FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to repeal §61-2-17 of the Code
of West Virginia, 1931, as amended; to amend and reenact §15-9A-2 of said
code; to amend said code by adding thereto a new article, designated §61-14-1, §61-14-2, §61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8 and §61-14-9; and to
amend and reenact §62-1D-8 of said code, all relating generally to human
trafficking; designating the Division of Justice and Community Services to be
the state administrative agency responsible for criminal justice and juvenile
justice systems for the planning and development of state programs and grants
relating to human trafficking; eliminating existing criminal offense and
penalties for human trafficking; creating felony offenses and penalties for
trafficking an individual; defining terms; creating felony offenses and penalties
for using an individual in forced labor; creating felony offenses and penalties
for using an individual in debt bondage; creating felony offenses and penalties
for compelling an adult through coercion to engage in commercial sexual
activity; creating a felony offense for maintaining or making available a minor
for the purpose of engaging in commercial sexual activity; clarifying that
consent of minor and misbelief as to age are not defenses to prosecution for
sexual servitude offense; creating a felony offense of patronizing an
individual to engage in commercial sexual activity; clarifying that each victim
shall be considered a separate offense; limiting ability for parole in
circumstances where the court makes a finding of aggravated circumstances;
defining “aggravated circumstances”; providing for restitution to victims and
the enforcement of a judgment order for restitution; directing unclaimed
restitution to be paid to the Crime Victims Compensation Fund; providing for
disgorgement of profits and debarment from state and local government
contracts; making victims eligible for compensation under the Crime Victims
Compensation Fund; providing for criminal immunity for offense of prostitution
if individual was a minor at time of offense and was a victim at time of
offense; providing for expungement of prostitution conviction for victims of
trafficking; and authorizing law enforcement to use wiretaps to conduct
investigations.
Be it enacted by the
Legislature of West Virginia:
That §61-2-17 of the Code of West Virginia, 1931, as
amended, be repealed; that §15-9A-2 of said code be amended and reenacted;
that said code be amended by adding thereto a new article, designated §61-14-1,
§61-14-2, §61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8 and §61-14-9;
and that §62-1D-8 of said code be amended and reenacted, all to read as
follows:
CHAPTER 15. PUBLIC
SAFETY.
ARTICLE 9A. DIVISION OF
JUSTICE AND COMMUNITY SERVICES.
§15-9A-2. Division
established; appointment of director.
(a) The Division of Justice
and Community Services is created. The purpose of the division is to provide
executive and administrative support to the Governor's Committee on Crime Delinquency and Correction in the
coordination of planning for the criminal justice system, to administer federal
and state grant programs assigned to it by the actions of the Governor or
Legislature and to perform such other duties as the Legislature may from time
to time assign to the division. The division is the designated staffing agency
for the Governor's Committee on Crime,
Delinquency and Correction, and all of its subcommittees. The division may
apply for grants and other funding from federal or state programs, foundations,
corporations and organizations which funding is consistent with its
responsibilities and the purposes assigned to it or the subcommittees it
staffs. The Division of Justice and Community Services is hereby designated as
the state administrative agency responsible for criminal justice and juvenile
justice systems, and various component agencies of state and local government,
for the planning and development of state programs and grants which may be
funded by federal, state or other allocations in the areas of community
corrections, law-enforcement training and compliance, sexual assault forensic
examinations, victim services, human trafficking and juvenile justice.
(b) The director of the
division shall be named by the Governor to serve at his will and pleasure.
(c) The director of the
division shall take and subscribe to an oath of office in conformity with article
IV, section five of the Constitution of the State of West Virginia.
Chapter 61. crimes and
their punishment.
ARticle 14. human trafficking.
§61-14-1. Definitions.
When used in this
article, the following words and terms shall have meaning specified unless the
context clearly indicates a different meaning:
“Adult” means an
individual eighteen years of age or older.
