Bill Text: MS SB2305 | 2019 | Regular Session | Engrossed


Bill Title: Human trafficking; revise penalties and definitions.

Spectrum: Slight Partisan Bill (Republican 25-13)

Status: (Engrossed) 2019-03-22 - Decline to Concur/Invite Conf [SB2305 Detail]

Download: Mississippi-2019-SB2305-Engrossed.html

MISSISSIPPI LEGISLATURE

2019 Regular Session

To: Judiciary, Division A

By: Senator(s) Watson, Barnett, Blackmon, Blackwell, Branning, Browning, Butler, Carmichael, Carter, Caughman, Chassaniol, Clarke, Dawkins, DeBar, Dearing, Frazier, Gollott, Harkins, Hill, Hopson, Hudson, Jackson (15th), Jackson (11th), Jackson (32nd), Jolly, Jordan, Kirby, McDaniel, Michel, Moran, Parker, Parks, Seymour, Turner-Ford, Whaley, Wilemon, Witherspoon, Younger

Senate Bill 2305

(As Passed the Senate)

AN ACT TO AMEND SECTION 97-3-54.1, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR HUMAN TRAFFICKING; TO AMEND SECTION 97-3-54.4, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS UNDER THE HUMAN TRAFFICKING ACT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:

     97-3-54.1.  (1)  (a)  A person who * * *coerces, recruits, entices, harbors, transports, provides or obtains by any means, or attempts to coerce, recruit, entice, harbor, transport, provide or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services, or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, engages in labor trafficking or sex trafficking shall be * * *guilty of the crime of human‑trafficking punished by commitment to the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years, and may also be fined not more than One Hundred Thousand Dollars ($100,000.00).

          (b)  A person who knowingly * * *purchases the forced labor or services of a trafficked person or who otherwise knowingly subjects, or attempts to subject, another person to forced labor or services or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, shall be guilty of the crime of procuring involuntary servitude benefits from or participates in a venture which has, as part of the venture, an act that is in violation of this section shall be punished by commitment to the custody of the Department of Corrections for not less than two (2) nor more than twenty (20) years, and may also be fined not more than One Hundred Thousand Dollars ($100,000.00).

     ( * * *c2)  A person who * * *knowingly subjects, or attempts to subject, or who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, a minor, knowing that the minor will engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and engages in labor trafficking of a minor or sex trafficking of a minor shall be punished by commitment to the custody of the Department of Corrections for not less than * * *five (5) twenty (20) years nor more than * * * thirty (30) years, or by a fine of life in prison, and may also be fined not * * *less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00) * * *, or both.  It is not a defense in a prosecution under this section for sex trafficking that a minor consented to engage in the commercial sexual activity, * * * sexually explicit performance, or the production of sexually oriented material, that the defendant believed that the minor gave consent, or that the defendant reasonably believed that the minor was eighteen (18) years of age or older.

 * * * (2)  If the victim is not a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years, or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both.  If the victim of the offense is a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than five (5) years nor more than twenty (20) years, or by a fine of not less than Twenty Thousand Dollars ($20,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both.

     (3)  An enterprise may be prosecuted for an offense under * * * this chapter Sections 97-3-54 through 97-3-54.9 if:

          (a)  An agent of the enterprise knowingly engages in conduct that constitutes an offense under * * * this chapter Sections 97-3-54 through 97-3-54.9 while acting within the scope of employment and for the benefit of the entity.

          (b)  An employee of the enterprise engages in conduct that constitutes an offense under * * * this chapter Sections 97-3-54 through 97-3-54.9 and the commission of the offense was part of a pattern of illegal activity for the benefit of the enterprise, which an agent of the enterprise either knew was occurring or recklessly disregarded, and the agent failed to take effective action to stop the illegal activity.

          (c)  It is an affirmative defense to a prosecution of an enterprise that the enterprise had in place adequate procedures, including an effective complaint procedure, designed to prevent persons associated with the enterprise from engaging in the unlawful conduct and to promptly correct any violations of * * * this chapter Sections 97-3-54 through 97-3-54.9.

          (d)  The court may consider the severity of the enterprise's offense and order penalties, including:  (i) a fine of not more than One Million Dollars ($1,000,000.00); (ii) disgorgement of profit; and (iii) debarment from government contracts.  Additionally, the court may order any of the relief provided in Section 97-3-54.7.

