SPONSOR: |
Sen. Blevins & Rep. Keeley |
|
Sens.
Bushweller, Hall-Long, Henry, Hocker, Lopez, Peterson, Poore, Sokola,
Venables, Ennis, Townsend, McDowell, Simpson; Reps. Barbieri, Baumbach,
Brady, Briggs King, Heffernan, Jaques, J. Johnson, Kowalko, Mitchell,
Mulrooney, Osienski, Ramone, Scott, D. Short, M. Smith |
DELAWARE STATE SENATE 147th GENERAL ASSEMBLY |
SENATE BILL NO. 197 |
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO TRAFFICKING OF INDIVIDUALS, FORCED LABOR AND SEXUAL SERVITUDE. |
Section 1. Amend §
787, Title 11 of the Delaware Code by making deletions as shown by strike
through and insertions as shown by underline as follows and redesignating
accordingly:
§ 787 Trafficking of persons and involuntary servitude
an individual, forced labor and sexual servitude; class F felony
class E felony; class D felony; class C felony; class B felony;
class A felony.
(a) For the purposes
of this section, the following definitions shall apply:
“Adult” has the meaning ascribed in Section 302 of Title 1
of the Delaware Code;
(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;
“Coercion” means:
a. the use or threat of force against,
abduction of, serious harm to, or physical restraint of an individual;
b. 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, or
physical restraint of an individual;
c. the abuse or threatened abuse of law or
legal process;
d. controlling or threatening to control an
individual’s access to a controlled substance enumerated in Sections 4714,
4716, 4718, 4720 or 4722 of Title 16 of the Delaware Code;
e. the destruction of, taking of, or the
threat to destroy or take an individual’s identification document or other
property;
f. use of debt bondage;
g. the use of an individual’s physical,
cognitive disability or mental impairment, where such impairment has
substantial adverse effects on the individual’s cognitive or volitional
functions; or
h. the commission of civil or criminal
fraud;
“Commercial sexual activity” means any sex act on
account of which sexual activity for which anything of value is
given, promised to, or received by any person;
“Debt bondage” means inducing an individual to provide:
a. commercial sexual activity in payment
toward or satisfaction of a real or purported debt; or
b. labor or services in payment toward or
satisfaction of a real or purported debt if:
1. the reasonable value of the labor or
services is not applied toward the liquidation of the debt; or
2. the length of the labor or services is
not limited and the nature of the labor or services is not defined;
“Forced labor or services” means labor, as defined in paragraph
(a)(4)of this section, or services, as defined in paragraph (a)(7) of
this section, that are performed or provided by another person and are obtained
or maintained through coercion as enumerated in paragraph (b)(1) of this
section;
“Human trafficking” means the commission of any of the
offenses created in subsection (b) of this section;
“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,
whether actual or purported;
“Labor or services” means work of activity
having economic or financial value, including commercial sexual
activity. Nothing in this definition
should be construed to legitimize or legalize prostitution;
“Minor” has the meaning ascribed in Section 302 of Title 1
of the Delaware Code;
“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;
“Services” means an ongoing relationship between a person
and the person in which the person performs activities under the supervision of
or for the benefit of the person. Commercial sexual activity and sexually
explicit performances are forms of services under this section. Nothing in this
definition should be construed to legitimize or legalize prostitution;
“Sexual activity” means any of the sex-related acts enumerated
in Section 761 of this Title, or in Sections 1342, 1351, 1352(1), 1353(1), 1354
or 1355 of this Title or
sexually-explicit performances;
“Sexually explicit performance” means a live public act or
show, production of pornography, or the
digital transfer of any of such, intended to arouse or satisfy the
sexual desires or appeal to the prurient interest of patronsviewers;
“State” means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band
recognized by federal law or formally acknowledged by state; and
“Trafficking victim” “Victim” means a person who
is subjected to the practices set forth in subsection (b) of this section or
to conduct that would have constituted a violation of subsection (b) of this
section had this act been in effect when the conduct occurred, regardless of
whether a perpetrator is identified, apprehended, prosecuted or convicted.
