Bill Text: NH HB1577 | 2022 | Regular Session | Enrolled

New Hampshire House Bill 1577 (Prior Session Legislation)

Bill Title: Relative to exemptions from prosecution for victims of human trafficking.

Spectrum: Moderate Partisan Bill (Republican 4-1)

Status: (Passed) 2022-05-24 - Signed by Governor Sununu 05/20/2022; Chapter 82; Eff. 01/01/2023 [HB1577 Detail]

Download: New_Hampshire-2022-HB1577-Enrolled.html

HB 1577-FN - VERSION ADOPTED BY BOTH BODIES

2022 SESSION

22-2113

04/05

HOUSE BILL 1577-FN

AN ACT relative to exemptions from prosecution for victims of human trafficking.

SPONSORS: Rep. Abbas, Rock. 8; Rep. Steven Smith, Sull. 11; Rep. Bordenet, Ches. 5; Rep. Rhodes, Ches. 15; Sen. Ward, Dist 8

COMMITTEE: Criminal Justice and Public Safety

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ANALYSIS

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

22-2113

04/05

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Two

AN ACT relative to exemptions from prosecution for victims of human trafficking.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraph; Trafficking in Persons; Definitions. Amend RSA 633:6 by inserting after paragraph VI the following new paragraph:

VII. “Victim of human trafficking” means:

(a) An individual who, at any point in time, was the victim of a trafficking in persons offense under RSA 633:7, I-III, whether or not the offense was prosecuted; or

(b) An individual who at any point in time was the victim of a severe form of trafficking in persons offense under 22 U.S.C. section 7102(11)(A), whether or not the offense was prosecuted.

2 Trafficking in Persons; Exemption From Prosecution. RSA 633:7, VI is repealed and reenacted to read as follows:

VI. No victim of human trafficking shall be prosecuted for any offense, where the otherwise chargeable conduct was committed as a direct result of being trafficked, provided that the conduct chargeable did not involve an act of violence or a threat of violence as defined in RSA 625:9, VII.

3 New Paragraphs; Trafficking in Persons; Exemption From Prosecution for Juvenile Victims; Privacy of Records; Vacating a Conviction or Adjudication. Amend RSA 633:7 by inserting after paragraph VI the following new paragraphs:

VII. A victim of human trafficking who was under 18 years of age at the time of the offense shall not be subject to juvenile delinquency proceedings under RSA 169-B for any otherwise chargeable offense, where the conduct was committed as a direct result of being trafficked, provided that the conduct chargeable did not involve an act of violence or a threat of violence as defined in RSA 625:9, VII.

VIII.(a) This paragraph shall apply to:

(1) An individual convicted for an offense which was committed as a direct result of being trafficked;

(2) An individual who was under 18 years of age at the time of the offense, who was adjudicated as delinquent for an offense which was committed as a direct result of being trafficked; or

(3) An individual who entered into a diversion agreement in lieu of further criminal proceedings for an offense which was committed as a direct result of being trafficked.

(b) A victim of human trafficking who was subject to adjudication as specified in subparagraph (a), may, at any time, file a motion with the circuit court, district division or superior court to vacate a conviction, adjudication of delinquency, or diversion agreement, and the related court records and arrest records, for any offense. A copy of the motion to vacate shall be provided to the agency that prosecuted the offense.

(c) After a hearing, the court shall grant the motion to vacate the conviction, adjudication of delinquency, or diversion agreement upon a finding by a preponderance of the evidence that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was the direct result of being trafficked. A finding by the court that the petitioner was a victim of human trafficking at the time of the offense shall be a prima facie evidence that the petitioner’s participation in the offense was a direct result of being trafficked.

(d) The petitioner shall not be required to provide any official documentation indicating that he or she was a victim of human trafficking at the time of the offense. However, if such documentation is provided, it shall be prima facie evidence that the petitioner’s participation in the offense was a direct result of being trafficked. In this subparagraph, “official documentation” means:

(1) A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a federal immigration proceeding, that shows the petitioner was a victim of human trafficking; or

(2) An affidavit or sworn testimony from a member of the clergy, a medical professional, a trained professional staff member of a victim services organization, or other professional from whom the petitioner has sought legal counselor other assistance in addressing the trauma and other challenges associated with being a victim of human trafficking.

