Bill Summary for S 683 (2013-2014)

Summary date: 

Apr 5 2013

Bill Information:

View NCGA Bill Details2013-2014 Session
Senate Bill 683 (Public) Filed Tuesday, April 2, 2013
A BILL TO BE ENTITLED AN ACT TO CREATE A SAFE HARBOR FOR VICTIMS OF HUMAN TRAFFICKING AND FOR PROSTITUTED MINORS, MODIFY THE MEMBERSHIP OF THE NORTH CAROLINA HUMAN TRAFFICKING COMMISSION, AND PROVIDE FOR PAROLE CONSIDERATION OF CERTAIN INMATES SENTENCED UNDER THE FAIR SENTENCING ACT.
Intro. by Goolsby, Barringer, Kinnaird.

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Bill summary

Amends GS 14-43.11, (Human trafficking), providing that a person commits human trafficking when they (i) knowingly or in reckless disregard of the fact, recruits, entices, harbors, transports, provides, or obtains by any means another person with the intent that the other person be held in involuntary servitude or sexual servitude (previously, offense committed only when elements were knowingly committed) or (ii) knowingly or in reckless disregard of the fact causes a minor to be held in involuntary servitude or sexual servitude (previously, there was not a separate element for minors). Provides that a violation of the above is a Class E felony (was, Class F) if the victim is an adult. Establishes that a mistake of age or consent of a minor is not a defense to prosecution.

Amends GS 14-43.12, (Involuntary servitude), providing that a person commits the offense of involuntary servitude when that person knowingly and willfully or in reckless disregard holds another in involuntary servitude (previously, reckless disregard was not a qualifying element of the crime). Provides that a violation of the above is a Class E felony (was, Class F) if the victim is an adult. Establishes that a mistake of age or consent of a minor is not a defense to prosecution.

Amends GS 14-43.13, (Sexual servitude), providing that a person commits the offense of sexual servitude when that person knowingly or in reckless disregard subjects or maintains another in sexual servitude (previously, reckless disregard was not a qualifying element of the crime). Provides that a violation of the above is a Class E felony (was, Class F) if the victim is an adult. Establishes that a mistake of age or consent of a minor is not a defense to prosecution.

Repeals GS 14-190.18, (Promoting prostitution of a minor), GS 14-190.19 (Promoting prostitution of a minor), GS 14-203 (Definition of terms), GS 14-204 (Prostitution and various acts abetting prostitution), GS 14-204.1 (Loitering for the purpose of engaging in prostitution offense), GS 14-205 (Prosecution; in what courts), GS 14-207 (Degrees of guilt) and GS 14-208 (Punishment; probation; parole).

Recodifies GS 14-206 (Reputation and prior conviction admissible as evidence) as GS 14-203.9.

Amends GS 14, Article 27, adding multiple new sections.

Enacts GS 14-203.1, (Definitions), providing the terms and definitions to be used in Article 27, including advance prostitution, minor, profit from prostitution, and sexual act.

Enacts new GS 14-203.2, (Prostitution), defining the offense of prostitution as having been committed by any person who knowingly performs, offers, or agrees to perform any sexual act for any money, property, token, object, or article or anything of value, or any touching or fondling of the sex organs of one person by another person, for anything of value, for the purpose of sexual arousal or gratification.

A violation of this results in a Class 1 misdemeanor.  A first time offender will automatically receive deferred prosecution and probation in the amount of 12 months, further proceedings will be deferred until the conclusion of the 12 months probation. Provides the conditions of probation, including, attending no fewer than 10 counseling sessions by an approved program.  The court can also set other conditions as it sees fit, including but not limited to requiring payment of a fine and court costs.  If probation is successfully fulfilled, the court will discharge the person and dismiss the proceedings against them. Provides that when a person charged with this offense is deemed a minor, they are immune from prosecution and instead are subject to temporary custody provisions in GS 7B-1900, 7B-1901,and 7B-1905.

