§ 3509. — Child victims' and child witnesses' rights.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3509]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 223--WITNESSES AND EVIDENCE
Sec. 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 oral-
anal 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;
(B) bestiality;
(C) masturbation;
(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 ``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
(12) 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 subsection (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 subsection (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 subsection (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 proceeding
are--
(I) the attorney for the Government;
(II) the attorney for the defendant;
(III) the child's attorney or guardian ad litem appointed
under subsection (h);
(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
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 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
subsection 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;
(B) the attorney for the Government;
(C) the attorney for the defendant;
(D) a court reporter; and
(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 who,
by reason of their participation in the proceeding, have reason
to know such information.
(B) Subparagraph (A) applies to--
(i) all employees of the Government connected with the case,
including employees of the Department of Justice, any law
enforcement agency involved in the case, and any person hired by
the Government to provide assistance in the proceeding;
(ii) employees of the court;
(iii) the defendant and employees of the defendant,
including the attorney for the defendant and persons hired by
the defendant or the attorney for the defendant to provide
assistance in the proceeding; and
(iv) members of the jury.
(2) Filing under seal.--All papers to be filed in court that
disclose the name of or any other information concerning a child
shall be filed under seal without necessity of obtaining a court
order. The person who makes the filing shall submit to the clerk of
the court--
(A) the complete paper to be kept under seal; and
(B) the paper with the portions of it that disclose the name
of or other information concerning a child redacted, to be
placed in the public record.
(3) Protective orders.--(A) On motion by any person the court
may issue an order protecting a child from public disclosure of the
name of or any other information concerning the child in the course
of the proceedings, if the court determines that there is a
significant possibility that such disclosure would be detrimental to
the child.
(B) A protective order issued under subparagraph (A) may--
(i) provide that the testimony of a child witness, and the
testimony of any other witness, when the attorney who calls the
witness has reason to anticipate that the name of or any other
information concerning a child may be divulged in the testimony,
be taken in a closed courtroom; and
(ii) provide for any other measures that may be necessary to
protect the privacy of the child.
(4) Disclosure of information.--This subsection does not
prohibit disclosure of the name of or other information concerning a
child to the defendant, the attorney for the defendant, a
multidisciplinary child abuse team, a guardian ad litem, or an adult
attendant, or to anyone to whom, in the opinion of the court,
disclosure is necessary to the welfare and well-being of the child.
(e) Closing the Courtroom.--When a child testifies the court may
order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case. Such an
order may be made if the court determines on the record that requiring
the child to testify in open court would cause substantial psychological
harm to the child or would result in the child's inability to
effectively communicate. Such an order shall be narrowly tailored to
serve the Government's specific compelling interest.
(f) Victim Impact Statement.--In preparing the presentence report
pursuant to rule 32(c) of the Federal Rules of Criminal Procedure, the
probation officer shall request information from the multidisciplinary
child abuse team and other appropriate sources to determine the impact
of the offense on the child victim and any other children who may have
been affected. A guardian ad litem appointed under subsection (h) shall
make every effort to obtain and report information that accurately
expresses the child's and the family's views concerning the child's
victimization. A guardian ad litem shall use forms that permit the child
to express the child's views concerning the personal consequences of the
child's victimization, at a level and in a form of communication
commensurate with the child's age and ability.
(g) Use of Multidisciplinary Child Abuse Teams.--
(1) In general.--A multidisciplinary child abuse team shall be
used when it is feasible to do so. The court shall work with State
and local governments that have established multidisciplinary child
abuse teams designed to assist child victims and child witnesses,
and the court and the attorney for the Government shall consult with
the multidisciplinary child abuse team as appropriate.
(2) Role of multidisciplinary child abuse teams.--The role of
the multidisciplinary child abuse team shall be to provide for a
child services that the members of the team in their professional
roles are capable of providing, including--
(A) medical diagnoses and evaluation services, including
provision or interpretation of x-rays, laboratory tests, and
related services, as needed, and documentation of findings;
(B) telephone consultation services in emergencies and in
other situations;
(C) medical evaluations related to abuse or neglect;
(D) psychological and psychiatric diagnoses and evaluation
services for the child, parent or parents, guardian or
guardians, or other caregivers, or any other individual involved
in a child victim or child witness case;
(E) expert medical, psychological, and related professional
testimony;
(F) case service coordination and assistance, including the
location of services available from public and private agencies
in the community; and
(G) training services for judges, litigators, court officers
and others that are involved in child victim and child witness
cases, in handling child victims and child witnesses.
(h) Guardian Ad Litem.--
(1) In general.--The court may appoint a guardian ad litem for a
child who was a victim of, or a witness to, a crime involving abuse
or exploitation to protect the best interests of the child. In
making the appointment, the court shall consider a prospective
guardian's background in, and familiarity with, the judicial
process, social service programs, and child abuse issues. The
guardian ad litem shall not be a person who is or may be a witness
in a proceeding involving the child for whom the guardian is
appointed.
