HB 368-FN – AS INTRODUCED
2007 SESSION
04/01
HOUSE BILL 368-FN
AN ACT prohibiting trafficking in persons.
SPONSORS: Rep. Ulery, Hills 27; Rep. Itse, Rock 9; Rep. L. Ober, Hills 27; Rep. Renzullo, Hills 27; Rep. Crane, Hills 21
COMMITTEE: Criminal Justice and Public Safety
This bill makes trafficking in persons a criminal offense.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-0044
04/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT prohibiting trafficking in persons.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Trafficking in Persons; Sexual Servitude of a Minor. Amend RSA 633 by inserting after section 5 the following new section:
633:6 Trafficking in Persons.
I. A person is guilty of a class B felony if such person knowingly recruits, entices, harbors, transports, provides, or obtains, or so attempts, another person for the purposes of performing a commercial sex act or a sexually explicit performance, or for the performance of labor or services, or who benefits in any way from participation in any act described in this section, through use of any of the following means:
(a) Causing or threatening to cause serious bodily 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) Extortion, as defined in RSA 637:5.
(f) Deception or fraud.
(g) Peonage, as defined in RSA 633:5.
(h) Causing or threatening to cause financial harm to any person.
(i) Facilitating or controlling a victim’s access to an addictive controlled substance.
II. A person is guilty of a class A felony if such person knowingly recruits, entices, transports, provides, obtains, or harbors, or so attempts, any person under 18 years of age, through any means listed in paragraph I of this section, for the purpose of performing a commercial sex act or a sexually explicit performance, or who benefits in any way from participation in any act described in this section.
III. In any prosecution of a person who is a victim of trafficking in persons, it shall be an affirmative defense that he or she was under duress or coerced into committing the offenses for which he or she is being subject to prosecution. A victim of trafficking in persons shall not be criminally liable for any commercial sex act committed as a direct result of, or incident or related to, being trafficked.
IV. Evidence of the following facts or conditions shall not constitute a defense in a prosecution for violations of this section:
(a) A trafficking victim’s sexual history or history of commercial sexual activity.
(b) A trafficking victim’s connection by blood or marriage to a defendant in the case or to anyone involved in his or her trafficking.
(c) Consent of or permission by a trafficking victim or anyone else on the trafficking victim’s behalf to the performance of a commercial sex act or sexually explicit performance.
(d) Age of consent to sex, legal age of marriage, or other discretionary age.
(e) Mistake as to the victim’s age shall be no defense to a violation under this section, even if the mistake is reasonable.
V. A person convicted under this section shall pay restitution, attorney’s fees, and other costs to the victim.
VI. Interests in the following property, upon petition of the attorney general, shall be subject to forfeiture to the state and said property interest shall be vested in the state:
(a) All materials, products, and equipment of any kind used in violation of this section.
(b) Any property interest in any conveyance used in furtherance of an act which violates this section.
(c) Any moneys, coin, currency, negotiable instruments, securities or other investments knowingly used or intended for use in violation of this section. The claimant of the property shall bear the burden of rebutting this presumption.
(d) Any books, records, ledgers, and research material, including formulae, microfilm, tapes and any other data which are used or intended for use in felonious violation of this section.
(e) Any real property, including any right, title, leasehold interest, and other interest in the whole of any lot or tract of land and any appurtenances or improvements, which real property is knowingly used or intended for use, in any manner or part, in felonious violation of this section.
(f) The state shall have a lien on any property subject to forfeiture under this section upon seizure thereof. Upon forfeiture, the state’s title to the property relates back to the date of seizure.
(g) Property may be seized for forfeiture by any law enforcement agency designated by the department of justice, as follows:
(1) Upon process issued by any justice, associate justice or special justice of the district or superior court. The court may issue a seizure warrant on an affidavit under oath demonstrating that probable cause exists for its forfeiture or that the property has been the subject of a previous final judgment of forfeiture in the courts of any state or of the United States. The application for process and the issuance, execution and return of process shall be subject to applicable state law. The court may order that the property be seized and secured on such terms and conditions as are reasonable in the discretion of the court. Such order may include an order to a financial institution or to any fiduciary or bailee to require the entity to impound any property in its possession or control and not to release it except upon further order of the court. The order may be made on or in connection with a search warrant;
(2) Physically, without process or probable cause to believe that the property is subject to forfeiture under this section; or
(3) Constructively, without process or probable cause to believe that the property is subject to forfeiture under this section, by recording a notice of pending forfeiture in the registry of deeds in the county where the real property is located or at the town clerk’s office where the personal property is located stating that the state intends to seek forfeiture of the identified property pursuant to this section.
