2016 -- S 2407

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LC004876

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

AN ACT RELATING CRIMINAL OFFENSES - UNIFORM ACT ON PREVENTION OF AND

REMEDIES FOR HUMAN TRAFFICKING

     

     Introduced By: Senators Morgan, Kettle, Gee, Lombardi, and Goodwin

     Date Introduced: February 11, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 11 of the General Laws entitled "CRIMINAL OFFENSES" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 67.1

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UNIFORM ACT ON PREVENTION OF AND REMEDIES FOR HUMAN TRAFFICKING

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     11-67.1-1. Short title. – This chapter shall be known and cited as the "Uniform Act on

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Prevention of and Remedies for Human Trafficking".

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     11-67.1-2. Definitions. -- (a) For purposes of this chapter:

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     (1) "Adult" means an individual eighteen (18) years of age or older.

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     (2) "Coercion" means:

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     (i) The use or threat of force against, abduction of, serious harm to, or physical restraint

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of, an individual;

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     (ii) The use of a plan, pattern, or statement with intent to cause an individual to believe

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that failure to perform an act will result in the use of force against, abduction of, serious harm to,

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or physical restraint of, an individual;

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      (iii) The abuse or threatened abuse of law or legal process;

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      (iv) Controlling or threatening to control an individual's access to a controlled substance

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as defined in §21-28-1.02.

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     (v) The destruction or taking of or the threatened destruction or taking of an individual's

 

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identification document or other property;

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      (vi) The use of debt bondage;

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      (vii) The use of an individual's physical or mental impairment when the impairment has

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a substantial adverse effect on the individual's cognitive or volitional function; or

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      (viii) The commission of civil or criminal fraud.

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     (3) "Commercial sexual activity" means sexual activity for which anything of value is

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given to, promised to, or received, by a person.

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     (4) "Debt bondage" means inducing an individual to provide:

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     (i) Commercial sexual activity in payment toward or satisfaction of a real or purported

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debt; or

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     (ii) Labor or services in payment toward or satisfaction of a real or purported debt if:

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     (A) The reasonable value of the labor or services is not applied toward the liquidation of

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the debt; or

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     (B) The length of the labor or services is not limited and the nature of the labor or

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services is not defined.

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     (5) "Human trafficking" means the commission of an offense created by §§11-67.1-3

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through 11-67.1-7.

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     (6) "Identification document" means a passport, driver's license, immigration document,

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travel document, or other government-issued identification document, including a document

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issued by a foreign government.

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     (7) "Labor or services" means activity having economic value.

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     (8) "Minor" means an individual less than eighteen (18) years of age.

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     (9) "Person" means an individual, estate, business or nonprofit entity, or other legal

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entity. The term does not include a public corporation or government or governmental

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subdivision, agency, or instrumentality.

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     (10) "Serious harm" means harm, whether physical or nonphysical, including

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psychological, economic, or reputational, to an individual which would compel a reasonable

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individual of the same background and in the same circumstances to perform or continue to

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perform labor or services or sexual activity to avoid incurring the harm.

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     (11) "Sexual activity" means sexual intercourse, cunnilingus, fellatio, anal intercourse or

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the intentional touching of the victim's or accused's intimate body parts, clothed or unclothed, if

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the touching is for the purpose of sexual arousal, gratification or assault. The term includes a

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sexually-explicit performance.

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     (12) "State" means a state of the United States, the District of Columbia, Puerto Rico, the

 

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United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of

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the United States. The term includes an Indian tribe or band recognized by federal law or

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formally acknowledged by a state.

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     (B) "Victim" means an individual who is subjected to human trafficking or to conduct

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that would have constituted human trafficking had this chapter been in effect when the conduct

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occurred, regardless of whether a perpetrator is identified, apprehended, prosecuted, or convicted.

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     11-67.1-3. Trafficking an individual. -- (a) A person commits the offense of trafficking

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an individual if the person knowingly recruits, transports, transfers, harbors, receives, provides,

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obtains, isolates, maintains, or entices an individual in furtherance of:

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      (1) Forced labor in violation of §11-67.1-4; or

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      (2) Sexual servitude in violation of §11-67.1-5.