(b) Prohibited
activities. --
(1) Involuntary servitude. -- A person is guilty of holding
another person in involuntary servitude when the person knowingly subjects, or
attempts to subject, the person to forced labor or services.
a. By causing or threatening to cause
physical harm to any person which is a class B felony;
b. By physically restraining or threatening
to physically restrain another person which is a class B felony;
c. By abusing or threatening to abuse the
law or legal process which is a class C felony;
d. 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 which is a class E felony; or
e. By using blackmail, or using or
threatening to cause financial harm to, or by using financial control over any
person which is a class F felony.
(2) Sexual servitude of a minor. -- A person is guilty of
sexual servitude of a minor when the person knowingly:
a. Recruits, entices, harbors, transports,
provides or obtains by any means, a minor under 18 years of age, knowing that
the minor will engage in commercial sexual activity, a sexually explicit
performance, or the production of pornography; or
b. Causes a minor to engage in commercial
sexual activity or a sexually explicit performance:
1. Sexual servitude of a minor in which the
minor was between the ages of 14 and 18 years and which did not involve overt force
or threat is a class C felony;
2. Sexual servitude of a minor in which the
minor had not attained the age of 14 years and which did not involve overt
force or threat is a class B felony;
3. Sexual servitude of a minor in which
overt force or threat was involved is a Class A felony.
(3) Trafficking of persons for forced labor or services. --
A person is guilty of trafficking of persons for forced labor or services when
a person knowingly:
a. Recruits, entices, harbors, transports,
provides or obtains by any means, another person, intending or knowing that the
person will be subjected to forced labor or services; or
b. Benefits, financially or by receiving
anything of value, from participation in a venture which has engaged in an act
described in violation of this section. Trafficking of persons for forced labor
or services is a class B felony.
(1) Trafficking an individual
– A person is guilty of trafficking an individual if the person knowingly
recruits, transports, harbors, receives, provides, obtains, isolates,
maintains, or entices an individual in furtherance of forced labor in violation
of paragraph (b)(2) of this section or sexual servitude in violation of
paragraph (b)(3) of this section.
Trafficking an individual is a Class C felony unless the individual is a
minor, in which case it is a Class B felony.
(2) Forced labor – A person is
guilty of forced labor if the person knowingly uses coercion to compel an
individual to provide labor or services, except where such conduct is
permissible under federal law or law of this state other than this act. Forced labor is a Class C felony unless the
individual is a minor, in which case it is a Class B felony.
(3) Sexual servitude:
a. A person commits the
offense of sexual servitude if the person knowingly:
1. maintains or makes available a minor for
the purpose of engaging the minor in commercial sexual activity; or
2. uses coercion or deception to compel an
adult to engage in commercial sexual activity.
b. Sexual servitude is a Class
C felony unless the individual is a minor, in which case it is a Class B
felony.
c. It is not a defense in a prosecution
under subsection a.1. that the minor consented to engage in commercial sexual
activity or that the defendant believed the minor was an adult.
(4) Patronizing a victim of
sexual servitude – A person is guilty of patronizing a victim of sexual
servitude if the person knowingly gives, agrees to give, or offers to give
anything of value so that the person may engage in commercial sexual activity
with another person and the person knows that the other person is a victim of
sexual servitude. Patronizing a victim
of sexual servitude is a Class D felony unless the victim of sexual servitude
is a minor, in which case it is a Class C felony. It is not a defense in a prosecution when the
victim of sexual servitude is a minor that the minor consented to engage in
commercial sexual activity or that the defendant believed the minor was an
adult.
(45) Trafficking of
persons for use of body parts. – A person is guilty of trafficking of persons
for use of body parts when a person knowingly:
a. Recruits, entices, harbors,
provides or obtains by any means, another person, intending or knowing that the
person will have body parts removed for sale; or
b. Benefits, financially or by
receiving anything of value, from participation in a venture which has engaged
in an act described in violation of this section. Such person shall be guilty
of a class A felony. Nothing contained herein shall be construed as prohibiting
the donation of an organ by an individual at a licensed medical facility after
giving an informed voluntary consent.
