HB422 Alabama 2020 Session

Under existing law, a person is guilty of human trafficking if the person, among other things, benefits financially from subjecting another person to sexual servitude. Sexual servitude is defined to require coercion or deception from the perpetrator of the crime

Also under existing law, coercion or deception is not required if the victim is a minor

This bill would provide that coercion or deception is not required if the victim is physically or mentally incapable of consent

Under existing law, human trafficking of a minor is a Class A felony

This bill would provide a minimum period of incarceration for a person convicted of human trafficking of a minor

Under existing law, the Attorney General is allowed to bring a civil action against a legal entity accused of human trafficking to obtain a restraining order and recover damages on behalf of the victims

This bill would allow a court to appoint a master or receiver to seize the assets of that legal entity pending outcome of the case under certain specified conditions

Under existing law, the penalty for a first violation of failing to post human trafficking hotline information in certain establishments is a warning and the penalty for a subsequent violation is $25

This bill would increase the penalty for a subsequent violation to $250 and would establish which agencies would be responsible for enforcement of the human trafficking hotline information requirements

Under existing law, a person who pays or agrees to pay another to engage in sexual conduct with a person is guilty of a Class A misdemeanor

This bill would provide a minimum period of incarceration for a second or subsequent conviction

Under existing law, a person who petitions for expungement may receive a hearing on the matter, but the matter may be dismissed without a hearing

This bill would provide that when an expungement petition is filed by a victim of human trafficking, the court is required to set a hearing on an expungement petition and grant the petition if the court is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the expungement petition requirements

This bill would provide whistleblower protection from retaliation against an employee that reports human trafficking regarding the employee's employer

This bill would authorize a municipality to adopt an ordinance directing law enforcement officers to impound motor vehicles used in the commission of human trafficking or prostitution and would provide a procedure for the release of those vehicles

This bill would also make nonsubstantive, technical revisions to update the existing code language to current style

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment

However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment

Relating to human trafficking; to amend Sections 13A-6-151, 13A-6-152, 13A-6-157.1, 13A-6-170, 13A-12-122, and 15-27-5, Code of Alabama 1975, to provide further for the crime of human trafficking; to provide a minimum period of incarceration for a person convicted of human trafficking a minor; to provide for the appointment of a master or receiver under certain situations; to provide further for the criminal penalty for failing to post the human trafficking hotline information in certain establishments and provide for the enforcement of the requirements; to provide further for the criminal penalty for patronizing a prostitute; to provide further for the expungement procedure for human trafficking victims; to provide whistleblower protection for certain employees regarding reports of human trafficking; to authorize the adoption of a municipal ordinance to impound vehicles used in the commission of human trafficking or prostitution and provide a procedure for the release of those vehicles; to make nonsubstantive, technical revisions to update the existing code language to current style; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

Section 1

Sections 13A-6-151, 13A-6-152, 13A-6-157.1, 13A-6-170, 13A-12-122, and 15-27-5, Code of Alabama 1975, are amended to read as follows:

§13A-6-151.

As used in this article, the following terms shall have the following, or any combination of the following, meanings ascribed to them by this section:

(1) COERCION. Any of the following:

a. Causing or threatening to cause physical injury or mental suffering to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person or otherwise causing the person performing or providing labor or services to believe that the person or another person will suffer physical injury or mental suffering.

b. Implementing any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in physical injury, mental suffering, or physical restraint of any person.

c. Destroying, concealing, removing, confiscating, or withholding from the person or another person, or threatening to destroy, conceal, remove, confiscate, or withhold from the person or another person, the person's or any person's actual or purported government records, immigration documents, identifying information, or personal or real property.

d. Exposing or threatening to expose any fact or information that if revealed would tend to subject a person to criminal prosecution, criminal or immigration proceedings, hatred, contempt, or ridicule.

e. Threatening to report the person or another person to immigration officials or to other law enforcement officials or otherwise blackmailing or extorting the person or another person.

f. Controlling a person's access to a controlled substance, as the term is defined in Section 20-2-2.

g. Rape or sodomy or threatened rape or sodomy of any person, as defined in this title.

(2) DECEPTION. Any of the following:

a. Creating or confirming an impression of any existing fact or past event which is false and which the accused knows or believes to be false.

b. Exerting financial control over the person or another person by placing the person or another person under the actor's control as a security or payment of a debt, if the value of the services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined or the principal amount of the debt does not reasonably reflect the value of the items or services for which debt was incurred or by preventing a person from acquiring information pertinent to the disposition of the debt, referenced in this paragraph.

c. Promising benefits or the performance of services which the accused does not intend to be delivered. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this article.

d. Using any scheme, plan, or pattern, whether overt or subtle, intended to cause any person to believe that, if the person did not perform such labor, services, acts, or performances, the person or another person would suffer physical injury or mental suffering.

