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Amendment to Child Abuse, RPPL 7-55 2008

RPPL No.7-55
(Intro. as House Bill No. 7-126-7, HD3, SD6)

AN ACT

To amend RPPL No. 3-66, as codified in 21 PNC '602, 603, 606 and create a new '607 and '608, to eliminate spouse exemptions relating to child sexual abuse, to amend reporting requirements and penalties, to create a child hearsay exception, to allow for closed circuit television, to extend the statute of limitations, and for other related purposes.

THE PEOPLE OF PALAU REPRESENTED IN THE OLBIIL ERA KELULAU DO ENACT AS FOLLOWS:

Section 1. Legislative Finding. The Olbiil Era Kelulau finds that it has been over twelve years since the enactment of the child abuse law. It is prime time to revisit the law and make changes to address some issues and loopholes within the law. The Olbiil Era Kelulau finds that amending the law is necessary in light of the increased cases of child abuse, sexual abuse and neglect of the children and vulnerable persons of Palau. Further, the Olbiil Era Kelulau finds that the statute of limitations of criminal prosecutions for cases of sexual offenses against children must be extended. This is in recognition of the fact of the power imbalance between the child victims and the adult perpetrators, who are often family members, and that child victims are more easily intimidated by offenders. Additionally, the position of authority that the perpetrator holds enables the offender to confuse the child by assuring the child that the sexual conduct is not wrongful and/or by threatening the child with terrible consequences if he or she discloses the activity. In some cases, child victims are too young to know how or what to report. The Olbiil Era Kelulau also recognizes that the child victim may suffer memory repression or severe psychological trauma from the nature of the offense. They may even be unaware of the fact that a crime has been committed against them. For all the above reasons, the Olbiii Era Kelulau finds it necessary to amend the existing child abuse laws.

Section 2. Amendments. Section 602 of Title 21 of the Palau National Code is hereby amended to read as follows:

A. . . .

(a). . . .

(b) AChild@ means any person under 16 years of age. . . .

(e) ASexual Abuse@ means willfully or knowingly involving a child in sexual activity, including but not limited to the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of a child in prostitution or other unlawful sexual practices, or the exploitative use of children in pornographic performances and materials.

(f) ASexual Activity@ includes but is not limited to sexual intercourse, sodomy, masturbation, cunnilingus, fellatio, and fondling.

(g) AAdult Attendant@ means an adult guardian, parent, relative, or advocate for the child, including a court appointed guardian ad litem, who accompanies the child throughout the judicial process for the purpose of providing emotional support to the child.@

Section 3. Amendment. Section 603 of Title 21 of the Palau National Code is hereby amended to read as follow:

(a) Every responsible official examining, attending, teaching or treating a child and having reason to believe that such child has suffered abuse as defined in this chapter, shall report the matter within 48 hours to the Attorney General's Office, except when the report is to be made to a different person under subsection (c) or (d).

(b) If the report is not made in writing in the first instance, it shall be reduced to writing by the maker within 48 hours thereof. The report shall contain the name and address of the child and his or her parents or other persons responsible for his or her care if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and any other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person or personas responsible thereof.

(c) When attendance with respect to a child is pursuant to the performance of services as a member of the staff of a hospital or a government medical facility, such staff member shall immediately notify the Director of the Bureau of Public Health or Clinical Services or their designees who shall make the report to the Attorney General's Office within 48 hours of initial notification.

(d) If the person attending a child is a school teacher or other school official he shall report such abuse, sexual abuse, or neglect to his supervisor or other person in charge of the school and such matter shall be then be promptly reported by the latter to the Attorney General's Office within 48 hours when the supervisor or other person in charge received initial report.

(e) After receiving a report of child abuse, sexual abuse or neglect the Attorney General's Office shall investigate, prepare and finalize a criminal case report. The Attorney General shall have discretion as to which cases to file. Notwithstanding the above, the Attorney General shall keep a case file of all filed and non-filed cases and shall submit a yearly report to the Minister of Justice on child abuse cases filed or not filed. Whenever the Attorney General's Office has probable cause to believe that a child is in danger of being abused or neglected, the Attorney General's Office may cause the child to be placed in protective custody.

(f) An out-of-court statement made by a child under the age of 12 years describing any act of sexual abuse or physical abuse performed with, on, or to the child by another is admissible in evidence at trial through the testimony of the person or persons to whom made if:

(1) the child is available for cross-examination in the proceeding;

(2) the court finds that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(3) the defendant has been given 10 days notice of the intention of the Republic to offer the statement, an opportunity to inspect the statement, and an opportunity to object to the statement's admissibility after being informed of the time, place, and circumstances of the statement.

Section 4. Amendment. Section 606 of Title 21 of the Palau National Code is hereby amended to read as follows:

Section 606. Special Circumstance Testimony.

(a) Testimony Outside the Courtroom. On motion of the attorney for the government in a criminal proceeding alleging of sexual abuse or physical abuse performed with, or on a child age 12 or younger, the Court may, to minimize the emotional trauma to the child victim, order that the child's testimony be taken in a room other than the courtroom, with only the judge, attorneys, the defendant, necessary court personnel, and an adult attendant for the child present.