(6) Aggravating Circumstance.
– An aggravating circumstance during the commission of an offense under
paragraph (b)(1)-(3) occurs when:
a. the person recruited,
enticed, or obtained the victim from a shelter designed to serve victims of
human trafficking, victims of domestic violence, victims of sexual assault,
runaway youth, foster children, or the homeless; or
b. the person used or
threatened use of force against, abduction of, serious harm to, or physical
restraint of the victim.If an aggravating circumstance occurred, the
classification of the offense under paragraph (b)(1)-(3) is elevated by one
felony grade higher than the underlying offense.
(c)
Organizational liability. –
(1) An organization may be prosecuted for an offense under
this section pursuant to 11 Del. C. § 281 (Criminal liability of
organizations).
(2) The court may
consider the severity of an organization’s offense under this section and order
penalties in addition to those otherwise provided for the offense, including:
a. a fine of not more than
$25,000.00 per offense;
b. disgorgement of profit from illegal
activity in violation of this section; and
c. debarment from state and local government
contracts.
(cd)
Restitution is mandatory under this section. –
(1) In addition to any
other amount of loss identified, the court shall order restitution, including
the greater of:
(1)a. The gross income or value to the defendant of the victim’s
labor or services; or
(2)b. The value of the victim’s labor as guaranteed under the
minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) [29
U.S.C. § 201 et seq.] or of Title 19, whichever is greater.
(2) The Court shall order restitution under this paragraph
(d) even if the victim is unavailable to accept payment of restitution.
(3) If the victim is unavailable for 5 years from the date
of the restitution order, the restitution ordered under this paragraph (d) must
be paid to the Victim Compensation Fund established under Section 9016 of this
Title.
(e) Forfeiture.
(1) On motion, the court shall order a person convicted of
an offense under subsection (b)(1)-(3) of this section to forfeit any interest
in real or personal property that was used or intended to be used to commit or
facilitate the commission of the offense or that constitutes or derives from
proceeds that the person obtained, directly or indirectly, as a result of the
offense.
(2) In any proceeding against real or personal property
under this section, the owner may assert a defense, and has the burden of
establishing, by a preponderance of the evidence, that the forfeiture is
manifestly disproportional to the seriousness of the offense.
(3) Proceeds from the public sale or auction of property
forfeited under this subsection must be distributed in the manner otherwise
provided for the distribution of proceeds of judicial sales.
(f)
Admissibility of certain evidence. –
(1) In a prosecution or civil action for damages under this
section, evidence of a specific instance of the alleged victim’s past sexual
behavior, or reputation or opinion evidence of past sexual behavior of the
alleged victim, is not admissible unless the evidence is:
a. admitted in accordance with Sections 3508
and 3509 of this Title; or
b. offered by the prosecution in a criminal
case to prove a pattern of trafficking by the defendant.
(g) Special
provisions regarding a minor. –
(1) A minor who has engaged in commercial sexual activity
is presumed to be a neglected or abused child under 10 Del. C. §§ 901 et seq.
Whenever a police officer has probable cause to believe that a minor has
engaged in commercial sexual activity, the police officer shall make an
immediate report to the Department of Services for
Children, Youth and Their Families pursuant to 16 Del. C.§§ 901 et seq.
(2) A party to a juvenile delinquency proceeding in which a
minor is charged with prostitution or loitering, or an attorney guardian ad
litem or court appointed special advocate appointed in a proceeding under 10 Del. C. §§ 901 et seq., may file a motion
on behalf of a minor in a juvenile delinquency proceeding seeking to stay the
juvenile delinquency proceedings. Such
motion may be opposed by the Attorney General. The Family Court may consider
such a motion and, in its discretion, may stay the juvenile delinquency
proceeding indefinitely. Upon such
motion, the Department of Services for Children, Youth and Their Families
and/or the Family Court may identify and order available specialized services
for the minor that, in the opinion of the Department of Services for Children,
Youth and Their Families or Family Court, are best suited to the needs of the
juvenile. So long as the minor
substantially complies with the requirement of services identified by the
Department of Services for Children, Youth and Their Families and/or ordered by
the Family Court, the Attorney General shall, upon motion, nolle prosequi the
stayed charges no earlier than 1 year after the stay was imposed. Upon motion of the Attorney General that the
minor has not substantially complied with the requirement of services
identified by the Department of Services for Children, Youth and Their Families
and/or ordered by the Family Court, the Family Court shall lift the stay for
further proceedings in accordance with the regular course of such
proceedings.
