1. LEGAL OVERVIEW: SAFE HARBOR HUMAN TRAFFICKING LAWS Maryland Safe Harbor Working Group September 17, 2015 Jeanette Manning NAGTRI Program Counsel National Association of Attorneys General

3. To Provide You a Brief Summary on the Legal Landscape Involving Safe Harbor Laws and Related Areas for Consideration

4. Safe Harbor Laws Protect Whom? Laws Strive to Protect Victims of Human Trafficking Whose Included? Can Protect Minors & Adults

5. What are the Feds Have Done? Justice for Victims of Trafficking Act of 2015 President signed into law on May 29, 2015 Encourages states to pass safe harbor laws Treat minors as victims Steer towards services Section 601 – Safe Harbor Provision

6. Justice for Victims of Trafficking Act of 2015 – Relevant Provisions Section 103 Section 106 Section 108 Section 109 Section 110 Section 111 Section 602

7. U.S. v. Fuertes, et al. United States District Court of Maryland at Baltimore Fuertes and Ventura convicted for sex trafficking and related offenses Ventura operated residential brothers in Annapolis and Easton, MD and Portsmouth, VA Fuertes aided Ventura in operation s Force, fraud, or coercion ≠ violent crime

8. State Action: Uniform Law Commission Model Law National Conference of Commissioners on Uniform State Laws Focus on uniformity within states Passed model law in 2013 at annual conference Treat minors as victims, not criminals or delinquents Minors – under 18 years of age Recognize minors as CHINS cases Safe Harbor Provision – Section 15

9. Model Law Says… Section 15 – Immunity of Minor (a) An individual is not criminally liable or subject to a [juvenile-delinquency proceeding] for [prostitution] or [insert other nonviolent offenses] if the individual was a minor at the time of the offense and committed the offense as a direct result of being a victim. (b) An individual who has engaged in commercial sexual activity is not criminally liable or subject to a [juvenile-delinquency proceeding] for [prostitution] if the individual was a minor at the time of the offense. (c) A minor who under subsection (a) or (b) is not subject to criminal liability or a [juvenile-delinquency proceeding] is presumed to be a [child in need of services] under [cite child-protection statutes]. (d) This section does not apply in a prosecution or a [juvenile-delinquency proceeding] for [patronizing a prostitute]. Source: National Conference of Commissioners on Uniform State Laws -

10. Safe Harbor Laws

11. Balancing Test Pros No criminal cases allowing full access to services and recovery. No additional victimization or trauma through threats of or actual prosecution. Recognizes them for who they are – minors & victims! Equal treatment as victims of other sexual trauma crimes, e.g., sexual abuse or rape. Create nurturing environment to share story. Cons Law Enforcement efforts severely hampered. Unable to make strong legal cases. Traffickers likely to walk. Stockholm Syndrome. Do not identify as victims. Overloaded system, so no services provided as intended. Return to trafficker for care. Minors recruit other victims without repercussions. Still charged, despite SHL.

12. STATE LAWS

13. Vermont Law (2011) When recognized as HT victim under 18… – Full immunity under 18 for prostitution, obscenity and HT statute provisions. – Treated as CHINS cases. – Referred for services. Regardless of age… – Affirmative defense from prosecution beyond prostitution or obscenity, if deemed to be victim engaged in illicit activity due to force, fraud, or coercion by trafficker.

14. Immunity with Services Connecticut (2010) Full immunity under 16. Subject to full prosecution over 16. Steer victims under 16 to services through State child welfare agency, Department of Children & Families. Affirmative defense, regardless of age, for prostitution activities if coerced.

15. Services but no immunity Florida (2013) Treat children as dependent – in need of services. Goal to reunite with families, if possible. Sexually exploited included in definition of “child who is found to be dependent.” Law enforcement takes child into custody and delivers to child welfare agency. Not protected from prosecution. Safe house provided in secure, residential facility with provided services.

16. Immunity with Placement Illinois (2010) – Immunity from prosecution if under 18 – Placed in temporary custody – LEO to make immediate report to child welfare to begin investigation. – No liability if under 18 and pimp a child. Nebraska (2013) – Immunity from prosecution under 18 for prostitution – LEO takes minor into custody – Report to Health & Human Services – Affirmative defense, regardless of age, if victim of HT (sex or labor)

17. Immunity – Services Not Automatic Minnesota (2011) – Now, full immunity from prosecution if under 18 – No Wrong Door Implementation – provide services to sexually exploited youth – Services include regional navigators, housing, training, etc. Tennessee (2011) – Full immunity from prosecution under 18 for prostitution – Immunity extends to 18 year-old for adult or juvenile charges – Minor released to guardian/parent and given TN HT Hotline No. – Affirmative defense, regardless of age, if victim of HT for prostitution offense.

