H. B. 4090
(By Delegates Staton, Stalnaker, G. White.)
[Introduced January 24, 2006; referred to the Committee on the
Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-2A-1, §61-2A-2,
§61-2A-3, §61-2A-4, §61-2A-5 and §61-2A-6, relating to the
creation of new criminal offenses for the trafficking of
persons and involuntary servitude.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-2A-1, §61-2A-2,
§61-2A-3, §61-2A-4, §61-2A-5, and §61-2A-6, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2A. TRAFFICKING OF PERSONS AND INVOLUNTARY SERVITUDE.
§61-2A-1. Definitions.
In this article:
(1) "Blackmail" is to be given its ordinary meaning and
includes but is not limited to a threat to expose any secret
tending to subject any person to hatred, contempt, or ridicule.
(2) "Commercial sexual activity" means any sex act on account
of which anything of value is given, promised to, or received by
any person.
(3) "Financial harm" includes credit extortion as defined by
section one hundred twenty, article two, chapter forty-six-A of
this code, criminal violation of the usury laws as defined by
section six, article six, chapter forty-seven of this code, or
employment contracts that violate the Statute of Frauds as defined
by section one, article one, chapter fifty-five of this code.
(4) "Forced labor or services" means labor, as defined in
paragraph (5) of this section, or services, as defined in paragraph
(9), of this section, that are performed or provided by another
person and are obtained or maintained through an actor's:
(A) causing or threatening to cause serious harm to any
person;
(B) physically restraining or threatening to physically
restrain another person;
(C) abusing or threatening to abuse the law or legal process;
(D) knowingly destroying, concealing, removing, confiscating
or possessing any actual or purported passport or other immigration
document, or any other actual or purported government
identification document, of another person;
(E) blackmail; or
(F) causing or threatening to cause financial harm to any person.
(5) "Labor" means work of economic or financial value.
(6) "Maintain" means, in relation to labor or services, to
secure continued performance thereof, regardless of any initial
agreement on the part of the victim to perform such type of
service.
(7) "Obtain" means, in relation to labor or services, to
secure performance thereof.
(8) "Serious bodily injury" means bodily injury which creates
a substantial risk of death, causes serious or prolonged
disfigurement, causes prolonged impairment of health or prolonged
loss or impairment of the function of any bodily organ.
(9) "Services" means an ongoing relationship between a person
and the actor in which the person performs activities under the
supervision of or for the benefit of the actor. Commercial sexual
activity and sexually-explicit performances are forms of services
under this section. Nothing in this provision should be construed
to legitimize or legalize prostitution.
(10) "Sexually-explicit performance" means a live or public
act or show intended to arouse or satisfy the sexual desires or
appeal to the prurient interests of patrons.
(11) "Trafficking victim" means a person subjected to the
practices set forth in sections two or three of this article, or
transported in violation of section four of this article.
§61-2A-2. Involuntary Servitude Offenses.
(a)
INVOLUNTARY SERVITUDE. Any person who knowingly subjects,
or attempts to subject, another person to forced labor or services
by causing or threatening to cause physical harm to any person
shall be imprisoned in a state correctional facility for not more
than twenty years.
(b)
UNLAWFUL RESTRAINT FOR FORCED LABOR. Any person who
knowingly subjects, or attempts to subject, another person to
forced labor or services by physically restraining or threatening
to physically restrain another person, shall be imprisoned in a
state correctional facility for not more than fifteen years.
(c)
LEGAL COERCION FOR FORCED LABOR. Any person who knowingly
subjects, or attempts to subject another person to forced labor or
services by abusing or threatening to abuse the law or legal
process shall be imprisoned in a state correctional facility for
not more than ten years.
(d)
DOCUMENT SERVITUDE. Any person who knowingly subjects, or
attempts to subject, another person to forced labor or services by
knowingly destroying, concealing, removing, confiscating or
possessing any actual or purported passport or other immigration
document, or any other actual or purported government
identification document, of another person, shall be imprisoned in
a state correctional facility for not more than five years.