New GS 14-203.3, (Solicitation of a sexual act), defines the offense of solicitation as having been committed when a person offers not his or her spouse any money, property, token, object, or article or anything of value for that person or any other person not his or her spouse to perform any sexual act, or any touching or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification. A violation of this results in a Class F felony. However, solicitation of a sexual act from a minor or who is severely or profoundly mentally disabled is a Class C felony.

New GS 14-203.4, (Promoting prostitution), defines the offense of promoting prostitution as any person who knowingly performs any of the following acts: (1) Advances prostitution as defined in GS 14-203.1. (2) Profits from prostitution by doing any of the following: a. Compelling a person to become a prostitute. b. Arranging or offering to arrange a situation in which a person may practice prostitution. c. Any means other than those described in sub-subdivisions above, including from a person who patronizes a prostitute. This sub-subdivision does not apply to minors engaged in prostitution. A person cannot be convicted of promoting prostitution under this sub-subdivision if the practice of prostitution underlying the offense consists exclusively of the accused's own acts of prostitution under GS 14-203.2.

Establishes different sentencing and punishment levels in regards to how a person is determined to have promoted prostitution in regards to the above described varying acts, including but not limited to, a violation of GS 14-203.4(a)(1) is a class F felony or a Class C felony if committed within 1,000 feet of a school.

New GS 14-203.5, (Promoting prostitution of a minor), defines the offense of promoting prostitution of a minor as any person who knowingly performs any of the following acts:

(1) Advances prostitution as defined in GS 14-203.1, where the minor engaged in prostitution, or any person engaged in prostitution in the place is a minor or is severely or profoundly mentally disabled at the time of the offense. (2) Profits from prostitution by any means where the prostituted person is a minor or is severely or profoundly mentally disabled at the time of the offense. (3) Confines a minor or a severely or profoundly mentally disabled person against the person's will by the infliction or threat of imminent infliction of great bodily harm, permanent disability, or disfigurement or by administering to the minor or severely or profoundly mentally disabled person, without the person's consent or by threat or deception and for other than medical purposes, any alcoholic intoxicant or a drug as defined in GS 90, Article 5 (North Carolina Controlled Substances Act) and does any of the following: a. Compels the child or severely or profoundly mentally disabled person to engage in prostitution. b. Arranges a situation in which the child or severely or profoundly mentally disabled person may practice prostitution. c. Profits from prostitution by the child or severely or profoundly mentally disabled person.

Establishes different sentencing and punishment levels in regards to how a person is determined to have promoted prostitution of a minor in regards to the above described varying acts, including but not limited to, a violation of GS 14-203.5(a)(1) is a Class B2 felony or a Class B1 felony if committed within 1,000 feet of a school. Provides that any person convicted of a violation of this section that involves promoting prostitution of a minor by keeping a place of minor prostitution or convicted of a violation of GS 14-103.5(a)(3) is subject to the property forfeiture provisions in GS 14-2.3.

New GS 14-203.6, (Patronizing a prostitute), defines the offense as having been committed by any person who knowingly performs any of the following acts with a person not his or her spouse: (1) Engages in a sexual act with a prostitute. (2) Enters or remains in a place of prostitution with intent to engage in a sexual act. (3) Engages in any touching or fondling with a prostitute of the sex organs of one person by the other person, with the intent to achieve sexual arousal or gratification.

Establishes different sentencing and punishment levels in regards to how a person is determined to have patronized a prostitute in regards to the above described varying acts, including but not limited to, a violation of any of the above is a Class F felony or a Class C felony if committed within 1,000 feet of a school.

GS 14-203.7, (Patronizing a minor engaged in prostitution), any person who does any of the following commits the offense of patronizing a minor engaged in prostitution: (1) Engages in a sexual act with a person engaged in prostitution that is a minor or is a severely or profoundly mentally disabled person. (2) Engages in any touching or fondling, with a person engaged in prostitution that is either a minor or is a severely or profoundly mentally disabled person, of the sex organs of one person by the other person, with the intent to achieve sexual arousal or gratification.

