D R A F T
FOR
DISCUSSION ONLY
PREVENTION OF AND
REMEDIES FOR
HUMAN TRAFFICKING
_______________________________________________
NATIONAL
CONFERENCE OF COMMISSIONERS
ON UNIFORM
STATE LAW
_______________________________________________
For February
10-11, 2012 Drafting Committee Meeting
(Without Prefatory Note and Comments)
Copyright
2012
By
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
____________________________________________________________________________________________
The
ideas and conclusions set forth in this draft, including the proposed statutory
language and any comments or reporter’s notes, have not been passed upon by the
National Conference of Commissioners on Uniform State Laws or the Drafting
Committee. They do not necessarily
reflect the views of the Conference and its Commissioners and the Drafting
Committee and its Members and Reporter.
Proposed statutory language may not be used to ascertain the intent or
meaning of any promulgated final statutory proposal.
January 10, 2012
DRAFTING
COMMITTEE ON PREVENTION OF AND REMEDIES
FOR HUMAN
TRAFFICKING
The Committee
appointed by and representing the National Conference of Commissioners on
Uniform State Laws in preparing this Act consists of the following individuals:
MICHAEL
J. WILKINS, P.O. Box 1348, Washington, UT 84780, Chair
STEPHEN
Y. CHOW, 125 Summer St., Boston, MA 02110-1624
SUE
ANN DERR, Oklahoma House of Representatives, State Capitol Bldg., 2300 N.
Lincoln, Room 109, Oklahoma City, OK 73105
NORMAN
L. GREENE, 60 E. 42nd St., 39th Floor, New York, NY 10165-0006
H.
LANE KNEEDLER, 901 E. Byrd St., Suite 1700, Richmond, VA 23219
ESSON
McKENZIE MILLER, JR., 1503 Confederate Ave., Richmond, VA 23227
MARIA
DEL MAR ORTIZ-RIVERA, Office of Legislative Services,
Legislative Assembly de Puerto Rico, P.O. Box 6341, San Juan, PR 00902-3986
ANITA
RAMASASTRY, University of Washington School of Law, William H. Gates Hall, Box
353020, Seattle, WA 98195-3020
ROBERT
J. TENNESSEN, 2522 Thomas Ave. S, Minneapolis, MN 55405
NORA
WINKELMAN, Office of Chief Counsel, Room 620 Main Capitol, Harrisburg, PA 17120
SUSAN
DELLER ROSS, Georgetown University Law Center, 600 New Jersey Ave. NW,
Washington, DC 20001, Reporter
EX OFFICIO
MICHAEL
HOUGHTON, P.O. Box 1347, 1201 N. Market St., 18th Floor, Wilmington, DE 19899, President
STEVE
WILBORN, 306 Tower Dr., Shelbyville, KY 40065, Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
MARKUS
FUNK, 1900 16th St., Suite 1400, Denver, CO 80202-5255, ABA Advisor
EXECUTIVE DIRECTOR
JOHN A.
SEBERT, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive
Director
Copies of
this Act may be obtained from:
NATIONAL
CONFERENCE OF COMMISSIONERS
ON UNIFORM
STATE LAWS
111 N. Wabash
Ave., Suite 1010
Chicago,
Illinois 60602
312/450-6600
www.uniformlaws.org
PREVENTION OF AND REMEDIES FOR HUMAN TRAFFICKING
TABLE OF CONTENTS
SECTION 201. HUMAN
TRAFFICKING.
SECTION 202.
FORCED LABOR AND SERVITUDE.
SECTION 203. SEXUAL SERVITUDE.
SECTION 204.
SEXUAL SERVITUDE OF A MINOR.
SECTION 205. PATRONIZING A VICTIM OF SEXUAL SERVITUDE.
SECTION 207.
UNLAWFUL CONDUCT WITH RESPECT TO IDENTIFICATION DOCUMENTS.
SECTION 208.
BENEFITING FROM TRAFFICKING OFFENSES.
SECTION 209.
BUSINESS LIABILITY.
SECTION 210.
PROHIBITED DEFENSES.
SECTION 211.
VICTIM IMMUNITY AND DEFENSES.
SECTION 214.
SENTENCE ENHANCEMENTS.
SECTION 215.
STATUTE OF LIMITATIONS FOR CRIMINAL PROSECUTION.
SECTION 216. VICTIM PROTECTION.
SECTION 301.
ESTABLISHMENT OF ANTI-HUMAN TRAFFICKING [TASK FORCE, COUNCIL, OR
COORDINATOR].
SECTION 305.
VICTIM ELIGIBILITY FOR SERVICES.
