The original instrument was prepared by Jerry J. Guillot. The following digest,
which does not constitute a part of the legislative instrument, was prepared by
Ann S. Brown.
DIGEST
Broome (SB 88)
Present law provides for the disposition and allocation of forfeited property related to certain sex
crimes, and provides exemptions. Proposed law retains present law and also provides that where
the property to be forfeited is related to human trafficking (R.S. 14:46.2) or trafficking of
children for sexual purposes (R.S. 14:46.3), the proceeds of the public sale or auction shall be
applied first to any restitution granted to the victim, after the costs of the public sale or auction,
court costs, and fees related to seizure and storage have been satisfied. Any remaining proceeds
shall be distributed in the following manner:
(1)25% to the seizing agency or agencies in an equitable manner.
(2)25% to the prosecuting agency.
(3)50% to the Exploited Children's Special Fund.
Proposed law creates in the state treasury the Exploited Children's Special Fund. Appropriations
by the legislature and all monetary assessments paid and interest accrued on funds collected as
provided below shall be deposited into the fund, after first being deposited into the Bond Security
and Redemption Fund. Subject to appropriation by the legislature, monies in the fund shall be
used for providing services and treatment administered by the Department of Children and
Family Services (DCFS), such as securing residential housing, health services, and social
services, to sexually exploited children. The department may also use the funds for grants or to
provide services for sexually exploited children.
Proposed law requires that any person who is convicted or pleads guilty or nolo contendere to an
offense involving trafficking of children for sexual purposes (R.S. 14:46.3), prostitution with
persons under seventeen (R.S. 14:82.1), or enticing persons into prostitution (R.S. 14:86) be
ordered to pay a mandatory monetary assessment of $2,000. The assessment shall be in addition
to and not in lieu of, and shall not be used to offset or reduce, any fine authorized or required by
law.
Proposed law requires that a person convicted of a violation of human trafficking (R.S. 14:46.2)
or trafficking of children for sexual purposes (R.S. 14:46.3) be ordered to pay mandatory
restitution to the victim, with the proceeds from property forfeited under proposed law (R.S.
15:539.1) applied first to payment of restitution, after the costs of the public sale or public
auction, court costs, and fees related to seizure and storage have been satisfied. Restitution shall
include any of the following: (1)Costs of medical and psychological treatment.
(2)Costs of necessary transportation and temporary housing.
(3)The greater of (a) the value of the victim's labor as guaranteed under the minimum wage
and overtime provisions of the federal Fair Labor Standards Act; or (b) the gross
income or
value to the
defendant of
the victim's
labor or
services or of
any
commercial
sex acts
engaged in by
the victim
while in the
human
trafficking
situation.
(4)Return of property, cost of damage to property, or full value of property if destroyed or
damaged beyond repair.
(5)Expenses incurred by the victim and any household members or other family members in
relocating away from the defendant or the defendant's associates including but not limited
to deposits for utilities and telephone service, deposits for rental housing, temporary
lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to
proposed law shall be verified by law enforcement to be necessary for the personal safety
of the victim or household or family members, or by a mental health treatment provider to
be necessary for the emotional well-being of the victim.
Proposed law provides that for purposes of proposed law, the return of the victim to the victim's
home country or other absence of the victim from the jurisdiction shall not prevent the victim
from receiving restitution.
Proposed law provides that with respect to children found to be victims of human trafficking, the
DCFS, in conjunction with the Dept. of Health and Hospitals, is to develop a plan for the
delivery of services to victims of human trafficking, which plan is to include provisions for:
(1)Identifying victims of human trafficking in Louisiana.
(2)Assisting victims of human trafficking with applying for federal and state benefits and
services to which they may be entitled. (3)Coordinating the delivery of health, mental health, housing, education, job training, child
care, victims' compensation, legal, and other services to victims of human trafficking.
(4)Preparing and disseminating educational and training programs and materials to increase
awareness of human trafficking and services available to victims of human trafficking
among local departments of social services, public and private agencies and service
providers, and the public.
(5)Developing and maintaining community-based services for victims of human trafficking.
(6)Assisting victims of human trafficking with family reunification or return to their place of
origin, if the victims so desire.
