H. B. 4302
(By Delegates Brown, Hatfield, Webster, Hunt,
Long, Poling, Perdue, Morgan and Mahan)
[Introduced January 31, 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 section, designated §61-2-31, relating to
human trafficking and involuntary servitude and providing
criminal penalties for persons convicted of human trafficking
and involuntary servitude offenses.
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 section, designated §61-2-31, to read as
follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-31. Human trafficking and involuntary servitude; penalties.
(a) In this section the following words have the meaning
listed:
(1) "Blackmail" is a threat to reveal substantially true
information about a person to the public, a family member, or
associates unless a demand made upon the victim is met 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, criminal
violation of the usury provisions of this code, or employment
contracts that violate the "Statute of Frauds".
(4) "Forced labor or services" means labor, as defined in
subdivision (5) of this section, or services, as defined in
subdivision (8) 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 the type of work or
service.
(7) "Obtain" means, in relation to labor or services, to
secure performance thereof.
(8) "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 section should be construed to
legitimize or legalize prostitution.
(9) "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.
(10) "Trafficking victim" means a person subjected to
involuntary servitude, sexual servitude of a minor or any person
transported in violation of subsections (b), (c) and (d) of this
section.
(b) Any person who knowingly subjects, or attempts to subject,
another person to forced labor or services involving the following
activities is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a correctional facility as follows:
(1) By causing or threatening to cause physical harm to any
person, not more than twenty years;
(2) By physically restraining or threatening to physically
restrain another person, not more than fifteen years;
(3) By abusing or threatening to abuse the law or legal process, not more than ten years;
(4) 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, not more
than five years;
(5) By using blackmail, financial control over or using or
threatening to cause financial harm to any person, not more than
three years.
(c) 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 pornography, or causes or
attempts to cause a minor to engage in commercial sexual activity,
sexually-explicit performance, or the production of pornography,
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in a correctional facility as follows:
(1) In cases involving a minor under eighteen years of age,
not involving overt force or threat, for not more than fifteen
years;
(2) In cases in which the violation involved overt force or
threat, for not more than twenty-five years.
(d) 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 the
provisions of subsection (b) or (c) of this section is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a
correctional facility subject to the provisions of subsection (e)
below for not more than fifteen years.
(e) Sentences may be enhanced as follows:
(1) If the violation of this section involves kidnaping or an
attempt to kidnap, aggravated sexual abuse or the attempt to commit
aggravated sexual abuse, or an attempt to kill, the defendant shall
be imprisoned for any term of years or life, or if death results,
may be sentenced to any term of years or life without parole.
(2) If, pursuant to a violation of this section, a victim
suffered bodily injury, the sentence may be enhanced as follows:
(A) Bodily injury, an additional ten years of imprisonment; (B)
serious bodily injury, an additional twenty years of imprisonment;
(C) permanent or life-threatening bodily injury, an additional
twenty-five years of imprisonment; or (D) if death results,
defendant shall be sentenced to life without the possibility of
parole.
(f) In determining sentences, 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 six months and one year, and increased penalties for cases
in which the victim was held for more than one year and 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.
(g) Restitution is mandatory under this section. 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 minimum
wage and overtime provisions of the Fair Labor Standards Act
(FLSA).
(h) The Attorney General, in consultation with the Secretary
of Health and Human Resources shall, no later than one year from
the effective date of this section issue a report outlining how
existing laws and regulations in this state address victims of
trafficking and making recommendations for improvement and
modification.
(i) The Secretary of the Department of Health and Human
Resources, in consultation with the Attorney General shall, no
later than one year from the effective date of this section issue
a report outlining how existing social service programs address
victims of trafficking and the interplay of such existing programs
with federally-funded victim service programs, and suggesting areas
of improvement and modification.
NOTE: The purpose of this bill is to
establish the crimes of human trafficking and involuntary servitude and to provide criminal
penalties for persons convicted of human trafficking and
involuntary servitude offenses.
This section is new; therefore, strike-throughs and
underscoring have been omitted.