Report Title:
Human Trafficking; Protection for Victims
Description:
Enacts a comprehensive scheme of criminal and civil remedies and services to victims of human trafficking and programs to prevent, investigate, and prosecute offenses relating to human trafficking.
|
THE SENATE |
S.B. NO. |
2142 |
|
TWENTY-THIRD LEGISLATURE, 2006 |
||
|
STATE OF HAWAII |
||
|
|
A BILL FOR AN ACT
RELATING TO PROTECTION FOR VICTIMS OF HUMAN TRAFFICKING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that existing legislation and law enforcement activities in Hawaii are inadequate to deter human trafficking, to bring traffickers to justice, and to protect the rights of trafficked persons. No comprehensive law exists in Hawaii that penalizes the range of offenses involved in the trafficking scheme or recognizes the needs and rights of trafficked persons. Instead, even the most brutal instances of trafficking are punished under laws that also apply to lesser offenses, so that traffickers typically escape deserved punishment.
The legislature also finds that existing state laws fail to protect victims of trafficking, who are often in the destination country without proper documentation and are frequently punished more harshly than the traffickers themselves. Trafficked persons also often find it difficult or impossible to report the crimes committed against them or to assist in the investigation and prosecution of these crimes because they are typically unfamiliar with our laws, culture, and language, are subjected to coercion and intimidation, including physical or psychological control and debt bondage, and often fear retribution and forcible removal to countries in which they will face retaliation or other hardship.
The legislature also finds that adequate services and facilities do not exist in Hawaii to meet the needs of trafficking victims for health care, housing, education, and legal assistance, which safely support the recovery and ability of trafficked persons to regain control of their lives and also to assist with the prosecution of traffickers.
The legislature also finds that, to deter human trafficking and bring its perpetrators to justice and protect the rights of trafficked persons, the United States Congress passed the Victims of Trafficking and Violence Protection Act, the first comprehensive piece of legislation aimed at addressing the range of injustices perpetrated by traffickers. Likewise, to deter human trafficking, Hawaii must recognize that trafficking is a serious offense, which is done by prescribing appropriate punishment, giving priority to the prosecution of trafficking offenses, and protecting, rather than punishing, the victims of these offenses. Hawaii must ensure that state anti-trafficking laws are compatible with the Victims of Trafficking and Violence Protection Act and ensure, to the extent possible, that the victims have access to the rights and benefits available to them under the Victims of Trafficking and Violence Protection Act, or to equivalent rights and benefits under state law.
The purpose of this Act is to combat human trafficking, which is a contemporary manifestation of slavery, to ensure just and effective punishment of traffickers and to protect the rights of trafficked persons.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
PROTECTION FOR VICTIMS OF HUMAN TRAFFICKING
PART I. DEFINITIONS
§ -1 Definitions. As used in this chapter:
"Actor" means a person who violates any of the provisions of this part.
"Commercial sexual activity" means any sex act on account of which anything of value is given to, promised to, or received by any person.
"Debt bondage" means the status or condition of a debtor arising from a pledge by the debtor of the debtor's personal services or of those of a person under the debtor's control as a security for debt, if the value of those 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.
"Extortion" has the same meaning as used in chapter 707, part VII, and includes, but is not limited to, a threat to expose any secret tending to subject any person to hatred, contempt, or ridicule.
"Financial harm" includes, but is not limited to, credit extortion as defined by chapter 707, part VII, criminal violation of the usury law as defined by section 478-6, or employment contracts that violate the statute of frauds.
"Forced labor or services" means labor, as defined in this section, or services, as defined in this section, that are performed or provided by another person and are obtained or maintained through an actor:
(1) Causing or threatening to cause serious harm to any person;
(2) Physically restraining or threatening to physically restrain any person;
(3) Abusing or threatening to abuse the law or legal process;
(4) Knowingly 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;
(5) Using extortion;
(6) Causing or threatening to cause financial harm to any person or using financial control over any person; or
(7) Using any scheme, plan, or pattern intended to cause any person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.