(4) A seizure for forfeiture without process under subparagraph VI(b) or (c) is reasonable if made under circumstances in which a warrantless seizure or arrest would be valid in accordance with state law.
(h) Upon seizure of any items or property interests the property shall not be subject to alienation, sequestration or attachment but is deemed to be in the custody of the department of justice subject only to the order of the court.
VII.(a) Upon the seizure of any personal property, the person making or directing such seizure shall inventory the items or property interests and issue a copy of the resulting report to any person or persons having a recorded interest, or claiming an equitable interest in the item within 7 days of the seizure.
(b) Upon seizure of any real property, the person making or directing such seizure shall notify any person having a recorded interest or claiming an equitable interest in the property within 7 days of the seizure.
(c) The seizing agency shall cause an appraisal to be made of the property as soon as possible and shall promptly send to the department of justice a written request for forfeiture. This request shall include a statement of all facts and circumstances supporting forfeiture of the property, including the names of all witnesses then known, and the appraised value of the property.
(d) The department of justice shall examine the facts and applicable law of the cases referred pursuant to subparagraph (c), and if it is probable that the property is subject to forfeiture, shall cause the initiation of administrative or judicial proceedings against the property. If upon inquiry and examination, the department of justice determines that such proceedings probably cannot be sustained or that the ends of justice do not require the institution of such proceedings, the department shall make a written report of such findings and send a copy to the seizing agency, and, if appropriate, shall also authorize and direct the release of the property.
(e) The department of justice shall, within 60 days of the seizure, either file a petition in the superior court having jurisdiction under this section. If no such petition is filed within 60 days, the items or property interest seized shall be released or returned to the owners.
VIII. Pending forfeiture and final disposition, the law enforcement agency making the seizure shall:
(a) Place the property under seal;
(b) Remove the property to a storage area for safekeeping;
(c) Remove the property to a place designated by the court;
(d) Request another agency to take custody of the property and remove it to an appropriate location within the state; or
(e) In the case of moneys, file a motion for transfer of evidence under RSA 595-A:6. Upon the court’s granting of the motion the moneys shall be immediately forwarded to an interest-bearing seized asset escrow account to be administered by the attorney general.
IX. The court may order forfeiture of all items or property interests under this section, except as follows:
(a) No item or property interest shall be subject to forfeiture unless the owner or owners thereof were consenting parties to a felonious violation of this section and had knowledge thereof.
(b) No items or property interests shall be subject to forfeiture unless involved in an offense which may be charged as a felony.
X.(a) The department of justice may petition the superior court in the name of the state in the nature of a proceeding in rem to order forfeiture of items or property interests subject to forfeiture under the provisions of this section. Such petition shall be filed in the court having jurisdiction over any related criminal proceedings which could be brought under this section.
(b) Such proceeding shall be deemed a civil suit in equity in which the state shall have the burden of proving all material facts by a preponderance of the evidence and in which the owners or other persons claiming an exception pursuant to paragraph III shall have the burden of proving such exception.
(c) The court shall issue orders of notice to all persons who have a recorded interest or claim an equitable interest in said items or property interests seized under this section and shall schedule a hearing on the petition to be held within 90 days of the return date on said petition.
(d) At the request of any party to the forfeiture proceeding, the court may grant a continuance until the final resolution of any criminal proceedings which were brought against a party under this section and which arose from the transaction which gave rise to the forfeiture proceeding. No asset forfeiture may be maintained against a person’s interest in property if that person has been found not guilty of the underlying felonious charge.
(e) At the hearing, the court shall hear evidence and make findings of fact and rulings of law as to whether the property is subject to forfeiture under this section. Except in the case of proceeds, upon a finding that the property is subject to forfeiture the court shall determine whether the forfeiture of the property is not excessive in relation to the underlying criminal offense. In making this determination the court shall consider whether in addition to any other pertinent considerations:
(1) There is a substantial connection between the property to be forfeited and the underlying offense;
(2) Criminal activities conducted by or through the use of the property were extensive; and
(3) The value of the property to be forfeited greatly outweighs the cost of prosecution and the harm caused by the criminal conduct.