“Coercion” means:
(1) The use or threat of
force against, abduction of, serious harm to, or physical restraint of, an
individual;
(2) The use of a plan,
pattern, or statement with intent to cause an individual to believe that
failure to perform an act will result in the use of force against, abduction
of, serious harm to, physical restraint of, or deportation of an individual;
(3) The abuse or
threatened abuse of law or legal process;
(4) The destruction or
taking of or the threatened destruction or taking of an individual’s
identification document or other property; or
(5) The use of an individual’s physical or mental
impairment when the impairment has a substantial adverse effect on the
individual’s cognitive or volitional function.
“Commercial sexual
activity” means sexual activity for which anything of value is given to,
promised to, or received by a person.
“Debt bondage” means
inducing an individual to provide:
(1) Commercial sexual
activity in payment toward or satisfaction of a real or purported debt; or
(2) Labor or services in
payment toward or satisfaction of a real or purported debt if:
(A) The reasonable value
of the labor or services is not applied toward the liquidation of the debt; or
(B) The length of the
labor or services is not limited, and the nature of the labor or services is
not defined.
“Forced labor” means
labor or services that are performed or provided by another person and are
obtained or maintained through the following:
(1) 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, physical restraint, or deportation: 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.
(2) Physically
restraining or threatening to physically restrain a person;
(3) Abuse or threatened
abuse of the legal process; or
(4) 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” 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.
“Identification
document” means a passport, driver’s license, immigration document, travel
document, or other government-issued identification document, including a
document issued by a foreign government.
“Labor or services”
means activity having economic value.
“Minor” means an individual
less than eighteen years of age.
“Patronize” means
giving, agreeing to give, or offering to give anything of value to another
person in exchange for commercial sexual activity.
“Person” means an
individual, estate, business or nonprofit entity, or other legal entity. The term does not include a public
corporation or government or governmental subdivision, agency, or
instrumentality.
“Serious harm” means
harm, whether physical or nonphysical, including psychological, economic, or
reputational, to an individual which would compel a reasonable individual of
the same background and in the same circumstances to perform or continue to
perform labor or services or sexual activity to avoid incurring the harm.
“Sexual activity” means
sexual contact, sexual intercourse, or sexual intrusion, as defined in section
one, article eight-b of this chapter, or sexually explicit conduct, as defined
in section one, article eight-c of this chapter.
“Sexual servitude”
means:
(1) Maintaining or
making available a minor for the purpose of engaging the minor in commercial
sexual activity; or
(2) Using coercion to
compel an adult to engage in commercial sexual activity.
“Traffics” or
“trafficking” means recruiting, transporting, transferring, harboring,
receiving, providing, obtaining, isolating, maintaining, or enticing an
individual in furtherance of forced labor or sexual servitude.
“Victim” means an
individual who is subjected to trafficking or to conduct that would have
constituted trafficking had this article been in effect when the conduct
occurred, regardless of whether a perpetrator is identified, apprehended,
prosecuted, or convicted.
§61-14-2. Trafficking an individual; penalties.
(a) Any person who
knowingly and willfully traffics an adult is guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for not less than
three nor more than fifteen years, fined not more than $200,000, or both
confined and fined.
(b) Any person who knowingly and willfully
traffics a minor is guilty of a felony and, upon conviction, shall be confined in a state
correctional facility for not less than five nor more than twenty years, fined
not more than $300,000, or both confined and fined.
§61-14-3. Forced labor; penalties.
(a) Any person who knowingly uses an adult in
forced labor to provide labor or services, except when such conduct is
permissible under federal law or law of this state, is guilty of a felony and,
upon conviction, shall be confined in a state correctional facility for not less than
one nor more than five years, fined not more than $100,000, or both confined
and fined.
(b) Any person who
knowingly uses a minor in forced labor to provide labor or services, except
when such conduct is permissible under federal law or law of this state, is
guilty of a felony and, upon conviction shall be confined in a state
correctional facility for not less than three nor more than fifteen years,
fined not more than $300,000, or both confined and fined.
§61-14-4. Debt Bondage; penalties.
(a) Any person who knowingly uses an adult in
debt bondage is guilty of a felony and, upon conviction, shall be confined in a state
correctional facility for not less than one nor more than five years, fined not
more than $100,000, or both confined and fined.
