Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 274 Fourth Substitute (2017GS)

Sponsor

Rep. Romero, A.

Final action

Governor Signed 3/28/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• authorizes the court to vacate a conviction for specified offenses if the individual convicted is found to have acted under force, fraud, or coercion;
• provides the process by which an individual may petition the court for vacatur of a conviction for specified crimes; and
• makes technical corrections.

Every vote on this bill

Bill text

HUMAN TRAFFICKING MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Angela Romero
Senate Sponsor: 
 Wayne A. Harper
LONG TITLE
General Description:
This bill modifies provisions regarding human trafficking.
Highlighted Provisions:
This bill:
▸ authorizes the court to vacate a conviction for specified offenses if the individual
convicted is found to have acted under force, fraud, or coercion;
▸ provides the process by which an individual may petition the court for vacatur of a
conviction for specified crimes; and
▸ makes technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5-308
, as last amended by Laws of Utah 2016, Chapter 231
77-22-2.5
, as last amended by Laws of Utah 2015, Chapter 99
77-38-15
, as enacted by Laws of Utah 2014, Chapter 140
77-40-112
, as renumbered and amended by Laws of Utah 2010, Chapter 283
ENACTS:
76-2-501
, Utah Code Annotated 1953
76-2-502
, Utah Code Annotated 1953
76-2-503
, Utah Code Annotated 1953
77-40-108.5
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-2-501
 is enacted to read:
Part 5. Victim Vacatur of Convictions
 76-2-501.
Definitions.
As used in this part:
 (1) "Conviction" means judgment by a criminal court on a verdict or finding of guilt
after a trial, a plea of guilt, or a plea of nolo contendere.
 (2) "Official documentation" means:
 (a) any stipulation provided by the prosecuting agency having jurisdiction over the
petitioner's offense of conviction;
 (b) a copy of an approval notice or enforcement certification generated from a federal
immigration proceeding that shows the petitioner has been granted nonimmigrant status as a
victim of human trafficking; or
 (c) a copy of a certification letter from the United States Department of Health and
Human Services that shows the petitioner has been certified as a victim of human trafficking
under the Trafficking Victims Protection Act of 2000.
 (3) "Petitioner" means a person convicted of any offense listed in Subsection
76-2-502
(2).
Section 2. Section 
76-2-502
 is enacted to read:
 76-2-502.
Victim vacatur.
(1) Notwithstanding any provisions of Title 77, Chapter 40, Utah Expungement Act,
after the entry of a conviction under the provisions of Subsection (2) and pursuant to the
procedures established in Section 
76-2-503
, the court in which a conviction was entered may
vacate a conviction if the petitioner is found to have acted under force, fraud, or coercion as
defined in Section 
76-5-308
.
 (2) A person convicted of any of the following offenses may petition for vacatur under
this part:
 (a) Section 58-37-8, possession of a controlled substance
;
 (b) Section 
74-10-1304
, aiding prostitution;
 (c) Section 
76-6-206
, criminal trespass;
 (d) Section 
76-6-413
, theft;
 (e) Section 
76-6-502
, possession of forged writing or device for writing;
 (f) Sections 
76-6-602
 through 
76-6-608
, retail theft;
 (g) Subsection 
76-6-1105
(2)(a)(i), unlawful possession of another's identification
document;
 (h) Section 
76-9-702
, lewdness;
 (i) Section 
76-10-1302
, prostitution; or
 (j) Section 
76-10-1313
, sexual solicitation.
Section 3. Section 
76-2-503
 is enacted to read:
 76-2-503.
Vacatur of victim's conviction.
(1) A petitioner or the prosecuting government agency with jurisdiction over the
petitioner's conviction may file a motion for vacatur in the court of conviction.
 (2) Upon the filing of a motion for vacatur, the court of conviction shall set a hearing
to review the motion within a reasonable time, but not less than 60 days after the filing of the
motion.
 (3) At the hearing, the moving party shall show by clear and convincing evidence that
the petitioner committed the offense of conviction under force, fraud, or coercion, as defined in
Section 
76-5-308
.
 (4) (a) The moving party may show that the petitioner acted under force, fraud, or
coercion, as defined in Section 
76-5-308
, through official documentation showing that the
petitioner acted under force, fraud, or coercion at the time of the offense for which the
petitioner is seeking vacatur.