(h) Defense
to charge of prostitution or loitering. – An individual charged with
prostitution or loitering committed as a direct result of being a victim of
human trafficking may assert as an affirmative defense that the individual is a
victim of human trafficking.
(i) Civil
action. –
(1) A victim may bring a civil action against a person that
commits an offense under subsection (b) of this section for compensatory
damages, punitive damages, injunctive relief, and any other appropriate
relief.
(2) In an action under this subsection, the court shall
award a prevailing victim reasonable attorney’s fees and costs, including
reasonable fees for expert witnesses.
(3) An action under this subsection must be commenced not
later than 5 years after the later of the date on which the victim:
a. was freed from the human trafficking
situation; or
b. attained 18 years of age.
(4) Damages awarded to the
victim under this subsection for an item must be offset by any restitution paid
to the victim pursuant to subsection (d) for the same item.
(5) This subsection does not preclude any other remedy
available to the victim under federal law or law of this state other than this
section.
(j) Application
for pardon and petition to expunge; motion to vacate conviction and expunge
record.
(1) Notwithstanding any provision of Title 11, Chapter 43
or any other law to the contrary, a person convicted of prostitution, loitering
or obscenity committed as a direct result of being a victim of human trafficking
may file an application for a pardon pursuant to Article VII of the Delaware
Constitution and 11 Del. C. §§ 4361,
et seq. and may file a petition requesting expungement of such criminal record
pursuant to 11 Del. C. §§ 4371, et
seq.
(2) A person convicted of prostitution, loitering or
obscenity as a direct result of being a victim of human trafficking may file a
motion in the court in which the conviction was obtained to vacate the judgment
of conviction. A motion filed under this
paragraph must:
a. Be
in writing;
b. Be
signed and consented to by a Deputy Attorney General in the Delaware Department
of Justice;
c. Be
made 2 years after the person’s last criminal conviction and within a
reasonable period of time after the person ceases to be a victim of trafficking
in persons; and
d.
Describe the evidence and provide copies of any official documents
showing that the person is entitled to relief under this paragraph.
If the motion satisfies the
foregoing requirements, the court shall hold a hearing on a motion, provided
that the court may dismiss a motion without a hearing if the court finds that
the motion fails to assert grounds on which relief may be granted. Official documentation of the person’s status
as a victim of this section, “trafficking in persons,” or “a severe form of
trafficking” from a federal, state, or local government agency shall create a
presumption that the person’s participation in the offense of prostitution,
loitering or obscenity was a direct result of having been a victim of human
trafficking, but shall not be required for the court to grant a petition under
this paragraph. If the petitioner can
show to the satisfaction of the court that he or she is entitled to relief in a
proceeding under this paragraph, the court shall grant the motion and, pursuant
to this paragraph, enter an order vacating the judgment of conviction and
dismissing the accusatory pleading, and may take such additional action as is
appropriate in the circumstances or as justice requires.
(3) Notwithstanding any provision of Title 11, Chapter 43
or any other law to the contrary, any person filing a motion under paragraph
(j)(2) in Superior Court or Family Court may also seek in that motion
expungement of the criminal record related to such conviction. If the court grants the motion to vacate the
conviction under paragraph (j)(2) and the movant also requested expungement,
the court’s order shall require expungement of the police and court records
relating to the charge and conviction.
Such order shall contain a statement that the expungement is ordered
pursuant to this paragraph and, notwithstanding any limitations to the
contrary, that the provisions of 11 Del.
