SB734 (2020) Detail

Relative to exemptions from prosecution for victims of human trafficking.


SB 734-FN - AS INTRODUCED

 

 

2020 SESSION

20-2747

04/03

 

SENATE BILL 734-FN

 

AN ACT relative to exemptions from prosecution for victims of human trafficking.

 

SPONSORS: Sen. Ward, Dist 8; Sen. Fuller Clark, Dist 21; Sen. Starr, Dist 1; Sen. Carson, Dist 14; Sen. Morgan, Dist 23; Sen. Watters, Dist 4; Sen. Gray, Dist 6; Sen. Rosenwald, Dist 13; Sen. French, Dist 7; Sen. Hennessey, Dist 5; Sen. Giuda, Dist 2; Sen. Birdsell, Dist 19; Sen. Kahn, Dist 10; Sen. Bradley, Dist 3; Sen. Chandley, Dist 11; Rep. B. Griffin, Hills. 6; Rep. Cushing, Rock. 21; Rep. Klein-Knight, Hills. 11; Rep. Potucek, Rock. 6

 

COMMITTEE: Judiciary

 

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ANALYSIS

 

This bill exempts victims of human trafficking from prosecution for certain criminal offenses and establishes procedures for vacating a conviction, adjudication of delinquency, or diversion agreement resulting from human trafficking.

 

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

20-2747

04/03

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty

 

AN ACT relative to exemptions from prosecution for victims of human trafficking.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  New Paragraph; Trafficking in Persons; Definitions.  Amend RSA 633:6 by inserting after paragraph VI the following new paragraph:

VII.  “Victim of human trafficking” means:

(a)  An individual who, at any point in time, was the victim of a trafficking in persons offense under RSA 633:7, I-III, whether or not the offense was prosecuted; or

(b)  An individual who at any point in time was the victim of a severe form of trafficking in persons offense under 22 U.S.C. section 7102(11)(A), whether or not the offense was prosecuted.

2  Trafficking in Persons.  RSA 633:7, VI is repealed and reenacted to read as follows:

VI.  No victim of human trafficking shall be prosecuted for any offense, where the otherwise chargeable conduct was committed as a result of being trafficked.  Offenses include, but are not limited to:

(a)  Conduct chargeable as indecent exposure and lewdness under RSA 645:1;

(b)  Conduct chargeable as prostitution under RSA 645:2;

(c)  Conduct chargeable as trafficking in persons under paragraphs I-III of this section; or

(d)  Conduct chargeable as attempt, conspiracy, criminal solicitation, being an accessory to, or aiding and abetting any of the offenses listed in this subparagraph.

VII.  A victim of human trafficking who was under 18 years of age at the time of the offense shall not be subject to juvenile delinquency proceedings under RSA 169-B for any otherwise chargeable offense, including but not limited to the offenses listed under paragraph VI, where the conduct was committed as a result of being trafficked.

VIII.(a)  This paragraph shall apply to:

(1)  An individual convicted for an offense which was committed as a result of being trafficked;

(2)  An individual who was under 18 years of age at the time of the offense, who was adjudicated as delinquent for an offense which was committed as a result of being trafficked; or

(3)  An individual who entered into a diversion agreement in lieu of further criminal proceedings for an offense which was committed as a result of being trafficked.  

(b)  A victim of human trafficking who was subject to a criminal penalty may, at any time, file a motion with the circuit court, district division or superior court to vacate a conviction, adjudication of delinquency, or diversion agreement, and the related court records and arrest records, for any offense, including but not limited to the offenses listed in paragraph VI.  A copy of the motion to vacate shall be provided to the agency that prosecuted the offense.

(c)  After a hearing, the court shall grant the motion to vacate the conviction, adjudication of delinquency, or diversion agreement upon a finding by a preponderance of the evidence that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was the result of being trafficked.  A finding by the court that the petitioner was a victim of human trafficking at the time of the offense shall be prima facie evidence that the petitioner’s participation in the offense was a result of being trafficked.

(d)  The petitioner shall not be required to provide any official documentation indicating that he or she was a victim of human trafficking at the time of the offense.  However, if such documentation is provided, it shall be prima facie evidence that the petitioner’s participation in the offense was a result of being trafficked  In this subparagraph, “official documentation” means:

(1)  A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a federal immigration proceeding, that shows the petitioner was a victim of human trafficking; or

(2)  An affidavit or sworn testimony from a member of the clergy, a medical professional, a trained professional staff member of a victim services organization, or other professional from whom the petitioner has sought legal counsel or other assistance in addressing the trauma and other challenges associated with being a victim of human trafficking.

(e)  In determining whether the petitioner was a victim of human trafficking at the time of the offense, the court may consider any other evidence the court finds is of sufficient credibility and probative value.  Such evidence may include, but is not limited to:

(1)  The affidavit or sworn testimony of the petitioner;

(2)  Branding or other tattoos on the body of the petitioner that identify the petitioner as having or having had a trafficker;

(3)  Photographic evidence of branding or other tattoos on the body of the petitioner that identify the petitioner as having or having had a trafficker;

(4)  Affidavits or sworn testimony of police, police interview notes, or police reports;

(5)  Affidavits or sworn testimony from any person with firsthand knowledge of the petitioner’s involvement in the trafficking or any person who indicates that he or she was trafficked or exploited by the same individual or group of individuals who trafficked the petitioner;

(6)  Financial records showing revenues or expenses from the trafficking;

(7)  Internet listings, print advertisements, or business cards used to promote the petitioner for services; or

(8)  Email, text messages, or voicemail records between the petitioner, the trafficker, or solicitors of sex that reveal aspects of the trafficking, such as examples of the trafficker exerting control over the petitioner, evidence of behavior patterns of the trafficker or the petitioner, or discussion of meeting times or payments.