Proposed law provides that in developing the plan, the departments are to work together with
such other state and federal agencies, public and private entities, and other stakeholders as they
deem appropriate.
Proposed law provides that as soon as practicable after the initial encounter with a person who
reasonably appears to a law enforcement agency, a district attorney's office, or the office of the
attorney general to be a victim of human trafficking, such agency or office must:
(1)Notify the Crime Victims Services Bureau of the Dept. of Public Safety and Corrections
that such person may be eligible for services under proposed law.
(2)Make a preliminary assessment of whether such victim or possible victim of human
trafficking appears to meet the criteria for certification as a victim of a severe form of
trafficking in persons as defined in the federal Trafficking Victims Protection Act or
appears to be otherwise eligible for any federal, state, or local benefits and services. If it
is determined that the victim or possible victim appears to meet such criteria, then the
agency or office is to report the finding to the victim and refer the child victim to
appropriate services available, including legal services providers. If the victim or possible
victim is under the age of 18 or is a vulnerable adult, the agency or office is to also notify
the DCFS.
Proposed law provides that after the agency or office makes a preliminary assessment that a
victim or possible victim of human trafficking appears to meet the criteria for certification as a
victim of a severe form of trafficking in persons as defined in the federal Trafficking Victims
Protection Act, and upon the request of such victim, the agency or office is to provide the victim
or possible victim of human trafficking with a completed and executed United States Citizenship
and Immigration Services (USCIS) Form I-914, Supplement B, Declaration of Law Enforcement
Officer for Victim of Human Trafficking in Persons, or a USCIS Form I-918, Supplement B, U
Nonimmigrant Status Certification, or both. Proposed law further provides that these forms are
to be completed by the certifying officer in accordance with the forms' instructions and
applicable rules and regulations, and that the victim or possible victim of human trafficking may
choose which form to have the certifying officer complete. Proposed law provides that an individual who is a victim of human trafficking has a civil cause
of action in district court for injunctive relief and to recover actual damages, compensatory
damages, punitive damages, and for any other appropriate relief. Proposed law further provides
that a prevailing plaintiff is to be awarded court costs and attorney fees, and is entitled to treble
damages on proof of actual damages where the defendant's actions were willful and malicious.
Proposed law provides that the legislature finds that arresting, prosecuting, and incarcerating
victimized children serves to re-traumatize them and to increase their feelings of low-self esteem,
which only makes the process of recovery more difficult. Both federal and international law
recognize that sexually exploited children are the victims of crime and should be treated as such.
Therefore, sexually exploited children should not be prosecuted for criminal acts related to
prostitution. Instead, sexually exploited children should, where possible, be diverted into services
that address the needs of these children outside of the justice system. Sexually exploited children
deserve the protection of child welfare services, including diversion, crisis intervention,
counseling, and emergency housing services. The purpose of proposed law is to protect a child
from further victimization after the child is discovered to be a sexually exploited child by
ensuring that a child protective response is in place in the state. This is to be accomplished by
presuming that any child engaged in prostitution, prostitution by massage, or crime against nature
by solicitation is a victim of sex trafficking and providing these children with the appropriate
care and services where possible. In determining the need for and capacity of services that may
be provided, the DCFS shall recognize that sexually exploited children have separate and distinct
service needs according to gender, and every effort should be made to ensure these children are
not prosecuted or treated as juvenile delinquents, but instead are given the appropriate social
services.
Proposed law defines "department" for purposes of certain provisions of proposed law as the
Dept. of Public Safety and Corrections, office of juvenile justice.
Proposed law defines "safe house" as a residential facility operated by an authorized agency,
including a nonprofit agency, with experience in providing services to sexually exploited
children and approved by DCFS to provide shelter for sexually exploited children.
Also defines a "sexually exploited child" as any person under the age of 18 who has been subject
to sexual exploitation because the person either:
(1)Is a victim of trafficking of children for sexual purposes (R.S.14:46.3).
(2)Is a victim of child sex trafficking under 18 U.S.C. 1591.
(3)Engages in an act of prostitution (R.S.14:82), prostitution by massage (R.S.14:83.3 or
83.4), or a crime against nature by solicitation (R.S.14:89.2).
