Introduced Version
House Bill 2814 History
OTHER VERSIONS -
Enrolled Version - Final Version
|
hb2814 ENR 2ND |
pdf
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2814
(By Delegates Fleischauer, Poore, Guthrie, Moore,
Sobonya, Hunt, Longstreth, Phillips, L., Marshall,
Manchin and Wells)
[Introduced March 4, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-17 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new article, designated §61-11B-1, §61-11B-2, §61-11B-3,
§61-11B-4, §61-11B-5, §61-11B-6 and §61-11B-7, all relating to
human trafficking; modifying definitions of human trafficking
and sex trafficking of adults; authorizing forfeiture of
certain assets used in human trafficking; authorizing civil
cause of action for victims of human trafficking; requiring
classification of victims and immigration assistance under
specified circumstances; specifying that a victim of human
trafficking is a victim under the West Virginia Crime Victims
Compensation Act; providing a procedure for vacating certain
prostitution convictions; and providing that remedies are
cumulative.
Be it enacted by the Legislature of West Virginia:
That §61-2-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding thereto a new article, designated §61-11B-1, §61-11B-2, §61-11B-3,
§61-11B-4, §61-11B-5, §61-11B-6 and §61-11B-7, all to read as
follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-17. Human trafficking; criminal penalties.
(a) As used in this section:
(1) "Debt bondage" means the status or condition of a debtor
arising from a pledge by the debtor of the debtor's personal
services or those of a person under the debtor's control as a
security for debt, if the value of those services as reasonably
assessed is not applied toward the liquidation of the debt or the
length and nature of those services are not respectively limited
and defined.
(2) "Forced labor or services" means labor or services that
are performed or provided by another person and are obtained or
maintained through a person's:
(A) Threat, either implicit or explicit, deception or fraud,
scheme, plan, or pattern, or other action intended to cause a
person to believe that, if the person did not perform or provide
the labor or services that person or another person would suffer
serious bodily harm or physical restraint: Provided, That, this
does not include work or services provided by a minor to the
minor's parent or legal guardian so long as the legal guardianship
or custody of the minor was not obtained for the purpose compelling the minor to participate in commercial sex acts or sexually
explicit performance, or perform forced labor or services.
(B) Physically restraining or threatening to physically
restrain a person;
(C) Abuse or threatened abuse of the legal process; or
(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.
"Forced labor or services" does not mean labor or services
required to be performed by a person in compliance with a court
order or as a required condition of probation, parole, or
imprisonment.
(3) "Human trafficking" means the labor trafficking or sex
trafficking involving adults or minors. where two or more persons
are trafficked within any one year period
(4) "Labor trafficking" means the promotion, recruitment,
transportation, transfer, harboring, enticement, provision,
obtaining or receipt of a person by any means, whether a United
States citizen or foreign national, for the purpose of:
(A) Debt bondage or forced labor or services; or
(B) Slavery or practices similar to slavery.
(5) "Sex trafficking of minors" means the promotion,
recruitment, transportation, transfer, harboring, enticement, provision, obtaining or receipt of a person under the age of
eighteen by any means, whether a United States citizen or foreign
national, for the purpose of causing the minor to engage in sexual
acts, or in sexual conduct violating the provisions of subsection
(b), section five, article eight of this chapter or article eight-c
of this chapter.
(6) "Sex trafficking of adults" means the promotion,
recruitment, transportation, transfer, harboring, enticement,
provision, obtaining, receipt of a person eighteen years of age or
older, whether a United States citizen or foreign national for the
purposes of engaging in violations of subsection (b), section five,
article eight of this chapter by means of force, threat, or
coercion, deception, abuse or threatened abuse of the legal
process, or any scheme, plan, pattern, or other action intended to
cause a person to believe that, if the person did not engage in a
violation of subsection (b), section five, article eight of this
chapter, that person or another person would suffer serious bodily
harm or physical restraint.