"Intentionally" has the same meaning as defined in section 702-206(1).
"Knowingly" has the same meaning as defined in section 702-206(2).
"Labor" means work of economic or financial value.
"Maintain" means, in relation to labor or services, to secure continued performance thereof, regardless of any initial agreement on the part of the trafficked person to perform such labor or service.
"Minor" means a person under the age of eighteen years.
"Obtain" means, in relation to labor or services, to secure performance thereof.
"Services" means an ongoing 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. Commercial sexual activity and sexually explicit performances shall be considered "services" under this chapter.
"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.
"Trafficked person", "victim of trafficking", and "trafficking victim" are used interchangeably and mean a person subjected to the practices set forth in section -2, -3, -4, or -5. In the case of a trafficked person who is a minor, incompetent, incapacitated, or deceased, the legal guardian of the trafficked person or a representative of the trafficked person's estate, another family member, next friend or any other person appointed as suitable by the court may assume the trafficked person's rights, but in no event shall a defendant be named such representative or guardian.
"Venture" means any group of two or more individuals associated in fact, whether or not a legal entity.
PART II. CRIMINAL OFFENSES AND PENALTIES
§ -2 Trafficking of persons for forced labor or services. (a) Whoever knowingly:
(1) Recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to 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
(2) Benefits, financially or by receiving anything of value, from participation in a venture that has engaged in an act described in violation of section -3 or -4, shall, subject to the provisions of section -7, be imprisoned for not more than twenty years.
§ -3 Involuntary servitude. Whoever knowingly subjects, or attempts to subject, another person to forced labor or services shall be punished by imprisonment for not more than twenty years, subject to the provisions of section -7.
§ -4 Sexual servitude of a minor. Whoever 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 promotion of pornography, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually–explicit performance, or the production of pornography shall be punished by imprisonment as follows, subject to the provisions of section -7:
(1) In cases involving a minor between the ages of sixteen and eighteen years, not involving force or threat of force, for not more than twenty years;
(2) In cases in which the minor had not attained the age of sixteen years, not involving force or threat of force, for not more than twenty-five years; and
(3) In cases in which the violation involved a minor and also involved one or more of the elements of forced labor or services, for not more than thirty years.
§ -5 Unlawful conduct with respect to documents in furtherance of trafficking or involuntary servitude. Anyone who knowingly destroys, conceals, removes, confiscates, or possesses, or attempts to destroy, conceal, remove, confiscate, or possess, any actual or purported passport or other immigration document, or any other actual or purported government identification document, of any person to prevent or restrict or attempt to prevent or restrict, without lawful authority, the person's liberty to move or travel in order to maintain the labor or services of that person, when the person is or has been a victim of a violation of section -2, -3, or -4 shall be punished by imprisonment for not more than five years.
§ -6 Accomplice liability. Whoever knowingly aids, abets, or conspires with one or more persons to violate section -2, -3, -4, or -5 shall be punishable in the same manner as for a completed violation of that section.
§ -7 Sentencing enhancements. (a) If the violation of this part involves death, an attempt to kill, kidnapping, attempted kidnapping, sexual assault or abuse, or attempted sexual assault or abuse, the defendant may be sentenced to any term of years or to imprisonment for life.
(b) If, as the result of a violation of this part, a trafficking victim suffered bodily injury, the sentence may be enhanced as follows:
(1) Bodily injury, an additional five years of imprisonment;
(2) Serious bodily injury, an additional ten years of imprisonment; or
(3) Permanent or life-threatening bodily injury, an additional twenty years of imprisonment.
(c) In determining sentences within statutory maximums, the sentencing court shall take into account the time in which the trafficked person was held in involuntary servitude, forced labor or services, or a minor was held in sexual servitude, with:
(1) An additional five years of imprisonment for cases in which the trafficking victim was held for between one hundred eighty days and one year; and
(2) An additional ten years of imprisonment for cases in which the trafficked person was held for more than one year.