(3) LABOR SERVITUDE. Work or service of economic or financial value which is performed or provided by another person and is induced or obtained by coercion or deception.

(4) MENTAL SUFFERING. A high degree of mental pain or emotional disturbances, such as distress, anxiety, public humiliation, or psychosomatic physical symptoms. It is more than mere disappointment, anger, resentment, wounded pride, or embarrassment and must be a direct result of the crime of human trafficking.

(5) MINOR. A person under the age of 19.

(6) PHYSICAL INJURY. Impairment of physical condition or substantial pain.

(7) SEXUAL CONDUCT. Any of the following acts:

a. Sexual Intercourse. This term shall have its ordinary meaning and occurs upon a penetration, however slight; emission is not required.

b. Sexual Contact. Any known touching for the purpose of sexual arousal, gratification, or abuse of the following:

1. The sexual or other intimate parts of the victim by the actor.

2. The sexual or other intimate part of the actor by the victim.

3. The clothing covering the immediate area of the sexual or other intimate parts of the victim or actor.

c. Sexually Explicit Performances. An act or show intended to arouse, satisfy the sexual desires of, or appeal to the prurient interests of patrons or viewers, whether public or private, live, photographed, recorded, videotaped, or projected over the Internet.

d. Commercial Sex Acts. Any sex act on account of which anything of value is given, promised to, or received, directly or indirectly, by any person.

(8) SEXUAL SERVITUDE.

a. Except as provided in paragraph b., any Any sexual conduct, including sexual conduct as defined in subdivision (3) of Section 14-11-30, for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception from a person; provided, however, that if .

b. If the sexual conduct is with a minor or with any person who is incapable of consent by reason of being physically helpless or mentally incapacitated, no coercion or deception is required.

(9) TRAFFICKING VICTIM. Any person, including minors, subjected to labor servitude, sexual servitude, or involuntary servitude.

§13A-6-152.

(a) A person commits the crime of human trafficking in the first degree if:

(1) He or she knowingly subjects another person to labor servitude or sexual servitude.

(2) He or she knowingly obtains, recruits, entices, solicits, induces, threatens, isolates, harbors, holds, restrains, transports, provides, or maintains any minor for the purpose of causing a minor to engage in sexual servitude.

(3) He or she knowingly gives monetary consideration or any other thing of value to engage in any sexual conduct with a minor or an individual he or she believes to be a minor.

(b) For purposes of this section, it is not required that the defendant have knowledge of a minor victim's age, nor is reasonable mistake of age a defense to liability under this section.

(c) A corporation, or any other legal entity other than an individual, may be prosecuted for human trafficking in the first degree for an act or omission only if an agent of the corporation or entity performs the conduct which is an element of the crime while acting within the scope of his or her office or employment and on behalf of the corporation or entity, and the commission of the crime was either authorized, requested, commanded, performed, or within the scope of the person's employment on behalf of the corporation or entity or constituted a pattern of conduct that an agent of the corporation or entity knew or should have known was occurring.

(d) Any person who obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section shall be guilty of a Class A felony.

(e)(1) Except as provided in subdivision (2), human Human trafficking in the first degree is a Class A felony.

(2) When a conviction under this section involves a minor, the person shall be punished by a term of imprisonment for any term of years not less than 15 years and a day or for life.

§13A-6-157.1.

(a) In addition to any other remedy under this article, if the Attorney General has reason to believe that any person, corporation, or any other legal entity is engaging in, has engaged in, or is about to engage in any act or practice declared to be unlawful by this article, the Attorney General may bring an action in the name of the state in the appropriate state court against the person, corporation, or entity to restrain by temporary restraining order, or temporary or permanent injunction, the acts or practices.

(b) In addition to any other remedy under this article, the Attorney General may bring a civil action on behalf of the state in the appropriate state court to recover actual damages for victims of acts or practices performed in violation of this article.

(c) The court may appoint a master or receiver or order sequestration of assets and assess the expenses of the master or receiver against the defendant if the court has reason to believe any of the following:

(1) The defendant has, will, or is likely to remove or conceal victims.

(2) The defendant has or is likely to threatened or is about to remove, conceal, or otherwise dispose of property to the damage of persons to whom restoration would be made.

(3) A person who has been ordered to pay damages under this section has failed to do so within three months after the order to make restitution has become final and non-appealable.

(c) (d) Venue for any action brought under this section is in the county in which the offense was committed or in any other county into or through which the person upon whom it was committed may have been carried in the commission of the offense. If venue is proper in more than one county, venue shall be in either county.

§13A-6-170.

