 1992, 1993, and 1994. (b) USE OF FUNDS.—Of the amounts appropriated in subsection (a), not less than 80 percent shall be used for grants under section 223(b).
(c) LIMITATION.—No funds are authorized to be appropriated for a fiscal year to carry out this subtitle unless the aggregate amount appropriated to carry out title II of the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5611 et seq.) for such fiscal year is not less than the aggregate amount appropriated to carry out such title for the preceding fiscal year.
Subtitle D-Federal Victims' Protections and
SEC. 225. CHILD VICTIMS' RIGHTS.
(a) IN GENERAL.-Chapter 223 of title 18, United States Code, is amended by adding at the end the following new rule: “8 3509. Child victims' and child witnesses' rights “(a) DEFINITIONS.—For purposes of this section
"(1) the term 'adult attendant' means an adult described in subsection (i) who accompanies a child throughout the judicial process for the purpose of providing emotional support;
“(2) the term 'child' means a person who is under the age of 18, who is or is alleged to be
“(A) a victim of a crime of physical abuse, sexual abuse, or exploitation; or
"(B) a witness to a crime committed against another person; "(3) the term 'child abuse' means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child;
“(4) the term “physical injury' includes lacerations, fractured bones, burns, internal injuries, severe bruising or serious bodily harm;
“(5) the term 'mental injury' means harm to a child's psychological or intellectual functioning which may be exhibited by severe anxiety, depression, withdrawal or outward aggressive behavior, or a combination of those behaviors, which may be demonstrated by a change in behavior, emotional response, or cognition;
"(6) the term 'exploitation' means child pornography or child prostitution;
"(7) the term 'multidisciplinary child abuse team' means a professional unit composed of representatives from health, social service, law enforcement, and legal service agencies to coordinate the assistance needed to handle cases of child abuse;
"(8) the term 'sexual abuse' includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually
explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children;
“(9) the term 'sexually explicit conduct' means actual or simulated
"(A) sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oralanal contact, whether between persons of the same or of opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person;
“(D) lascivious exhibition of the genitals or pubic area of a person or animal; or
"(E) sadistic or masochistic abuse; "(10) the term 'sex crime' means an act of sexual abuse that is a criminal act;
"(11) the term 'exploitation' means child pornography or child prostitution;
“(12) the term 'negligent treatment means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to seriously endanger the physical health of the child; and
"(13) the term 'child abuse' does not include discipline administered by a parent or legal guardian to his or her child provided it is reasonable in manner
and moderate in degree and otherwise does not constitute cruelty. “(b) ALTERNATIVES TO LIVE IN-COURT TESTIMONY.–
“(1) CHILD'S LIVE TESTIMONY BY 2-WAY CLOSED CIRCUIT TELEVISION.
"(A) In a proceeding involving an alleged offense against a child, the attorney for the government, the child's attorney, or a guardian ad litem appointed under subdivision (h) may apply for an order that the child's testimony be taken in a room outside the courtroom and be televised by 2-way closed circuit television. The person seeking such an order shall apply for such an order at least 5 days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.
“(B) The court may order that the testimony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant, for any of the following reasons:
“(i) The child is unable to testify because of fear.
“(ii) There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying.
“(iii) The child suffers a mental or other infirmity.
“(iv) Conduct by defendant or defense counsel causes the child to be unable to continue testifying. “(C) The court shall support a ruling on the child's inability to testify with findings on the record. In determining whether the impact on an individual child of one or more of the factors described in subparagraph (B) is so substantial
as to justify an order under subparagraph (A), the court may question the minor in chambers, or at some other comfortable place other than the courtroom, on the record for a reasonable period of time with the child attendant, the prosecutor, the child's attorney, the guardian ad litem, and the defense counsel present.
“(D) If the court orders the taking of testimony by television, the attorney for the government and the attorney for the defendant not including an attorney pro se for a party shall be present in a room outside the courtroom with the child and the child shall be subjected to direct and cross-examination. The only other persons who may be permitted in the room with the child during the child's testimony are
“(i) the child's attorney or guardian ad litem appointed under subdivision (h);
"(ii) persons necessary to operate the closed-circuit television equipment;
“(iii) a judicial officer, appointed by the court; and
"(iv) other persons whose presence is determined by the court to be necessary to the welfare and well-being
of the child, including an adult attendant. The child's testimony shall be transmitted by closed circuit television into the courtroom for viewing and hearing by the defendant, jury, judge, and public. The defendant shall be provided with the means of private, contemporaneous communication with the defendant's attorney during the testimony. The closed circuit television transmission shall relay into the room in which the child is testifying the defendant's image, and the voice of the judge.
“(2) VIDEOTAPED DEPOSITION OF CHILD.—(A) In a proceeding involving an alleged offense against a child, the attorney for the government, the child's attorney, the child's parent or legal guardian, or the guardian ad litem appointed under subdivision (h) may apply for an order that a deposition be taken of the child's testimony and that the deposition be recorded and preserved on videotape.