Establishes an affirmative defense to the charge, reasonably believing the person was of an age of 18 years or older or was not severely/profoundly mentally disabled at the time of the charge is an affirmative defense to the charge.

A person who commits patronizing a minor engaged in prostitution is guilty of a Class C felony, unless committed within 1,000 of a school, then it is a Class B2 felony. It is also a Class B2 felony to commit a subsequent violation or of any combination of such number of convictions under the statute and specified other statutes.

New GS 14-203.10, (Certain probation conditions), provides that a person that is convicted of a crime under this Article and receives a sentence which includes probation, and that person has a venereal disease, the period of probation can only commence on terms and conditions that ensure medical treatment and prevent the spread thereof. Also provides that no a girl or woman convicted under this Article can be placed on probation in the care or charge of any person except a woman probation officer.

New GS 14-203.15, (Vehicle impoundment), provides that a law enforcement officer can tow and impound any vehicle used by the person who committed a crime under this Article and used that vehicle in the commission of the offense.  Fees are authorized in the amount of $1,000. Provides for the distribution of the funds received by this section. As well as the recoupment of those fees upon acquittal of all of the offenses connected to the impoundment.

Amends GS 15A-290(c)(1), adding GS 14-43.11 (Human trafficking), GS 14-43.12 (Involuntary servitude), GS 14-43.13 (Sexual servitude), GS 14-203.5 (Promoting prostitution of a minor), and GS 14-203.7 (Patronizing a minor engaged in prostitution), providing that these are offenses for which orders for electronic surveillance may be granted.

Adds new subdivision GS 15A-1415(b)(10), providing that the following are grounds upon which the defendant may assert a motion for appropriate relief (MAR) made more than 10 days after entry of judgment: The defendant was convicted of a first offense of misdemeanor prostitution under GS 14-203.2 and prosecution of the offense was not deferred pursuant to GS 14-203.2(c); the defendant's participation in the offense was a result of having been a victim of human trafficking under GS 14-43.11, sexual servitude under GS 14-43.13, or the federal Trafficking Victims Protection Act (22 U.S.C. § 7102(13)); and the defendant seeks to have the conviction vacated.

Amends GS Chapter 15A, Article 89 by adding a new section, GS 15A-1416.1, (Motion by the defendant to vacate prostitution conviction for sex trafficking victim), providing that the Court of Appeals has jurisdiction to hear a MAR filed pursuant to the grounds in GS 15A-1415(b)(10). Provides rules for filing MARs and what they must state and contain in order to be considered. Also establishes that the court may grant the MAR if, within their discretion, the violation was a result of the defendant having been a victim of human trafficking. Provides a list of documents which would constitute evidence of such, and provides that the court can consider other evidence as it deems to have sufficient credibility and probative value in regards to the determination. A granted MAR under this section requires the court to vacate the conviction and allows the court to take such additional action as is appropriate.

Adds new subdivision GS 15A-145.6, (Expunctions for certain defendants convicted of prostitution), providing the terms and definitions to be used in this section, including, prostitution offense and violent felony or violent misdemeanor. Allows a person who pleads guilty or was found guilty of a prostitution offense to file a petition in court, where the conviction occurred, for expunction of the offense provided that they meet the following criteria:

(1) The person has not previously been convicted of any violent felony or violent misdemeanor under the laws of the United States or the laws of this State or any other state.

(2) The person satisfies any one of the following criteria:

a. The person's participation in the prostitution offense was a result of  having been a trafficking victim under GS 14-43.11 (human trafficking) or GS. 14-43.13 (sexual servitude) or a victim of a severe form of trafficking under the federal Trafficking Victims Protection Act (22 U.S.C. § 7102(13)).

b. The person was less than 18 years old at the time that the person committed the offense.

c. The person was sentenced under the deferred prosecution provisions in GS. 14-203.2 and is eligible to apply for an expunction under GS. 14-203.2(c).

