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.