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      (b) Every person who shall commit sex trafficking of a minor shall be guilty of a felony,

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subject to not more than fifty (50) years imprisonment, a fine of up to forty thousand dollars

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($40,000), or both.

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     (c) Every person who shall commit sex trafficking of an adult shall be guilty of a felony,

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subject to not more than twenty (20) years imprisonment, a fine of up to twenty thousand dollars

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($20,000), or both.

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     11-67.1-4. Forced labor. -- (a) A person commits the offense of forced labor if the

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person knowingly uses coercion to compel an individual to provide labor or services, except

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when such conduct is permissible under federal law or law of this state other than this chapter.

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     (b) Every person who shall commit forced labor of a minor shall be guilty of a felony,

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subject to not more than fifty (50) years imprisonment, a fine of up to forty thousand dollars

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($40,000), or both.

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     (c) Every person who shall commit forced labor of an adult shall be guilty of a felony,

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subject to not more than twenty (20) years imprisonment, a fine of up to twenty thousand dollars

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($20,000), or both.

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     11-67.1-5. Sexual servitude. -- (a) A person commits the offense of sexual servitude if

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the person knowingly:

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      (1) Maintains or makes available a minor for the purpose of engaging the minor in

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commercial sexual activity; or

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     (2) Uses coercion or deception to compel an adult to engage in commercial sexual

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activity.

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     (b) It is not a defense in a prosecution under subsection (a)(1) of this section that the

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minor consented to engage in commercial sexual activity or that the defendant believed the minor

 

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was an adult.

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     (c) Every person who shall commit sexual servitude of a minor shall be guilty of a felony,

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subject to not more than fifty (50) years imprisonment, a fine of up to forty thousand dollars

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($40,000), or both.

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     (d) Every person who shall commit sexual servitude of an adult shall be guilty of a

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felony, subject to not more than twenty (20) years imprisonment, a fine of up to twenty thousand

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dollars ($20,000), or both.

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     11-67.1-6. Patronizing a victim of sexual servitude. -- (a) A person commits the

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offense of patronizing a victim of sexual servitude if the person knowingly gives, agrees to give

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or offers to give anything of value so that an individual may engage in commercial sexual activity

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with another individual and the person knows that the other individual is a victim of sexual

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servitude.

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     (b) Every person who shall patronize a minor for purposes of sexual servitude of a minor

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shall be guilty of a felony, subject to not more than twenty (20) years imprisonment, a fine of up

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to twenty thousand dollars ($20,000), or both.

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     (c) Every person who shall commit sexual servitude of an adult shall be guilty of a

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felony, subject to not more than ten (10) years imprisonment, a fine of up to ten thousand dollars

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($10,000), or both.

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     11-67.1-7. Patronizing a minor for commercial sexual activity. -- (a) A person

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commits the offense of patronizing a minor for commercial sexual activity if:

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     (1) With the intent that an individual will engage in commercial sexual activity with a

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minor, the person gives, agrees to give, or offers to give anything of value to a minor or another

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person so that the individual may engage in commercial sexual activity with a minor; or

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     (2) The person gives, agrees to give, or offers to give anything of value to a minor or

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another person so that an individual may engage in commercial sexual activity with a minor.

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     (b) Every person who shall patronize a minor for purposes of commercial sexual activity

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with a minor shall be guilty of a felony, subject to not more than ten (10) years imprisonment, a

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fine of up to twenty thousand dollars ($20,000), or both.

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     (c) Every person who shall patronize an adult for purposes of commercial sexual activity

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with an adult shall be guilty of a felony, subject to not more than five (5) years imprisonment, a

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fine of up to ten thousand dollars ($10,000), or both.

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     11-67.1-8. Business entity liability. -- (a) A person that is a business entity may be

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prosecuted for an offense under §§11-67.1-3 through 11-67.1-7 only if:

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     (1) The entity knowingly engages in conduct that constitutes human trafficking; or

 

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     (2) An employee or nonemployee agent of the entity engages in conduct that constitutes

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human trafficking and the conduct is part of a pattern of activity in violation of this chapter for

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the benefit of the entity, which the entity knew was occurring and failed to take effective action to

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stop.

