AN ACT Relating to sexual offenses; amending RCW 9A.44.120; and adding new sections to chapter 9A.44 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 2, chapter 129, Laws of 1982 and RCW 9A.44.120 are each amended to read as follows:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness((~~: PROVIDED, That~~)). When the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. In addition to other circumstances that may make the child witness unavailable, the child witness is unavailable for the purposes of this section if the court determines there is a strong probability that the child would experience emotional trauma of a degree and kind that would seriously inhibit the child's ability to testify fully and accurately if the child were required to testify at trial or a deposition. In making this determination the court shall consider the effect on the child of being physically confronted by the defendant.

A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

NEW SECTION. Sec. 2. (1) A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of Washington if:

(a) No attorney for either party was present when the statement was made;

(b) The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(c) The recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;

(d) The statement was not made in response to questioning calculated to lead the child to make a particular statement;

(e) Every voice on the recording is identified;

(f) The person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;

(g) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and

(h) The child is available to testify.

(2) If the electronic recording of the oral statement of a child is admitted into evidence under this section, either party may call the child to testify, and the opposing party may cross-examine the child.

NEW SECTION. Sec. 3. The court may, on the motion of the attorney for any party, order that the testimony of a child under the age of ten in a criminal proceeding where a sexual offense is alleged to have been committed against the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during the child's testimony. Only the attorneys may question the child. The persons operating the equipment shall be located in an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. The defendant and the attorney for the defendant shall be provided with a means of audio communication with each other throughout the time the testimony of the child is being taken.

NEW SECTION. Sec. 4. The court may, on the motion of the attorney for any party, order that the testimony of a child under the age of ten in a criminal proceeding where a sexual offense is alleged to have been committed against the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only those persons permitted to be present at the taking of testimony under section 3 of this act may be present during the taking of the child's testimony, and the persons operating the equipment shall be removed from the child's sight and hearing as provided by section 3 of this act. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. The defendant and the attorney for the defendant shall be provided with a means of audio communication with each other throughout the time the testimony of the child is being taken. The court shall also ensure that:

(a) The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(b) The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and is not altered;

(d) Each party is afforded an opportunity to view the recording before it is shown in the courtroom.

NEW SECTION. Sec. 5. If the court orders the testimony of a child to be taken under section 3 or 4 of this act, either party may call the child to testify, and the opposing party may cross-examine the child.

NEW SECTION. Sec. 6. Sections 2 through 5 of this act shall be added to chapter 9A.44 RCW.