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Introduced Version House Bill 2814 History

OTHER VERSIONS  -  Enrolled Version - Final Version  |  hb2814 ENR 2ND  |    pdf  |  Email


hb2814 intr
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.
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