(e) In determining whether the petitioner was a victim of human trafficking at the time of the offense, the court may consider any other evidence the court finds has sufficient credibility and probative value. Such evidence may include, but is not limited to:

(1) The affidavit or sworn testimony of the petitioner;

(2) Branding or other tattoos on the body of the petitioner that identify the petitioner as having had a trafficker;

(3) Photographic evidence of branding or other tattoos on the body of the petitioner that identify the petitioner as having or having had a trafficker;

(4) Affidavits or sworn testimony of police, police interview notes, or police reports;

(5) Affidavits or sworn testimony from any person with firsthand knowledge of the petitioner’s involvement in the trafficking or any person who indicates that he or she was trafficked or exploited by the same individual or group of individuals who trafficked the petitioner;

(6) Financial records showing revenues or expenses from the trafficking;

(7) Internet listings, print advertisements, or business cards used to promote the petitioner for services; or

(8) Email, text messages, or voicemail records between the petitioner, the trafficker, or solicitors of sex that reveal aspects of the trafficking, such as examples of trafficker exerting control over the petitioner, evidence of behavior patterns of the trafficker or the petitioner, or discussion of meeting times or payments.

(f) Upon request of the petitioner and in lieu of the personal appearance of the petitioner in the courtroom, a hearing shall be conducted by 2-way electronic audio-video communication, between the petitioner, the judge, and any other present in the courtroom for the hearing, if the petitioner is represented by counsel and upon request of the petitioner, the petitioner’s personal appearance shall be waived and counsel for petitioner shall be permitted to appear on the petitioner’s behalf.

IX. Upon request of the petitioner, the court shall not disclose or open to public inspection any information identifying the petitioner, including any records of the motion hearing which could provide circumstantial details that may identify the petitioner. Information regarding the petitioner that is sealed pursuant to this paragraph shall be disclosed only to the following:

(a) The judge of the circuit court, district division or superior court and members of the staff of the court as designated by the judge;

(b) Parties to the proceedings and their attorneys;

(c) With the consent of the petitioner, any individual or public or private agency or institution providing educational, medical, or mental health service to the petitioner;

(d) When necessary for the discharge of official duties, law enforcement officers, prosecutors, or law enforcement or prosecution staff, or

(e) When authorized by court order, any other person, subject to any conditions imposed by the order, consistent with the petitioner’s safety and privacy interests.

X.(a) An order vacating a conviction, adjudication of delinquency, or diversion agreement shall:

(1) Nullify the conviction, delinquency adjudication, or diversion agreement;

(2) Vacate the conviction, delinquency adjudication, or diversion agreement due to a substantive defect in the underlying criminal proceedings;

(3) Remove all civil disabilities and disqualifications imposed as a result of the conviction, delinquency adjudication, or diversion agreement; and

(4) Place the petitioner in the position of never having been investigated, arrested, convicted, deemed delinquent, or diverted for the offense.

(b) Upon a finding that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was a direct result of being trafficked and an entry of an order vacating the conviction, delinquency’s adjudication, or diversion agreement the court shall:

(1) Order the conviction, delinquency adjudication, or diversion agreement and any related court records expunged and purged from all applicable state and federal systems. The court shall enter this order regardless of whether the petitioner had any criminal record prior or subsequent to the conviction, delinquency adjudication, or diversion agreement being vacated.

(2) Order the division of state police to purge the conviction, delinquency adjudication, or diversion agreement, and any related court records or arrest records from the criminal history record information repository and all applicable state and federal databases. The clerk of the court shall send a certified copy of the order to the division of state police, which shall carry out the order and shall notify the following of the court’s order: the Federal Bureau of Investigation, the New Hampshire department of corrections, and any other criminal justice agency that may have a record of the conviction, adjudication of delinquency, or diversion agreement and related court records or arrest records.

(c) Upon a finding that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was a direct result of being trafficked and an entry of an order vacating the conviction, delinquency adjudication, or diversion agreement, the court may, in its discretion, grant other relief to the petitioning victim in the interests of justice.