     (4)  In addition to the mandatory reporting provisions contained in Sections 43-21-353 and 97-5-51, any person who has reasonable cause to suspect that a minor * * * under the age of eighteen (18) is a trafficked person shall immediately make a report of the suspected * * * child abuse or neglect trafficking to the Department of * * * Human Child Protection Services * * * and to the Statewide Human Trafficking Coordinator.  The Department of * * * Human Child Protection Services shall then immediately notify the law enforcement agency in the jurisdiction where the suspected * * * child abuse or neglect trafficking occurred as required in Section 43-21-353, and the department shall also commence an initial investigation into the suspected * * * abuse or neglect trafficking as required in Section 43-21-353.  The Department of Child Protection Services shall also notify, as soon as reasonably possible, the Human Trafficking Coordinator, who shall establish the mechanism for receiving reports of child trafficking cases from the Department of Child Protection Services.  A minor who * * *has been is identified, at any point in an investigation or proceeding, as a victim of trafficking shall not be held liable by any court for criminal or delinquent activity in violation of this section.

     (5)  It is an affirmative defense in a prosecution of a person who is eighteen (18) years of age or older under * * * this act Sections 97-3-54 through 97-3-54.9 that the defendant:

          (a)  Is a victim of human trafficking; and

          (b)  Committed the offense under a reasonable apprehension created by a person that, if the defendant did not commit the act, the person would inflict serious harm on the defendant, a member of the defendant's family, or a close associate.

     SECTION 2.  Section 97-3-54.4, Mississippi Code of 1972, is amended as follows:

     97-3-54.4.  For the purposes of the Mississippi Human Trafficking Act the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:

          (a)  "Act" or "this act" means the Mississippi Human Trafficking Act.

          (b)  "Actor" means a person who violates any of the provisions of Sections 97-3-54 through 97-3-54.4.

          (c)  "Blackmail" means obtaining property or things of value of another by threatening to (i) inflict bodily injury on anyone; or (ii) commit any other criminal offense.

          (d)  "Coerce" or "coercion" means:

              (i)  Causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person;

              (ii)  Exposing or threatening to expose any fact or information or disseminating or threatening to disseminate any fact or information that would tend to subject a person to criminal or immigration proceedings, hatred, contempt or ridicule;

              (iii)  Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document of any person;

              (iv)  Providing a controlled substance to a person for the purpose of compelling the person to engage in labor or sexual servitude against the person's will;

              (v)  Causing or threatening to cause financial harm to any person or using financial control over any person;

              (vi)  Abusing or threatening to abuse a position of power, the law, or legal process;

              (vii)  Using blackmail;

              (viii)  Using an individual's personal services as payment or satisfaction of a real or purported debt when:  1. the reasonable value of the services is not applied toward the liquidation of the debt; 2. the length of the services is not limited and the nature of the services is not defined; 3. the principal amount of the debt does not reasonably reflect the value of the items or services for which the debt is incurred; or 4. the individual is prevented from acquiring accurate and timely information about the disposition of the debt; * * * or

              (ix)  Using any scheme, plan or pattern of conduct intended to cause any person to believe that, if the person did not perform the labor or services, that the person or another person would suffer serious harm or physical restraint; or

              (x)  Securing labor or services prohibited by this section through fraud or deception.

          (e)  "Commercial sexual activity" means any sex act, sexually explicit performance or production of sexually oriented material on account of which anything of value is given to, promised to, or received by any person.

          (f)  "Deception" means (i) to knowingly and intentionally cause a person to believe to be true a purported fact or event that is false, or to believe to be false an actual fact or event that is true, whether such fact or event has occurred, is occurring or will occur, if the accused knows or believes the truth about the actual or purported fact or event; or (ii) promising benefits or the performance of services that the accused does not intend to deliver or perform or knows will not be delivered or performed.  Evidence of failure to deliver benefits or perform services standing alone is not sufficient to establish the element of deception.

          ( * * *fg)  "Enterprise" means any individual, sole proprietorship, partnership, corporation, union or other legal entity, or any association or group of individuals associated in fact regardless of whether a legal entity has been formed pursuant to any state, federal or territorial law.  It includes illicit as well as licit enterprises and governmental as well as other entities.