(b) Any person who knowingly and wilfully engages in human
trafficking is guilty of a felony and upon conviction shall be
incarcerated in a state correctional facility for an indeterminate
sentence of not less than three nor more than fifteen years or
fined not more than $200,000, or both.
ARTICLE 11B. HUMAN TRAFFICKING VICTIM PROTECTION.
§61-11B-1. Short title.
_____This article may be referred to and cited as the Human
Trafficking Victim Protection Act.
§61-11B-2. Asset forfeiture; human trafficking.
_____(a) The following are subject to forfeiture:
_____(1) All property which is used, or has been used, or is
intended for use, in violation of section seventeen, article two of
this chapter.
_____(2) All conveyances, including aircraft, vehicles or vessels,
which are used, have been used, or are intended for use, to
transport, or in any manner to facilitate a violation of section
seventeen, article two of this chapter, except that:
_____(A) A conveyance used by any person as a common carrier in the
transaction of business as a common carrier may not be forfeited
under this section unless it appears that the person owning the
conveyance is a consenting party or privy to a violation of section
seventeen of this article;
_____(B) A conveyance may not be forfeited under the provisions of
this article if the person owning the conveyance establishes that
he or she neither knew, nor had reason to know, that the conveyance
was being employed or was likely to be employed in a violation of
section seventeen, article two of this chapter; and
_____(C) A bona fide security interest or other valid lien in any
conveyance may not be forfeited under the provisions of this article, unless the state proves by a preponderance of the evidence
that the holder of the security interest or lien either knew, or
had reason to know, that the conveyance was being used or was
likely to be used in a violation of section seventeen, article two
of this chapter;
_____(3) All money, negotiable instruments, securities or other
proceeds derived from or intended to be used to facilitate any
violation of section seventeen, article two of this chapter:
Provided, That property may not be forfeited under this
subdivision, to the extent of the interest of an owner, by reason
of any act or omission established by that owner to have been
committed or omitted without his or her knowledge or consent; and
_____(4) All real property, including any right, title and interest
in any lot or tract of land, and any appurtenances or improvements,
which are used, or have been used, or are intended to be used, in
any manner or part, to commit or to facilitate the commission of a
violation of section seventeen, article two of this chapter:
Provided, That property may not be forfeited under this
subdivision, to the extent of an interest of an owner, by reason of
any act or omission established by that owner to have been
committed or omitted without his or her knowledge or consent.
_____(5) The requirements of this subsection pertaining to the
removal of seized property are not mandatory in the case of real
property and the appurtenances to the real property.
_____(b) Notwithstanding any other provisions of this article to
the contrary, any items of real property or any items of tangible
personal property sold to a bona fide purchaser are not subject to
forfeiture unless the state establishes by clear and convincing
proof that the bona fide purchaser knew or should have known that
the property had in the previous three years next preceding the
sale been used in violation of section seventeen, article two of
this chapter.
§61-11B-3. Civil cause of action for victims of human trafficking.
_____Any person who is a victim of human trafficking may bring a
civil action in circuit court. The court may award actual damages,
compensatory damages, punitive damages, injunctive relief and any
other appropriate relief. A prevailing plaintiff is also entitled
to attorneys fees and costs. Treble damages shall be awarded on
proof of actual damages where defendant's acts were willful and
malicious.
§61-11B-4. Classification of victims; immigration assistance.
_____(a) As soon as practicable after the initial encounter with a
person who reasonably appears to a law-enforcement agency or
prosecuting attorneys' office to be a victim of human trafficking,
the agency or office shall:
_____(1) Notify the victim that he or she may be eligible for
assistance from the Crime Victim Compensation Fund and provide an
application to the victim; and
_____(2) Make a preliminary assessment of whether the victim or
possible victim of human trafficking appears to meet the criteria
for certification as a victim of a severe form of trafficking in
persons as defined in section 7105 of Title 22 of the United States
Code (Trafficking Victims Protection Act) or appears to be
otherwise eligible for any federal, state or local benefits and
services. If it is determined that the victim appears to meet those
criteria, the agency or office shall report the finding to the
victim and shall refer the victim to services available, including
legal service providers. If the possible victim is under the age of
eighteen or is a vulnerable adult, the agency or office shall also
notify the West Virginia Department of Health and Human Resources.