(b) Any person who
knowingly uses a minor in debt bondage is guilty of a felony and, upon
conviction shall be confined in a state correctional facility for not less than
three nor more than fifteen years, fined not more than $300,000, or both
confined and fined.
§61-14-5. Sexual servitude; penalties.
(a) Any person who
knowingly uses coercion to compel an adult to engage in commercial sexual
activity is guilty of a felony and, upon conviction, shall be confined in a state
correctional facility for not less than three nor more than fifteen years,
fined not more than $200,000, or both confined and fined.
(b) Any person who
knowingly maintains or makes available a minor for the purpose of engaging the
minor in commercial sexual activity is guilty of a felony and, upon conviction,
shall be confined
in a state correctional facility for not less than five nor more than twenty
years, fined not more than $300,000, or both confined and fined.
(c) It is not a defense
in a prosecution under subsection (b) of this section that the minor consented
to engage in the commercial sexual activity or that the defendant believed the
minor was an adult.
§61-14-6. Patronizing a victim of sexual servitude;
penalties.
(a) Any person who
knowingly patronizes an individual to engage in commercial sexual activity with
a third-party who is an adult, and who knows that such adult is a victim of
sexual servitude, is guilty of a felony and, upon conviction thereof, shall be confined in a state
correctional facility for not less than one nor more than five years, fined not
more than $100,000, or both confined and fined.
(b) Any person who knowingly patronizes an
individual to engage in commercial sexual activity with a third-party who is a
minor is guilty of felony and, upon conviction, shall be confined in a state
correctional facility for not less than three nor more than fifteen years,
fined not more than $300,000, or both confined and fined.
§61-14-7. General provisions and other penalties.
(a) Separate violations- For purposes of this article, each adult or
minor victim is a separate offense.
(b) Aggravating circumstance. –
(1) If an individual is
convicted of an offense under this article, and the court makes a finding that
the offense involved an aggravating circumstance, the individual may not be
eligible for parole before serving three years in a state correctional
facility.
(2) For purposes of this
subsection, “aggravating circumstance” means the individual recruited, enticed,
or obtained the victim of the offense from a shelter or facility that serves
runaway youths, children in foster care, the homeless, or individuals subjected
to human trafficking, domestic violence, or sexual assault.
(c) Restitution. –
(1) The court shall
order a person convicted of an offense under this article to pay restitution to
the victim of the offense.
(2) A judgment order for
restitution may be enforced by the state or a victim named in the order to
receive the restitution in the same manner as a judgment in a civil action, in
accordance with section four, article eleven-a of this chapter, including
filing a lien against the person, firm, or corporation against whom restitution
is ordered.
(3) The court shall
order restitution under subdivision (1) of this subsection even if the victim
is unavailable to accept payment of restitution.
(4) If the victim does
not claim restitution ordered under subdivision (1) of this subsection for five
years after entry of the order, the restitution shall be paid to the Crime
Victims Compensation Fund created under section four, article two-a, chapter
fourteen of this code.
(d) Disgorgement.- In addition to the fine and penalties set forth in
this article, any business entity that engages in the offenses established in
this article may be fined not more than $500,000 for each violation, be
required to disgorge profit from activity in violation of this article pursuant
to section five, article thirteen of this chapter, and be debarred from state
and local government contracts.
(e) Eligibility for Compensation Fund.- Notwithstanding the definition
of victim in section three, article two-a, chapter fourteen of this code, a
victim of any offense under this article is a victim for all purposes of
article two-a, chapter fourteen of this code: Provided, That for purposes subsection (b), section fourteen,
article two-a, chapter fourteen of this code, if otherwise qualified, a victim
of any offense under this article may not be denied eligibility solely for the
failure to report to law enforcement within the designated time frame.
§61-14-8. Immunity of a minor victim of sex trafficking.
(a) Subject to the
limitation in subsection (b) of this section, an individual is not criminally
liable or subject to juvenile proceedings for an offense of prostitution in
violation of subsection (b), section five, article eight of this chapter if the
individual was a minor at the time of the offense and committed the offense as
a direct result of being a victim.
(b) This section does
not apply in a prosecution or a juvenile proceeding for soliciting, inducing,
enticing or procuring a prostitute in violation of subsection (b), section
five, article eight of this chapter.
