Amendment #16 to H4011

Vacating certain criminal charges from the records of survivors of sex trafficking

Mr. Day of Stoneham moves to amend the amendment by inserting after section 87 the following section:

SECTION 87a:  Chapter 265 of the General Laws is hereby amended by inserting after section 58 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 under section 8, section 26, section 53(a), or section 53A of chapter 272 or under section 53(b) of chapter 272 or under section 34 of chapter 94C for simple possession of a Class A, Class B, Class C or Class D controlled substance as defined in section 31 of chapter 94C, 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 the Trafficking Victims Protection Act (United States Code, title 22, chapter 78), provided that:

(1) Except as provided in (a)(2) and (a)(3) of this Section 59, the defendant shall have the burden to establish a reasonable probability that the defendant’s participation in the offense was the result of having been a victim of human trafficking;

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

(3) Where the conviction, adjudication of delinquency, or continuance without a finding was for an offense under section 8, section 26, section 53(a), or section 53A of chapter 272 committed when the defendant was 18 years of age or older, official documentation from any 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, but shall not be required for granting a motion under this paragraph;

(4) For purposes of subsection (a)(3) of this Section 59, “official documentation” shall be defined as any document issued by a local, state, or federal government agency in the agency’s official capacity;

(5) The rules concerning the admissibility of evidence at criminal trials shall not apply to the presentation and consideration of information at a hearing conducted pursuant to this section, and the court shall consider hearsay contained in official documentation from any local, state, or federal government agency of the defendant’s status as a victim of human trafficking or trafficking in persons offered in support of a motion pursuant to this section; and

(6) A motion pursuant to this section may be heard by any sitting justice of a court of competent jurisdiction.

(b) 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 section 8, section 26, section 53(a), or section 53A of chapter 272, in which case the court shall dismiss the indictment or criminal or delinquency complaint.

(c) 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 59, it shall be an affirmative defense to the charges against the defendant that, while a human trafficking victim, such person was under duress or coerced into committing the offenses for which such person is being prosecuted or against whom juvenile delinquency proceedings have commenced.

(d) The administrative justices of the superior court, district court, juvenile court and the Boston municipal court departments shall jointly promulgate a motion form for use under this section.

SECTION 2. Section 57 of chapter 265 of the General Laws, as added by section 23 of chapter 178 of the acts of 2011, is hereby further amended by:- Striking out, before the words “section 53A of said chapter 272” the words “a violation of” and inserting the words “charges of a violation of section 8, section 26 and,”-

SECTION 3. 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, the commissioner of probation shall seal said court appearance and disposition recorded in his files 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. The provisions of this paragraph shall not apply if the defendant makes a written request to the commissioner not to seal the records of the proceedings.

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 one hundred A 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.

The commissioner or the clerk of courts in any district or superior court or juvenile court or the Boston municipal court, in response to inquiries by authorized persons other than any law enforcement agency or any court, shall in the case of a sealed record report that no record exists.