(d) Vacating a conviction, delinquency adjudication, or diversion agreement shall not affect any right of the person whose offense was vacated to appeal the conviction or sentence.

4 Effective Date. This act shall take effect January 1, 2023.

LBA

22-2113

12/14/21

HB 1577-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to exemptions from prosecution for victims of human trafficking.

FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None


	Estimated Increase / (Decrease)
STATE:	FY 2022	FY 2023	FY 2024	FY 2025
Appropriation	$0	$0	$0	$0
Revenue	$0	$0	$0	$0
Expenditures	$0	Indeterminable	Indeterminable	Indeterminable
Funding Source:	[ X ] General [ ] Education [ ] Highway [ ] Other

COUNTY:
Revenue	$0	$0	$0	$0
Expenditures	$0	Indeterminable	Indeterminable	Indeterminable

METHODOLOGY:

This bill establishes exemptions from prosecution for victims of human trafficking, and establishes procedures to protect the privacy of court records relating to human trafficking and for vacating convictions and juvenile adjudications in human trafficking cases. This bill affects penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.

Judicial Council	FY 2022	FY 2023
Public Defender Program	Has contract with State to provide services.	Has contract with State to provide services.
Contract Attorney – Felony	$825/Case	$825/Case
Contract Attorney – Misdemeanor	$300/Case	$300/Case
Assigned Counsel – Felony	$60/Hour up to $4,100	$60/Hour up to $4,100
Assigned Counsel – Misdemeanor	$60/Hour up to $1,400	$60/Hour up to $1,400
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. Historically, approximately 85% of the indigent defense caseload has been handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%). Beginning in March of 2021, the public defender program has had to close intake to new cases due to excessive caseloads. Due to these closures, the contract and assigned counsel program have had to absorb significantly more cases. The system is experiencing significant delays in appointing counsel and the costs of representation have increased due to travel time and multiple appointments.
Department of Corrections	FY 2022	FY 2023
FY 2021 Average Cost of Incarcerating an Individual	$54,386	$54,386
FY 2021 Annual Marginal Cost of a General Population Inmate	$5,715	$5,715
FY 2021 Average Cost of Supervising an Individual on Parole/Probation	$603	$603
NH Association of Counties	FY 2022	FY 2023
County Prosecution Costs	Indeterminable	Indeterminable
Estimated Average Daily Cost of Incarcerating an Individual	$105 to $125	$105 to $125

The Judicial Branch indicates the proposed law would exempt from prosecution victims of human trafficking for any offense provided the conduct did not involve an act of violence or threat of violence and inserts new paragraphs regarding juvenile victims of human trafficking. The proposed law would authorize a victim of human trafficking who was subject to an adjudication to file a motion in court to vacate a conviction, adjudication of delinquency, or diversion agreement. The court would be required to grant the motion upon a finding by a preponderance of the evidence that the petitioner’s participation in the offense underlying the conviction, delinquency adjudication, or diversion agreement was the direct result of being trafficked. The court would be required to allow the petitioner to appear remotely upon request of the petitioner and certain records of the proceeding would be sealed at the request of the petitioner. The court would also be required to order records to be expunged and purged from applicable state and federal systems and the State Police to purge their records regarding conviction, delinquency adjudication or diversion agreement. The Branch does have data that would identify the number of cases charged against victims of human trafficking and it is not possible to evaluate how many fewer prosecutions may occur as a result of the legislation. It is also not possible to evaluate how many persons convicted would be eligible to file petitions to vacate be filed as a result of the legislation. The Branch assumes that the changes would result in additional litigation which would require additional judicial resources, but the additional number of cases that may be filed if this amendment goes into effect, if any, cannot be predicted.

The Judicial Council states it is unclear how many future prosecution charges would not be brought as a result of this legislation. It is assumed that there would not be a significant decrease in the number of charged crimes. Therefore, it does not appear that any reduction due to this legislation would have a meaningful impact on indigent defense expenditures.

Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department may be able to absorb the cost within its existing budget. However, if the Department needs to prosecute significantly more cases or handle more appeals, then costs will increase by an indeterminable amount.

AGENCIES CONTACTED:

Judicial Branch, Departments of Corrections and Justice, Judicial Council, and New Hampshire Association of Counties