(d) If the defendant knew or shall have known that a victim of the offense was a vulnerable victim, an additional five years of imprisonment may be imposed. A "vulnerable victim" is a person who had no real or acceptable alternative but to submit.
(e) In determining sentences within statutory maximums, the sentencing court shall take into account the number of trafficking victims and may impose an additional five years of imprisonment in cases involving more than ten victims. If the offense involved a large number of vulnerable victims, an additional ten years of imprisonment may be imposed.
(f) In determining sentences with statutory maximums, the sentencing court shall take into account the age of the victim at the time the crime occurred and, in cases involving minors, shall provide increased sentences in cases involving convictions under section -2 or -3 as follows:
(1) In cases involving a minor between the ages of sixteen and eighteen years, not involving force or threat of force, an additional five years may be imposed;
(2) In cases in which the minor had not attained the sixteen years, not involving force or threat of force, an additional ten years may be imposed; and
(3) In cases in which the violation involved a minor and also involved force or threat of force, an additional twenty years may be imposed.
§ -8 Plea of guilty or nolo contendere by a defendant. (a) Any plea of guilty or nolo contendere entered by a defendant charged with a crime under section -2, -3, -4, -5, or -6 shall fully state the offenses that justify prosecution under the applicable state law.
(b) Any plea of guilty or nolo contendere entered under subsection (a) shall automatically entitle the victim of trafficking to all benefits and rights under this statute.
§ -9 Evidence generally inadmissible. The following evidence is not admissible in any criminal proceeding under this part:
(1) Evidence offered to prove that any alleged trafficking victim engaged in other sexual behavior; or
(2) Evidence offered to prove any alleged trafficking victim's sexual predisposition.
§ -10 Prosecutorial immunity. (a) Victims of trafficking shall not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of, or incident or related to, being trafficked, such as entering the United States without inspection or documentation, using false documents, unlawful presence in the country, working without documentation, engaging in prostitution or drug possession.
(b) Victims of trafficking shall not be held in detention centers, jail, or prison at any time prior to, during, or after all civil, criminal, or other legal proceedings.
§ -11 Asset forfeiture. (a) The court, in imposing sentence on any person convicted of, or who enters a plea of guilty or nolo contendere to, a violation of this part, shall order, in addition to any other sentence imposed and irrespective of any other provision of law, that such person forfeit the following:
(1) The person's interest in any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of such violation; and
(2) Any property, real or personal, constituting or derived from, any proceeds that such person obtained, directly or indirectly, as a result of such violation.
(b) The forfeited assets shall be distributed as follows:
(1) Fifty per cent shall be distributed to victims of trafficking. If the amount distributed equals or exceeds the amount of any court-ordered restitution or compensation, the forfeiture shall be deemed to satisfy the order. Any amounts in excess of the order may be retained by the victim;
(2) Fifty per cent shall be distributed to the attorney general for the following purposes:
(A) To pay expenses incurred by the agency or agencies that investigated and prosecuted the criminal case from which the forfeiture arose;
(B) To fund trafficking victim services provided by state or county entities and nonprofit organizations;
(C) To fund law enforcement efforts, including special units to investigate alleged trafficking cases, human rights and legal awareness training on trafficking, and witness protection programs for trafficking victims and witnesses; and
(D) To fund trafficking prevention measures.
PART III. RESTITUTION AND CIVIL REMEDIES
§ -12 Mandatory restitution to trafficked persons. (a) Restitution is mandatory when guilt of an offense under part II has been determined by a plea of guilty or nolo contendere or by trial. In addition to any other amount of loss identified, and authorized by law, the court shall order restitution for the full amount of losses suffered by the victims of trafficking.
