Amendment #1 to S.2461

HOUSE . . . . . . . . . . . . . . No. 4595

The Commonwealth of Massachusetts

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House of Representatives, August 29, 2016.

The committee on Health Care Financing to whom was referred the Bill to strengthen the anti-human trafficking law (Senate, No. 2461), reports recommending the same ought to pass with an amendment striking out all after the enacting clause and inserting in place thereof the text contained in House document numbered 4595 [Cost: Greater than $100,000.00] [Representative Barrows of Mansfield dissenting].

For the committee,

JEFFREY SÁNCHEZ

HOUSE . . . . . . . . . . . . . . . No. 4595

The Commonwealth of Massachusetts

_______________

In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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By striking out all after the enacting clause and inserting in place thereof the following:-

SECTION 1. Section 12 of chapter 120 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the figure “265”, in line 19, the following words:- ; or trafficking of persons for sexual servitude in violation of subsection (a) of section 50 of said chapter 265; or trafficking of persons for sexual servitude upon a person under 18 years of age in violation of subsection (b) of said section 50 of said chapter 265.

SECTION 2. Section 90A of chapter 127 of the General Laws, as so appearing, is hereby amended by striking out, in line 13, the words “or section twenty-six” and inserting in place thereof the following words:- , section 26 or section 50.

SECTION 3. Section 4D of chapter 260 of the General Laws, as appearing in 2014 Official Edition, is hereby amended by striking out, in lines 11 and 14, the figure “3” and inserting in place thereof the following figure:- 10.

SECTION 4. Section 50 of chapter 265 is hereby amended by adding the following subsection:-

(e) Upon the release of a person convicted of trafficking of persons for sexual servitude in violation of subsection (a) of section 50 of said chapter 265; or trafficking of persons for sexual servitude upon a person under 18 years of age in violation of subsection (b) of said section 50 of said chapter 265, the department of corrections or the county sheriff shall notify the chief of police of the city or town of which the person will reside and the chief of police of the city or town where the offense occurred.

SECTION 5. Section 57 of chapter 265 of the General Laws, as so appearing, is hereby amended by striking out, in line 5, the words “section 53A” and inserting in place thereof the following words:- sections 8, 26 or 53A.

SECTION 6. Said chapter 265 is hereby further amended by adding the following section:-

Section 59. (a) At any time after the entry of a judgment of disposition on an indictment or criminal or delinquency complaint for an offense, excluding a felony offense, the court in which it was entered shall, upon motion of the defendant, vacate any conviction, adjudication of delinquency, or continuance without a finding and permit the defendant to withdraw any plea of guilty, plea of nolo contendere, plea of delinquent, or factual admission tendered in association with one or more pleas upon a finding by the court, established by a preponderance of the evidence, that the defendant’s participation in the offense was a result of having been a victim of human trafficking as defined by section 20M of chapter 233 or a victim of trafficking in persons under 22 U.S.C. 7102.

(b) For the purposes of this subsection, “official documentation” shall mean a document issued by a local, state or federal government agency in the agency’s official capacity.

Except as provided in this section, the defendant shall have the burden of establishing by a preponderance of the evidence that the defendant’s participation in the offense was the result of having been a victim of human trafficking. If the conviction, adjudication of delinquency, or continuance without a finding was for an offense under sections 8, 26 or 53A of chapter 272 or common nightwalking or common streetwalking under section 53 of chapter 272, official documentation of the defendant’s status as a victim of human trafficking or trafficking in persons at the time of the offense shall create a rebuttable presumption that the defendant’s participation in the offense was a result of having been a victim of human trafficking or trafficking in persons; provided, however, that such documentation shall not be required for granting a motion under this section.

(c) In determining whether the defendant’s participation in the offense was a result of having been a victim of human trafficking, the court may consider any evidence it deems appropriate in determining whether the person was a victim of human trafficking.

(d) The rules concerning the admissibility of evidence at criminal trials shall not apply to the presentation and consideration of evidence at a hearing conducted pursuant to this section. The court may, in its discretion, consider any evidence it deems relevant, including, but not limited to, hearsay evidence.