(a)(1) Except as provided in subdivision (2), this section applies to all of the following persons or establishments:

a. All persons owning operating any establishment, business, or place that requires a liquor license or a retail alcoholic beverage license, and that does not also have a food or beverage permit, or both;.

b. All persons operating any hotel that has been cited as a nuisance as defined in Sections 13A-12-110 to 13A-12-122, inclusive; Section 6-5-140.

c. All persons operating any massage parlor therapy establishment where an employee has been cited with violating Section 45-13-41, or where the establishment that has been cited as a nuisance as defined in Section 6-5-140;.

d. All persons operating any airport, train station, rest area, rest stop, or bus station; and.

e. All persons operating any gas station.

e. f. All persons operating any business that provides entertainment commonly called stripteasing or topless entertaining or entertainment that has employees who are not clad both above and below the waist.

(2) This subsection does not apply to businesses providing entertainment in theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value.

(b) Any person subject to this section shall post in a location conspicuous to the public at the entrance of the business or where such posters and notices are customarily posted, a poster of no smaller than 8 1/2 by 11 inches in size that substantially states all of the following:

"(1) If you or someone you know is being forced to engage in any activity and cannot leave - whether it is commercial sex, housework, farm work, or any other activity - call the National Human Trafficking Resource Center Hotline at 1-888-373-7888 to access help and services.

"(1) (2) Victims of human trafficking are protected under U.S. law.

"(2) (3) The Toll-free Hotline is:

"a. Available 24 hours a day, 7 days a week.

"b. Operated by a nonprofit, nongovernmental organization.

"c. Anonymous and confidential.

"d. Accessible in 170 languages.

"e. Able to provide help, referral to services, training, and general information."

This subsection shall not apply to businesses providing entertainment in theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value.

(b) (c) The poster shall be available on the Internet website of all of the following:

(1) The Alabama Alcoholic Beverage Control Board where documents associated with obtaining a liquor license or alcoholic beverage license are customarily located.

(2) The Alabama Public Service Commission.

(3) The Alabama Department Secretary of Labor.

(4) The regulatory board or licensing entity of any other person or establishment subject to subdivision (1) of subsection (a).

(c) (d) The owners operators shall print the poster from any of the Internet websites in subsection (b) (c) or ask that the poster be mailed for the cost of printing and first class postage and post the sign in compliance with subsection (a) (b).

(d) (e) The regulatory board or licensing entity of any person or establishment subject to subdivision (1) of subsection (a), including, but not limited to, the Alcoholic Beverage Control Board, the Public Service Commission, and the Department Secretary of Labor, the Department of Transportation, and the Massage Therapy Board, shall post the sign on its Internet site in English, Spanish, and any other language deemed appropriate by the Commissioner of Labor. The owners operators shall obtain and post the posters in English, Spanish, and any other languages deemed appropriate by the Commissioner of Labor.

(e) (f) The regulatory board or licensing entity of any person or establishment subject to subdivision (1) of subsection (a), including, but not limited to, the Alcoholic Beverage Control Board, the Public Service Commission, and the Department Secretary of Labor, the Department of Transportation, and the Massage Therapy Board, shall provide each applicable business or establishment with notice of mandatory compliance of this section.

(g) The regulatory board or licensing entity of any person or establishment subject to subdivision (1) of subsection (a), including, but not limited to, the Secretary of Labor, the Alcoholic Beverage Control Board, the Public Service Commission, the Department of Transportation, and the Massage Therapy Board, shall adopt rules to ensure licensees of the Alcoholic Beverage Control Board, and operators of massage therapy establishments, airports, train stations, rest areas, rest stops, bus stations, hotels, gas stations, and businesses that provide entertainment as referenced in paragraph (a)(1)e., comply with this section and to further provide for enforcement of this section.

(h) Upon a finding that a person or establishment subject to subdivision (1) of subsection (a) violated this section, the regulatory board or licensing entity of the person or establishment may do either or both of the following:

(1) File a complaint with the appropriate law enforcement agency or refer the violation to the Office of the Attorney General or the appropriate prosecuting authority.

(2) Suspend the license or operating privilege of the person or establishment until the person or establishment is in full compliance with this section.

(f) (i)(1) A person who violates this section shall be subject to a warning on the first violation and a fine not to exceed fifty dollars ($50) of two hundred fifty dollars ($250) for each subsequent violation. The violation or noncompliance with this section, and each day's continuance thereof, shall constitute a separate and distinct violation.

(2) Funds collected under this section shall be deposited in the State Treasury to the credit of the Attorney General's Special Revenue Account to be used for education and other programs relating to human trafficking.

§13A-12-122.

(a)(1) Each Except as provided in subdivision (2), each violation of Section 13A-12-121 is a Class A misdemeanor.