(b) For purposes of this part, "full amount of losses" means:
(1) Lost income, which in the case of a trafficked person includes the greater of:
(A) The gross income or value to the defendant of the trafficked person's labor or services; or
(B) The value of the trafficked person's labor as guaranteed under the minimum wage and overtime guarantees of state law or the Fair Labor Standards Act, 29 U.S.C. §201 et seq., whichever law results in the higher calculation of lost income;
(2) Medical and related professional services relating to physical, psychiatric, or psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by state law;
(3) Physical and occupational therapy or rehabilitation;
(4) Necessary transportation, temporary housing, and child care expenses;
(5) In the case of an offense resulting in damage or destruction of property, return of the property, or, if return is impossible, impracticable, or inadequate, payment of the value of the property;
(6) In the case of an offense resulting in death or bodily injury that results in death, the costs and expenses of necessary funeral and related services;
(7) Attorneys' fees and other costs and expenses incurred, including those costs and expenses incurred that are related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense; and
(8) Any other losses suffered by the person as a proximate result of the offense.
§ -13 Discretionary restitution to trafficked persons. In the event mandatory restitution or other remedies are not available to a trafficked person, the court may impose an order of restitution when sentencing a defendant for any offense that is a crime of violence or in which an identifiable person or persons has suffered a physical injury or pecuniary loss, or in connection with the entering of a plea agreement or nolo contendere if agreed to by the parties, for any person for up to the "full amount of the losses" incurred by such person.
§ -14 Procedure for issuance of order of restitution. (a) The court shall order a pre-sentence report with information sufficient for the court to exercise its discretion in fashioning a restitution order. The pre-sentence report shall include, to the extent practicable:
(1) A complete accounting of losses to each trafficked person;
(2) Any restitution owed pursuant to a plea agreement or nolo contendere; and
(3) Information relating to the economic circumstances of each defendant.
(b) Before submitting the pre-sentence report, to the extent practicable, notice shall be provided to all identified trafficked persons of, among other things, the following: the amounts subject to restitution, the opportunity for the trafficked person to submit information concerning amount of losses, the availability of a lien in favor of the trafficked person, and the opportunity for the trafficked person to file with the probation officer a separate affidavit relating to amount of trafficked person's losses subject to restitution.
(c) Any dispute as to proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating amount of loss sustained by a trafficked person as a result of the offense shall be on the attorney for the State.
(d) In each order of restitution, the court shall order restitution to each trafficked person in accordance with the provisions of this part as determined by the court and without consideration of the economic circumstances of the defendant; provided that the court shall specify the manner in which and the schedule according to which the restitution is to be paid in consideration of the defendant's financial resources, projected earnings, and dependents.
(e) If the trafficked person agrees, all or part of the restitution may be in the form of in-kind payments, such as real or personal property.
(f) Any amount paid to a trafficked person under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the trafficked person in any federal or state civil proceeding, to the extent provided by federal law or the law of such state.
§ -15 Enforcement of order of restitution. (a) An order of restitution may be enforced by the State by all available and reasonable means.
(b) An order of restitution shall be deemed a lien in favor of the State on all property and rights to property of the person fined as if the liability of the person fined were a liability for a tax assessed under chapter 231. At a trafficked person's request, the clerk shall issue an abstract of judgment certifying that a judgment has been entered in favor of such trafficked person in the amount specified and, upon registering, recording, docketing, or indexing such abstract, the abstract of judgment shall be a lien on the property of the defendant.
(c) The State may enforce judgment imposing a fine or restitution in accordance with the practices and procedures for enforcement of a civil judgment, and the judgment may be enforced against all property or rights to property of the person fined or ordered to pay restitution, with those limited exceptions imposed by state or federal law.
(d) If the defendant knowingly fails to pay a delinquent fine or restitution, the court may resentence the defendant to any sentence that might originally have been imposed. The defendant may be sentenced to a term of imprisonment only if the court determines that:
(1) The defendant willfully refused to pay the fine or failed to make sufficient bona fide efforts to pay the fine; or
(2) In light of the nature of the offense and the characteristics of the defendant, alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence; provided that, in each case, imprisonment shall not be more than one year.
