2012 -- S 2643

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LC01111

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO CRIMINAL OFFENSES

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: March 01, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 11-34.1 of the General Laws entitled "Commercial Sexual

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Activity" is hereby amended by adding thereto the following section:

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     11-34.1-15. Forfeiture. – Any proceeds derived directly from a violation of this chapter

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are subject to seizure and forfeiture and further proceedings shall be had for their forfeiture as is

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prescribed by law in chapter 21 of title 12 (“Recovery of Fines, Penalties, and Forfeitures”).

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     SECTION 2. Section 11-34.1-2 of the General Laws in Chapter 11-34.1 entitled

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"Commercial Sexual Activity" is hereby amended to read as follows:

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     11-34.1-2. Prostitution. -- (a) A person is guilty of prostitution when such person

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engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

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Any person found guilty under this section shall be deemed guilty of a misdemeanor and shall be

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subject to imprisonment for a term not exceeding six (6) months, or to a fine of not less than two

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hundred fifty dollars ($250) nor more than one thousand dollars ($1,000), or both.

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      (b) Any person found guilty of a subsequent offense under this section shall be subject to

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imprisonment for a term of not more than one year, or a fine of not less than five hundred dollars

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($500) nor more than one thousand dollars ($1,000), or both.

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      (c) Any proceeds derived directly from a violation of this section are subject to seizure

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and forfeiture and further proceedings shall be had for their forfeiture as is prescribed by law in

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chapter 21 of title 12.

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      (d)(c) In any prosecution for a violation under this section it shall be an affirmative

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defense if the accused was forced to commit a commercial sexual activity by:

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      (1) Being threatened or, subjected to physical harm;

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      (2) Being physically restrained or threatened to be physically restrained;

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      (3) Being subject to threats of abuse of law or legal process;

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      (4) Being subject to destruction, concealment, removal or confiscation, of any passport

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or other immigration document, or any other actual or purported governmental identification

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document; or

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      (5) Being subject to intimidation in which the accused's physical well being was

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perceived as threatened.

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     SECTION 3. Section 21-28-5.04 of the General Laws in Chapter 21-28 entitled "Uniform

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Controlled Substances Act" is hereby amended to read as follows:

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     21-28-5.04. Forfeiture of property and money. -- (a) Any property, real or personal,

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including, but not limited to, vessels, vehicles, or aircraft, and money or negotiable instruments,

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securities, or other things of value or any property constituting, or derived from any proceeds,

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furnished or intended to be furnished by any person for the transportation of or in exchange for a

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controlled substance and which has been or is being used in violation of section 21-28-4.01(a) or

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(b) or in, upon or by means of which any violation of section 21-28-4.01(a) or (b) or section 21-

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28-4.01.1 or 21-28-4.01.2 or 21-28-4.08 has taken or is taking place, and all real property

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including any right, title, and interest in the whole of any lot or tract of land and any

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appurtenances or improvements which is used in the commission of a violation of section 21-28-

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4.01(a) or (b) or section 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, or which was purchased

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with funds obtained as a result of the commission of a violation of section 21-28-4.01(a) or (b) or

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section 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, shall be seized and forfeited; provided that

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no property or money, as enumerated in this subsection, used by any person shall be forfeited

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under the provisions of this chapter unless it shall appear that the owner of the property or money

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had knowledge, actual or constructive, and was a consenting party to the alleged illegal act. All

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moneys, coin and currency, found in close proximity to forfeitable controlled substances, to

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forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the

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importation, manufacture, or distribution of controlled substances, are presumed to be unlawfully

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furnished in exchange for a controlled substance or used in violation of this chapter. The burden

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of proof is upon claimants of the property to rebut this presumption.

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      (b) Property taken or detained under this section shall not be repleviable, but shall be

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deemed to be in the custody of the law enforcement agency making the seizure and whenever

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property or money is forfeited under this chapter it shall be utilized as follows:

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      (1) Where the seized property is a vessel, vehicle, aircraft, or other personal property it

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may be retained and used by the law enforcement agency that seized the property where the use

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of the property is reasonably related to the law enforcement duties of the seizing agency. If the

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seized property is a motor vehicle that is inappropriate for use by the law enforcement agency due

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to style, size, or color, the seizing agency shall be allowed to apply the proceeds of sale or the

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trade in value of the vehicle towards the purchase of an appropriate vehicle for use for activities

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reasonably related to law enforcement duties.

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      (2) The law enforcement agency may sell any forfeited property, which is not required

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by this chapter to be destroyed and which is not harmful to the public. The proceeds from the sale

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are to be distributed in accordance with subdivision (3) of this subsection.

