RDCSB88 427 3754
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
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 allocated among the seizing agencies in
proportion to their participation in the management of the investigation, seizure, and
forfeiture.
(2)25% to the prosecuting agency.
(3)50% to the Exploited Children's Special Fund.
Proposed law creates the Exploited Children's Special Fund. Appropriations by the
legislature and all monetary assessments paid and interest accrued on funds collected as
provided in proposed law shall be deposited into the 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. If the court finds that the offender is indigent and
therefore unable to pay the mandatory assessment at the time of conviction, the court shall
order a periodic payment plan consistent with the person's financial ability.
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 costs of medical and psychological treatment,
transportation, and housing.
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, shall develop a plan for
the delivery of services to victims of human trafficking.
Proposed law provides that in developing the plan, the departments shall work together with
such other state and federal agencies, public and private entities, and other stakeholders as
they deem appropriate. RDCSB88 427 3754
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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 an adult in need of protective
services, the agency or office shall 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 form.
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 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.
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.
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 provides that where a petition involves an allegation of an act of prostitution,
prostitution by massage, or crimes against nature by solicitation and it is the child's first
offense and the child expresses a willingness to cooperate and receive specialized services
for sexually exploited children, the district attorney may effect an informal adjustment
agreement which includes specialized services for the child. Proposed law provides that if
the child has previously been adjudicated a delinquent or is unwilling to cooperate with
specialized services for sexually exploited children, continuing with the delinquency
proceeding shall be within the discretion of the district attorney.
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. RDCSB88 427 3754
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Proposed law for the purposes of Children's Code provisions relative to family in need of
services and delinquency defines "sexually exploited child" as any person under the age of
18 when the person has been subject to sexual exploitation because the person is either a
victim of trafficking of children for sexual purposes pursuant to present law, or is a victim
of child sex trafficking pursuant to present federal law.
Proposed law provides that with the consent of the district attorney, a motion to set aside an
adjudication of delinquency 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 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 adjudication of delinquency 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 shall 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 shall 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 shall
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.
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), 804(9), 839(D), and 923)
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. RDCSB88 427 3754
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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.
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Administration of Criminal
Justice to the re-reengrossed bill.
1. Amended language regarding allocation of seized assets among seizing agencies.
2. Added provisions authorizing a payment plan if the offender is determined by the
court to be indigent.
3. Made changes to restitution provisions relative to sex trafficking.
4. Amended the definition of "sexually exploited child".
5. Amended expungement provisions to refer to "adjudication of delinquency"
instead of "conviction".
6. Added provisions regarding informal adjustment agreements.
7. Made necessary technical changes.