(2) Duties of guardian ad litem.--A guardian ad litem may attend
all the depositions, hearings, and trial proceedings in which a
child participates, and make recommendations to the court concerning
the welfare of the child. The guardian ad litem may have access to
all reports, evaluations and records, except attorney's work
product, necessary to effectively advocate for the child. (The
extent of access to grand jury materials is limited to the access
routinely provided to victims and their representatives.) A guardian
ad litem shall marshal and coordinate the delivery of resources and
special services to the child. A guardian ad litem shall not be
compelled to testify in any court action or proceeding concerning
any information or opinion received from the child in the course of
serving as a guardian ad litem.
(3) Immunities.--A guardian ad litem shall be presumed to be
acting in good faith and shall be immune from civil and criminal
liability for complying with the guardian's lawful duties described
in paragraph (2).
(i) Adult Attendant.--A child testifying at or attending a judicial
proceeding shall have the right to be accompanied by an adult attendant
to provide emotional support to the child. The court, at its discretion,
may allow the adult attendant to remain in close physical proximity to
or in contact with the child while the child testifies. The court may
allow the adult attendant to hold the child's hand or allow the child to
sit on the adult attendant's lap throughout the course of the
proceeding. An adult attendant shall not provide the child with an
answer to any question directed to the child during the course of the
child's testimony or otherwise prompt the child. The image of the child
attendant, for the time the child is testifying or being deposed, shall
be recorded on videotape.
(j) Speedy Trial.--In a proceeding in which a child is called to
give testimony, on motion by the attorney for the Government or a
guardian ad litem, or on its own motion, the court may designate the
case as being of special public importance. In cases so designated, the
court shall, consistent with these rules, expedite the proceeding and
ensure that it takes precedence over any other. The court shall ensure a
speedy trial in order to minimize the length of time the child must
endure the stress of involvement with the criminal process. When
deciding whether to grant a continuance, the court shall take into
consideration the age of the child and the potential adverse impact the
delay may have on the child's well-being. The court shall make written
findings of fact and conclusions of law when granting a continuance in
cases involving a child.
(k) Stay of Civil Action.--If, at any time that a cause of action
for recovery of compensation for damage or injury to the person of a
child exists, a criminal action is pending which arises out of the same
occurrence and in which the child is the victim, the civil action shall
be stayed until the end of all phases of the criminal action and any
mention of the civil action during the criminal proceeding is
prohibited. As used in this subsection, a criminal action is pending
until its final adjudication in the trial court.
(l) Testimonial Aids.--The court may permit a child to use
anatomical dolls, puppets, drawings, mannequins, or any other
demonstrative device the court deems appropriate for the purpose of
assisting a child in testifying.
(Added Pub. L. 101-647, title II, Sec. 225(a), Nov. 29, 1990, 104 Stat.
4798; amended Pub. L. 103-322, title XXXIII, Secs. 330010(6), (7),
330011(e), 330018(b), Sept. 13, 1994, 108 Stat. 2143, 2145, 2149; Pub.
L. 104-294, title VI, Sec. 605(h), Oct. 11, 1996, 110 Stat. 3510.)
References in Text
The Federal Rules of Evidence, referred to in subsec. (c)(1), are
set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Federal Rules of Criminal Procedure, referred to in subsec. (f),
are set out in the Appendix to this title.
Amendments
1996--Subsec. (e). Pub. L. 104-294, Sec. 605(h)(1), substituted
``serve the Government's'' for ``serve the government's''.
Subsec. (h)(3). Pub. L. 104-294, Sec. 605(h)(2), substituted ``in
paragraph (2)'' for ``in subpart (2)''.
1994--Pub. L. 103-322, Sec. 330011(e), made technical amendment to
directory language of Pub. L. 101-647, Sec. 225(a), which enacted this
section.
Pub. L. 103-322, Sec. 330010(7)(B), substituted ``Government'' for
``government'' in subsecs. (b)(1)(A), (D), (2)(A), and (c)(5)(B), in
subsec. (d)(1)(B)(i) after ``hired by the'', and in subsec. (g)(1).
Pub. L. 103-322, Sec. 330010(7)(A), substituted ``subsection'' for
``subdivision'' in subsecs. (b)(1)(A), (D)(i), (2)(A), (B)(iii)(III),
(c)(1), (d)(4), and (f).
Subsec. (a)(11) to (13). Pub. L. 103-322, Sec. 330010(6),
redesignated pars. (12) and (13) as (11) and (12), respectively, and
struck out former par. (11) which read as follows: ``the term
`exploitation' means child pornography or child prostitution;''.
Subsec. (k). Pub. L. 103-322, Sec. 330018(b), substituted heading
for one which read ``Extension of Child Statute of Limitations'' and
struck out first sentence which read as follows: ``No statute of
limitation that would otherwise preclude prosecution for an offense
involving the sexual or physical abuse of a child under the age of 18
years shall preclude such prosecution before the child reaches the age
of 25 years.''
Effective Date of 1994 Amendment
Section 330011(e) of Pub. L. 103-322 provided that the amendment
made by that section is effective as of the date on which section 225(a)
of Pub. L. 101-647 took effect.
Section Referred to in Other Sections
This section is referred to in section 403 of this title.