(f)  Upon request of the petitioner and in lieu of the personal appearance of the petitioner in the courtroom, a hearing shall be conducted on camera, by 2-way electronic audio-video communication, between the petitioner, the judge, and any others present in the courtroom for the hearing,  If the petitioner is represented by counsel and upon request of the petitioner, the petitioner’s personal appearance shall be waived and counsel for petitioner shall be permitted to appear on the petitioner’s behalf.

IX.  Upon request of the petitioner, the court shall not disclose or open to public inspection any information identifying the petitioner, including any records of the motion hearing which could provide circumstantial details that may identify the petitioner.  Information regarding the petitioner that is sealed pursuant to this paragraph shall be disclosed only to the following:

(a)  The judge of the circuit court, district division or superior court and members of the staff of the court as designated by the judge;

(b)  Parties to the proceedings and their attorneys;

(c)  With the consent of the petitioner, any individual or public or private agency or institution providing educational, medical, or mental health services to the petitioner;

(d)  When necessary for the discharge of official duties, law enforcement officers, prosecutors, or law enforcement or prosecution staff; or

(e)  When authorized by court order, any other person, subject to any conditions imposed by the order, consistent with the petitioner’s safety and privacy interests.

X.(a)  An order vacating a conviction, adjudication of delinquency, or diversion agreement shall:

(1)  Nullify the conviction, delinquency adjudication, or diversion agreement;

(2)  Vacate the conviction, delinquency adjudication, or diversion agreement due to a substantive defect in the underlying criminal proceedings;

(3)  Remove all civil disabilities and disqualifications imposed as a result of the conviction, delinquency adjudication, or diversion agreement; and

(4)  Place the petitioner in the position of never having been investigated, arrested, convicted, deemed delinquent, or diverted for the offense.

(b)  Upon a finding that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was a result of being trafficked and an entry of an order vacating the conviction, delinquency adjudication, or diversion agreement, the court shall:

(1)  Order the conviction, delinquency adjudication, or diversion agreement and any related court records and arrest records expunged and purged from all applicable state and federal systems.  The court shall enter this order regardless of whether the petitioner had any criminal record prior or subsequent to the conviction, delinquency adjudication, or diversion agreement being vacated.

(2)  Order the division of state police to purge the conviction, delinquency adjudication, or diversion agreement, and any related court records or arrest records from the criminal history record information repository and all applicable state and federal databases.  The clerk of the court shall send a certified copy of the order to the division of state police, which shall carry out the order and shall notify the following of the court’s order: the Federal Bureau of Investigation, the New Hampshire department of corrections, and any other criminal justice agency that may have a record of the conviction, adjudication of delinquency, or diversion agreement and related court records or arrest records.

(c)  Upon a finding that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was a direct result of being trafficked and an entry of an order vacating the conviction, delinquency adjudication, or diversion agreement, the court may, in its discretion, grant other relief to the petitioning victim in the interests of justice.

(d)  Vacating a conviction, delinquency adjudication, or diversion agreement shall not affect any right of the person whose offense was vacated to appeal the conviction or sentence.

3  Effective Date.  This act shall take effect upon its passage.

 

LBAO

20-2747

1/9/20

 

SB 734-FN- FISCAL NOTE

AS INTRODUCED

 

AN ACT relative to exemptions from prosecution for victims of human trafficking.

 

FISCAL IMPACT:

The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill, as introduced, as it is awaiting information from the Judicial Branch and Judicial Council, who were originally contacted on November 18, 2019 for a fiscal note worksheet, which they have not provided as of January 9, 2020.  When completed, the fiscal note will be forwarded to the Senate Clerk's Office.

 

AGENCIES CONTACTED:

Judicial Branch and Judicial Council

 

Links

SB734 at GenCourtMobile
SB734 Discussion

Action Dates

Date Body Type
Feb. 4, 2020 Senate Hearing
March 12, 2020 Senate Floor Vote
March 11, 2020 Senate Floor Vote

Bill Text Revisions

SB734 Revision: 8058 Date: Jan. 16, 2020, 1:03 p.m.

Docket

Date Status
Jan. 8, 2020 Introduced 01/08/2020 and Referred to Judiciary; SJ 2
Feb. 4, 2020 Hearing: 02/04/2020, Room 100, SH, 09:20 am; SC 5
March 12, 2020 Committee Report: Ought to Pass, 03/12/2020; Vote 5-0; CC; SC 10
March 11, 2020 Committee Report: Ought to Pass, 03/11/2020; Vote 5-0; CC; SC 10
March 11, 2020 Ought to Pass: MA, VV; OT3rdg; 03/11/2020; SJ 6