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      (3) As to the proceeds from the sale of seized property as referred to in subdivision (2) of

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this subsection and as to moneys, coin and currency, negotiable instruments, securities, or other

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things of value as referred to in subsection (a) of this section, the distribution shall be as follows:

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      (i) (A) All proceeds of the forfeiture of real or personal property shall be distributed as

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follows: All costs of advertising administrative forfeitures shall first be deducted from the amount

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forfeited. Of the remainder, twenty percent (20%) of the proceeds shall be provided to the

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attorney general's department to be used for further drug-related law enforcement activities

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including, but not limited to, investigations, prosecutions and the administration of this chapter;

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seventy percent (70%) of the proceeds shall be divided among the state and local law

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enforcement agencies proportionately based upon their contribution to the investigation of the

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criminal activity related to the asset being forfeited; and ten percent (10%) of the proceeds shall

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be provided to the department of health for distribution to substance abuse treatment programs.

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      (B) The law enforcement agencies involved in the investigation with the assistance of the

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attorney general shall by agreement determine the respective proportionate share to be received

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by each agency. If the agencies are unable to reach agreement, application shall be made by one

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or more of the agencies involved to the presiding justice of the superior court, who shall

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determine the respective proportionate share attributable to each law enforcement agency. The

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proceeds from all forfeitures shall be held by the general treasurer in a separate account until such

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time as an allocation is determined by agreement of the agencies or by the presiding justice. It

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shall be the duty and responsibility of the general treasurer to disburse the allocated funds from

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the separate account to the respective law enforcement agencies.

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      (ii) Each state or local law enforcement agency shall be entitled to keep the forfeited

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money or the proceeds from sales of forfeited property. The funds shall be used for law

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enforcement purposes and investigations of violations of this chapter. The funds received by a

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state law enforcement agency shall be maintained in a separate account by the general treasurer.

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The funds received by a local law enforcement agency shall be maintained in a separate account

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by the local agency's city or town treasurer.

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      (c) (1) There is established in the state's treasury a special fund to be known as the asset

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forfeiture fund in which shall be deposited the excess proceeds of forfeitures arising out of

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criminal acts occurring before July 1, 1987. The asset forfeiture fund shall be used to fund drug-

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related law enforcement activity and the treatment and rehabilitation of victims of drug abuse.

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The fund shall be administered through the office of the general treasurer. The presiding justice of

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the superior court shall have the authority to determine the feasibility and amount of disbursement

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to those state or local law enforcement agencies which have made application.

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      (2) Upon the application of any law enforcement agency of the state of Rhode Island

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when a special need exists concerning the enforcement of the provisions of this chapter, the

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attorney general or his or her designee may apply to the presiding justice of the superior court for

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the release from the general treasury of sums of money. When the presiding justice upon

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consideration of the reasons set forth by that agency deems them to be reasonable and necessary

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to the accomplishment of a goal within the powers and duties of that law enforcement agency, he

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or she may issue an order ex parte providing for the release of the funds.

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      (d) Each law enforcement agency making any seizure(s) which result(s) in a forfeiture

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pursuant to this section shall certify and file with the state treasurer between January 1 and

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January 30 an annual report detailing the property or money forfeited during the previous

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calendar year and the use or disposition of the property or money. The report shall be made in the

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form and manner as may be provided or specified by the treasurer and these annual law

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enforcement agency reports shall be provided to the local governmental body governing the

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agency and to the house and senate judiciary committees.

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      (e) Any law enforcement agency whose duty it is to enforce the laws of this state relating

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to controlled substances is empowered to authorize designated officers or agents to carry out the

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seizure provisions of this chapter. It shall be the duty of any officer or agent authorized or

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designated or authorized by law, whenever he or she shall discover any property or monies which

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have been or are being used in violation of any of the provisions of this chapter, or in, upon or by

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means of which any violation of this chapter has taken or is taking place, to seize the property or

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monies and to place it in the custody of the person as may be authorized or designated for that

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purpose by the respective law enforcement agency pursuant to those provisions.

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      (f) For purposes of this section and section 30-14-2 only, the Rhode Island national

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guard shall be deemed a law enforcement agency eligible to participate in the forfeiture of money

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and assets seized through counterdrug operations in which members of the guard support federal,

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state or municipal efforts.

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     SECTION 4. This act shall take effect upon passage.

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LC01111

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL OFFENSES

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     This act would provide that any proceeds derived from criminal commercial sexual

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activity, including, but not limited to, prostitution, would be subject to seizure and forfeiture. The

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act would also provide for the forfeiture of property and proceeds pertaining to the crime of

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conspiracy.

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     This act would take effect upon passage.

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LC01111

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