§61-14-9. Petition to vacate and expunge conviction of
sex trafficking victim.
(a) Notwithstanding the
age and criminal history limitations set forth in section twenty-six, article
eleven of this chapter, an individual convicted of prostitution in violation of
subsection (b), section five, article eight of this chapter as a direct result
of being a victim of trafficking, may apply by petition to the circuit court in
the county of conviction to vacate the conviction and expunge the record of
conviction. The court may grant the petition upon a finding that the
individual’s participation in the offense was a direct result of being a victim
of trafficking.
(b) A victim of
trafficking seeking relief under this section shall not be required to complete
any type of rehabilitation in order to obtain expungement.
(c) A petition filed
under subsection (a) of this section, any hearing conducted on the petition,
and any relief granted shall meet the procedural requirements of section
twenty-six, article eleven of this chapter: Provided, That a victim of
trafficking is not subject to the age or criminal history limitations in that
section.
chapter 62. criminal procedure.
article 1D. wiretapping
and electronic surveillance act.
§62-1D-8. County prosecuting attorney or duly appointed
special prosecutor may apply for order authorizing interception.
The prosecuting attorney of
any county or duly appointed special prosecutor may apply to one of the
designated circuit judges referred to in section seven of this article and such
judge, in accordance with the provisions of this article, may grant an order
authorizing the interception of wire, oral or electronic communications by an
officer of the investigative or law-enforcement agency when the prosecuting
attorney or special prosecutor has shown reasonable cause to believe the
interception would provide evidence of the commission of: (i) Kidnapping or
abduction as defined and prohibited by the provisions of sections fourteen and
fourteen-a, article two, chapter sixty-one of this code and including threats
to kidnap or demand ransom as defined and prohibited by the provisions of
section fourteen-c of said article two or ; (ii) of any offense included
and prohibited by section eleven, article four, chapter twenty-five of said
code, sections eight, nine and ten, article five, chapter sixty-one of said
code or section one, article eight, chapter sixty-two of said code to the extent
that any of said sections provide for offenses punishable as a felony; or
(iii) dealing, transferring or trafficking in any controlled substance or
substances in the felonious violation of chapter sixty-a of this code; or
(iv) of any offense included and prohibited by article fourteen, chapter
sixty-one of this code; or (iv) (v) any aider or abettor to
any of the foregoing offenses or any conspiracy to commit any of the foregoing
offenses if any aider, abettor or conspirator is a party to the communication
to be intercepted.
NOTE: The purpose of this bill is
to eliminate existing criminal offense and penalties for human trafficking. The
bill creates felony offenses and penalties for trafficking an individual. The
bill defines terms. The bill creates felony offenses and penalties for using an
individual in forced labor. The bill creates felony offenses and penalties for
using an individual in debt bondage. The bill creates felony offenses and
penalties for compelling an adult through coercion to engage in commercial
sexual activity. The bill creates a felony offense for maintaining or making
available a minor for the purpose of engaging in commercial sexual activity.
The bill clarifies that consent of minor and misbelief as to age are not
defenses to prosecution for sexual servitude offense. The bill creates a felony
offense of patronizing an individual to engage in commercial sexual activity.
The bill clarifies that each victim shall be considered a separate offense. The
bill limits ability for parole in circumstances where the court makes a finding
of aggravated circumstances. The bill defines aggravated circumstances. The
bill provides for restitution to victims and the enforcement of a judgment
order for restitution. The bill directs unclaimed restitution to be paid to the
Crime Victims Compensation Fund. The bill provides for disgorgement of profits
and debarment from state and local government contracts. The bill makes victims
eligible for compensation under the Crime Victims Compensation Fund. The bill
provides for criminal immunity for offense of prostitution if individual was a
minor at time of offense and was a victim at time of offense. The bill provides
for expungement of prostitution conviction for victims of trafficking. The bill
authorizes law enforcement to use wiretaps to conduct investigations. The bill
also designates the Division of Justice and Community Services to be the state
administrative agency responsible for criminal justice and juvenile justice
systems for the planning and development of state programs and grants relating
to human trafficking.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.