“(B)(i) Upon timely receipt of an application described in subparagraph (A), the court shall make a preliminary finding regarding whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public for any of the following reasons:
“(I) The child will be unable to testify because of fear.
“(II) There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying in open court.
“(III) The child suffers a mental or other infirmity.
“(IV) Conduct by defendant or defense counsel causes the child to be unable to continue testifying. “(ii) If the court finds that the child is likely to be unable to testify in open court for any of the reasons stated in clause (i), the court shall order that the child's deposition be taken and preserved by videotape.
"(iii) The trial judge shall preside at the videotape deposition of a child and shall rule on all questions as if at trial. The only
other persons who may be permitted to be present at the
"(I) the attorney for the Government;
“(III) the child's attorney or guardian ad litem appointed
“(IV) persons necessary to operate the videotape equipment;
“(V) subject to clause (iv), the defendant; and
“(VI) other persons whose presence is determined by the court to be necessary to the welfare and well-being of the
child. The defendant shall be afforded the rights applicable to defendants during trial, including the right to an attorney, the right to be confronted with the witness against the defendant, and the right to cross-examine the child.
“(iv) If the preliminary finding of inability under clause (i) is based on evidence that the child is unable to testify in the physical presence of the defendant, the court may order that the defendant, including a defendant represented pro se, be excluded from the room in which the deposition is conducted. If the court orders that the defendant be excluded from the deposition room, the court shall order that 2-way closed circuit television equipment relay the defendant's image into the room in which the child is testifying, and the child's testimony into the room in which the defendant is viewing the proceeding, and that the defendant be provided with a means of private, contemporaneous communication with the defendant's attorney during the deposition.
“(v) HANDLING OF VIDEOTAPE.—The complete record of the Records. examination of the child, including the image and voices of all persons who in any way participate in the examination, shall be made and preserved on video tape 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 the defendant's attorney during ordinary business hours.
“(C) If at the time of trial the court finds that the child is unable to testify as for a reason described in subparagraph (B)(i), the court may admit into evidence the child's videotaped deposition in lieu of the child's testifying at the trial. The court shall support a ruling under this subparagraph with findings on the record.
“(D) Upon timely receipt of notice that new evidence has been discovered after the original videotaping and before or during trial, the court, for good cause shown, may order an additional videotaped deposition. The testimony of the child shall be restricted to the matters specified by the court as the basis for granting the order.
"(E) In connection with the taking of a videotaped deposition under this paragraph, the court may enter a protective order for the purpose of protecting the privacy of the child.
“(F) The videotape of a deposition taken under this paragraph shall be destroyed 5 years after the date on which the trial court entered its judgment, but not before a final judgment is entered on appeal including Supreme Court review. The videotape shall Records.
become part of the court record and be kept by the court until it
is destroyed. "(c) COMPETENCY EXAMINATIONS.—
“(1) EFFECT OF FEDERAL RULES OF EVIDENCE.- Nothing in this subdivision shall be construed to abrogate rule 601 of the Federal Rules of Evidence.
"(2) PRESUMPTION.-A child is presumed to be competent.
“(3) REQUIREMENT OF WRITTEN MOTION.—A competency examination regarding a child witness may be conducted by the court only upon
written motion and offer of proof of incompetency by a party
“(4) REQUIREMENT OF COMPELLING REASONS.—A competency examination regarding a child may be conducted only if the court determines, on the record, that compelling reasons exist. A child's age alone is not a compelling reason.
"(5) PERSONS PERMITTED TO BE PRESENT.—The only persons who may be permitted to be present at a competency examination are
"(A) the judge;
"(E) persons whose presence, in the opinion of the court, is necessary to the welfare and well-being of the child, including the child's attorney, guardian ad litem, or adult
attendant. “(6) NOT BEFORE JURY.—A competency examination regarding a child witness shall be conducted out of the sight and hearing of a jury.
"(7) DIRECT EXAMINATION OF CHILD. Examination of a child related to competency shall normally be conducted by the court on the basis of questions submitted by the attorney for the Government and the attorney for the defendant including a party acting as an attorney pro se. The court may permit an attorney but not a party acting as an attorney pro se to examine a child directly on competency if the court is satisfied that the child will not suffer emotional trauma as a result of the examination.
"(8) APPROPRIATE QUESTIONS.—The questions asked at the competency examination of a child shall be appropriate to the age and developmental level of the child, shall not be related to the issues at trial, and shall focus on determining the child's ability to understand and answer simple questions.
"(9) PSYCHOLOGICAL AND PSYCHIATRIC EXAMINATIONS.—Psychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of
compelling need. “(d) PRIVACY PROTECTION.
"(1) CONFIDENTIALITY OF INFORMATION.—(A) A person acting in a capacity described in subparagraph (B) in connection with a criminal proceeding shall
“(i) keep all documents that disclose the name or any other information concerning a child in a secure place to which no person who does not have reason to know their contents has access; and
"(ii) disclose documents described in clause (i) or the information in them that concerns a child only to persons