18. Affirmative Defense New Jersey (2013) No specific age minimum but allows an affirmative defense for prostitution offenses if a victim of trafficking, regardless of age. Can request to expunge or vacate convictions if human trafficking victim. Services and diversion available to juveniles via the court system but no immunity

19. Discretionary Immunity Washington (2010) -Depends upon number of offenses for minor (under 18). -First offense – automatic diversion -Subsequent offenses – discretionary but diverted to receive services in county with comprehensive program providing services; could be delinquency petition. -Sexually exploited child included in definition of “child in need of services.”

20. NEWEST LAWS North Dakota (August 2015) – Minor is anyone under 18. – Full immunity from prosecution if minor is a HT victim at time of offense. – Immunity extends to crimes, such as prostitution, theft, forgery, insufficient funds or credit offenses, or commercial sex. – Services available as CHINS cases. South Carolina (June 2015) – Full immunity from prosecution under 18 for prostitution or HT law offenses. – Does not automatically require or allow for referral for services. – Allows an affirmative defense if a victim of trafficking and offense committed under duress or coercion, regardless of age.

21. Pending Legislation Pennsylvania Includes safe harbor provision. LEO must report allegation of child sexual exploitation if minor (under 18 years of age) to child welfare for prostitution and related offenses. Refer and provide services, including safe housing. Nevada Provides for services to minor if 18 yeas of age and trafficking victim designation. Law enforcement officials must notify child welfare agency. Older victims or vulnerable person require that law enforcement notifes Aging and Disability Services.

22. Dead Legislation Virginia Law included a safe harbor provision for first time offenders. Provided for services for victims. Introduced to Committee, some movement, but died in December 2014. West Virginia Included a safe harbor law to protect minors. Offered immunity protection and petitions to court to vacate and expunge convictions. Governor vetoed HB 2161 in April 2015. Hawaii Sex Trafficking and Prostitution Coercion Liability Act – enhanced current criminal provisions in line with HT legislation. No safe harbor provision in legislation. Governor vetoed.

23. Other Recent Legislation Arizona Affirmative defense to a prostitution charge if HT victim. Georgia Affirmative defense to a prostitution charge if under 18 and human trafficking victim. Kentucky Victim can petition court to have record expunged for non- violent offense if acts committed while a HT victim.

24. Recent Legislation, cont… North Carolina Immunity if a minor and law enforcement takes into protective custody. New Hampshire Full immunity if under 18 and a victim of human trafficking and prostitution and lewd behavior charge. Can vacate prostitution conviction if a HT victim.

25. Trend is growing for states to implement safe harbor laws. State laws vary widely in how they respond to minors and whether to extend safe harbor protection. Balancing act required to address competing challenges. Ultimate goal is always to help victims of human trafficking. Model and federal laws available to serve as guidelines for drafting legislation.

27. HYPERLINKS Connecticut https://www.cga.ct.gov/2010/ACT/Pa/pdf/2010PA-00115-R00SB-00153- PA.pdf Florida http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileNam e=_h0099er.docx&DocumentType=Bill&BillNumber=0099&Session=2012 http://www.flsenate.gov/Session/Bill/2012/0202 Illinois http://www.ilga.gov/legislation/96/HB/PDF/09600HB6462ham001.pdf

28. HYPERLINKS, cont… Minnesota https://www.revisor.mn.gov/laws/?id=1&year=2011&type=1 http://www.health.state.mn.us/injury/topic/safeharbor/ Nebraska http://nebraskalegislature.gov/FloorDocs/103/PDF/Intro/LB255.pdf New Jersey ftp://www.njleg.state.nj.us/20122013/A1500/1135_I1.HTM South Carolina http://www.scstatehouse.gov/sess121_2015-2016/bills/183.htm

29. HYPERLINKS, cont. Tennessee: Tenn. Code Ann. § 39-13-513 http://www.lexisnexis.com/hottopics/tncode/http://www.lexisnexis.com/hottopics/tncode/ - Vermont http://www.leg.state.vt.us/docs/2012/Acts/ACT055.PDF Washington http://lawfilesext.leg.wa.gov/biennium/2009- 10/Pdf/Bills/Session%20Laws/Senate/6476-S.SL.pdf North Dakota http://www.legis.nd.gov/assembly/64-2015/documents/15-0227- 05000.pdf?20150911152211

30. HYPERLINKS, cont. Federal Legislation - Justice for Victims of Trafficking Act of 2015 https://www.congress.gov/bill/114th-congress/senate-bill/178 U.S. v. Fuertes, et al. http://www.ca4.uscourts.gov/Opinions/Published/134755.P.pdf National Conference of Commissioners on Uniform State Laws – State Model Legislation http://www.uniformlaws.org/Act.aspx?title=Prevention%20of%20and%20Re medies%20for%20Human%20Trafficking