C. §§ 4374(f), 4376 and 4377 apply to such order.
(4) Notwithstanding
any provision of Title 11, Chapter 43 or any other law to the contrary, any
person filing in Court of Common Pleas a motion under paragraph (j)(2) may,
upon the Court of Common Pleas’ entry of an order granting the motion to
vacate, file a petition in the Superior Court seeking expungement of the
criminal record related to such conviction and attaching to the petition a
certified copy of the Court of Common Pleas’ order granting the motion to
vacate. Upon finding that the Court of
Common Pleas entered an order under paragraph (j)(2), the Superior Court shall
enter an order requiring expungement of the police and court records relating
to the charge and conviction. Such order
shall contain a statement that the expungement is ordered pursuant to this
paragraph and, notwithstanding any limitations to the contrary, that the
provisions of 11 Del. C. §§ 4374(f),
4376 and 4377 apply to such order.
(d) Assessment of
victim protection needs. –
(1) The Attorney General, in consultation with the
Department of Health and Social Services, shall, no later than July 1, 2008,
issue a report outlining how existing victim/witness laws and regulations
respond to the needs of trafficking victims, as defined in paragraph (a)(9) of
this section, and suggesting areas of improvement and modification.
(2) The Department of Health and Social Services, in
consultation with the Attorney General, shall, no later than July 1, 2008,
issue a report outlining how existing social service programs respond or fail
to respond to the needs of trafficking victims, as defined in paragraph (a)(9)
of this section, the interplay of such existing programs with federally funded
victim service programs, and areas needing improvement and modification. The
report must include a section that states the ability of state programs and
licensing bodies to recognize federal nonimmigrant status for the purposes of
benefits, programs, and licenses.
(k) Human
trafficking coordinating council. – The General Assembly hereby creates a
permanent Human Trafficking Coordinating Council.
(1) The Council shall consist of the following members or
their designee:
a.
The President Judge of the Superior Court;
b.
The Chief Judge of the Family Court;
c. A
judicial officer from the Court of Common Pleas to be appointed by the Chief
Judge of the Court of Common Pleas.
d.
The Attorney General;
e.
The Public Defender;
f.
The Secretary of the Department of Safety and Homeland Security;
g. A
representative of the law-enforcement community appointed by the Secretary of
the Department of Safety and Homeland Security;
h. The Secretary of the Department of
Education;
i.
The Secretary of the Department of Services for Children, Youth and
Their Families;
j.
The Secretary of the Department of Health and Social Services;
k.
The Secretary of the Department of Labor;
l. A
representative of the health care community designated by the Board of Medical
Licensure and Discipline;
m.
The Commissioner of the Department of Correction; and
n.
Two at-large members representing victims of human trafficking or whose
expertise would benefit the council who elected by the Council at the first
meeting of each calendar year.
(2) The Council shall:
a. develop a comprehensive plan to provide
victims of human trafficking with services;
b. effectuate coordination between agencies, departments
and the courts with victims of human trafficking;
c. collect and evaluate data
on human trafficking in this state;
d. promote public awareness
about human trafficking, victim remedies and services, and trafficking
prevention;
e. create a public-awareness
sign that contains the state and National Human Trafficking Resource Center
hotline information;
f. coordinate training on
human trafficking prevention and victim services for state and local employees
who may have recurring contact with victims or perpetrators; and
h. conduct other appropriate
activities.
(3) Meetings; quorum; officers; committees; procedure.
a. The Council shall meet at least 4 times per
year. Seven members shall constitute a quorum.
b. The Chairperson shall have the duty to
convene and preside over meetings of the Council and prepare an agenda for
meetings.
c. The Attorney General shall convene the
initial meeting of the Council. At the initial meeting of the Council a
Chairperson and Vice Chairperson shall be elected by the Council members.
Thereafter, in December of each year, the Council shall elect a Chairperson and
Vice Chairperson. The Vice Chairperson's duty shall be to act as chairperson in
the absence of the Chairperson.
d. The Council shall establish committees
composed of Council members and other knowledgeable individuals, as it deems
advisable, to assist in planning, policy, goal and priority recommendations and
developing implementation plans to achieve the purposes of the Council.
e. The Council shall submit a written report of
its activities and recommendations to the Governor, General Assembly and the
Chief Justice of the Supreme Court at least once every year on or before
September 15.