 (b) Official documentation shall create a rebuttable presumption that the petitioner
acted under force, fraud, or coercion, but is not required to establish the grounds for granting a
motion for vacatur under this section.
 (5) (a) If the court finds, by clear and convincing evidence, that the petitioner acted
under force, fraud, or coercion, the court shall grant the motion for vacatur.
 (b) If the court does not find that the petitioner acted under force, fraud, or coercion,
the court shall deny the motion for vacatur.
 (6) In accordance with Utah Rules of Criminal Procedure, Rule 3, the moving party
shall provide notice of all motions under this section to:
 (a) the prosecuting agency with jurisdiction over the conviction;
 (b) the court of conviction; and
 (c) any victim of the original offense who is entitled to notice, pursuant to Section
77-38-3
.
 (7) Upon granting a motion for vacatur, the court shall:
 (a) vacate the conviction;
 (b) strike the adjudication of guilt; and
 (c) issue an order for vacatur of the record of the criminal proceedings.
 (8) The provisions of this section apply retroactively to all arrests and convictions
regardless of the date on which the arrests were made or convictions were entered.
Section 4. Section 
76-5-308
 is amended to read:
76-5-308.
Human trafficking -- Human smuggling.
(1) An actor commits human trafficking for forced labor or forced sexual exploitation
if the actor recruits, harbors, transports, obtains, patronizes, or solicits a person through the use
of force, fraud, or coercion [
by means of
]
, which may include
:
(a) threatening serious harm to, or physical restraint against, that person or a third
person;
(b) destroying, concealing, removing, confiscating, or possessing any passport,
immigration document, or other government
-issued
 identification document;
(c) abusing or threatening abuse of the law or legal process against the person or a third
person;
(d) using a condition of a person being a debtor due to a pledge of the debtor's personal
services or the personal services of a person under the control of the debtor as a security for
debt where the reasonable value of the services is not applied toward the liquidation of the debt
or the length and nature of those services are not respectively limited and defined; [
or
]
(e) using a condition of servitude by means of any scheme, plan, or pattern intended to
cause a person to believe that if the person did not enter into or continue in a condition of
servitude, that person or a third person would suffer serious harm or physical restraint, or
would be threatened with abuse of legal process[
.
]
; or
(f) creating or exploiting a relationship where the person is dependent on the actor.
(2) (a) Human trafficking for forced labor includes forced labor in industrial facilities,
sweatshops, households, agricultural enterprises, and any other workplace.
(b) Human trafficking for forced sexual exploitation includes all forms of forced
commercial sexual activity, [
including
] 
which may include the following conduct when the
person acts under force, fraud, or coercion:
(i)
 [
forced
] sexually explicit performance[
,
]
;
(ii)
 [
forced
] prostitution[
,
]
;
(iii)
 [
forced
] participation in the production of pornography[
,
]
;
(iv)
 [
forced
] performance in strip clubs[
,
]
;
 and
(v)
 [
forced
] exotic dancing or display.
(3) A person commits human smuggling by transporting or procuring the transportation
for one or more persons for a commercial purpose, knowing or having reason to know that the
person or persons transported or to be transported are not:
(a) citizens of the United States;
(b) permanent resident aliens; or
(c) otherwise lawfully in this state or entitled to be in this state.
Section 5. Section 
77-22-2.5
 is amended to read:
77-22-2.5.
Court orders for criminal investigations for records concerning an
electronic communications system or service or remote computing service -- Content --
Fee for providing information.
(1) As used in this section:
(a) (i) "Electronic communication" means any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire,
radio, electromagnetic, photoelectronic, or photooptical system.
(ii) "Electronic communication" does not include:
(A) any wire or oral communication;
(B) any communication made through a tone-only paging device;
(C) any communication from a tracking device; or
(D) electronic funds transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of funds.
(b) "Electronic communications service" means any service which provides for users
the ability to send or receive wire or electronic communications.