SECTION 401.
UNIFORMITY OF APPLICATION AND CONSTRUCTION.
PREVENTION
OF AND REMEDIES FOR HUMAN TRAFFICKING ACT
SECTION 101. SHORT TITLE. This [act] may be cited as the Prevention of
and Remedies for Human Trafficking Act.
SECTION 102. DEFINITIONS. As used in this
act:
(1) “Abuse of a position of power or
of a position of vulnerability” means any situation in which a person takes
advantage of another’s belief that there is no real and acceptable alternative
but to submit to the will of that person.
This belief may be the result of:
(A) having
entered the country illegally or without proper documentation;
(B) pregnancy
or any physical or mental disease or disability of the person;
(C) reduced
capacity to form judgments by virtue of being a minor, illness, infirmity, or a
physical or mental disability;
(D) a
promise or the giving of payments or benefits to those having authority over a
person; or
(E) the
abuse of a position of trust.
(2) “Abuse of the law or legal
process” means the use or threatened use of a law or legal
process, whether administrative, civil, or criminal, in any manner or for any
purpose for which the law was not designed, in order to exert pressure on
another person to cause that person to take some action or refrain from taking
some action.
(3) “Benefit” means to receive
anything of value, such as money, a product, a service, or another form of
compensation.
(4) “Business entity” means a
corporation, business trust, estate, trust, partnership, limited liability
company, association, joint venture, or
any other commercial entity.
(5) “Coercion” includes:
(A) the
use or threat of force, abduction, serious harm to, or physical restraint
against any person;
(B) the
use of a scheme, plan, pattern, or fraudulent statement with intent to cause a
person to believe that failure to perform an act would result in serious harm
to or physical restraint against any person;
(C) the
abuse or threatened abuse of the law or legal process;
(D) the
abuse of a position of power or of a position of vulnerability;
(E) providing
or controlling a person’s access to a controlled substance;
(F) the
destruction of, taking of, or the threat to destroy or take another person’s
identification document as defined in Section 101(9); and
(G) the
use of another’s personal services as security for a debt if any of the
following also occurs;
(i) the value of the services as reasonably assessed is not
applied toward the liquidation of the debt;
(ii) the length and nature of those services are not respectively
limited and clearly defined;
(iii) the principal amount of the debt does not reasonably reflect
the value of the items or services for which debt was incurred; or
(iv) the person is prevented from acquiring accurate and timely
information pertinent to the disposition of the debt.
(6)
“Deception” includes:
(A) the
creation or confirmation of another’s impression of any material fact or event
which is false and which the accused knows or has reason to believe to be false,
including as to:
(i) the nature of work or services to be provided;
(ii) the conditions of work; or
(iii) the extent to which the person will be free to leave his or
her place of residence; or
(B) the
promise of benefits or performance of services, which the accused does not
intend to be delivered.
(7)
“Identification document” includes a passport, driver’s license, immigration
document, travel document, or other government identification document.
(8) “Labor or service” means work or
service of economic or financial value performed or provided.
(9) "Person" means an
individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture,
public corporation, government or governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(10) “Serious harm” means any harm,
whether physical or nonphysical, including psychological, financial, or
reputational harm, that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the same background and in the
same circumstances to perform or to continue performing labor, services, or
sexual services in order to avoid incurring that harm.
(11) “Sexual
activity” includes sexual intercourse, cunnilingus, fellatio, anal intercourse,
intrusion by any object into the genital or anal opening of another person's
body, the stimulation by hand or any other object of another's genitals or
breasts for the purpose of arousing or gratifying the sexual desire of either
person. [OR includes those acts set
forth in (citation to sections of state law defining unlawful sexual activity)]
(12)
“Sexual services” include sexual activity, erotic dancing, and participation in
the production of pornographic images.
(13) "State" means a state
of the United States, the District of Columbia, Puerto Rico, the United States
Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
(14) “Victim” means any individual
who has been subjected to any one or more of the offenses set forth in Article
2 of this act, regardless of whether a perpetrator is identified, apprehended,
prosecuted or convicted.
Comment
[Reserved]
(a) A person may
not knowingly or recklessly recruit, transport, transfer, harbor, receive,
provide, obtain, isolate, maintain, or entice an individual for the purpose of:
(1) forced labor or servitude in violation of Section 202;
(2) sexual servitude in violation of Section 203; or
(3) sexual servitude of a minor in violation of Section 204.
(b) Violation of
this section is a [felony of the 2nd degree].
Legislative Note: Some states have amended existing racketeering (RICO) statutes
to include the crime of human trafficking.