_____(b) After the agency or office makes a preliminary assessment
pursuant to subdivision (2), subsection (a) of this section that a
victim of human trafficking or a possible victim of human
trafficking appears to meet the criteria for certification as a
victim of a severe form of trafficking in persons, as defined in
section 7105 of Title 22 of the United States Code and upon the
request of the victim, the agency or office shall provide the
victim of human trafficking with a completed and executed United
States Citizenship and Immigration Service Form I-914, Supplement
B, Declaration of Law-Enforcement Officer for Victim of Human
Trafficking in Persons or a United States Citizenship and
Immigration Service Form I-918, Supplement B, U Nonimmigrant Status Certification, or both. These endorsements shall be completed by
the certifying officer in accordance with the forms' instructions
and applicable rules and regulations. The victim of human
trafficking may choose which form to have the certifying officer
complete.
§61-11B-5. Victim of human trafficking is a victim under West
Virginia Crime Victims Compensation Act.
_____Notwithstanding the definition of victim in subsection (k),
section three, article two-a, chapter fourteen of this code, a
person who is a victim of human trafficking is a victim for all
purposes of article two-a, chapter fourteen of this code.
§61-11B-6. Vacating convictions.
_____(a) (1) A person convicted of prostitution in violation of
subsection (b), section five, article eight of this chapter may
file a motion to vacate the conviction if it was obtained as a
result of the person having been a victim of human trafficking.
_____(2) A motion under this section shall be made with due
diligence, after the defendant has ceased to be a victim of the
trafficking or has sought services for victims of trafficking,
subject to reasonable concerns for the safety of the defendant,
family members of the defendant, or other victims of the
trafficking that may be jeopardized by the bringing of such a
motion, or for other reasons consistent with the purpose of this
section.
_____(3) The motion must be in writing, describe the supporting
evidence with particularity and include copies of any documents
showing that the moving party is entitled to relief under this
section.
_____(4) The court shall hold a hearing on the motion, provided
that the court may dismiss a motion without a hearing if the court
finds that the motion fails to assert a claim for which relief may
be granted.
_____(5) The court shall grant the motion if it finds by a
preponderance of the evidence that:
_____(A) The moving party was convicted of prostitution in
violation of subsection (b), section five, article eight of chapter
sixty one; and
_____(B) The conviction was obtained as a result of the moving
party's having been a victim of human trafficking.
_____(6) If the motion is granted, the court shall vacate the
conviction, strike the adjudication of guilt, and order the
expungement of the record of the criminal proceedings. The court
shall issue an order to expunge, or redact the moving party's name
from all records and files related to the moving party's arrest,
citation, investigation, charge, adjudication of guilt, criminal
proceedings and probation for the offense.
§61-11B-7. Remedies provided cumulative.
_____This article and the rights and remedies provided in this article are cumulative and in addition to other existing rights.
NOTE: The purpose of this bill is to provide assistance to
victims of human trafficking. It does this by:
(1) Altering the definitions of human trafficking and sex
trafficking of adults;
(2) Authorizing the forfeiture of certain assets used in human
trafficking;
(3) Authorizing a civil cause of action for victims of human
trafficking;
(4) Requiring classification of victims of human trafficking
and immigration assistance under specified circumstances;
(5) Specifying that a victim of human trafficking is a victim
under the West Virginia Crime Victims Compensation Act;
(6) Providing a procedure for vacating certain prostitution
convictions; and
(7) Providing that these remedies are cumulative and in
addition to other existing rights.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-11B-1, §61-11B-2, §61-11B-3, §61-11B-4, §61-11B-5,
§61-11B-6 and §61-11B-7 are new; therefore, they have been
completely underscored.