Revision: Jan. 20, 2009, midnight
HB 474-FN – AS INTRODUCED
2009 SESSION
04/10
HOUSE BILL 474-FN
AN ACT prohibiting the trafficking in persons for the purposes of sexual or labor exploitation.
SPONSORS: Rep. S. Harvey, Hills 21; Rep. Pantelakos, Rock 16; Rep. Weare, Rock 14; Rep. Ulery, Hills 27; Rep. Gile, Merr 10; Sen. Hassan, Dist 23; Sen. Gallus, Dist 1; Sen. Odell, Dist 8; Sen. Gilmour, Dist 12; Sen. Downing, Dist 22
COMMITTEE: Criminal Justice and Public Safety
This bill prohibits trafficking in persons and makes such offenses involving a person under 18 years of age subject to an extended term of imprisonment.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0212
04/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT prohibiting the trafficking in persons for the purposes of sexual or labor exploitation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Interference With Freedom; Trafficking in Persons. Amend RSA 633 by inserting after section 5 the following new subdivision:
Trafficking in Persons
633:6 Definitions. In this subdivision:
I. “Commercial sex act” means any sex act because of which anything of value is given, promised to, or received, directly or indirectly, by any person.
II. “Sex act” means any touching of the sexual or other intimate parts of any person for the purpose of gratifying sexual desire of any person. It includes touching of the person as well as touching by the person, whether directly or through clothing.
III. “Sexually-explicit performance” means an act or show, intended to arouse, satisfy the sexual desires of, or appeal to the prurient interests of patrons or viewers, whether public or private, live, photographed, recorded, or videotaped.
IV. “Serious harm” includes physical and non-physical harm. It can be any improper threat of a consequence sufficient under the circumstances to compel or coerce a reasonable person in the same situation to provide or continue to provide labor, services, or to engage in commercial sex acts or sexually explicit performances.
V. “Victim of trafficking in persons” or “trafficking victim” means any person, whether a United States citizen or foreign national, who has been subjected to the crime of trafficking in persons, sexual servitude of a minor, or involuntary servitude.
633:7 Trafficking in Persons.
I. A person is guilty of a class A felony if such person solicits, 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 harm to any person.
(b) Physically restraining or threatening to physically restrain another person as defined in RSA 633:2.
(c) Abusing or threatening to abuse the law or legal process.
(d) Purposely 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.
(j) Using any scheme, plan, or pattern, whether overt or subtle, intended to cause any person to believe that, if the person did not perform such labor, services, commercial sex acts, or sexually explicit performances, that such person or any person would suffer serious harm or physical restraint.
II. A person is guilty of a class A felony if such person solicits, harbors, transports, provides, or obtains, or so attempts, any person under 18 years of age, for the purpose 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. No proof of the means listed in paragraph I(a)-(j) shall be required when a person under 18 years of age is involved for the purpose of performing a commercial sex act or a sexually explicit performance.
III. In the 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 prosecuted. Pursuant to RSA 626:6, 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 personal 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 with the defendant’s 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, even if the mistake is reasonable.
633:8 Forfeiture of Items Used in Connection with Trafficking in Persons.
I. All offenses under this section shall qualify as offenses for forfeiture and thereby 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.
II. 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.
III. Property may be seized for forfeiture by any law enforcement agency designated by the department of justice, as follows:
(a) 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;
(b) Physically, without process or probable cause to believe that the property is subject to forfeiture under this section; or
(c) 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.
(d) A seizure for forfeiture without process under subparagraphs (b) or (c) shall be reasonable if made under circumstances in which a warrantless seizure or arrest would be valid in accordance with state law.
IV. 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.
V. 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.
VI. 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.
VII. 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.
VIII. The department of justice shall examine the facts and applicable law of the cases referred pursuant to paragraph VII, 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.
IX. 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.
X. 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 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.
XI. 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.
XII. 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. 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 RSA 633:7, III shall have the burden of proving such exception.