(e) Where a child under the age of 18 was adjudicated delinquent for an offense under sections 8, 26, 53 or 53A of chapter 272, based on allegations of prostitution, there shall be an irrebuttable presumption that the child’s participation in the offense was a result of having been a victim of human trafficking or trafficking in persons.

(f) A motion pursuant to this section may be heard by the justice that originally heard the matter or any sitting justice of the court that originally heard the matter.

(g) Upon vacatur of a conviction, adjudication of delinquency, or continuance without a finding, the court shall enter a plea of not guilty, except if the vacated conviction, adjudication of delinquency, or continuance without a finding was for an offense under sections 8, 26 or 53A of chapter 272 or for common nightwalking or common streetwalking under section 53 of chapter 272, in which case the court shall dismiss the indictment or criminal or delinquency complaint with prejudice. Upon vacatur of a conviction, adjudication of delinquency, or continuance without a finding and the entrance of a plea of not guilty pursuant to this section, it shall be an affirmative defense to the charges against the defendant that the defendant’s participation in the offense was a result of having been a victim of human trafficking or trafficking in persons.

(h) The chief justice of the trial court shall prescribe the form in which a motion may be filed under this section.

(i) A conviction, adjudication of delinquency, or continuance without a finding vacated under this section shall be deemed to have been vacated on the merits.

SECTION 7. Chapter 276 is hereby amended by inserting after section 87A the following section:-

Section 87B. (a) First offender commercial sexual exploitation prevention programs may be established and certified subject to appropriation. A court and the district attorney may after arraignment and prior to the disposition of a defendant and with the approval of the district attorney divert the defendant charged with a first offense of subsection (b) or (c) of section 53A of chapter 272 to a first offender commercial sexual exploitation prevention program. The court shall continue the matter while the defendant fulfills the requirements of the program and shall retain jurisdiction pending the defendant’s successful completion of the program.

(b) The court shall determine if the defendant is eligible to participate in the first offender commercial sexual exploitation prevention program established pursuant to this section. The defendant shall not be eligible if the court determines that: (i) the defendant was convicted or admitted to sufficient facts of a previous violation of subsection (b) or (c) of section 53A of chapter 272 or a similar offense under the laws of another state; (ii) the defendant was previously admitted to a first offender commercial sexual exploitation prevention program under this section; (iii) the defendant has previously been charged with a violation of said subsection (b) or (c) of section 53A of said chapter 272 or a similar offense under the laws of another state and is awaiting adjudication of such offense; (iv) the defendant has been charged with, convicted of or admitted to sufficient facts of a violation of section 50 or 51 of chapter 265; or (v) the defendant is a registered sex offender under chapter 6 or under the laws of another jurisdiction.

(c) A first offender commercial sexual exploitation prevention program shall, at a minimum: (i) provide each participant with information, counseling and services relating to: (A) the negative impact of commercial sex and sex trafficking on victims; (B) the negative impact of commercial sex and sex trafficking on communities; (C) the health risks involved in commercial sexual exploitation, including the risk of sexually transmitted diseases and issues relating to mental health, substance abuse and sexual addiction; (D) the legal consequence to the defendant; and (E) classroom instruction related to the prevention of commercial sexual exploitation and organized crime and the sex industry; (ii) employ persons or solicit volunteers that may include, but shall not be limited to, health care professionals, psychologists, licensed social workers or counselors, survivors of commercial sexual exploitation, members of a neighborhood association or community that is adversely affected by the commercial sex trade or trafficking of persons or employees of a nongovernmental organization specializing in advocacy on laws related to sex trafficking or human trafficking or in providing services to victims of those offenses; (iii) establish and publish local procedures to promote maximum participation of eligible defendants in programs established in the county or municipality in which defendants reside; (iv) allow a participant to withdraw from the program at any time before a trial on the merits has been initiated; and (v) certify to the court that the defendant has successfully completed the requirements of the program, has failed to complete the program or has withdrawn from the program.

(d) Upon successful completion of the program, the court may dismiss the charge against the defendant. Upon dismissal, the court may order the record of the defendant sealed.

