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.