Petition may not be filed earlier than three years after serving the full sentence. Provides the rules for filing such petitions and what they must state and contain in order to be considered. The petitions are to be served on the district attorney (DA) of the convicting court. The DA has 30 days thereafter to file any objection. The DA must make his/her best effort to contact the victim in order to notify them of the expunction request.  Provides the specified steps and issues that will be followed by the court in rendering a decision on the petition. Orders the court to restore the person to the status occupied prior to the  arrest or indictment if the court finds specified requirements are met, including but not limited to, the petitioner has no outstanding warrants or pending criminal cases, and the criteria set out in subsection (b) of this section are satisfied.  Provides other effects and requirements that must take place after a petition for expunction is granted, for example, the court will order that the conviction of the prostitution offense be expunged from the records of the court and direct all law enforcement agencies to do the same.

Amends GS 15A-13.40.16(d) adding the following to a list of aggravating factors for use in GS Chapter 15A, Article 81B (Structured Sentencing of Persons Convicted of Crimes): the offense is a violation of GS 14-43.11 (human trafficking), GS 14-43.12 (involuntary servitude), or GS 14-43.13 (sexual servitude) and involved multiple victims; the offense is a violation of GS 14-43.11 (human trafficking), GS 14-43.12 (involuntary servitude), or GS 14-43.13 (sexual servitude) and the victim suffered serious injury as a result of the offense.

Amends GS 15B-2(Definitions) of Article 1 (Crime victim's compensation act), adding the following classification to the definition of a "claimant"  -  "a person who was convicted of a first offense under GS 14-203.2 and whose participation in the offense was a result of having been a trafficking victim or a victim of a severe form of trafficking under the federal Trafficking Victims Protection Act". Also provides that a claimant cannot be the offender or an accomplice of the offender, except as provided in sub-subdivision (e) of this subdivision (previously, no language referring to sub-subdivision (e) was included).

Amends GS 7B-101 (Definitions), as it pertains to Abuse, Neglect, Dependency, to make conforming changes. Adds the following classification to the definition for "abused juveniles" - which is any juvenile less than 18 years old whose parents, guardian, custodian, or caretaker:  "commits or allows to be committed an offense under GS 14-43.11 (human trafficking), GS 14-43.12 (Involuntary servitude), or GS 14-43.13 (sexual servitude against the child)."

Amends GS Chapter 14, Article 10A by adding a new section GS 14-43.20, (Mandatory restitution; victim services; forfeiture), providing that restitution is mandatory under this Article for a victim. For the purposes of this section a "victim" is an individual subjected to the practices set out in  GS 14-43.11, GS 14-43.12, or GS 14-43.13. Provides that in addition to any other amount of loss identified, the court will order restitution including the greater of: (1)the gross income or value to the defendant of the victim's labor or services or (2) the value of the victim's labor as guaranteed under the Minimum Wage Law and overtime provisions of the Fair Labor Standards Act (FLSA) or the Minimum Wage Law.

Provides that the Department of Health and Human Services can provide or fund emergency services and assistance to those who are victims of offenses under GS 14-43.11, GS 14-43.12, or GS 14-43.13. Also includes a certification clause requiring that the Attorney General, a district attorney, or any law enforcement official will certify in writing to the United States Department of Justice or other federal agency, such as the United States Department of Homeland Security, that an investigation or prosecution under this Article for a violation of GS 14-43.11, GS 14-43.12, or GS 14-43.13. has begun and the individual who is a likely victim of one of those crimes is willing to cooperate or is cooperating with the investigation to enable the individual, if eligible, to qualify for an appropriate special immigrant visa and to access federal benefits. Cooperation with law enforcement is not required of victims who are under 18 years of age. This certification will be made available to the victim and the victim's designated legal representative. Provides that specified property forfeiture provisions are applicable.

Amends the introductory language in GS 14-190.13, making conforming and technical changes.

Amends GS 14-208.6(5), 15A-830(a)(7), GS 90-210.25B(b), GS 114-15(b1), and GS 115C-296(d)(2) making conforming changes.

Effective December 1, 2013, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

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