(l) Display of
public awareness sign; penalty for failure to display.
(1) The Delaware Department of Transportation shall display
a public-awareness sign required by this section in every transportation
station, rest area, and welcome center in the state which is open to the public.
(2) A public awareness sign created under paragraph
(k)(2)e. shall be displayed at the following locations in a place that is
clearly conspicuous and visible to employees:
a. an adult entertainment
facility;
b. an entity found to be maintaining a criminal
nuisance involving prostitution under Section 7104 of Title 10 of the Delaware
Code;
c. a job recruitment center;
d. a hospital; and
e. an emergency care provider.
(3) The Delaware Department of Labor shall impose a fine of
$300 per violation on an employer that knowingly fails to comply with paragraph
(k)(2)e. The fine is the exclusive
remedy for failure to comply.
(m) Eligibility
for services. –
(1) A victim of human trafficking is eligible for a benefit
or service, which is available through the state and identified in the plan
developed under paragraph (k)(2)a, including compensation under Section 9009 of
this Title, regardless of immigration status.
(2) A minor engaged in commercial sexual activity is
eligible for a benefit or service, which is available through the state and
identified in the plan developed under paragraph (k)(2)a, regardless of
immigration status.
(3) As soon as practicable after a first encounter with an
individual who reasonably appears to a police officer to be a victim or a minor
engaged in commercial sexual activity, the police officer shall notify the
appropriate state or local agency, as identified in the plan developed under
paragraph (k)(2)a, that the individual may be eligible for a benefit or service
under this section.
(n) Law
enforcement agency protocol. –
(1) On request from an individual who a police officer or
prosecutor reasonably believes is a victim who is or has been subjected to a
severe form of trafficking or criminal offense required for the individual to
qualify for a nonimmigrant T or U visa under 8 U.S.C. Section 1101(a)(15)(T),
as amended from time to time, or 8 U.S.C. Section 1101(a)(15)(U), as amended
from time to time, or for continued presence, under 22 U.S.C. Section
7105(c)(3), as amended from time to time, the police officer or prosecutor, as
soon as practicable after receiving the request, shall request that a
certifying official in his law enforcement agency complete, sign, and give to
the individual the Form I-914B or Form I-918B provided by the United States
Citizenship and Immigration Services on its Internet website, and ask a federal
law enforcement officer to request continued presence.
(2) If the law enforcement agency having responsibility
under paragraph (n)(1) determines that an individual does not meet the
requirements for such agency to comply with paragraph (n)(1), that agency shall inform the individual of the
reason and that the individual may make another request under paragraph (n)(1)
and submit additional evidence satisfying the requirements.
(o) Nothing contained in this section shall preclude a
separate charge, conviction and sentence for any other crime set forth in this
title, or in the Delaware Code.
Section 2. Amend
§ 9002(5), Title 11 by making deletions as shown by strike through and
insertions as shown by underline as follows::
(5) “Crime” for
purposes of this chapter shall mean:
h. Any act of human
trafficking as defined in § 787 of this title.
Section 3. Amend § 4201(c) of Title 11 by making deletions
as shown by strike through and insertions as shown by underline as follows:
§ 4201. Transition
provisions.
(c) The following
felonies shall be designated as violent felonies:
Title 11, Section Crime
787 Trafficking of an Individual, Forced Labor and Sexual
Servitude
Section 4. Amend § 205(e), Title 11 by making deletions as
shown by strike through and insertions as shown by underline as follows:
(e) Notwithstanding the period prescribed by subsection (b)
of this section, a prosecution for any crime that is delineated in § 787 of
this title and in which the victim is a minor, Subpart D of Subchapter II
of Chapter 5 of this title, or is otherwise defined as a “sexual offense” by §
761 of this title except §§ 763, 764 or 765 of this title, or any attempt to
commit said crimes, may be commenced at any time. No prosecution under this
subsection shall be based upon the memory of the victim that has been recovered
through psychotherapy unless there is some evidence of the corpus delicti
independent of such repressed memory. This subsection applies to all causes of
action arising before, on or after July 15, 1992, and to the extent consistent
with this subsection, it shall revive causes of action that would otherwise be
barred by this section.