(b) Testimony Outside the Physical Presence of the Defendant. In any criminal proceeding alleging acts of sexual abuse or physical abuse performed with or on a child age 12 or younger, either party may request and the Court may order that the child's testimony be taken in a room outside the courtroom with only judge, attorneys, necessary court personnel, and an adult attendant for the child present. Such an order shall be predicated on a finding by a preponderance of the evidence that the child testifying in the defendant's physical presence may cause the child serious emotional trauma, serious emotional distress, or unduly impair the child's ability to testify. The taking of the child's testimony shall be televised via one-way closed circuit television to the defendant in the courtroom, provided that the defendant is in simultaneous two-way audio contact with his or her attorney at all times. In determining whether to allow testimony outside the physical presence of the defendant, the court may consider the following evidence:

(1) the testimony of parents;

(2) the testimony of relatives;

(3) the testimony of guardians;

(4) the testimony of investigators for the government;

(5) the testimony of expert witnesses; and

(6) the court's own in camera examination of the child; and

(7) other information in the court's discretion.@

Section 5. Amendment. Title 21 of the Palau National Code is hereby amended to add a new subsection 607 to read as follows:

ASection 607. Statute of Limitations Exemption.

Prosecution of an offense involving alleged acts of sexual abuse of a child under the age of 16 shall be commenced within three years after the victim=s 21st birthday, or after the date the offense is reported to the Office of the Attorney General, whichever is earlier.@

This section shall not be construed to revive any causes of action which are time-barred as of the effective date of this Act. However, in all instances in which causes of action have not run as of the effective date of this Act, such causes of action shall be subject to a statute of limitations period that extends three years after the victim=s 21st birthday, or after the date the offense is reported to the Office of the Attorney General, whichever is earlier.@

Section 6. Amendment. Section 606 of Title 21 of the Palau National Code is hereby amended and renumbered as Section 608, to read as follows:

ASection 608. Violations; penalties.

(a) Every person who shall abuse or neglect a child shall be guilty of a felony and upon conviction shall be fined not less than $1,000.00, or imprisoned for not more than five years in prison or both.

(b) Any person who is found guilty of sexual abuse shall serve a sentence and/or be fined and upon conviction shall be fined not less than $5,000.00 and not more than $50,000, (50%) of which shall be awarded to the victim or guardian or next-of-kin, and/or imprisoned for six (6) months to 25 years, or both, with the sentence and fine to be determined by the court based on the totality of circumstances.

(c) The name and address of convicted sexual abuse/offense violator shall be published by the Attorney General's Office, not less than 48 hours after release from custody of the Bureau of Public Safety if the offender is in full-time custody, or not less than 48 hours conviction if the offender is in part-time custody or may otherwise interact with the public, as in a. work release or other program.

(d) Any person or responsible official who knowingly and willfully refuses or fails to report cases of child abuse or neglect to the Attorney General's Office or to the Director of Public Health or Clinical services shall be guilty of the crime of Accessory and is punishable by imprisonment not exceeding one year or by fine not exceeding one thousand dollars ($1,000.00) or by both.

[sic] (e) The Attorney General may bring actions to recover civil penalties pursuant to this Chapter. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited in the ROP National Treasury, and the remainder shall be deposited in the Victims of Crime Assistance Fund, which is hereby created in the National Treasury. Amounts deposited in the Victims of Crime Assistance Fund may be used only for the purpose of child advocacy programs, prevention of child abuse and spouse abuse programs upon appropriation by the Olbiil Era Kelulau.

Section 7. Amendment. Title 21 of the Palau National Code is hereby amended to add a new subsection 609 to read as follows:

ASection 609. Confidential nature of identities of child victims and witnesses.

In all matters proceeding under this chapter the names of child victims and witnesses shall be indicated by initials only in all documents filed with the court or in any document obtainable by the public. Courts maintain the discretion to seal any document, exhibit, or case file sua sponte. If the court seals a document or exhibit after it has already been included in the public file, the clerk shall remove the document from both the paper public files and, if applicable, electronic files, as soon as the order sealing the document is entered. Courts should assess whether privacy or law enforcement concerns, or other good cause, justify filing the document under seal. In all matters proceeding under this section or in files maintained by the Attorney General's Office, investigators, counsel, court, or responsible officials related to matters proceeding under this chapter, the names of child victims and witnesses, and relevant documents and exhibits, shall be made available only as needed to report, investigate, prosecute, or defend the matter. Any person who discloses such information intentionally, willfully, knowingly, or recklessly, beyond what is necessary to report, investigate, prosecute, or defend the matter, or to treat or examine the victim, shall be guilty of the crime of disclosure of confidential information and may be fined up to $1,000.@

Section 8. Amendment. Title 17 of the Palau National Code is hereby amended as follows:

ASection 107. Limitation of prosecution.

No person shall be prosecuted, tried or punished for any crime, except murder in the first or second degree, or except sexual abuse of a child under the age of 16, unless the prosecution is commenced within six years next after such crime shall have been committed; provided, however, that nothing in this section shall bar any prosecution against any person who shall flee from justice, or absent himself from the Republic, or so secrete himself that he cannot be found by officers of the law, so that process cannot be served upon him.@

Section 9. Amendment. Section 2804 and 2806 of Title 27 PNC of the Palau National Code are hereby repealed as follows:

A. . . .

'2804. Repealed.

'2806. Repealed.

Section 10. Effective date. This Act shall take effect upon its approval by the President of the Republic, or upon its becoming law without such approval, except as otherwise provided bylaw.

PASSED: October 16, 2008

Approved this 3rd day of Nov. , 2008.

/s/
Tommy E. Remengesau, Jr.
President
Republic of Palau