(2) A person who is convicted under Section 13A-12-121 for giving, or agreeing to give, monetary consideration or other thing of marketable value to another in furtherance of an agreement to engage in sexual intercourse, sodomy, or sexual contact with a person, on conviction, shall be punished as follows:

a. On a first conviction, the person shall be guilty of a Class A misdemeanor.

b. On a second or subsequent conviction, the person shall be guilty of a Class A misdemeanor and serve a minimum period of confinement of not less than 30 days.

(b) A violation of Section 13A-12-121.1 is a Class B felony.

§15-27-5.

(a) If the prosecuting authority or victim files an objection to the granting of a petition under this chapter, the court having jurisdiction over the matter shall set a date for a hearing no sooner than 14 days from the filing of the objection. The court shall notify the prosecuting authority and the petitioner of the hearing date. In the discretion of the court, the court shall consider the following factors:

(1) Nature and seriousness of the offense committed.

(2) Circumstances under which the offense occurred.

(3) Date of the offense.

(4) Age of the person when the offense was committed.

(5) Whether the offense was an isolated or repeated incident.

(6) Other conditions which may have contributed to the offense.

(7) An available probation or parole record, report, or recommendation.

(8) Whether the offense was dismissed or nolle prossed as part of a negotiated plea agreement and the petitioner plead guilty to another related or lesser offense.

(9) Evidence of rehabilitation, including good conduct in prison or jail, in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful business or employment history, and the recommendation of his or her supervisors or other persons in the community.

(10) Any other matter the court deems relevant, which may include, but is not limited to, a prior expungement of the petitioner's records.

(b) A hearing under subsection (a) shall be conducted in a manner prescribed by the trial judge and shall include oral argument and review of relevant documentation in support of, or in objection to, the granting of the petition. The Alabama Rules of Evidence shall apply to the hearing. Leave of the court shall be obtained for the taking of witness testimony relating to any disputed fact.

(c) There is no right to the expungement of any criminal record, and any request for expungement of a criminal record may be denied at the sole discretion of the court. The court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged. The ruling of the court shall be subject to certiorari review and shall not be reversed absent a showing of an abuse of discretion.

(d)(1) If Except as provided in subdivision (2), if no objection to a petition is filed by the prosecuting authority or victim, the court having jurisdiction over the matter may rule on the merits of the petition without setting the matter for hearing. In such cases, the court shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter. The court shall have discretion over the number of cases that may be expunged pursuant to this chapter after the first case is expunged.

(2) If the petition is a victim of human trafficking, the court shall set the matter for hearing and shall grant the petition if it is reasonably satisfied from the evidence that the petitioner has complied with and satisfied the requirements of this chapter."

Section 2

(a) As used in this section, the following terms have the following meanings: (1) EMPLOYER. A person employing any number of employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including any agent of that person. (2) EMPLOYEE. Includes all of the following: a. Individuals working in either a full-time or a part-time capacity for an employer. b. Individuals working in an at-will capacity for an employer. c. Individuals who are a member of a labor or trade union or other association of workers. (3) RETALIATE. To discharge, demote, transfer, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, or privileges of employment. (b) It is an unlawful employment practice for an employer to retaliate against an employee who reports, under oath or in the form of an affidavit, an offense under Article commencing with Section 13A-6-60), Article 4A (commencing with Section 13A-6-80), or Article 8 (commencing with Section 13A-6-150) of Chapter 6 of Title 13A, Article 3 (commencing with Section 13A-12-110) of Chapter 12 of Title 13A, Code of Alabama 1975, or any state or federal labor law.

Section 3

(a) A municipality may adopt an ordinance that allows a law enforcement officer, pursuant to a lawful arrest, to impound a vehicle used in the commission, or attempted commission, of a violation of Article 8 (commencing with Section 13A-6-150) of Chapter 6 of Title 13A or a violation of Division 2 (commencing with Section 13A-12-120) of Article 3 of Chapter 12 of Title 13A, Code of Alabama 1975. (b) If a municipality elects to adopt an ordinance under subsection (a), the municipality shall do all of the following: (1) Offer a diversion program to any individual arrested or cited under the ordinance who is a victim of trafficking or who engaged in prostitution for monetary consideration or other thing of value. (2) Authorize the removal of a vehicle impounded under subsection (a) only if the individual arrested in the commission, or attempted commission, of a violation described in subsection (a) is the sole registered owner of the vehicle. If that individual is not the sole registered owner, the other registered owner or owners of the vehicle shall be provided an opportunity to take possession of the vehicle. (3) Reimburse an individual for the costs associated with towing and impounding the vehicle if the individual is not found guilty of the crime for which the vehicle was impounded or if the charge is dismissed.

Section 4

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 5

This act shall become effective January 1, 2021, following its passage and approval by the Governor, or its otherwise becoming law.