(e) If the defendant, having been sentenced to pay a fine or restitution, willfully fails to pay the fine or restitution, the court may fine such person the greater of:
(1) An amount not more than twice the unpaid balance of the fine or restitution; or
(2) $10,000.
§ -16 Civil action; limitations; exceptions. (a) A trafficked person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. A prevailing plaintiff shall also be awarded attorney's fees and costs. Treble damages shall be awarded on proof of actual damage where defendant's acts are willful and malicious.
(b) Except as provided in subsection (c), an action brought pursuant to this section shall be commenced within ten years of the date on which the trafficked person was freed from the trafficking situation, or if the trafficked person was a minor when the act occurred, within fifteen years after the date the plaintiff attains the age of eighteen.
(c) The limitations period established by subsection (b) shall not apply in the following circumstances:
(1) If a person entitled to sue is under a "disability" at the time the cause of action accrues, such that it is impossible or impracticable for the person to bring an action, the time during which the plaintiff is under a disability tolls the running of the time limit for the commencement of the action. For purposes of this paragraph, "disability" includes insanity, imprisonment, or other incapacity or incompetence;
(2) The period specified in subsection (b) shall not run against an incompetent or minor plaintiff simply because a guardian ad litem has been appointed. In the event that a minor plaintiff is under a disability, the failure of the minor's guardian ad litem to bring a plaintiff's action within the applicable limitation period will not prejudice the plaintiff's right to do so after the plaintiff's disability ceases;
(3) A defendant is estopped from asserting a defense of the limitations period under subsection (b) when the expiration of the period is due to:
(A) Conduct by the defendant inducing the plaintiff to delay the filing of the action or preventing the plaintiff from filing the action; or
(B) Threats made by the defendant that caused duress upon the plaintiff; or
(4) The suspension of the statute of limitations due to disability or estoppel applies to all other related claims arising out of the trafficking situation.
(d) In this section, a "criminal action" includes investigation and prosecution and remains pending until final adjudication in the trial court.
(e) Any legal guardian, family member, representative of the trafficked person, or court appointee may represent the trafficked person's rights, in the event the trafficked person is deceased or otherwise unable to represent the person's own interests in court.
PART IV. BENEFITS AND SERVICES TO TRAFFICKED PERSONS
§ -17 Definitions. For purposes of this part:
"Local service provider" refers to legal entities at the county level that offer benefits and services to trafficked persons.
"Responsible official" refers to the state officials agency or other entity designated to oversee the provision of services and benefits to trafficked persons and family members of trafficked persons as described in this section.
"Services" refers to those services provided to trafficked persons and family members of trafficked persons. Provision of such services shall not be contingent on the trafficked person's immigration status or on the prosecution of the trafficking victim's trafficker.
§ -18 Services. (a) Notwithstanding any state or county law, ordinance, or rule limiting the ability of an alien to access state or county benefits or services, an alien who is a victim of trafficking shall be eligible for benefits and services under any state or local program, including the criminal injuries compensation commission or an activity funded or administered by any official or agency described in subsection (b).
(b) Subject to subsection (c) and, in the case of nonentitlement programs, to the availability of appropriations, the directors of health, human services, and labor, the heads of other state agencies, and local service providers are hereby authorized to provide benefits and services to trafficked persons, without regard to the immigration status of such trafficked persons or the ability or willingness of the trafficked person to participate in the investigation or prosecution of the person's trafficker.
(c) Within ninety-six hours of a state or local official having identified the presence of a trafficked person within the State, the responsible official shall review and evaluate the case of the trafficked person, including any attendant crime report, and issue a letter of certification of eligibility or other relevant document entitling the trafficked person to have access to criminal injuries compensation commission funds and other state benefits and services.