(c) "Electronic communications system" means any wire, radio, electromagnetic,
photooptical, or photoelectronic facilities for the transmission of wire or electronic
communications, and any computer facilities or related electronic equipment for the electronic
storage of the communication.
(d) "Internet service provider" has the same definition as in Section 
76-10-1230
.
(e) "Prosecutor" has the same definition as in Section 
77-22-2
.
(f) "Remote computing service" means the provision to the public of computer storage
or processing services by means of an electronic communications system.
(g) "Sexual offense against a minor" means:
(i) sexual exploitation of a minor as defined in Section 
76-5b-201
 or attempted sexual
exploitation of a minor;
(ii) a sexual offense or attempted sexual offense committed against a minor in violation
of Title 76, Chapter 5, Part 4, Sexual Offenses;
(iii) dealing in or attempting to deal in material harmful to a minor in violation of
Section 
76-10-1206
; [
or
]
(iv) enticement of a minor or attempted enticement of a minor in violation of Section
76-4-401
[
.
]
; or
(v) human trafficking of a child in violation of Section 
76-5-308.5
.
(2) When a law enforcement agency is investigating a sexual offense against a minor,
an offense of stalking under Section 
76-5-106.5
, or an offense of child kidnapping under
Section 
76-5-301.1
, and has reasonable suspicion that an electronic communications system or
service or remote computing service has been used in the commission of a criminal offense, a
law enforcement agent shall:
(a) articulate specific facts showing reasonable grounds to believe that the records or
other information sought, as designated in Subsections (1)(c)(i) through (v), are relevant and
material to an ongoing investigation;
(b) present the request to a prosecutor for review and authorization to proceed; and
(c) submit the request to a magistrate for a court order, consistent with 18 U.S.C. 2703
and 18 U.S.C. 2702, to the electronic communications system or service or remote computing
service provider that owns or controls the Internet protocol address, websites, email address, or
service to a specific telephone number, requiring the production of the following information,
if available, upon providing in the court order the Internet protocol address, email address,
telephone number, or other identifier, and the dates and times the address, telephone number,
or other identifier was suspected of being used in the commission of the offense:
(i) names of subscribers, service customers, and users;
(ii) addresses of subscribers, service customers, and users;
(iii) records of session times and durations;
(iv) length of service, including the start date and types of service utilized; and
(v) telephone or other instrument subscriber numbers or other subscriber identifiers,
including any temporarily assigned network address.
(3) A court order issued under this section shall state that the electronic
communications system or service or remote computing service provider shall produce any
records under Subsections (2)(c)(i) through (v) that are reasonably relevant to the investigation
of the suspected criminal activity or offense as described in the court order.
(4) (a) An electronic communications system or service or remote computing service
provider that provides information in response to a court order issued under this section may
charge a fee, not to exceed the actual cost, for providing the information.
(b) The law enforcement agency conducting the investigation shall pay the fee.
(5) The electronic communications system or service or remote computing service
provider served with or responding to the court order may not disclose the court order to the
account holder identified pursuant to the court order for a period of 90 days.
(6) If the electronic communications system or service or remote computing service
provider served with the court order does not own or control the Internet protocol address,
websites, or email address, or provide service for the telephone number that is the subject of
the court order, the provider shall notify the investigating law enforcement agency that it does
not have the information.
(7) There is no cause of action against any provider or wire or electronic
communication service, or its officers, employees, agents, or other specified persons, for
providing information, facilities, or assistance in accordance with the terms of the court order
issued under this section or statutory authorization.
