SLS 20RS-684 ENGROSSED
2020 Regular Session
SENATE BILL NO. 434
BY SENATOR MIZELL
CRIMINAL JUSTICE. Provides for immunity from prosecution and post-conviction relief
for victims of human trafficking. (gov sig)
1 AN ACT
2 To amend and reenact Code of Criminal Procedure Article 987 and R.S. 14:46.2(F) and to
3 enact Code of Criminal Procedure Article 926.2 and R.S. 14:46.5, relative to human
4 trafficking; to provide that convictions for certain offenses may be set aside when the
5 defendant is a victim of human trafficking; to provide relative to expungement of
6 records of arrest and conviction for certain offenses related to human trafficking; to
7 provide for immunity from prosecution for victims of human trafficking; and to
8 provide for related matters.
9 Be it enacted by the Legislature of Louisiana:
10 Section 1. Code of Criminal Procedure Article 987 is hereby amended and reenacted
11 and Code of Criminal Procedure Article 926.2 is hereby enacted to read as follows:
12 Art. 926.2. Motion to set aside conviction of certain offenses related to human
13 trafficking; expungement and sealing of record of arrest and
14 conviction
15 A. A motion to set aside a conviction pursuant to the provisions of this
16 Article may be filed and served upon the district attorney at any time following
17 a conviction involving the offenses of prostitution pursuant to R.S. 14:82,
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1 prostitution by massage pursuant to R.S. 14:83.3 or 83.4, crime against nature
2 pursuant to R.S. 14:89, or crime against nature by solicitation pursuant to R.S.
3 14:89.2, when the defendant's participation in the offense was a result of having
4 been a victim of human trafficking under R.S. 14:46.2 or trafficking of children
5 for sexual purposes under R.S. 14:46.3, or a victim of a severe form of
6 trafficking under the federal Trafficking Victims Protection Act, 22 U.S.C. 7101
7 et seq.
8 B. The motion shall be in writing, shall describe the supporting evidence
9 with particularity, and shall include copies of any documents showing that the
10 defendant is entitled to relief under this Article.
11 C. The motion shall not be denied without a contradictory hearing unless
12 it appears on the face of the motion that, as a matter of law, the defendant is not
13 entitled to the relief sought.
14 D. The court shall grant the motion if the court finds by a preponderance
15 of the evidence that the violation was a result of the defendant having been a
16 victim of human trafficking. Documentation of the defendant's status as a
17 victim of human trafficking provided by a federal, state, or local government
18 agency shall create a presumption that the defendant's conviction was obtained
19 as a result of having been a victim of human trafficking. However, such
20 documentation shall not be required to grant a motion under this Article.
21 E. If the motion is granted, the court shall order the expungement and
22 sealing, without cost to the defendant, of the record of arrest and conviction,
23 including all records and files related to the defendant's arrest, citation,
24 investigation, charge, conviction, probation, and sentence for the offense.
25 * * *
26 Art. 987. Motion to set aside conviction and dismiss prosecution; rule to show
27 cause; order of dismissal forms to be used
28 "STATE OF LOUISIANA
29 JUDICIAL DISTRICT FOR THE PARISH OF
30 ______________________________
31
32 No.: _____________ Division: "_______"
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1 State of Louisiana
2 vs.
3 _______________________________________________________
4 MOTION TO SET ASIDE CONVICTION AND
5 DISMISS PROSECUTION
6
7 NOW INTO HONORABLE COURT, comes
8 G Defendant, OR
9 G Defendant through undersigned Counsel,
10 who moves that the conviction pursuant to Louisiana Code of Criminal Procedure
11 G Article 894(B) Misdemeanors, OR
12 G Article 893(E) Felonies, OR
13 G Article 926.2 Offenses related to human trafficking
14 in the above numbered case be set aside and that the prosecution dismissed in accordance with the Code
15 of Criminal Procedure in that:
16 G the The period of the deferred sentence has run and petitioner has successfully completed the
17 terms of his probation. , OR
18 G The defendant was convicted of an offense related to human trafficking.
19
20 The mover is further identified below:
21 DOCKET NUMBER: _______________________
22 CHARGE: _______________________
23 DATE OF ARREST: _______________________
24 ARRESTING AGENCY: _______________________
25 CITY/PARISH OF ARREST: _______________________
26 The Mover prays that, after a contradictory hearing with the District Attorney's Office, the Court
27 order the above numbered case be set aside and that the prosecution dismissed in accordance with the
28 Code of Criminal Procedure.
29 Respectfully submitted,
30 ____________________________________
31 Signature of Attorney for Mover/Defendant
32
33 ____________________________________
34 Attorney for Mover/Defendant Name
35
36 ____________________________________
37 Attorney's Bar Roll No.
38
39 ____________________________________
40 Address
41
42 ____________________________________
43 City, State, ZIP Code
44
45 ____________________________________
46 Telephone Number
47
48
49 If not represented by counsel:
50
51 ____________________________________
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SLS 20RS-684 ENGROSSED
1 Signature of Mover/Defendant
2
3 ____________________________________
4 Mover/Defendant Name
5
6 ____________________________________
7 Address
8
9 ____________________________________
10 City, State, ZIP Code
11
12 ____________________________________
13 Telephone Number
14
15 STATE OF LOUISIANA
16 JUDICIAL DISTRICT FOR THE PARISH OF
17
18 ______________________________
19
20 No.: ______________ Division: "_______"
21
22 State of Louisiana
23
24 vs.
25
26 _______________________________________________________
27
28 RULE TO SHOW CAUSE
29
30 IT IS HEREBY ORDERED, that the District Attorney show cause on the _______ day of
31 ______________________, 20 _____, at ______o'clock __m why the foregoing motion should not be
32 granted.
33 THUS ORDERED AND SIGNED this ____ day of _________________, 20 ____ at
34 ______________, Louisiana, ___________________________.
35 ___________________________
36 JUDGE
37
38 PLEASE SERVE:
39
40 1. District Attorney: _____________________________________________
41
42 2. Attorney for Defendant and/or Defendant ____________________________
43
44 STATE OF LOUISIANA
45 JUDICIAL DISTRICT FOR THE PARISH OF
46 ______________________________
47
48 No.: _________ Division: "_______"
49
50 State of Louisiana
51
52 vs.
53 _______________________________________________________
54
55 ORDER OF DISMISSAL
56
57 Considering the Motion to Set Aside Conviction and Dismiss Prosecution, the hearing conducted
58 on the representation of the State of Louisiana of its consent hereto, and that there is no opposition for any
59 good cause appearing herein;
60 IT IS ORDERED, ADJUDGED AND DECREED that this conviction is set aside and the
61 prosecution dismissed for purposes of expungement.
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1 THUS ORDERED AND SIGNED this _____ day of _______________, 20 ____ at
2 ________________, Louisiana.
3 ___________________________________
4 JUDGE
5
6 PLEASE SERVE:
7
8 1. District Attorney:________________________________________________
9
10 2. Attorney for Defendant and/or Defendant ___________________________"
11 Section 2. R.S. 14:46.2(F) is hereby amended and reenacted and R.S. 14:46.5 is
12 hereby enacted to read as follows:
13 §46.2. Human trafficking
14 * * *
15 F.(1) A victim of trafficking involving services that include commercial
16 sexual activity or any sexual contact which constitutes a crime pursuant to the laws
17 of this state shall have an affirmative defense to prosecution for any of the following
18 offenses which were committed as a direct result of being trafficked:
19 (a) R.S. 14:82 (Prostitution).
20 (b) R.S. 14:83.3 (Prostitution by massage).
21 (c) R.S. 14:83.4 (Massage; sexual conduct prohibited).
22 (d) R.S. 14:89 (Crime against nature).
23 (e) R.S. 14:89.2 (Crime against nature by solicitation).
24 (2) Any person seeking to raise this affirmative defense shall provide written
25 notice to the state at least forty-five days prior to trial or at an earlier time as
26 otherwise required by the court.
27 (3) Any person determined to be a victim pursuant to the provisions of this
28 Subsection shall be notified of any treatment or specialized services for sexually
29 exploited persons to the extent that such services are available.
30 No victim of trafficking as provided by the provisions of this Section
31 shall be prosecuted for unlawful acts committed as a direct result of being
32 trafficked. Any child determined to be a victim pursuant to the provisions of
33 this Subsection shall be eligible for specialized services for sexually exploited
34 children.