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     (b) When a person that is a business entity is prosecuted for an offense under §§11-67.1-3

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through 11-67.1-7, the court may consider the severity of the entity's conduct and order penalties

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in addition to those otherwise provided for the offense, including:

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     (1) A fine of not more than fifty thousand dollars ($50,000) per offense;

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     (2) Disgorgement of profit from activity in violation of this chapter; and

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      (3) Debarment from state and local government contracts.

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     11-67.1-9. Aggravating circumstance. -- (a) An aggravating circumstance during the

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commission of an offense under §§11-67.1-3, 11-67.1-4, or 11-67.1-5 occurs when:

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     (1) The defendant recruited, enticed, or obtained the victim of the offense from a shelter

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that serves individuals subjected to human trafficking, domestic violence, or sexual assault,

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runaway youth, foster children, or the homeless; or

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     (2) Kidnaps, holds hostage or otherwise keeps the victim against their will.

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     (b) If the trier of fact finds that an aggravating circumstance occurred during the

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commission of an offense under §§11-67.1-3, 11-67.1-4, or 11-67.1-5, the defendant may be

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imprisoned for up to five (5) years in addition to the period of imprisonment prescribed for the

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offense. Any sentence so imposed shall run consecutively to any other sentence imposed.

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     11-67.1-10. Restitution. -- (a) The court shall order a person convicted of an offense

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under §§11-67.1-3, 11-67.1-4, or 11-67.-5 to pay restitution to the victim of the offense for:

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     (1) Expenses incurred or reasonably certain to be incurred by the victim as a result of the

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offense, including reasonable attorney's fees and costs; and

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     (2) An amount equal to the greatest of the following, with no reduction for expenses the

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defendant incurred to maintain the victim:

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     (i) The gross income to the defendant for, or the value to the defendant of, the victim's

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labor or services or sexual activity;

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      (ii) The amount the defendant contracted to pay the victim; or

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      (iii) The value of the victim's labor or services or sexual activity, calculated under the

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minimum wage and overtime provisions of the "Fair Labor Standards Act", 29 U.S.C. §§201 et

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seq., or subsection (a)(2) of this section, whichever is greater, even if the provisions do not apply

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to the victim's labor or services or sexual activity.

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     (b) The court shall order restitution under subsection (a) of this section even if the victim

 

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is unavailable to accept payment of restitution.

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     (c) If the victim does not claim restitution ordered under subsection (a) of this section for

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five (5) years after entry of the order, the restitution must be paid to criminal injuries

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compensation fund as established in chapter 25 of title 12.

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     11-67.1-11. Forfeiture. -- (a) On motion, the court shall order a person convicted of an

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offense under §§11-67.1-3, 11-67.1-4, or 11-67.1-5 to forfeit any interest in real or personal

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property that:

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     (1) Was used or intended to be used to commit or facilitate the commission of the

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offense; or

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     (2) Constitutes proceeds or was derived from proceeds that the person obtained, directly

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or indirectly, as a result of the offense.

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     (b) In a proceeding against real or personal property under this section, the person

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convicted of the offense may assert a defense that the forfeiture is manifestly disproportional to

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the seriousness of the offense. The person has the burden to establish the defense by a

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preponderance of the evidence.

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     (c) Proceeds from the public sale or auction of property forfeited under subsection (a) of

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this section must be distributed in the manner provided for the distribution of the proceeds of

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criminal forfeitures act pursuant to §§21-28-5.04.1 and 21-28-5.04.2.

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     11-67.1-12. Statute of limitations. -- A prosecution for an offense under this chapter

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must be commenced not later than ten (10) years after commission of the offense.

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     11-67.1-13. Victim confidentiality. -- In an investigation of, or a prosecution for an

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offense under this chapter, every agency of state or local government shall keep confidential the

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identity, pictures, and images of the alleged victim and the family of the alleged victim, except to

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the extent that disclosure is:

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      (1) Necessary for the purpose of investigation or prosecution;

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      (2) Required by law or court order; or

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      (3) Necessary to ensure provision of services or benefits for the victim or the victim's

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family.