XIII. 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.
XIV. 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.
XV. 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:
(a) There is a substantial connection between the property to be forfeited and the underlying offense;
(b) Criminal activities conducted by or through the use of the property were extensive; and
(c) The value of the property to be forfeited greatly outweighs the cost of prosecution and the harm caused by the criminal conduct.
XVI. 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.
XVII. Overseas assets of persons convicted of trafficking in persons shall also be subject to forfeiture to the extent they can be retrieved by the government.
XVIII. Any assets seized shall first be used to pay restitution as defined in RSA 651:61-a through RSA 651:67 to trafficking victims and subsequently to pay any damages awarded to victims in a civil action. Any remaining assets shall go to the victims’ assistance fund as defined in RSA 21-M:8-i.
633:9 Restitution.
I. A person convicted under this section shall pay restitution and other costs to the victim.
II. Restitution under this section shall include items covered by RSA 651:61-a through RSA 651:67 and may include but is not limited to:
(a) Costs of medical and psychological treatment, including physical and occupational therapy and rehabilitation, at the court’s discretion;
(b) Costs of necessary transportation, temporary housing, and child care, at the court’s discretion;
(c) Return of property, cost of damage to property, or full value of property if destroyed or damaged beyond repair;
(d) Expenses incurred by a victim and any household members or other family members in relocating away from the defendant or his associates, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items; and
(e) Any and all other losses suffered by the victim as a result of violations of this article.
III. Restitution shall be paid to the victim promptly upon the conviction of the defendant, with the proceeds from property forfeited under RSA 633:8 applied first to payment of restitution. The return of the victim to her or his home country or other absence of the victim from the jurisdiction shall not prevent the victim from receiving restitution.
IV. Nonpayment or delay in payment of restitution shall be governed by RSA 651:67.
2 New Subparagraph; Extended Term of Imprisonment; Trafficking in Persons. Amend RSA 651:6, I by inserting after subparagraph (q) the following new subparagraph:
(r) Has committed or attempted to commit trafficking in persons as defined in RSA 633:7 where the victim was under 18 years of age.
3 Effective Date. This act shall take effect January 1, 2010.
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01/16/09
HB 474-FN - FISCAL NOTE
AN ACT prohibiting the trafficking in persons for the purposes of sexual or labor exploitation.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Justice, the Department of Corrections, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. The Department of Justice states this bill may increase state restricted revenue by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill prohibits the trafficking in persons for purposes of sexual or labor exploitation and makes such offenses involving a person under 18 years of age subject to an extended term of imprisonment. The bill also addresses forfeiture of property and potential for order of restitution costs. The Branch states the class A felony charge proposed in this bill would be treated as a routine felony charge. The Branch states the cost of a routine felony case is $335.98 in FY 2010 and each year thereafter. The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures. However, if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000. The Branch has no information to determine how many forfeiture proceedings would go before the superior court to determine a fiscal impact. The addition of a potential order for restitution costs does not add cases but may increase expenditures. Lastly, extended terms of imprisonment do not add cases but can lead to more and longer trials because of the greater penalties at stake. The Branch states the cost of a jury trial day in the superior court, where most of the extended term of imprisonment charges would be heard, is $1,662 in FY 2010 and each year thereafter.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney
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is used, the fee is $60 per hour with a cap of $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states the criminal offense created by the bill could be prosecuted by a local prosecutor or county attorney’s office. If an appeal is filed, the Department would have increased expenditures. The Department is unable to estimate how many cases would be prosecuted by the Department or appealed to the Supreme Court. The bill also provides that the Department would handle the forfeiture of certain real and personal property. Expenses related to the forfeiture proceedings are to be paid from money forfeited and the proceeds from the sale or public auction of forfeited items. After all reasonable expenses are paid and restitution and civil damage awards are made, any remaining proceeds from the forfeiture would be deposited into the victim’s assistance fund. The Department cannot estimate the number of forfeitures that would likely be pursued in a given year or how much would be deposited into the victim’s assistance fund.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2008 was $32,753. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2008 was $779. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be impacted.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.