XI. The court shall, thereupon, make a final order, from which all parties shall have a right of appeal. Final orders for forfeiture of property under this section shall be implemented by the department of justice and shall provide for disposition of the items or property interests by the state in any manner not prohibited by law, including payment of restitution to a victim of trafficking or sale at public auction. The department of justice shall pay the reasonable expenses of the forfeiture proceeding, seizure, storage, maintenance of custody, advertising, court costs and notice of sale from any money forfeited and from the proceeds of any sale or public auction of forfeited items. All outstanding recorded liens on said items or property interests seized shall be paid in full upon conclusion of the court proceedings from the proceeds of any sale or public auction of forfeited items.
2 Effective Date. This act shall take effect January 1, 2008.
LBAO
07-0044
1/17/07
HB 368-FN - FISCAL NOTE
AN ACT prohibiting trafficking in persons.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, and Department of Corrections state this bill may increase state and county expenditures by an indeterminable amount in FY 2008 and each year thereafter. This bill will have no fiscal impact on state, county, and local revenue or local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would add a new crime in RSA 633:6 for trafficking in persons. The crime would be a class B felony if the victims are adults and a class A felony if the victims are minors. Included in the penalty is payment of restitution, attorney’s fees, and other costs to the victim. Finally, most of the proposed bill deals with forfeiture of property involved in the offense. Given the complexity involved in the felony charges, the Branch considers them to be complex. The Branch estimates judicial, clerical, jury, and bailiff cost of a complex felony case at $685.97 per charge based on current salary levels. These numbers do not consider the cost of any appeals or the costs of a restitution proceeding. The forfeiture proceedings contained in this bill add another unknown to the proposed criminal offense. In some cases, there would be no property seized and no additional cost of a forfeiture proceeding, but in others there may be complex and time consuming proceedings before the Superior Court regarding seized property. The Branch is unable to determine the exact fiscal impact at this time.
The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable will, in the first instance, be handled by the public defender or contract attorney who accepts these cases on a fixed fee basis of $756.25 per felony charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $3,000 will apply. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent Defense Fund. Any charge within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $275 per case through disposition, plus $206.25 for each and every review hearing following disposition. Assigned counsel will be at the $60 per hour rate with a fee cap of $1,200. The fee cap may be waived upon motion filed with the court and approved in
LBAO
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1/17/07
advance. Any case where a defendant has been found guilty may also result in appeals to either the Superior Court or to the Supreme Court which would have a cost implication for Indigent Defense expenditures made by the State. The Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.
The Department of Justice states the proposed new criminal offenses would be prosecuted by county attorneys. Any appeal to the Supreme Court from a conviction obtained by a county attorney would be handled by the Appellate Unit of the Criminal Justice Bureau. An average appeal takes a full-time attorney two weeks to research and prepare a brief, plus an additional twelve hours to prepare and present an oral argument to the Supreme Court. The preparation of a brief requires approximately three hours of secretarial time, plus one hour of copying/binding time. Because the extent of human trafficking in New Hampshire is unknown, the Department cannot estimate the number of prosecutions that would be initiated under this statute, or the number of appeals that might be filed on a yearly basis. The bill also provides that the Attorney General would handle the forfeiture of certain real and personal property. Pursuing a forfeiture action, if actually litigated, would involve approximately fifteen hours of paralegal time plus five days of attorney time. Expenses related to the forfeiture proceedings such as advertising, notices of sale, and storage are to be paid from money forfeited and the proceeds from the sale or public auction of forfeited items. The Department cannot estimate the number of forfeitures that would likely be pursued in a given year. The Department is unable to determine the exact fiscal impact at this time.
The Department of Corrections states they are unable to determine the fiscal impact at this time since the number of individuals violating the provisions of this bill cannot be predicted. The average annual cost of incarcerating an individual in the general prison population was $31,140 for FY 2006. The cost to supervise an offender by the Department’s Division of Field Services was $1,174 for FY 2006.