Budget Amendment ID: FY2017-S4-19-R1
Redraft OTH 19
Stopping Sexual Human Trafficking and Enhancing the Lives of Survivors
Messrs. Montigny, Moore, Ross and O'Connor moved that the proposed new text be amended by inserting, after section 49, the following 2 sections:-
“SECTION 49A. Section 57 of chapter 265 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out, in lines 3 to 6, inclusive, the following words “of engaging in common night walking or common streetwalking in violation of section 53 of chapter 272 and to a violation of section 53A of said chapter 272” and inserting in place thereof the following words:- under sections 8, 26, 53 or 53A of chapter 272.
SECTION 49B. Said chapter 265 of the General Laws is hereby 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 therewith upon a finding by the court of a reasonable probability 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. 78.
(b) (1) Except as provided in clause 2 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;
(2) For the purposes of this paragraph, “official documentation” shall be a document issued by a local, state or federal government agency in the agency’s official capacity.
If the conviction, adjudication of delinquency, or continuance without a finding was for an offense under sections 8, 26, 53 or 53A of chapter 272, official documentation from a local, state or federal government agency 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 but 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 18was adjudicated delinquent for an offense under sections 8, 26, 53 or 53A of chapter 272, based on allegations of prostitution, the court shall make a judicial finding 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)(1) 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, 53 or 53A of chapter 272, in which case the court shall dismiss the indictment or criminal or delinquency complaint.
(2) 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, while a human trafficking victim, such person was, by a preponderance of the evidence, under duress or coerced into committing the offenses for which such person is being prosecuted or against whom juvenile delinquency proceedings have commenced.
(h) The chief justice of the trial court shall prescribe the form in which a motion shall 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.”; and
by inserting, after section 50, the following section:-
“SECTION 50A. Chapter 276 of the General Laws is hereby amended by inserting after section 100D the following section:-
Section 100E. In any case wherein a plea of not guilty has been entered by a court pursuant to section 59 of chapter 265 and the criminal complaint is subsequently dismissed; the defendant is found not guilty by a judge or a jury; a finding of no probable cause is made by the court; or 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.
Such 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 thereof.
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 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."