§ -19 Protections while in custody. (a) Trafficked persons, while in custody of a responsible official, shall:
(1) Not be detained in facilities inappropriate to their status as crime victims;
(2) Receive necessary medical care and other assistance; and
(3) Be provided law enforcement protection if the person's safety is at risk or if there is a danger of harm by recapture of the trafficked person by a trafficker, including:
(A) Taking measures to protect trafficked persons and their family members from intimidation and threats of reprisals and reprisals from traffickers or their associates; and
(B) Ensuring that the names and identifying information of trafficked persons and their family members are not disclosed to the public.
(b) Where appropriate, responsible officials shall employ civil procedures, including application for temporary restraining orders and protective orders, while protecting trafficking victims and witnesses and their family members.
§ -20 Access to rights, benefits, and services. Trafficked persons shall be provided with information about their rights and applicable services, including:
(1) The right to pro bono and low-cost legal services;
(2) The right to access federal and state benefits and services, including regularized immigration status, benefits and services under the Victims of Trafficking and Violence Protection Act, state compensation, assistance, education, and training programs;
(3) The names and contact information about relevant local service providers offering services to victims of trafficking and, when relevant, to domestic violence and rape crisis centers;
(4) The availability of federal and state protections for victims and witnesses, and their families, faced with threats and intimidation;
(5) The legal remedies available, including restitution and compensation in civil and criminal proceedings;
(6) The right to privacy and confidentiality;
(7) The right to receive notices about status of the case against the trafficker; and
(8) The right to access translation services or an oral interpreter if the trafficked person cannot communicate fully in English.
§ -21 Medical and related professional services. The State shall provide the following services:
(1) Medical and dental care and other assistance including, for victims of sexual assault:
(A) Free optional confidential testing for HIV and other sexually transmitted diseases; and
(B) A counseling session by a medically-trained professional on the accuracy of such tests and the risk of transmission of sexually transmitted diseases;
(2) Trafficked persons shall be provided mental health counseling to address the psychological trauma associated with human trafficking; and
(3) Trafficked persons shall receive necessary and appropriate occupational therapy services.
§ -22 Social and other services. The State shall ensure that all trafficked persons have access to comprehensive social and other services necessary for recovery and reintegration, including:
(1) Language translation services and counseling in the trafficked person's native language or language of fluency;
(2) Temporary Assistance to Needy Families, and other state or federal welfare benefits;
(3) Transportation;
(4) Appropriate and safe housing;
(5) Child care;
(6) Education and language training;
(7) Employment assistance and training;
(8) Job placement services; and
(9) Opportunities for employment, education, and training.
§ -23 Legal services and protections. (a) Trafficked persons shall be provided with free legal counsel to:
(1) Pursue civil actions against the person's traffickers;
(2) Represent the trafficked person's interests in any criminal investigation or prosecution; and
(3) Assist with applications for immigration benefits or regular immigration status.
(b) Trafficked persons and prosecution witnesses, and their families, shall be protected from intimidation and retaliation by traffickers and their associates and shall have access to the services provided victim-witness assistance programs.
§ -24 Creation of shelter programs. (a) The State shall establish shelters specifically for the protection and housing of trafficked persons. Each shelter shall be designed to provide the following basic services to trafficked persons:
(1) Shelter operating twenty-four hours a day, seven days a week;
(2) A switchboard for crisis calls operating twenty-four hours a day, seven days a week;
(3) Temporary housing and food facilities;
(4) Psychological support and peer counseling;
(5) Referrals to existing services in the community and follow-up on the outcome of the referrals; and
(6) Emergency transportation to the shelter and, when appropriate, arrangements with local law enforcement for assistance in providing such transportation.
(b) The shelters shall be funded by state-level efforts to coordinate application for federal funds designated for the support of victims of trafficking and additional funds that the legislature shall see fit to earmark for this purpose.
§ -25 Crime victim compensation funds. (a) Trafficked persons are entitled to seek relief from the crime victim compensation commission.
(b) An application for a claim based on having been a victim of trafficking may not be denied solely because no police report was made by the trafficked person.
