HUMAN TRAFFICKING & PROSTITUTION; EVIDENCE S.B. 515 (S-1) - 517 (S-1):
ANALYSIS AS PASSED BY THE SENATE
Senate Bills 515 and 517 (Substitute S-1 as passed by the Senate)
Senate Bill 516 (as passed by the Senate)
Sponsor: Senator Rosemary Bayer (S.B. 515)
Senator Sue Shink (S.B. 516)
Senator Stephanie Chang (S.B. 517)
Committee: Civil Rights, Judiciary, and Public Safety
Date Completed: 3-28-24
RATIONALE
Human trafficking is the illegal act of forcing an individual to perform labor or sexual acts and
often involves the kidnapping and harboring of the individual. According to testimony before
the Senate Committee on Civil Rights, Judiciary, and Public Safety, Michigan ranks in the top
10 states for instances of human trafficking. The State has worked to combat human
trafficking, enacting significant criminal penalties for traffickers and establishing the Human
Trafficking Commission in the Attorney General's office; however, human trafficking persists
in the State. Some people believe that criminal procedures, such as rules related to the use
of evidence in trials and hearings, make prosecuting human trafficking difficult and contribute
to its persistence. The Code of Criminal Procedures currently provides exceptions to some
procedures and rules in cases of domestic violence, among other crimes, because
circumstances of those cases also make prosecuting alleged perpetrators difficult. Testimony
indicates that the circumstances that make prosecuting domestic violence difficult are like the
circumstances that make prosecuting human trafficking difficult; the circumstances generally
relate to a victim's inability or unwillingness to testify in these cases for fear of personal
safety. Accordingly, it has been suggested that current exceptions to certain criminal
procedures apply to trials and hearings for human trafficking to combat human trafficking.
CONTENT
Senate Bill 515 (S-1) would amend Chapter VIII (Trials) of the Code of Criminal
Procedure to allow a statement concerning prostitution or human trafficking to be
admissible as evidence.
Senate Bill 516 would amend Chapter VIII of the Code of Criminal Procedure to
allow evidence of a defendant's prior commission of commercial sexual activity,
human trafficking, or prostitution to be admissible for any relevant purpose.
Senate Bill 517 (S-1) would amend Chapter LXVIIA (Human Trafficking) of the
Michigan Penal Code to prohibit a victim, complainant, or witness necessary for the
prosecution from being excused from testifying or complying with an investigation,
proceeding, or trial involving human trafficking if evidence would tend to degrade
or incriminate the individual. The bill specifies that truthful testimony by the
individual generally could not be used against the individual in a criminal case.
Senate Bill 515 (S-1)
Under the Code of Criminal Procedure, evidence of a statement is admissible if the statement
1) claimed to describe or explain the infliction or threat of physical injury upon the declarant;
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2) was made near the time of the infliction or threat of physical injury; 3) indicated
trustworthiness; and 4) was made to a police officer.
Currently, the Code only allows a statement that meets the requirements described above to
be admissible if the statement concerns an offense involving domestic abuse. Under the bill,
a statement that met the requirements described above and that concerned an offense
involving prostitution or human trafficking also would be admissible. 1
Additionally, the bill would define "infliction or threat of physical injury" as including all the
following:
-- Physically harming or restraining any individual.
-- Threatening to harm or physically restrain any individual or the creation of any scheme,
plan, or pattern intended to cause an individual to believe that failure to perform an act
would result in physical, psychological, reputational, or financial harm to, or physical
restraint of, any individual.
-- Facilitating or controlling an individual's access to a controlled substance, other than for a
legitimate medical purpose.
("Controlled substance" means a drug, substance, or immediate precursor included in
schedules one to seven of Part 72 (Standards and Schedules) of the Public Health Code.)
Senate Bill 516
Under Section 27b of the Code, except as provided for acts occurring more than 10 years
before the charged offense, in a criminal action in which the defendant is accused of an offense
involving domestic violence or sexual assault, evidence of the defendant's commission of other
acts of domestic violence or sexual assault are admissible for any purpose for which it is
relevant, if it is not excluded under Michigan Rule of Evidence 403. 2 Under the bill, if a
defendant were accused of commercial sexual activity, human trafficking, or prostitution,
evidence of the defendant's commission of other acts of commercial sexual activity, human
trafficking, or prostitution also would be admissible for any relevant purpose and if not
excluded under Michigan Rule of Evidence 403.
"Commercial sexual activity" would mean at least one of the following for which anything of
value is given or received by any person:
-- An act of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person's body or of any object into the genital or anal
openings of another person's body, but emission of semen is not required.
-- Intentional touching of the victim's or actor's intimate parts or the intentional touching of
the clothing covering the immediate area of the victim's or actor's intimate parts, if that
intentional touching can reasonably be construed as being for the purpose of sexual
arousal or gratification, done for a sexual purpose, or in a sexual manner for revenge,
humiliation, or out of anger.
-- Any child sexually abusive activity or material.
1
Generally, "human trafficking" and "prostitution" would mean violations of chapters concerning them
within the Michigan Penal Code.