(e) The court shall assess a fee of not less than $900 for participation in the first offender commercial sexual exploitation prevention program. The court shall not waive the fee but may, under section 100C of chapter 276 and its prevailing procedure and authority, reduce the fee based on a determination by the court that the defendant cannot pay the entire fee. The fee shall be distributed as follows: (i) 1/3 shall be transferred to the nonprofit organization certified by the commissioner of probation to conduct the program; (ii) 1/3 shall be transferred to the Victims of Human Trafficking Trust Fund established in section 66A of chapter 10; and (iii) 1/3 shall be transferred to the state or municipal law enforcement agency responsible for the arrest of the defendant which shall be used for human trafficking investigations and prevention and to fund mandatory training for law enforcement agencies, prosecutors, public defenders, juvenile detention center employees providing direct services to victims of human trafficking and others providing direct services in the juvenile justice system and criminal justice system.

(f) The commissioner of probation shall, in consultation with the chair of the anti-human trafficking task force, review each organization that operates a first offender commercial sexual exploitation prevention program and shall certify that the program is operating under the requirements of subsection (c). The commissioner shall notify the administrative office of the trial court and the district attorney of all programs receiving such certification. Only programs certified by the commissioner shall be qualified to operate a program under this section. The commissioner, at the commissioner's discretion, may decertify a program for good cause and the commissioner shall notify the administrative office of the trial court of decertification.

SECTION 8. Said chapter 276 is hereby further amended by inserting after section 100D the following section:-

Section 100E. (a) In any case wherein a plea of not guilty has been entered by a court pursuant to section 59 of chapter 265 and (i) the criminal complaint is subsequently dismissed; (ii) the defendant is found not guilty by a judge or a jury; (iii) a finding of no probable cause is made by the court; or (iv) a nolle prosequi has been entered, a judge shall, upon motion of the defendant, seal said court appearance and disposition recorded, and the clerk and the probation officers of the courts in which the proceedings occurred or were initiated shall likewise seal the records of the proceedings in their files. Sealed records shall not operate to disqualify a person in any examination, appointment, or application for public employment in the service of the commonwealth or of any political subdivision.

(b) An application for employment used by an employer which seeks information concerning prior arrests or convictions or adjudications of delinquency of the applicant shall include in addition to the statement required under section 100A the following statement: ''An applicant for employment with a sealed record on file with the commissioner of probation may answer 'no record' with respect to an inquiry herein relative to prior arrests or criminal court appearances.'' The attorney general may enforce the provisions of this section by a suit in equity commenced in the superior court. Notwithstanding this section or any other general or special law to the contrary, the commissioner of probation or the clerk of courts in any district court, superior court, juvenile court, or the Boston municipal court, in response to inquiries by authorized persons other than by a law enforcement agency or a court, shall in the case of a sealed record report that no record exists.

SECTION 9. (a) All state, county, municipal and campus police departments and other law enforcement agencies that report crime statistics to the executive office of public safety and security shall include statistics on the crimes of trafficking of persons for sexual servitude under section 50 of chapter 265 and trafficking of persons for forced service under section 51 of said chapter 265 to ensure compliance with reporting standards established by the Federal Bureau of Investigation Uniform Crime Reporting Program.

(b) The executive office of public safety and security shall promulgate regulations relative to the collection of human trafficking crime data. Said regulations shall include, but not be limited to: (i) the responsibilities of the crime reporting unit, as defined by section 32 of chapter 22C, for the collection, analysis, classification reporting and retention of human trafficking crime data in a central repository; (ii) the procedures necessary to ensure effective data-gathering, preservation and protection of confidential information including, but not limited to, victims’ private and identifying information, and the disclosure of information as required by this section; (iii) the procedures for reporting data on a standardized form to the crime reporting unit by law enforcement agencies; and (iv) the procedures for assessing the credibility and accuracy of reports of human trafficking from law enforcement agencies.

(c) The crime reporting unit shall analyze and summarize reports of human trafficking data received by the unit. The crime reporting unit shall produce a report summarizing the data collected from law enforcement agencies which shall be submitted annually to the governor, attorney general, the senate and house chairs of the joint committee on public safety, the senate and house chairs of the joint committee on the judiciary, the senate and house chairs of the committee on rules and the chairs of the senate and house committees on ways and means. The report shall not include the names, locations or other identifying information of victims of human trafficking. The annual report shall be a public record and shall be available on the executive office of public safety and security’s website.