It is recommended that a state add human trafficking as a predicate
racketeering offense, if it has not already done so.
Comment
[Reserved]
(a) A person may
not knowingly or recklessly use coercion, deception, or fraud to compel an
individual to provide labor or services.
(b) Violation of
this section is a [felony of the 1st degree].
Comment
[Reserved]
(a)
A person may not, in anticipation or receipt of a benefit, knowingly or recklessly use coercion,
deception, or fraud to compel an individual 18 years or older to provide sexual
services.
(b) Violation of this section is a [felony of the [[1st
or 2st]] degree].
Comment
[Reserved]
(a)
A person may not, in anticipation or receipt of a benefit, knowingly or
recklessly offer, obtain, procure, or provide an individual less than 18 years of age to engage in sexual
services.
(b)
Violation of this section is a [felony of the 1st degree].
(c)
In a prosecution under this section, the government need not prove that the
defendant knew the victim’s age.
Reasonable mistake of age or consent of the individual less than 18
years of age shall not be a defense to liability under this section.
Comment
[Reserved]
(a) A person may not knowingly pay, agree to pay,
or offer to pay anything of value as compensation to engage in sexual activity
with an individual knowing or in reckless disregard of the fact that the
individual is a victim of sexual servitude in violation of Sections 203 or 204.
(b) A person who violates subsection (a) is
guilty of a [felony of the 3rd degree].
(c) Nothing
in this section precludes a prosecution under [state statutory rape law].
Comment
[Reserved]
(a) A person may not knowingly use another’s personal
services as security for a real or purported debt if any of the following also
occurs:
(1)
the value of the services as reasonably assessed is
not applied toward the liquidation of the debt;
(2)
the length and nature of those services are not
respectively limited and clearly defined;
(3)
the principal amount of the debt does not reasonably
reflect the value of the items or services for which the debt was incurred; or
(4)
the person is prevented from acquiring accurate and
timely information pertinent to the disposition of the debt.
(b)
A person who violates this section is guilty of a[felony
of the 2nd degree].
Comment
[Reserved]
(a)
A person may not knowingly destroy, take, possess, or so threaten, an actual or
purported identification document belonging to another person while committing,
or with intent to commit, an offense violating a section in this article.
(b)
A person may not knowingly use coercion, deception, or fraud to induce an
individual to use a false or altered identification document while committing
or with intent to commit an offense violating a section in this article.
(c)
A person may not, without lawful authority, purposely make or alter an
identification document to be used to violate a section in this article.
(d)
A person who violates this section is guilty of a[felony
of the 3rd degree].
Comment
[Reserved]
(a) A person may not knowingly benefit from another person’s violation
of Sections 201 - 207.
(b) A person who violates this section is guilty
of a[felony of the 3rd degree].
Comment
[Reserved]
(a) “Agent” means a person who is authorized to act on
behalf of a business entity.
(b) A
business entity may be prosecuted for a crime under this article if:
(1)
an agent of the business entity knowingly engages in
conduct that constitutes an offense under this article while acting within the
scope of employment and on behalf of the business entity; or
(2)
an employee of the business entity engages in conduct
that constitutes an offense under this article and the commission of the crime
constituted a pattern of illegal activity on behalf of the business entity that
an agent knew was occurring or recklessly disregarded and failed to take
effective action to stop it.
Alternative A
(c) It is an affirmative defense to liability under
subsection (b)(2) if the business entity proves [by a preponderance of the
evidence] that the business entity had in place adequate procedures designed to
prevent persons associated with the business entity from undertaking such
conduct.
Alternative B
(c) It is an
affirmative defense to liability under subsection (b)(2)
if the business entity proves [by a preponderance of the evidence] that the business
entity promulgated an anti-trafficking policy with an effective complaint
procedure.
Alternative C
(c) It is an affirmative defense to liability under
subsection (b)(2) if the business entity proves [by a
preponderance of the evidence] that the business entity exercised reasonable
care to prevent and correct promptly a violation of this article.
End of Alternatives
(d) The court may consider the severity of the
business entity’s offense and order enhanced penalties, including one or more
of the following:
(1)
a fine of not more than $1,000,000;
(2) suspension
or revocation of any license or permit;
(3) dissolution
or reorganization;
(4) disgorgement
of profit;
(5) debarment
from government contracts; or
(6) any
other equitable measure as justice so requires.
Comment
[Reserved]
SECTION 210. PROHIBITED DEFENSES. A defendant
charged with a violation of Sections 201—208 shall not use an alleged victim’s
consent as a defense where the labor, services, sexual activity, or sexual services
were procured or maintained by coercion, deception, or fraud.