2
Michigan Rule of Evidence 403 states, "Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."
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-- Any motion picture, video game, exhibition, show, representation, or other presentation
that, in whole or in part, depicts nudity, sexual excitement, erotic fondling, sexual
intercourse, or sadomasochistic abuse.
Senate Bill 517 (S-1)
Chapter LXVIIA of the Michigan Penal Code specifies that the testimony of a victim of a human
trafficking offense is not required in a prosecution for that offense; however, if the victim
testifies, that testimony need not be corroborated. Additionally, it allows for expert testimony
on behavioral patterns of human trafficking victims.
Under the bill, a victim, complainant, or witness for the prosecution could not be excused
from attending and testifying or producing any books, papers, or other documents before a
court or magistrate upon an investigation, proceeding, or trial for a violation of the Chapter
on the grounds that the testimony or evidence could tend to degrade or incriminate the victim,
complainant, or witness for the prosecution. Truthful testimony, evidence, or other truthful
information compelled under this provision and any information derived directly or indirectly
from that truthful testimony, evidence, or other truthful information could not be used against
the witness in a criminal case, except for impeachment purposes or in a prosecution for
perjury or otherwise failing to testify or produce evidence as required.
MCL 768.27c (S.B. 515)
768.27b (S.B. 516)
750.462g (S.B. 517)
PREVIOUS LEGISLATION
(This section does not provide a comprehensive account of previous legislative efforts on this subject matter.)
Senate Bill 515 is a reintroduction of House Bill 4214 and Senate Bill 1015 of the 2021-2022
Legislative Session. Senate Bill 516 is a reintroduction of House Bill 4095 of the 2021-2022
Legislative Session and House Bill 5638 of the 2019-2020 Legislative Session.
ARGUMENTS
(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The
Senate Fiscal Agency neither supports nor opposes legislation.)
Supporting Argument
Hearsay is a statement made by an individual outside of a trial or hearing and is generally
not admissible as evidence. The Code grants exceptions to the inadmissibility of hearsay in
specific instances, such as when the statement concerns an offense of domestic violence.
According to testimony before the Senate Committee on Civil Rights, Judiciary, and Public
Safety, current hearsay exceptions exist because victims of crimes like domestic violence
have difficulty facing their alleged perpetrators; a victim may not be ready to confront the
alleged perpetrator because of personal fear or concern for retaliation if the perpetrator were
not convicted. The hearsay exception allows victims time to process their experiences and
separate themselves from their perpetrators before confronting a perpetrator later in trial.
Victims of human trafficking similarly fear their human trafficking perpetrators. In addition,
testimony indicates that victims of human trafficking are often forced to abuse drugs, which
could require the victim to attend a drug treatment facility upon being rescued from the
human trafficking situation. These circumstances deter or prevent a human trafficking victim
from attending pretrial, evidentiary hearings, which can occur within weeks of an arrest and
are important in determining whether cases against alleged perpetrators go to trial. Granting
a similar exception to hearsay rules for a statement concerning an offense of human
trafficking would help prosecutors hold human traffickers legally accountable.
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Supporting Argument
Other-acts evidence is evidence of other crimes or wrongdoings by a defendant and is
generally not admissible as evidence; however, the Code grants certain exceptions to the
inadmissibility of other-acts evidence, such as when the defendant is accused of committing
an act of domestic violence and the evidence is of previous domestic violence. According to
testimony before the Senate Committee on Civil Rights, Judiciary, and Public Safety, the
repetitive nature of domestic violence warrants the Code's exception; focusing on one
instance of domestic violence often does not represent accurately the magnitude of the
domestic violence, and some people believe this can lead to a less significant penalty upon
conviction.
Evidently, like domestic violence, human trafficking is also repetitive in nature. Testimony
indicates that human trafficking does not happen in a vacuum and often involves many victims
and a high-level of organized criminal activity. Accordingly, focusing on one instance of human
trafficking can result in less significant penalties than may be warranted given the actual
magnitude of the crime. Allowing the admission of other-acts evidence in trials concerning
human trafficking would help prosecutors convey the magnitude of a defendant's alleged
crimes and help prosecutors combat the repetitive, organized nature of human trafficking.
Supporting Argument
According to testimony before the Senate Committee on Civil Rights, Judiciary, and Public
Safety, victims of human trafficking are often manipulated into performing illegal activities,
such as theft, smuggling, or prostitution. When prosecutors charge a person with human
trafficking, the prosecutors rely upon victims' testimony to obtain a conviction; however, a
victim of human trafficking may not want to testify in court against a defendant because the
victim's testimony could be self-incriminating. Compelling victims to testify and guaranteeing
that their truthful testimony could not be used against them in a criminal case would improve
prosecutors' abilities to hold human traffickers accountable.
Legislative Analyst: Eleni Lionas
FISCAL IMPACT
The bill would have no fiscal impact on State or local government.
Fiscal Analyst: Michael Siracuse
SAS\S2324\s515a
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an
official statement of legislative intent.
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Statutes affected:
Senate Introduced Bill: 768.27
As Passed by the Senate: 768.27