(d) The crime reporting unit shall make data collected on human trafficking under this section available to federal, state and municipal agencies including, but not limited to, law enforcement agencies. Data collected on human trafficking under this section shall be made available to the public. The disclosed information shall not include the names, addresses or other identifying information of victims of human trafficking.

(e) The district attorney for each county shall report on human trafficking data to the crime reporting unit. Data provided to the crime reporting unit shall include, but not be limited to: (i) the number of prosecutions and convictions of human trafficking crimes, including prosecutions and convictions under sections 50 and 51 of chapter 265; (ii) the characteristics of individuals prosecuted for and convicted of violations under sections 50 and 51 of chapter 265, including nationality, age, gender, and place of origin; (iii) the characteristics of victims of human trafficking, including nationality, age, gender, and place of origin; (iv) the number of human trafficking prosecutions and convictions originating in each municipality under the district attorney's jurisdiction.

(f) The attorney general shall report on human trafficking data to the crime reporting unit. Data provided to the crime reporting unit shall include, but not be limited to: (i) the number of prosecutions and convictions of human trafficking crimes, including prosecutions and convictions under sections 50 and 51 of chapter 265; (ii) the characteristics of individuals prosecuted for and convicted of violations under sections 50 and 51 of chapter 265, including nationality, age, gender, and place of origin; (iii) the characteristics of victims of human trafficking, including nationality, age, gender, and place of origin; (iv) the number of human trafficking prosecutions and convictions originating in each municipality under the attorney general’s jurisdiction.

(g) The executive office of public safety and security shall prescribe a standardized form for data collection under (e) and (f).

SECTION 10. The executive office of public safety and security, in conjunction with the executive office of health and human services and the office of the attorney general, shall establish and maintain an independent website to disseminate information regarding human trafficking, human trafficking crime statistics and resources for victims of human trafficking. Information available through the website shall not include the names, locations or other identifying information of victims of human trafficking.

SECTION 11. (a) Law enforcement agencies, prosecutors, public defenders, juvenile detention center employees providing direct services and others providing direct services in the juvenile justice system and criminal justice system shall be trained in identifying and responding to human trafficking. The executive office public safety and security shall provide the training which shall include information on: (i) human trafficking offenses; (ii) methods used in identifying victims of human trafficking who may be United States citizens or foreign national citizens, including preliminary interview techniques and appropriate questioning methods; (iii) prosecuting human traffickers; (iv) increasing effective collaboration between the courts, nongovernmental organizations and other relevant social service organizations to assist in the investigation and prosecution of human trafficking cases; (v) protecting the rights of victims of human trafficking, including but not limited to specific consideration of human rights, female and minor victims; (vi) interacting with victims of human trafficking as crime victims rather than criminals; and (vi) promoting the safety of victims of human trafficking. The training shall include information on the screening of individuals who may be victims of human trafficking and data collection protocols under section 12.

(b) The administrative office of the trial court shall provide mandatory training for judges, clerk-magistrates and court personnel.

(c) The executive office of public safety and security shall collaborate with nongovernmental organizations and other relevant organizations in the preparation and presentation of the training required pursuant to this section.

(d) The executive office of education shall implement mandatory educational training for educators in kindergarten through grade 12. The training shall include information to assist educators in identifying victims of human trafficking and providing appropriate support to victims of human trafficking. The training shall be incorporated into professional development modules. The executive office of education may collaborate with public or nongovernmental organizations to provide training and may use previously developed courses. The executive office of education shall also develop a parent guide and teacher training material on internet safety and methods of preventing the exploitation of minors over the internet.

(e) The department of public health shall implement mandatory training for all health care professionals who are mandated reporters to assist in identifying human trafficking victims and the appropriate actions to be undertaken when such victims have been identified. The department may collaborate with public or nongovernmental organizations to provide training and may use previously developed courses.