Comment
[Reserved]
(a) A victim is not criminally
liable for illegal sexual activity committed as a direct result of, or incident to, being a victim.
(b) It is an affirmative defense in a prosecution
for a criminal violation
that the defendant:
(1) is
a victim, as defined in Section 101(14); and
(2) committed
the violation under a reasonable apprehension in the mind of the defendant created
by another person that if the defendant did not commit the act, that person
would inflict serious harm upon the defendant or a member of the defendant’s
family.
(c) Individuals that satisfy
subsection 211(a) and are less than [18] years of age shall be [presumed a
Child in Need of Protection to be] treated in accordance with [applicable state
juvenile program].
Comment
[Reserved]
(a)
The court shall order a person convicted of an offense under Sections 201- 207
to pay restitution to any victim including:
(1)
except as provided in subsection 2, the amount equal
to the greatest of:
(A)
the gross income or value to the defendant of the victim’s labor or services,
including sexual services, not taking into consideration any expenses the
defendant claims to have incurred as a result of maintaining the victim;
(B)
the value of the victim’s labor or services as calculated under the minimum
wage and overtime provisions of applicable state and federal law; or
(2)
if it is not possible or not in the best interest of the victim to compute any
of the values under (A) and (B), the equivalent of the value of the victim’s
labor or services if the victim had provided labor or services that were
subject to the minimum wage and overtime provisions of the Fair Labor Standards
Act or [state minimum wage and overtime provisions];
(3)
costs and expenses actually incurred by the victim as
a result of the offense for:
(A)
medical services;
(B)
therapy or psychological counseling;
(C)
temporary housing;
(D)
transportation;
(E)
childcare;
(F)
physical and occupational therapy or rehabilitation;
(G)
reasonable funeral and burial services in the case of
an offense resulting in death or in bodily injury that leads to death; and
(H)
attorneys’ fees and other legal costs; and
(4)
any other reasonable costs the victim incurred as a
result of the offense.
(b)
The absence of
the victim from the jurisdiction shall not prevent the court from ordering restitution.
Comment
[Reserved]
(a)
The court shall order a person convicted of an offense under Sections 201-207
to forfeit:
(1)
any interest in real or personal property that was used or intended to be used
to commit or to facilitate the commission of the violation; and
(2)
any interest in real or personal property constituting
or derived from any proceeds that the person obtained, directly or indirectly,
as a result of the offense.
(b)
The proceeds of a public sale or auction of the forfeited property shall be
distributed as follows:
(1)
the amount necessary to pay any court-ordered
restitution shall be applied to pay that restitution;
(2)
the amount necessary to pay any civil award won by any victim from the
defendant by the time the forfeiture occurs shall be applied to pay that civil
award;
(3)
if a remainder exists, of the remainder:
(A)
twenty percent (20%) to the state’s crime victims compensation fund ;
(B)
forty percent (40%) to providers of free or low-cost services to human
trafficking victims in the [county, parish, city, town, or municipality] where
the conviction took place;
(C)
forty percent (40%) to the law enforcement and prosecuting agencies who
obtained the conviction.
Comment
[Reserved]
SECTION 214. SENTENCE ENHANCEMENTS. Except as otherwise provided by law, in imposing a sentence for a violation of Sections 201-207 the
court may impose an enhanced penalty of:
(1)
up to 5 years where:
(A)
the victim is at least 14 and less than 18 years of
age at any point during the course of the offense, except for an offense under
Section 204;
(B)
in the course of committing the offense for which the
defendant was convicted, the defendant also committed:
(i)
assault in violation of [state law on assault]; or
(ii)
battery in violation of [state law on battery]; or
(C)
the defendant abused a position of trust to facilitate
the offense.
