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Introduced Version House Bill 4100 History

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H. B. 4100

 

         (By Delegates Walker, Perry, Ellem, D. Poling

                        and Hamilton)


         [Introduced January 17, 2012; 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, all relating to creation of new criminal offenses for the trafficking of persons, illegal aliens and involuntary servitude; creating definitions; establishing involuntary servitude offenses; establishing offenses involving sexual servitude of a minor; establishing offenses for trafficking of persons for forced labor or services; and requiring restitution.

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:

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 by subdivision (6) of this section, or services, as defined by subdivision (10) 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) “Illegal alien” means any person who is not a citizen and who is present in the United States unlawfully or without the country's authorization, including, but not limited to, a person who has entered the country at a place other than a designated port-of-entry or as result of the expiration of a nonimmigrant visa.

    (6) "Labor" means work of economic or financial value.

    (7) "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.

    (8) "Obtain" means, in relation to labor or services, to secure performance thereof.

    (9) "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.

    (10) "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 legitimizes or legalizes prostitution.

    (11) "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.

    (12) "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 is guilty of a felony and, upon conviction thereof, 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, is guilty of a felony and, upon conviction thereof, 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 is guilty of a felony and, upon conviction thereof, 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, is guilty of a felony and, upon conviction thereof, 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, is guilty of a felony and, upon conviction thereof, 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, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility as follows:

    (1) In cases involving a minor between the ages of sixteen and eighteen years, not involving overt force or threat, for not less than five years nor 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 less than ten years nor more than twenty-five years; or

    (3) In cases in which the violation involved overt force or threat, for not less than fifteen years nor more than thirty-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, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than fifteen years.

§61-2A-5. Trafficking of illegal aliens.

    Any person who knowingly harbors or transports, by any means, or attempts to harbor or transport, by any means, an illegal alien in deliberate violation of federal immigration laws is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than fifteen years.

§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 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 article is new; therefore, it has been completely underscored.

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