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     11-67.1-14. Past sexual behavior of victim. -- In a prosecution for an offense under this

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chapter or a civil action under §11-67.1-18, evidence of a specific instance of the alleged victim's

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past sexual behavior or reputation or opinion evidence of past sexual behavior of the alleged

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victim is not admissible unless the evidence is:

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     (1) Admitted in accordance with §11-37-13; or

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     (2) Offered by the prosecution to prove a pattern of human trafficking by the defendant.

 

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     11-67.1-15. Immunity of minor. -- (a) An individual is not criminally liable or subject to

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a delinquency proceeding in the family court for prostitution or solicitation to commit a sexual act

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if the individual was a minor at the time of the offense and committed the offense as a direct

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result of being a victim.

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     (b) An individual who has engaged in commercial sexual activity is not criminally liable

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or subject to a delinquency proceeding in the family court for prostitution or solicitation to

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commit a sexual act if the individual was a minor at the time of the offense.

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     (c) A minor who under subsections (a) or (b) of this section is not subject to criminal

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liability or a delinquency proceeding in family court is presumed to be an abused and/or

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neglected child as defined in §40-11-2.

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     (d) This section does not apply in a prosecution or a delinquency proceeding for

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patronizing a prostitute.

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     11-67.1-16. Affirmative defense of victim. -- An individual charged with prostitution or

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solicitation to commit a sexual act, committed as a direct result of being a victim may assert an

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affirmative defense that the individual is a victim.

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     11-67.1-17. Motion to vacate and expunge conviction. -- (a) An individual convicted of

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prostitution or solicitation to commit a sexual act, committed as a direct result of being a victim

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may apply by motion to the court having jurisdiction over the offense, to vacate the conviction

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and expunge the record of conviction. The court may grant the motion on a finding that the

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individual's participation in the offense was a direct result of being a victim.

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     (b) No official determination or documentation is required to grant a motion by an

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individual under subsection (a) of this section, but an official determination or documentation

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from a federal, state, local, or tribal agency that the individual was a victim at the time of the

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offense creates a presumption that the individual's participation was a direct result of being a

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victim.

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     (c) A motion filed under subsection (a) of this section, any hearing conducted on the

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motion, and any relief granted shall be conducted in accordance with the provisions of chapter 1.3

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of title 12.

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     11-67.1-18. Civil action. -- (a) A victim may bring a civil action against a person that

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commits an offense against the victim under §§11-67.1-3, 11-67.1-4, or 11-67.1-5 for

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compensatory damages, punitive damages, injunctive relief, and any other appropriate relief.

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     (b) If a victim prevails in an action under this section, the court shall award the victim

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reasonable attorney's fees and costs.

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     (c) An action under this section must be commenced not later than ten (10) years after the

 

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later of the date on which the victim:

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      (1) No longer was subject to human trafficking; or

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      (2) Attained eighteen (18) years of age.

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     (d) Damages awarded to a victim under this section for an item must be offset by any

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restitution paid to the victim pursuant to §11-67.1-10.

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     (e) This section does not preclude any other remedy available to a victim under federal

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law or other general or public law of this state other than this chapter.

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     11-67.1-19. Council on human trafficking. -- (a) The council on human trafficking is

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created in the executive branch. The governor shall appoint the chair and members of the council.

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Members must include representatives of:

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     (1) Department of attorney general, department of health, department of children, youth

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and families, department of mental healthcare, developmental disabilities and hospitals, and law

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enforcement, that have contact with victims or perpetrators;

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      (2) Non-governmental organizations that represent, advocate for, or provide services to

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victims; and

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     (3) Other organizations and individuals, including victims, whose expertise would benefit

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the council.

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     (b) The state agencies represented on the council shall provide staff to the council.

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      (c) The council shall meet on a regular basis and:

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      (1) Develop a coordinated and comprehensive plan to provide victims with services;

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      (2) Collect and evaluate data on human trafficking in this state and submit an annual

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report to the governor and legislature;

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     (3) Promote public awareness about human trafficking, victim remedies and services, and

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trafficking prevention;

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     (4) Create a public awareness sign that contains the state and National Human

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Trafficking Resource Center hotline information.

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     (5) Coordinate training on human trafficking prevention and victim services for state and

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local employees who may have recurring contact with victims or perpetrators; and

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      (6) Conduct other appropriate activities.