Section 5. Amend §
4121(a)(4), Title 11 by making deletions as shown by strike through and
insertions as shown by underline as follows:
(4) “Sex offender” means any person who is, or has
been:
a. Convicted of any of the offenses
specified in §§ 765 through 780, § 787(b)(2), § 787(b)(3), §
787(b)(4), § 1100A, §§ 1108 through 1112A, § 1335(a)(6), § 1335(a)(7), §
1352(2), § 1353(2) or § 1361(b) of this title, or of any attempt or conspiracy
to commit any of the aforementioned offenses; or
Section 6. Amend § 9401(2), Title 11 by making deletions as
shown by strike through and insertions as shown by underline as follows:
§ 9401. Transition
provisions.
(2) “Crime” means an
act or omission committed by a person, whether or not competent or an adult,
which, if committed by a competent adult, is punishable by incarceration and
which violates 1 or more of the following sections of this title:
OFFENSES AGAINST THE PERSON
787 Trafficking of an Individual, Forced Labor and Sexual
Servitude
Section 7. Severability. – If any provision of this
section or its application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this section
which can be given affect without the invalid provision or application, and to
this end the provisions of this section are severable.
SYNOPSIS
Human trafficking is a global concern that affects the United States on federal, state, and local levels, and victimizes more than 27 million people worldwide. By 2012, human trafficking had become the second fastest growing criminal activity in the United States, following drug trafficking. The Uniform Law Commission, in response to a July 2010 proposal from the American Bar Association (ABA) Center for Human Rights, began its work directed against human trafficking. The Uniform Act on Prevention of and Remedies for Human Trafficking (UAPRHT) received final approval at the ULC’s Annual Meeting in July 2013 and at the ABA’s House of Delegates in August 2013. This act, like the UAPRHT, presents the three-pronged approach that law enforcement and victims’ advocates consider essential.
Under the first prong, the act seeks to prevent and to penalize the criminal conduct—trafficking, forced labor, and sexual servitude—at the core of human trafficking. The act recognizes the forms of coercion that human traffickers use, including threats, force, debt bondage, abuse of the legal process, and use of a victim’s disability/mental impairment. The bill also offers a comprehensive definition tied to the act’s provisions on forced labor and sexual servitude. Sexual servitude gives rise to an enhanced penalty when a minor is made available or maintained for the purposes of commercial sexual activity. Also included is the requirement for persons convicted to pay restitution to the victim, while the Court shall order forfeiture of real or personal property used in or derived from human trafficking activities.
Under its second prong, the act provides essential protections for human trafficking victims. Consistent with Delaware’s rape shield law, the act prohibits evidence of the alleged victim’s past sexual behavior. The bill also outlines special provisions for minors, including a diversion alternative for minors who are human trafficking victims and commit prostitution or nonviolent offenses directly resulting from being a victim, and classifies such minors as neglected or abused children under the Delaware Code. Further, all victims may seek applications for pardon and may move to vacate a conviction of and expunge charges for prostitution or other non-violent offenses that directly resulted from being a human-trafficking victim. Victims are also allowed to bring civil action against their traffickers under this bill.
Under its third prong, the act promotes partnerships in the fight against human trafficking, elevates public awareness, and fosters development of coordinated victim services. A permanent human-trafficking council is created to develop a systematic plan to assist victims, collect human trafficking data, and promote awareness. Public awareness signs and the national human trafficking hotline number are to be posted in locations where victims of human-trafficking are often found. The act ensures that human-trafficking victims have access to benefits and services. The act states that law enforcement officers shall provide visa information to persons reasonably believed to be human-trafficking victims. Finally, the act amends other related statutes as necessary to accomplish the purposes of the act. |
Author: Senator Blevins