(c) The crime victim compensation commission shall adopt guidelines that allow the commission to consider and approve applications for assistance based upon evidence other than a police report to establish that an applicant had been a victim of trafficking. The evidence may include, but is not limited to, documentation submitted to support the trafficked person's application for T nonimmigrant status, letters from caseworkers, and sworn affidavit from the applicant, or the applicant's friends, family, or other public contacts familiar with the circumstance of the incident. Persons who may provide this evidence include, but are not limited to, teachers, medical professionals, or religious leaders.
PART V. IMMIGRATION STATUS
§ -26 Assisting trafficked persons to secure immigration status and federal benefits. To ensure that trafficking victims are able to access all available federal benefits and programs for trafficked persons, the relevant state law enforcement agency officials shall:
(1) Keep federal authorities informed about trafficking cases in the State;
(2) Within seventy-two hours of determining that, more likely than not, an immigrant was a victim of trafficking, and upon the written request from the trafficked person or the trafficked person's legal representative, submit a written request to the appropriate federal authorities requesting that the trafficking victim be granted the temporary immigration status known as "continued presence" under the Victims of Trafficking and Violence Protection Act;
(3) Within seventy-two hours of a written request for documentation from a person identified by local or state authorities as someone who had, more likely than not, been a victim of trafficking or a written request from the person's legal representative, provide the person with a completed form Supplement B to Form I-914, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons that satisfies the Law Enforcement Agency Endorsement regulations in 8 C.F.R. section 214.11(f)(1) in support of the person's application for the T nonimmigrant status or the U nonimmigrant status available to victims of trafficking under the Victims of Trafficking and Violence Protection Act;
(4) Within seventy-two hours of a request for documentation from a person identified by local or state authorities as someone who had, more likely than not, been a victim of trafficking, or a written request from the person's legal representative, provide the person with documents in support of such person's request for benefits and services authorized by the Victims of Trafficking and Violence Protection Act to be provided to trafficking victims by the Office of Refugee Resettlement in the Department of Health and Human Services.
§ -27 Referral to immigration for removal or deportation prohibited. No state or local official shall transmit, in any form, any information identifying, in any way, the name or location of a trafficked person to federal immigration officials responsible for removal or deportation of undocumented aliens.
PART VI. TRAINING, TASK FORCE AND DATA COLLECTION
§ -28 Training to identify and protect trafficking victims. Training shall be made available in all relevant local and state agencies, including, but not limited to, healthcare, hospital, law enforcement, labor, agriculture, housing, and social service, to:
(1) Educate officials on the phenomenon of human trafficking, state and federal laws on human trafficking, the rights and needs of trafficked persons, and the tools necessary to provide effective services to trafficked persons;
(2) How to recognize and identify trafficking victims;
(3) Methods for protecting trafficking victims and advising them of their rights; and
(4) Procedures and techniques for handling specialized needs of victims who may face cultural, language, and other barriers that impede ability to request and obtain available services.
§ -29 State interagency anti-trafficking task force. (a) The Governor shall establish a state interagency anti-trafficking task force to be comprised of the attorney general and the directors of health, human services, and labor, or their designees, officials from other appropriate state agencies, and representatives from local service providers.
(b) The task force shall carry out the following activities:
(1) Coordinate the implementation of this part;
(2) Coordinate the implementation of part V, including developing protocols and training individuals within designated state agencies, nongovernmental organizations, and private entities to provide data collection services and immigration resources to trafficked persons;
(3) Measure and evaluate progress of the State in the areas of trafficking prevention, protection and assistance to victims of trafficking, and prosecution and enforcement against traffickers;
(4) Expand interagency procedures to collect and organize data, including significant research and resource information on domestic trafficking. Any data collection procedures established under this paragraph shall respect the confidentiality of trafficking victims;
(5) Engage in efforts to facilitate cooperation among countries of origin, transit, and destination. These efforts shall aim to strengthen local and regional capacities to prevent trafficking and prosecute traffickers; and
(6) Engage in consultation and advocacy with governmental and nongovernmental organizations, among other entities, to advance the purposes of this part and part V.