Proposed law authorizes DCFS, to the extent funds are available, to operate or contract with an
appropriate nongovernmental agency with experience working with sexually exploited children
to operate one or more safe houses in a geographically appropriate area of the state. Each safe
house shall provide safe and secure housing and specialized services for sexually exploited children. Proposed law does not preclude an agency from applying for and accepting grants, gifts,
and bequests for funds from private individuals, foundations, and the federal government for the
purpose of creating or carrying out the duties of a safe house for sexually exploited children.
Proposed law requires that DCFS develop a statewide protocol for helping to coordinate the
delivery of services to sexually exploited children and shall work with court intake officers to
ensure that all state, federal, and community-based resources for sexually exploited children are
known and available to children who have been granted diversion under Ch.C. Art. 839.
Proposed law for the purposes of Children's Code provisions relative to family in need of
services and delinquency defines "sexually exploited child" means any person under the age of
18 who has been subject to sexual exploitation because the person either:
(1)Is a victim of trafficking of children for sexual purposes (R.S. 14:46.3).
(2)Is a victim of child sex trafficking under 18 U.S.C. 1591.
(3)Engages in an act of prostitution (R.S. 14:82), prostitution by massage (R.S. 14:83.3 or
83.4), or a crime against nature by solicitation (R.S. 14:89.2).
Proposed law provides that with the consent of the district attorney, a motion to set aside a
conviction may be filed at any time following a verdict or judgment of guilty for the offenses of
prostitution, prostitution by massage, or crime against nature by solicitation under present law
when the defendant's participation in the offense was a result of having been a victim of human
trafficking under present law or a victim of a severe form of trafficking under the federal
Trafficking Victims Protection Act. Proposed law further provides that the motion must be in
writing, describe the supporting evidence with particularity, and include copies of any documents
showing that the moving party is entitled to relief.
Proposed law provides that the motion to set aside the conviction cannot be denied without a
contradictory hearing unless it appears on the face of the motion that, as a matter of law, the
moving party is not entitled to the relief sought. Proposed law further provides that the court is
to grant the motion if it finds by a preponderance of evidence that the violation was a result of the
defendant having been a victim of human trafficking. Proposed law further provides that
documentation of a person's status as a victim of human trafficking provided by a federal, state,
or local government agency will create a presumption that the person's conviction was obtained
as a result of having been a victim of human trafficking, but such documentation shall not be
required to grant the motion.
Proposed law provides that if the motion to set aside the conviction is granted, the court is to set
aside the conviction and expunge the record of the criminal proceedings, and issue an order to
expunge all records and files related to the moving party's arrest, citation, investigation, charge,
criminal proceedings, adjudication of guilt, and probation for the offense. Proposed law further
provides that the court may also provide whatever other relief justice requires. Effective upon signature of the governor or lapse of time for gubernatorial action.
(Adds R.S. 15:539.1(E), 539.2, and 539.3, R.S. 46:2161-2163, Ch.C. Arts. 725-725.3, 728(6),
and 804(9), and C.Cr.P. Art. 930.10)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the original
bill
1. Delete proposed law provisions relative to certain crimes and the presumption that
a person charged with those crimes who is under the age of 18 is a victim of child
sex trafficking.
2. Clarify that proposed law reference to "auction" is to "public auction."
3. Clarify that plan to be developed by DCFS is with respect to children found to be
victims of human trafficking.
4. Clarifies that certain references to "victim" are to a "child victim."
5 .Changes definition of "department" in certain provisions of proposed law from
DCFS to Dept. of Public Safety and Corrections, office of juvenile justice.
Committee Amendments Proposed by Senate Committee on Finance to the engrossed bill
1. Changes name of fund to Exploited Children's Special Fund.
2. Requires monies to be deposited into fund, to first be deposited into Bond
Security and Redemption Fund.
3. Clarifies that monies are taken out of fund, subject to appropriation by the
legislature.
4.Deletes ground that a child is a sexually exploited child to allege that a family is
in need of services.
5. Deletes provisions authorizing the filing of a family in need of services petition as
a substitute for a delinquency petition in certain circumstances.
Senate Floor Amendments to reengrossed bill 1. Deletes the provision requiring the Peace Officers Training Council (POST) to
provide mandatory human trafficking training.
2. Requires consent of the district attorney to file a motion to set aside a conviction.
3. Technical amendments.