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     11-67.1-20. Display of public awareness sign; penalty for failure to display. -- (a) Any

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public or quasi-public transportation agency shall display a public awareness sign that contains

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the state and National Human Trafficking Resource Center hotline information in every

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transportation station, rest area, and welcome center in the state which is open to the public.

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     (b) An employer shall display the public awareness sign described in subsection (a) of

 

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this section in a place that is clearly conspicuous and visible to employees and the public at each

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of the following locations in this state at which the employer has employees:

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      (1) A strip club or other sexually-oriented business;

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      (2) A business entity previously found to be a nuisance for prostitution

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      (3) A job-recruitment center;

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      (4) A hospital; or

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      (5) An emergency-care provider.

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      (c) The department of labor and training shall impose a fine of three hundred dollars

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($300) per violation on an employer that knowingly fails to comply with subsection (b) of this

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section. The fine shall be the exclusive remedy for failure to comply.

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     11-67.1-21. Eligibility for benefit or service. -- (a) A victim is eligible for a benefit or

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service available through the state in any plan established by the council on human trafficking

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[and identified in the plan developed under §11-67.1-19(c)(1)], including compensation under the

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criminal injuries compensation act pursuant to chapter 25 of title 12, regardless of immigration

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status.

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     (b) A minor who has engaged in commercial sexual activity is eligible for a benefit or

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service available through the state in any plan established by the council on human trafficking,

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regardless of immigration status.

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     (c) As soon as practicable after a first encounter with an individual who reasonably

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appears to any state or local agency, to be a victim or a minor who has engaged in commercial

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sexual activity, the agency shall notify the department of attorney general, the state and local law

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enforcement agency, and the department of health that the individual may be eligible for a benefit

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or service pursuant to this chapter.

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     11-67.1-22. Law enforcement protocol. -- (a) On request from an individual whom a

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law enforcement officer or agent thereof, reasonably believes is a victim who is or has been

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subjected to a severe form of trafficking or criminal offense required for the individual to qualify

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for a nonimmigrant T or U visa under 8 U.S.C. §1101(a)(15)(T), or 8 U.S.C. §1101(a)(15)(U), or

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for continued presence under 22 U.S.C. §7105(c)(3), the law enforcement officer, as soon as

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practicable after receiving the request, shall complete, sign, and give to the individual the Form I-

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914B or Form I-918B provided by the United States Citizenship and Immigration Services on its

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Internet website and request assistance from the local Immigration and Naturalization office.

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     (b) If the law enforcement agency or officer determines that an individual does not meet

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the requirements for the agency to comply with subsection (a) of this section, the agency shall

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inform the individual of the reason and that the individual may make another request under

 

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subsection (a) of this section, and submit additional evidence satisfying the requirements.

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     11-67.1-23. Grant to or contract with service provider. -- (a) To the extent that funds

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are appropriated for this purpose, the council on human trafficking may make a grant to or

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contract with any unit of state or local government, or non-governmental victims' service

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organization to develop or expand service programs for victims.

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     (b) A recipient of a grant or contract under subsection (a) of this section shall report

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annually to the council on human trafficking the number and demographic information of all

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victims receiving services under the grant or contract.

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     11-67.1-24. Uniformity of application and construction. -- In applying and construing

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this uniform act, consideration must be given to the need to promote uniformity of the law with

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respect to its subject matter among states that enact it.

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     11-67.1-25. Severability. -- If any provision of this chapter or its application to any

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person or circumstance is held invalid, the invalidity does not affect other provisions or

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applications of this chapter which can be given effect without the invalid provision or application,

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and to this end the provisions of this chapter are severable.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

AN ACT RELATING CRIMINAL OFFENSES - UNIFORM ACT ON PREVENTION OF AND

REMEDIES FOR HUMAN TRAFFICKING

***

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     This act would create the "Uniform Act on Prevention and Remedies for Human

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Trafficking" which would establish penalties and remedies for human trafficking and would make

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human trafficking and human trafficking for purposes of sexual servitude, forced labor,

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commercial sexual activity felonies punishable by imprisonment and fines. This act would also

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establish a council on human trafficking for the prevention of such offenses and would establish

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programs to assist victims and would make victims eligible for compensation under the criminal

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injuries compensation act.

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     This act would take effect upon passage.

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