AN ACT Relating to witness unavailability due to incompetency or death; adding a new section to chapter 5.60 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. The legislature finds there has been an increase in criminal abuse, assault, neglect, and sexual offenses against vulnerable persons. The legislature further finds that criminal and juvenile offense adjudication proceedings involving vulnerable persons may be hindered or precluded due to the incompetence or unavailability of a vulnerable person at the time of trial despite an otherwise reliable statement made by the vulnerable person concerning any abuse, assault, neglect, or sexual offenses against the vulnerable person. The state has a compelling interest in providing vulnerable persons who are victims of such crimes the ability to ensure reliable evidence is made available in court on their behalf. The legislature intends that this act make admissible as evidence the reliable hearsay of vulnerable persons, while ensuring the constitutional rights of other parties.

NEW SECTION. Sec. 2. A new section is added to chapter 5.60 RCW to read as follows:

(1) An out-of-court statement, not otherwise admissible by statute or court rule, made by a vulnerable person describing an act constituting abuse, assault, neglect, or a sexual offense against the declarant, when the act results in the death of or substantial bodily harm to the declarant, is admissible as evidence in a criminal or juvenile offense adjudication proceeding if the court finds:

(a) That the declarant was not incompetent under RCW 5.60.050 at the time the out-of-court statement was made;

(b) That the declarant is unavailable as a witness at trial;

(d) In a hearing conducted outside the presence of the jury, if any, that the time, content, and circumstances of the out-of-court statement provide sufficient indicia of reliability.

(2) In making its finding under subsection (1) of this section, the court shall consider whether, at the time the statement was made, the reliability of the declaration was indicated by:

(a) The general character and trustworthiness of the declarant;

(b) The timing of the declaration;

(d) The relationship of the declarant to the witness;

(e) Whether the declarant made the statement to more than one person;

(f) The mental and physical condition and cognitive ability of the declarant;

(g) Whether the statement was made spontaneously;

(h) Whether the statement expressed assertions of past fact;

(i) Whether cross-examination would not have helped to show the declarant's lack of knowledge;

(j) Whether the possibility of the declarant's recollection being faulty was remote;

(k) Whether the circumstances surrounding the statements gave no reason to suppose that the declarant misrepresented the defendant's involvement;

(l) The relationship of the declarant to the actor;

(m) The nature and duration of the abuse, assault, neglect, or sexual contact; and

(n) Any other factor deemed appropriate.

(3) A statement may not be admitted under this section unless the proponent of the statement gives notice to the adverse party of his or her 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 challenge the admissibility of the statement at a hearing.

(4) The court shall state the basis for its ruling on the admissibility of any out-of-court statement by making specific findings of fact on the record.

(5) For purposes of this section:

(a) "Abuse" means the intentional, reckless, or negligent causing of physical injury to a vulnerable person by any wrongful, improper, or offensive act, manner, or method of handling or dealing with the vulnerable person which is determined to be unreasonable.

(b) "Assault" means the commission of any unlawful assault causing physical injury to the vulnerable person.

(c) "Neglect" means the failure by one having a duty of care to a vulnerable person to provide the goods or services necessary to maintain the physical well-being of the vulnerable person proximately causing physical injury to the vulnerable person.

(d) "Sexual offense" means the commission of any unlawful sexual offense causing physical injury to the vulnerable person.

(e) "Substantial bodily harm" has the same meaning as in RCW 9A.04.110.

(f) "Unavailable" means the vulnerable person is unavailable under the Washington state court rules of evidence.

(g) "Vulnerable person" means any person who has the functional, mental, or physical inability to care for himself or herself and:

(i) Is found incapacitated under chapter 11.88 RCW; or

(ii) Has a developmental disability as defined under RCW 71A.10.020; or

(iii) Has been admitted to any facility as that term is defined in RCW 74.34.020; or

(iv) Is receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or

(v) Is receiving services from an individual provider as that term is defined in RCW 74.34.020.