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1 * * *
2 §46.5. Immunity from prosecution for offenses related to human trafficking;
3 services to victims
4 A.(1) Notwithstanding any other provision of law, no victim of
5 trafficking as provided by the provisions of R.S. 14:46.2 or 46.3 shall be
6 prosecuted for unlawful acts committed as a direct result of being trafficked.
7 (2) Any child determined to be a victim of trafficking pursuant to the
8 provisions of this Subsection shall be eligible for specialized services for sexually
9 exploited children.
10 B. The provisions of Chapter 1 of Title V of the Children's Code
11 regarding the multidisciplinary team approach applicable to children who have
12 been abused or neglected, to the extent practical, shall apply to the children who
13 are victims of trafficking as provided by the provisions of R.S. 14:46.2 or 46.3.
14 Section 3. This Act shall become effective upon signature by the governor or, if not
15 signed by the governor, upon expiration of the time for bills to become law without signature
16 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
17 vetoed by the governor and subsequently approved by the legislature, this Act shall become
18 effective on the day following such approval.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
SB 434 Engrossed 2020 Regular Session Mizell
Present law provides definitions and penalties for the crimes of human trafficking and
trafficking of children for sexual purposes.
Proposed law retains present law.
Present law provides that a victim of the crime of trafficking of children for sexual purposes
cannot be prosecuted for crimes committed as a direct result of being trafficked. Present law
further provides that any child determined to be a victim of the crime of trafficking of
children for sexual purposes is eligible for specialized services for sexually exploited
children.
Proposed law retains present law.
Present law provides that a victim of the crime of human trafficking involving services that
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include commercial sexual activity or any sexual contact that constitutes a crime pursuant
to present law has an affirmative defense to prosecution for certain present law sex offenses,
including prostitution and crime against nature.
Proposed law deletes present law and provides that a victim of the crime of human
trafficking cannot be prosecuted for crimes committed as a direct result of being trafficked,
and further provides that any child determined to be a victim of the crime of human
trafficking is eligible for specialized services for sexually exploited children.
Proposed law provides that, notwithstanding any other provision of present law, a victim of
trafficking as provided by present law cannot be prosecuted for any crime committed as a
direct result of being trafficked. Proposed law further provides that any child determined to
be a victim of trafficking pursuant to the provisions of proposed law is eligible for
specialized services for sexually exploited children. Proposed law further provides that
present law provisions regarding the multidisciplinary team approach applicable to children
who have been abused or neglected, to the extent practical, apply to the children who are
victims of trafficking.
Proposed law provides that a motion to set aside a conviction may be filed and served upon
the district attorney at any time following a conviction involving the present law crimes of
prostitution, prostitution by massage, crime against nature, or crime against nature by
solicitation, when the defendant's participation in the crime was a result of having been a
victim of human trafficking or trafficking of children for sexual purposes 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 defendant is entitled to relief under proposed law. Proposed law further provides that the
motion cannot be denied without a contradictory hearing, unless it appears on the face of the
motion that the defendant is not entitled to the relief sought as a matter of law.
Proposed law provides that the court must grant the motion to set aside if the court finds by
a preponderance of evidence that the crime was committed as a result of the defendant
having been a victim of human trafficking. Proposed law further provides that
documentation of the defendant's status as a victim of human trafficking provided by a
federal, state, or local government agency creates a presumption that the defendant's
conviction was obtained as a result of having been a victim of human trafficking, but such
documentation is not required in order to grant the motion to set aside. Proposed law further
provides that if the motion is granted, the court is to order the expungement and sealing,
without cost to the defendant, of the record of arrest and conviction, including all records
and files related to the defendant's arrest, citation, investigation, charge, conviction,
probation, and sentence.
Present law provides forms for the motion to set aside conviction and dismiss prosecution
provided for by present law.
Proposed law retains present law and adds provisions to the forms relative to the proposed
law motion to set aside conviction of certain offenses related to human trafficking.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends C.Cr.P. Art. 987 and R.S. 14:46.2(F); adds C.Cr.P. Art. 926.2 and R.S. 14:46.5)
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