SECTION 12. (a) The executive office of health and human services, in cooperation with the executive office of public safety and security, other agencies and nongovernmental organizations shall, subject to appropriation, prepare public awareness programs designed to educate potential victims of human trafficking and their families on the risks of victimization. The public awareness programs shall include, but not be limited to: (i) information about the risks of becoming a victim of human trafficking that uses best practices to prevent stigmatization of victims and includes information about common recruitment techniques, use of debt bondage and other coercive tactics, risk of maltreatment, rape, exposure to HIV/AIDS and other sexually-transmitted diseases and psychological harm related to victimization in human trafficking cases; (ii) information about victims’ rights under federal and state laws; (iii) methods for reporting suspected recruitment activities; and (iv) information on the types of services available to victims of human trafficking and how to access such services, including information on relevant hotlines, such as the National Human Trafficking Resource Center hotline.

(b) The executive office of health and human services, in cooperation with other appropriate government agencies and nongovernmental organizations, shall prepare and disseminate general public awareness materials to educate the public on the extent of human trafficking of both United States citizens and foreign nationals within the United States, to discourage the demand that fosters the exploitation of persons and that leads to human trafficking.

(c) General public awareness materials may include information on the impact of human trafficking on individual victims, whether United States citizens or foreign nationals; aggregate information on human trafficking worldwide and domestically; and warnings of the criminal consequences of engaging in human trafficking. Such materials may include pamphlets, brochures, posters, advertisements in mass media and any other appropriate media.

(d) Programs and materials described in this section shall preserve the privacy of victims and their family members.

(e) All public awareness programs shall be evaluated periodically to ensure their effectiveness.

SECTION 13. (a) The Massachusetts Department of Transportation shall display public awareness signs that contain the National Human Trafficking Resource Center hotline, or its successor, in every transportation station, rest area and welcome center that is open to the public.

(b) Public awareness campaign advertisements shall be displayed in a conspicuous location visible to the public and employees in the following facilities: (i) adult entertainment facilities and other businesses primarily dedicated to adult entertainment or sex-related products; (ii) facilities determined to be a nuisance for prostitution under section 4 of chapter 139; (iii) facilities licensed as massage parlors; (iv) job recruitment centers; (v) facilities operating as foreign transmittal agencies under chapter 169; (vi) hospitals; and (vii) emergency care providers.

(c) An employer who violates subsection (b) shall be punished by a fine of not more than $500 for a first offense and a fine of not more than $1,000 for a second or subsequent offense.

(d) The attorney general shall promulgate rules and regulations to enforce subsection (b).

SECTION 14. The secretary of health and human services shall file an annual report not later than January 1 with the senate and house chairs of the joint committee on children, families and persons with disabilities, the chairs of the senate and house committees on ways and means and the chairs of the senate and house committees on rules outlining the adequacy and limitations of current services to meet the safety, support, housing, health, education and quality of life needs of human trafficking victims. The report shall identify specialized needs of victims under the age of 18 including, but not limited to, the needs or current efforts to provide specialized foster care or other suitable housing arrangements. The report shall also identify current resources available at safe house facilities, including the number of beds, resources located on site, and number of victims served. The initial report shall be filed no later than January 31, 2017.

SECTION 15. Chapter 6 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by adding the following section:-

Section 219. (a) For purposes of this section, “partnership” shall mean the human trafficking prevention business partnership.

(b) There shall be a human trafficking prevention business partnership. The partnership shall engage participating corporations and other private entities in voluntary efforts to prevent and combat human trafficking. The governor, or the governor's designee, shall serve as chair of the partnership.

(c) Participating corporations in the partnership shall: (i) adopt a zero tolerance policy toward human trafficking; (ii) ensure that the corporation's or entity's employees comply with the policy adopted under clause (i); (iii) participate in public awareness and education campaigns; (iv) enhance awareness of and encourage participation in the partnership; and (v) exchange information about effective practices for abolishing human trafficking including, but not limited to, identifying private and nonprofit resources that may be available to support the work of the partnership and promote efforts to abolish human trafficking.

(d) The governor, or his designee, shall work collaboratively to promote the partnership with other state agencies, including but not limited to the executive office of labor and workforce development, the executive office of health and human services, and the executive office of public safety and security.

(e) The chair of the partnership shall present a certificate of recognition to participating corporations and private entities to recognize the corporation's or entity's contributions and commitment to abolishing human trafficking.

(g) Nothing in this section shall be construed as limiting any laws currently in effect related to human trafficking.

SECTION 16. Unless otherwise provided, this act shall take effect on January, 1, 2017.