(e)
DEBT BONDAGE. Any person who knowingly subjects, or attempts to subject, another person to forced labor or services by
blackmail, or by using or threatening to cause financial harm to
any person, shall be imprisoned in a state correctional facility
for not more than three years.
§61-2A-3.
Sexual Servitude of a Minor.
Any person who knowingly recruits, entices, harbors,
transports, provides, or obtains by any means, or attempts to
recruit, entice, harbor, provide, or obtain by any means, another
person under eighteen years of age, knowing that the minor will
engage in commercial sexual activity, sexually-explicit
performance, or the production of obscene matter as that phrase is
defined by subsection (j), section one, article eight-A, chapter
sixty-one of this code, or causes or attempts to cause a minor to
engage in commercial sexual activity, sexually-explicit
performance, or the production of obscene matter as that phrase is
defined by subsection (j), section one, article eight-A, chapter
sixty-one of this code, shall be imprisoned in a state correctional
facility as follows, subject to the sentence enhancement provisions
of section five of this article:
(1) in cases involving a minor between the ages of sixteen and
eighteen years, not involving overt force or threat, for not more
than fifteen years;
(2) in cases in which the minor had not attained the age of
sixteen years, not involving overt force or threat, for not more than twenty years; or
(3) in cases in which the violation involved overt force or
threat, for not more than twenty-five years.
§61-2A-4. Trafficking of Persons for Forced Labor or Services.
Any person who knowingly,
(1) recruits, entices, harbors, transports, provides, or
obtains by any means, or attempts to recruit, entice, harbor,
transport, provide, or obtain by any means, another person,
intending or knowing that the person will be subjected to forced
labor or services; or
(2) benefits, financially or by receiving anything of value,
from participation in a venture which has engaged in an act
described in violation of sections two or three of this article,
shall, subject to the provisions of section five of this article,
be imprisoned in a state correctional facility for not more than
fifteen years.
§61-2A-5. Sentencing Enhancements.
(a)
Statutory Maximum - Rape, Extreme Violence, and Death. If
the violation of this article involves kidnaping or an attempt to
kidnap, sexual assault in the first or second degree or the attempt
to commit sexual assault in the first or second degree, or an
attempt to kill, the defendant shall be imprisoned for any definite
term of years or life, or if death results, may be sentenced to any
definite term of years or life.
(b)
Sentencing Considerations Within Statutory Maximums.
(1)
Bodily Injury. If, pursuant to a violation of this
article, a victim suffered bodily injury, the sentence maybe
enhanced as follows: (A) bodily injury, an additional five years of
imprisonment; (B) serious bodily injury, an additional ten years of
imprisonment; or (B) if death results, defendant shall be sentenced
in accordance with homicide statute for relevant level of criminal
intent.
(2)
Time in Servitude. In determining sentences within
statutory maximums, the sentencing court should take into account
the time in which the victim was held in servitude, with increased
penalties for cases in which the victim was held for between one
hundred eighty days and one year, and increased penalties for cases
in which the victim was held for more than one year.
(3)
Number of Victims. In determining sentences within
statutory maximums, the sentencing court should take into account
the number of victims, and may provide for substantially-increased
sentences in cases involving more than ten victims.
§61-2A-6. Restitution.
Restitution is mandatory under this article. In addition to
any other amount of loss identified, the court shall order
restitution including the greater of 1) the gross income or value
to the defendant of the victim's labor or services; or 2) the value
of the victim's labor as guaranteed under the federal minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)or
article five-C, chapter twenty-one of the West Virginia Code.
Note: The bill creates new criminal offenses for the illegal
trafficking of persons and involuntary servitude. This legislation
is based upon model legislation advocated by the United States
Attorney General.
Because the entire article is new, underlining is omitted.