(2)
up to 10 years where:
(A)
the victim is less than 14 years of age at any point
during the course of the offense, except for a violation of Section 204;
(B)
the defendant knew or should have known the victim was
particularly vulnerable due to physical or mental condition or otherwise
particularly susceptible to the criminal conduct;
(C)
in the course of committing the offense for which the
defendant was convicted, the defendant also committed:
(i)
sexual assault in violation of [state law on sexual
assault]; or
(ii)
child abuse, neglect, or endangerment in violation of
[state laws on child abuse, neglect, or endangerment];
(D)
the defendant used a weapon in the commission of the
offense;
(E)
the defendant transported the victim across state or
national borders;
(F)
the defendant subjected the victim to the offense for
more than 180 days;
(G)
the defendant subjected more than two victims to the
same or similar offense;
(H)
the defendant recruited, enticed, or obtained the victim from a shelter
designed to serve victims of human trafficking, victims of domestic violence,
victims of sexual assault, runaway youths, foster children, or the homeless;
(I)
the defendant organized or directed another person to commit the offense; or
(J)
the defendant was previously convicted for the same or
a similar offense; and
(3)
ten years up to life where in the course
of committing the offense for which the defendant was convicted, the defendant
also committed:
(A)
rape or aggravated sexual assault in violation of
[state law on rape or aggravated sexual assault];
(B)
homicide in violation of [state laws on homicide];
(C)
sexual abuse of a minor in violation of [state law on
sexual abuse of a minor]; or
(D)
kidnapping or abduction in violation of [state law on
kidnapping or abduction]; and
(4)
where the defendant is convicted of attempting to
commit any of the crimes for which an enhancement should be considered under
this section, the court may impose the term of years specified for the
completed commission of the crime attempted.
Comment
[Reserved]
SECTION 215. STATUTE OF LIMITATIONS FOR CRIMINAL PROSECUTION. There shall be no statute of limitations on criminal prosecution for a violation of Sections 201 - 205.
Comment
SECTION 216. VICTIM PROTECTION. In a prosecution for a criminal violation of Article 2, the [prosecutor] shall take reasonable steps to protect the victim and the victim's family from being re-victimized.
Comment
[Reserved]
(a) Victims may bring a civil action
against a perpetrator for damages incurred as a consequence of violations of
the criminal prohibitions of this Article 2.
(b)The court may award actual
damages, general damages,
[punitive damages,] and litigation expenses and costs reasonably
incurred. The court may also award
treble damages on proof of actual damage where defendant’s acts are willful and
malicious. [The court may also award a
prevailing plaintiff attorney's fees. ]
(c) The court may stay a civil
action filed under this section during the pendency of criminal prosecution
arising out of the same acts as the civil claim.
(d) An action brought pursuant to
this section shall be commenced within ten years of the date on which the
victim was freed from the trafficking situation, or within ten years after the
victim attains 18 years of age, whichever comes later.
[Reserved]
SECTION 301. ESTABLISHMENT OF ANTI-HUMAN TRAFFICKING [TASK FORCE, COUNCIL, OR COORDINATOR]. There is established [an interagency task force on human trafficking, human trafficking council, or a human trafficking coordinator in an existing state agency].
SECTION 302. DUTIES. The [interagency task force, council, or coordinator]
shall:
(a) evaluate state efforts to
combat human trafficking;
(b)
submit an annual report of its evaluation, including any recommendations, to
the [state legislative body];
(c) collect data on human trafficking activity within
the state on an ongoing basis, including types of activities reported, efforts
to combat human trafficking, and impacts on victims and on the state.
(1) The identity of victims shall be
excluded from any collected data.
(2) Collected data in summary form
shall be included in the annual report to the [state legislative body]; and
(d)
conduct such other activities to combat human trafficking
within the state as from time to time may be [authorized by law] [appropriate].
Comment
[Reserved]
SECTION 303. TRAINING. State [and local] agencies
shall include appropriate training in recognition and prevention of human
trafficking in annual training for all state officers and employees who may
reasonably be expected to come into contact with victims or perpetrators of
human trafficking activity in the course
of their duties, Training conducted
shall include victim awareness and protection training as needed.
Comment
(a)The [interagency task force, council, or coordinator] shall
coordinate the
development, preparation, and distribution of items of information most
reasonably calculated to reach victims regarding the availability of and access
to existing services, protections and benefits available to victims.
(b) Information shall be made
available to the extent possible in languages
that victims are likely to
understand without assistance.
Comment
[Reserved]
SECTION 305. VICTIM ELIGIBILITY FOR SERVICES. A victim shall not be denied benefits and services otherwise available through the state solely due to immigration status if the victim’s immigration status is a direct consequence of human trafficking activity.
Comment
[Reserved]
SECTION 401. UNIFORMITY OF APPLICATION
AND CONSTRUCTION.
In applying and construing this uniform act, consideration must be given
to the need to promote uniformity of the law with respect to its subject matter
among states that enact it.
[SECTION 402. SEVERABILITY. If
any provision of this [act] or its application to any person or circumstance is
held invalid, the invalidity does not affect other provisions or applications
of this [act] which can be given effect without the invalid provision or
application, and to this end the provisions of this [act] are severable.]
Legislative Note: Include this section only if this state
lacks a general severability statute or a decision by the highest court of this
state stating a general rule of severability.
SECTION 403. EFFECTIVE DATE. This [act] takes effect [date].