Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
       2024 REGULAR SESSION
          Committee Substitute for House Bill 5031
 By Delegates Ridenour, Kirby, Phillips, Steele, Foster,
 Kimble, Hillenbrand, Householder, Gearheart, Mallow,
                       and Martin [Originating in the Committee on the Judiciary;
           Reported on February 19, 2024]
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  A BILL to amend and reenact §61-14-1, §61-14-2, and §61-14-7 of the Code of West Virginia,
         1931, as amended, all relating to human trafficking, adding a definition for "illegal alien";
         general provisions and penalties; and providing that illegal aliens are not eligible for
         restitution.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE          14.    HUMAN          TRAFFICKING           AND       HUMAN         SMUGGLING.
     §61-14-1.                                                                                Definitions.
         When used in this article, the following words and terms shall have the meaning specified
  unless the context clearly indicates a different meaning:
         (1) "Adult" means an individual 18 years of age or older.
         (2) "Coercion" means:
         (A) The use or threat of force against, abduction of, serious harm to, or physical restraint of
  an individual;
         (B) The use of a plan, pattern, or statement with intent to cause an individual to believe that
  failure to perform an act will result in the use of force against, abduction of, serious harm to,
  physical restraint of, or deportation of an individual;
        (C) The abuse or threatened abuse of law or legal process;
        (D) The destruction or taking of, or the threatened destruction or taking of, an individual’s
 identification document or other property; or
        (E) The use of an individual’s physical or mental impairment when the impairment has a
 substantial adverse effect on the individual’s cognitive or volitional function.
        As used in this article, "coercion" does not include statements or actions made by a duly
 authorized state or federal law-enforcement officer as part of a lawful law enforcement
 investigation or undercover action, nor does it mean the physical restraint of a minor, or the threat
 of physical restraint to a minor, by his or her parents, legal custodian or legal guardian if conducted
 in an otherwise lawful manner and for the purpose of discipline, supervision, or teaching.
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        (3) "Commercial sexual activity" means sexual activity for which anything of value is given
 to, promised to, or received by a person.
        (4) "Debt bondage" means inducing an individual to provide:
        (A) Commercial sexual activity, in payment toward or satisfaction of a real or purported
 debt; or
        (B) Labor or services in payment toward or satisfaction of a real or purported debt if:
        (i) The reasonable value of the labor or services is not applied toward the liquidation of the
 debt; or
        (ii) The length of the labor or services is not limited, and the nature of the labor or services
 is not defined.
        (5) "Forced labor" means labor or services that are performed or provided by another
 person and are obtained or maintained through the following:
        (A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern or other
 action intended to cause a person to believe that, if the person did not perform or provide the labor
 or services, that person or another person would suffer serious bodily harm, physical restraint, or
 deportation;
        (B) Physically restraining or threatening to physically restrain a person;
        (C) Abuse or threatened abuse of the legal process; or
        (D) 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 another person: Provided, That "forced labor" does not mean labor or
 services required to be performed by a person in compliance with a court order or as a required
 condition of probation, parole, or imprisonment.
        As applied in this article, forced labor shall not include labor, work, or services provided by
 a minor to the minor’s parent, legal custodian, or legal guardian, so long as the legal guardianship
 or custody of the minor was not obtained for the purpose of compelling the minor to participate in
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 commercial sex acts or sexually explicit performance, or perform forced labor or services; nor shall
 it include physical restraint of a minor, or the threat of physical restraint to a minor, by his or her
 parents, legal custodian or legal guardian if conducted in an otherwise lawful manner and for the
 purpose of discipline, supervision, or teaching.
         "Human Smuggling", "smuggling", or "smuggles" means, with actual knowledge that the
 persons being transported or harbored are illegal aliens, either knowingly transporting illegal
 aliens into the State of West Virginia or transporting and harboring illegal aliens already in the
 State of West Virginia. Human smuggling does not include any person hired by another state who
 transports an illegal alien through West Virginia, so long as the illegal alien will not remain in West
 Virginia.
         (6) "Human trafficking", "trafficking", or "traffics" means knowingly recruiting, transporting,
 transferring, harboring, receiving, providing, obtaining, isolating, maintaining, or enticing an
 individual to engage in debt bondage, forced labor, or sexual servitude.
         (7) "Identification document" means a passport, driver’s license, immigration document,
 travel document or other government-issued identification document, including a document issued
 by a foreign government.
         "Illegal alien" means an alien who has entered the United States illegally and is deportable
 if apprehended, or an alien who entered the United States legally but who has fallen "out of status"
 and is deportable.
         (8) "Labor or services" means activity having economic value.
         (9) "Minor" means a person younger than 18 years of age or a person representing himself
 or herself to be a minor. Any prosecution, pursuant to this article, relating to a person that is
 representing himself or herself to be a minor shall be limited to investigations being conducted or
 overseen by law enforcement officers.
         (10) "Patronize" means giving, agreeing to give, or offering to give anything of value to
 another person in exchange for commercial sexual activity.
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         (11) "Person" means an individual, estate, business or nonprofit entity, or other legal entity.
 The term does not include a public corporation or government or governmental subdivision,
 agency, or instrumentality.
         (12) "Serious harm" means harm, whether physical or nonphysical, including
 psychological, economic or reputational, to an individual which would compel a reasonable
 individual of the same background and in the same circumstances to perform or continue to
 perform labor or services or sexual activity to avoid incurring the harm.