          ( * * *gh)  "Financial harm" includes, but is not limited to, extortion as defined by Section 97-3-82, Mississippi Code of 1972, or violation of the usury law as defined by Chapter 17, Title 75, * * *Chapter 17, Mississippi Code of 1972.

          ( * * *hi)  "Forced labor or services" means labor or services that are performed or provided by another person and are obtained or maintained through coercion.

          ( * * *ij)  "Labor" means work of economic or financial value.

          (k)  "Labor trafficking" means (i) knowingly recruiting, enticing, harboring, transporting, providing or obtaining by any means or attempting to recruit, entice, harbor, transport, provide or obtain by any means a person, intending or knowing that the person will be subjected to forced labor or services; or (ii) knowingly subjecting or attempting to subject a person to forced labor or services.

          ( * * *jl)  "Maintain" means, in relation to labor or services or commercial sexual activity, to secure continued performance thereof, regardless of any initial agreement on the part of the trafficked person to perform such labor or service.

          ( * * *km)  "Minor" means a person under the age of eighteen (18) years.

          ( * * *ln)  "Obtain" means * * *, in relation to labor or services, to secure performance * * *thereof of labor or services or commercial sexual activity and includes securing performance by means of purchase, solicitation or patronage.

          ( * * *mo)  "Pecuniary damages" means any of the following:

              (i)  The greater of the gross income or value to the defendant of the victim's labor or services, including sexual services, not reduced by the expense the defendant incurred as a result of maintaining the victim, or the value of the victim's labor or services calculated under the minimum wage and overtime provisions of the Fair Labor Standards Act, 29 USCS Section 201 et seq., whichever is higher;

              (ii)  If it is not possible or in the best interest of the victim to compute a value under subparagraph (i) of this paragraph ( * * *mo), the equivalent of the value of the victim's labor or services if the victim had provided labor or services that were subject to the minimum wage and overtime provisions of the Fair Labor Standards Act, 29 USCS 201 et seq.;

              (iii)  Costs and expenses incurred by the victim as a result of the offense for:

                   1.  Medical services;

                   2.  Therapy or psychological counseling;

                   3.  Temporary housing;

                   4.  Transportation;

                   5.  Childcare;

                   6.  Physical and occupational therapy or rehabilitation;

                   7.  Funeral, interment, and burial services;

reasonable attorney's fees and other legal costs; and

                   8.  Other expenses incurred by the victim.

          ( * * *np)  "Serious harm" means harm, whether physical or nonphysical, including psychological, economic or reputational, to an individual that would compel a reasonable person in similar circumstances as the individual to perform or continue to perform labor or services to avoid incurring the harm.

          ( * * *oq)  "Services" means * * * an ongoing a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor or a third party and includes, without limitation, commercial sexual activity, sexually explicit performances, or the production of sexually explicit materials an act committed at the behest of, under the supervision of, or for the benefit of another person.

          ( * * *pr)  "Sexually explicit performance" means a live or public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interests of patrons.

          (s)  "Sex trafficking" means knowingly, through the use of coercion, recruiting, enticing, harboring, transporting, providing, soliciting or obtaining by any means or knowingly attempting to recruit, entice, harbor, transport, provide, solicit or obtain by any means a person eighteen (18) years of age or older for the purpose of having the person engage in commercial sexual activity.

          (t)  "Sex trafficking of a minor" means (i) knowingly recruiting, enticing, harboring, transporting, providing, soliciting or obtaining by any means or knowingly attempting to recruit, entice, harbor, transport, provide, solicit or obtain by any means a minor for the purpose of having the minor engage in commercial sexual activity; or (ii) subjects or attempts to subject a minor to commercial sexual activity; coercion is not an element of the offense of sex trafficking of a minor.

          ( * * *qu)  "Trafficked person" means a person subjected to the practices prohibited by this act regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted, and is a term used interchangeably with the terms "victim," "victim of trafficking" and "trafficking victim."

          ( * * *rv)  "Venture" means any group of two (2) or more individuals associated in fact, whether or not a legal entity.

          ( * * *sw)  "Sexually oriented material" shall have the meaning ascribed in Section 97-5-27, Mississippi Code of 1972.

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2019.


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