Z‑0391.1   _____________________________________________

 

SENATE BILL 5450

 

           _____________________________________________

 

State of Washington      57th Legislature     2001 Regular Session

 

By Senators Long, Costa, McCaslin and Kohl‑Welles; by request of Attorney General

 

Read first time 01/23/2001.  Referred to Committee on Judiciary.

_1      AN ACT Relating to vulnerable adults' hearsay statements; and

_2  adding a new chapter to Title 74 RCW.

     

_3  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

     

_4      NEW SECTION.  Sec. 1.  The legislature finds that the number of

_5  vulnerable adults is growing because of demographics and longer

_6  life expectancies.  Crimes against vulnerable adults, and neglect,

_7  exploitation, abuse, and sexual abuse of vulnerable adults are

_8  increasing.  The state has a compelling interest in making it

_9  possible for the courts to adequately and fairly conduct cases

10  involving vulnerable adult victims.

11      The legislature further finds that court proceedings involving

12  vulnerable adults may be hindered or precluded by memory problems

13  associated with the length of time between the act or crime and

14  the related court proceedings, even though the vulnerable adult

15  made a reliable statement about the crime or event shortly after

16  it occurred.  Court proceedings involving vulnerable adults may also

17  be hindered or precluded by the unavailability of the vulnerable

18  adults as witnesses because of their shorter life expectancy,

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_1  their physical or mental condition, or because their participation

_2  in the trial or proceeding has a substantial likelihood of

_3  resulting in significant emotional, mental, or physical harm.

_4      The legislature intends that this chapter make admissible as

_5  evidence the reliable hearsay of vulnerable adults beyond what is

_6  currently admissible, while respecting the constitutional rights

_7  of other parties.  The legislature recognizes that the courts have

_8  implemented the child hearsay statute, RCW 9A.44.120, to balance

_9  concerns about the reliability of children's hearsay statements

10  with the public interest in facilitating court cases involving the

11  protection of children.  The legislature recognizes similar issues

12  are present in proceedings involving vulnerable adult victims.  For

13  that reason, courts may find guidance in State v. Ryan, 103 Wn.2d

14  165 (1984), while recognizing the different factors set forth in

15  this chapter as well as other factors that may apply to vulnerable

16  adults.  The legislature intends this chapter to facilitate fair and

17  just adjudication of criminal, juvenile, and civil cases involving

18  vulnerable adults in this state.

     

19      NEW SECTION.  Sec. 2.  The definitions in this section apply

20  throughout this chapter unless the context clearly requires

21  otherwise.

22      (1) "Abuse" means willfully or negligently causing any bodily

23  injury, pain, or mental anguish to a vulnerable adult.

24      (2) "Exploitation" means:

25      (a) Obtaining, using, or attempting to obtain or use, the

26  property or services of a vulnerable adult for the benefit of

27  someone other than the vulnerable adult, by:

28      (i) Deception, intimidation, or the use of undue influence; or

29      (ii) A person who knows or reasonably should know that the

30  vulnerable adult lacks the capacity to consent; or

31      (b) Forcing, compelling, or exerting undue influence over a

32  vulnerable adult causing the vulnerable adult to perform a service

33  or act, or to refrain from acting, in a way that benefits someone

34  other than the vulnerable adult.

35      (3) "Neglect" means the failure by one having a duty of care to

36  a vulnerable adult to provide the goods or services necessary to

37  maintain the physical or mental health of a vulnerable

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_1  adult.  Neglect may be based on either repeated conduct, or on a

_2  single incident or omission that demonstrates a serious disregard

_3  for the safety or welfare of a vulnerable adult.

_4      (4) "Sexual abuse" means any form of nonconsensual sexual

_5  contact, including but not limited to indecent liberties, rape,

_6  sexual coercion, sexually explicit photographing, and sexual

_7  harassment.  Sexual abuse also means any sexual contact, whether or

_8  not it is consensual, between:

_9      (a) Any person and a mentally incapacitated person or

10  physically helpless person, as both terms are defined in RCW

11  9A.44.010; or

12      (b) A vulnerable adult living in a facility or receiving

13  service from a program authorized under chapter 71A.12 RCW, and a

14  staff person of the facility or employee of the program, unless

15  the staff person is also a resident or client of the facility or

16  program.

17      (5) "Sexual contact" means any touching of the sexual or other

18  intimate parts of a person done for the purpose of gratifying the

19  sexual desire of either party or a third party.

20      (6) "Unavailable" means the vulnerable adult is unavailable

21  under ER 804 in the Washington state court rules of evidence.

22      (7) "Vulnerable adult" means a person:

23      (a) Sixty years of age or older who has the functional, mental,

24  or physical inability to care for himself or herself, or his or

25  her finances; or

26      (b) Who is eighteen years of age or older and has been found by

27  a court to be incapacitated under chapter 11.88 RCW; or

28      (c) Who is eighteen years of age or older and has a

29  developmental disability as defined under RCW 71A.10.020; or

30      (d) Who is eighteen years of age or older and a resident of a

31  facility for adults licensed or required to be licensed by the

32  department of social and health services, including but not

33  limited to nursing homes, adult family homes, and boarding homes;

34  or

35      (e) Who is eighteen years of age or older and receives services

36  from a home health, hospice, or home care agency as defined in

37  chapter 70.127 RCW, or receives similar services from an

38  individual.

 

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_1      NEW SECTION.  Sec. 3.  An out-of-court statement made by a

_2  vulnerable adult describing a crime committed against, or neglect,

_3  exploitation, abuse, or sexual abuse of a vulnerable adult

_4  declarant, is admissible in evidence in a civil, criminal, or

_5  juvenile offense adjudication proceeding if:

_6      (1) The court finds in a hearing conducted outside the presence

_7  of the jury, if any, that the time, content, and circumstances of

_8  the statement provide sufficient indicia of reliability.  In making

_9  its determination, the court may consider:  (a) The reliability of

10  the declarant; (b) the timing of the declaration; (c) whether the

11  declarant had an apparent motive to lie; (d) the relationship of

12  the declarant to the witness; (e) the relationship of the

13  declarant to the actor; (f) whether the declarant made the

14  statement to more than one person; (g) the mental and physical

15  condition and cognitive ability of the vulnerable adult; (h) the

16  nature and duration of the crime, neglect, abuse, sexual abuse, or

17  exploitation; and (i) any other factor deemed appropriate; and

18      (2) The vulnerable adult either:

19      (a) Testifies; or

20      (b) The court finds the vulnerable adult is unavailable as a

21  witness, but when the vulnerable adult is unavailable as a

22  witness, the statement may be admitted only if there is

23  corroborative evidence of the act.

     

24      NEW SECTION.  Sec. 4.  A statement may not be admitted under this

25  chapter unless the proponent of the statement gives notice to the

26  adverse party of his or her intention to offer the statement and

27  the particulars of the statement sufficiently in advance of the

28  proceedings to provide the adverse party with a fair opportunity

29  to challenge the admissibility of the statement at a hearing.  The

30  court shall state the basis for its ruling by making specific

31  findings of fact on the record.

     

32      NEW SECTION.  Sec. 5.  Sections 1 through 4 of this act

33  constitute a new chapter in Title 74 RCW.

 

‑‑‑ END ‑‑‑

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