         (13) "Sexual activity" means sexual contact, sexual intercourse, or sexual intrusion, as
 defined in §61-8b-1 of this code, or sexually explicit conduct, as defined in §61-8-1 of this code.
         (14) "Sexual servitude" means:
         (A) Maintaining or making available a minor for the purpose of engaging the minor in
 commercial sexual activity; or
         (B) Using coercion to compel an adult to engage in commercial sexual activity.
         (15) "Victim" means an individual who is subjected to human trafficking, regardless of
 whether a perpetrator is prosecuted or convicted.
     §61-14-2. Human trafficking or smuggling of an individual; aiding and abetting human trafficking or smuggling; penalties.
          (a) Any person who knowingly and willfully traffics or smuggles an adult, or who knowingly
  and willfully aids, assists, or abets in any manner in the trafficking or smuggling of an adult, is guilty
  of a felony and, upon conviction, shall be confined in a state correctional facility for not less than
  three nor more than 15 years, fined not more than $200,000, or both confined and fined.
          (b) Any person who knowingly and willfully traffics or smuggles a minor, or who knowingly
  and willfully aids, assists, or abets in any manner in the trafficking or smuggling of a minor, is guilty
  of a felony and, upon conviction, shall be confined in a state correctional facility for not less than
  five nor more than 20 years, fined not more than $300,000, or both confined and fined.
     §61-14-7.           General provisions and other penalties.
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          (a) Separate violations. — For purposes of this article, each adult or minor victim
  constitutes a separate offense.
          (b) Aggravating circumstance. —
          (1) Notwithstanding any provision of this code to the contrary, if an individual is convicted of
  an offense under this article and the trier of fact makes a finding that the offense involved an
  aggravating circumstance, the individual shall not be eligible for parole before serving three years
  in a state correctional facility.
          (2) For purposes of this subsection, "aggravating circumstance" means: the individual
  recruited, enticed or obtained the victim of the offense from a shelter or facility that serves runaway
 youths, children in foster care, the homeless or victims of human trafficking, domestic violence or
 sexual assault.
         (A) The individual recruited, enticed or obtained the victim of the offense from a shelter or
 facility that serves runaway youths, children in foster care, the homeless or victims of human
 trafficking, domestic violence or sexual assault; or
         (B) The human trafficking or smuggling:
         (i) Was committed using a deadly weapon or the threat of use of a deadly weapon;
         (ii) Caused bodily harm or disfigurement to individuals being trafficked or smuggled;
         (iii) Caused individuals being trafficked or smuggled to become a victim of a sex offense; or
         (iv) Caused individuals to commit to sexual servitude.
         (c) Restitution. —
         (1) The court shall order a person convicted of an offense under this article to pay
 restitution to the victim of the offense, or if the victim of the offense is an illegal alien, to the state.
         (2) A judgment order for restitution may be enforced by the state or a victim named in the
 order to receive the restitution in the same manner as a judgment in a civil action in accordance
 with §61-11-4 of this code, including filing a lien against the person, firm or corporation against
 whom restitution is ordered.
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         (3) The court shall order restitution under subdivision (1) of this subsection even if the
 victim is unavailable to accept payment of restitution.
         (4) If the victim does not claim restitution ordered under subdivision (1) of this subsection
 within five years of the entry of the order, the restitution shall be paid to the Crime Victims
 Compensation Fund created under §14-2A-4 of this code.
         (5) Notwithstanding any provision of this code to the contrary, illegal aliens are not eligible
 for restitution. Restitution shall be provided by illegal alien offenders to the State of West Virginia.
         (d) Eligibility for Compensation Fund. — Notwithstanding the definition of victim in §14-2A-
 3 of this code, a victim of any offense under this article is a victim for all purposes of §14-2A-1 et
 seq. of this code: Provided, That for purposes of §14-2A-14(b) of this code, if otherwise qualified, a
 victim of any offense under this article may not be denied eligibility solely for the failure to report to
 law enforcement within the designated time frame.
         (e) Law Enforcement Notification. — Should If a law-enforcement officer encounter
 encounters a child who reasonably appears to be a victim of an offense under this article, the
 officer shall notify the Department of Human Services. If available, the Department of Human
 Services may notify the Domestic Violence Program serving the area where the child is found.
         (f) (g) Forfeiture; Debarment. –
         (1) The following are declared to be contraband and no person shall have a property
 interest in them:
         (A) All property which is directly or indirectly used or intended for use in any manner to
 facilitate a violation of this article; and
         (B) Any property constituting or derived from gross profits or other proceeds obtained from
 a violation of this article.
         (2) In any action under this section, the court may enter such restraining orders or take
 other appropriate action, including acceptance of performance bonds, in connection with any
 interest that is subject to forfeiture.
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        (3) Forfeiture actions under this section shall use the procedure set forth in §60A-7-1 et
 seq. of this code.
        (4) Any person or business entity convicted of a violation of this article shall be debarred
 from state or local government contracts.
        (5) Nothing in this article may be construed or applied in a manner that violates or conflicts
 with superseding federal law.
            NOTE: The purpose of this bill is to add a definition for "illegal alien" under human trafficking and provide that illegal aliens are not eligible for restitution.
            Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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Statutes affected: 
Introduced Version: 61-14-1, 61-14-7
Committee Substitute: 61-14-1, 61-14-2, 61-14-7