(c) The attorney general is authorized to designate a director of the task force. The director shall have the primary responsibility for assisting the task force in carrying out the purposes of this part and may have additional responsibilities as determined by the attorney general. The director shall consult with nongovernmental organizations, multilateral organizations, and trafficking victims or other affected persons. The director shall have the authority to take evidence in public hearings or by other means.
(d) The interagency anti-trafficking task force is authorized to seek federal grants available to states, local government, nonprofit organizations for services programs under the Victim of Trafficking and Violence Protection Act.
(e) Not less than twenty days prior to the convening of each regular session, the attorney general shall provide to the legislature a report that includes information on: the progress of the State in the areas of trafficking prevention, protection, and assistance to victims of trafficking; prosecution and enforcement against traffickers; and the number of persons who received benefits or other services under this chapter in connection with programs or activities funded or administered by the agencies or officials during the preceding fiscal year.
§ -30 Protocols and training for law enforcement officers. The State shall establish protocols and training for law enforcement officers to assist trafficked persons in accessing nonimmigrant status and federal benefits, including mechanisms for coordinating with the federal officials to ensure that trafficked persons are able to access their rights under federal law.
§ -31 Data collection. (a) On or before June 30 of each year, the attorney general shall submit a report to the United States Attorney General, with respect to the preceding fiscal year, the number, if any, of otherwise eligible applicants who did not receive visas under section 101(a)(1)(5)(T) of the Immigration and Nationality Act, or who were unable to adjust their status under section 245(l) of the Act, solely on account of the unavailability of visas due to the limitation imposed by section 214(n)(1) or 245(l)(4)(A) of the Act.
(b) The relevant state authorities shall also collect data on trafficking cases, including:
(1) The number of trafficked persons who received and the number of trafficked persons who were refused:
(A) Continuous physical presence status;
(B) T nonimmigrant visas; and
(C) Federal benefits from the Department of Health and Human Services;
(2) The number of cases investigated;
(3) The number of prosecutions under part II;
(4) The number of convictions and plea bargains under part II; and
(5) The age, sex, and nationality of the trafficking victims and defendants in all cases prosecuted.
§ -32 Creation of a resource center. (a) An agency or agencies designated by the attorney general shall develop and disseminate throughout the State information and materials concerning human trafficking, including, but not limited to, a procedures manual on the identification and prevention of human trafficking. The agency or agencies designated by the attorney general shall also establish a resource center for the collection, retention, and distribution of educational materials related to human trafficking.
(b) The programs created in subsection (a) shall be developed consistent with the availability of funds from the federal government for human trafficking prevention and education.
§ -33 Creation of a liaison to the department of justice. The attorney general shall establish a liaison with the United States Department of Justice in order to harmonize the State's response to human trafficking with the federal government's response to trafficking. This liaison shall:
(1) Facilitate the legal processes over which the federal government has sole authority, including, but not limited to, those processes through which overseas family members of trafficked persons can receive protection from the United States Government;
(2) Advise the attorney general of all federal funding that may be available for implementing the various elements of the State's responses to human trafficking, with particular attention to shelter funding; and
(3) Endeavor, in conjunction with nongovernmental organizations, to secure federal documents enabling trafficked persons to have access to federal benefits and services."
SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2006-2007, for the purpose of implementing part II of section 2 of this Act.
The sum appropriated shall be expended by the department of the attorney general for the purposes of this Act.
SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2006-2007, for investigation of crimes and labor violations established by this Act.
The sum appropriated shall be expended by the department of labor for the purposes of this Act.
SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2006-2007, for the purpose of implementing part IV of section 2 of this Act.
The sum appropriated shall be expended by the department of the attorney general for the purposes of this Act.
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2006-2007, for the purpose of implementing part VI of section 2 of this Act.
The sum appropriated shall be expended by the attorney general for the purposes of this Act.
SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 8. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 9. This Act shall take effect on July 1, 2006.
|
INTRODUCED BY: |
_____________________________ |