(8) (a) A court order issued under this section is subject to the provisions of Title 77,
Chapter 23b, Access to Electronic Communications.
(b) Rights and remedies for providers and subscribers under Title 77, Chapter 23b,
Access to Electronic Communications, apply to providers and subscribers subject to a court
order issued under this section.
(9) Every prosecutorial agency shall annually on or before February 15 report to the
Commission on Criminal and Juvenile Justice:
(a) the number of requests for court orders authorized by the prosecutorial agency;
(b) the number of orders issued by the court and the criminal offense, pursuant to
Subsection (2), each order was used to investigate; and
(c) if the court order led to criminal charges being filed, the type and number of
offenses charged.
Section 6. Section 
77-38-15
 is amended to read:
77-38-15.
Civil action against human traffickers and human smugglers.
(1) A victim of a person that commits the offense of human trafficking or human
smuggling under Section 
76-5-308
, 
human trafficking of a child under Section 
76-5-308.5
,
 or
aggravated human trafficking or aggravated human smuggling under Section 
76-5-310
, may
bring a civil action against that person.
(2) (a) The court may award actual damages, compensatory damages, punitive
damages, injunctive relief, or any other appropriate relief.
(b) The court may award treble damages on proof of actual damages if the court finds
that the person's acts were willful and malicious.
(3) In an action under this section, the court shall award a prevailing victim reasonable
attorney fees and costs.
(4) An action under this section shall be commenced no later than 10 years after the
later of:
(a) the day on which the victim was freed from the human trafficking or human
smuggling situation;
(b) the day on which the victim attains 18 years of age; or
(c) if the victim was unable to bring an action due to a disability, the day on which the
victim's disability ends.
(5) The time period described in Subsection (4) is tolled during a period of time when
the victim fails to bring an action due to the person:
(a) inducing the victim to delay filing the action;
(b) preventing the victim from filing the action; or
(c) threatening and causing duress upon the victim in order to prevent the victim from
filing the action.
(6) The court shall offset damages awarded to the victim under this section by any
restitution paid to the victim under Title 77, Chapter 38a, Crime Victims Restitution Act.
(7) A victim may bring an action described in this section in any court of competent
jurisdiction where:
(a) a violation described in Subsection (1) occurred;
(b) the victim resides; or
(c) the person that commits the offense resides or has a place of business.
(8) If the victim is deceased or otherwise unable to represent the victim's own interests
in court, a legal guardian, family member, representative of the victim, or court appointee may
bring an action under this section on behalf of the victim.
(9) This section does not preclude any other remedy available to the victim under the
laws of this state or under federal law.
Section 7. Section 
77-40-108.5
 is enacted to read:
 77-40-108.5.
Distribution for order for vacatur.
(1) A person who receives an order for vacatur under Sections 
76-2-502
 and 
76-2-503
shall be responsible for delivering a copy of the order for vacatur to all affected criminal justice
agencies and officials including the court, arresting agency, booking agency, prosecuting
agency, Department of Corrections, and the bureau.
(2) In order to complete delivery of the order for vacatur to the bureau, the petitioner
shall complete and attach to the order for vacatur an application for a certificate of eligibility
for expungement, including identifying information and fingerprints, as provided in Subsection
77-40-103
(1).
(3) The bureau shall treat the order for vacatur and attached certificate of eligibility for
expungement the same as a valid order for expungement under Section 
77-40-108
, except as
provided in this section.
(4) Unless otherwise provided by law or ordered by a court of competent jurisdiction to
respond differently, a person who has received a vacatur of conviction under Sections 
76-2-502
and 
76-2-503
, may respond to any inquiry as though the conviction did not occur.
(5) The bureau shall forward a copy of the order for vacatur to the Federal Bureau of
Investigation.
(6) An agency receiving an order for vacatur shall delete the petitioner's identifying
information contained in records in the agency's possession relating to the incident for which
vacatur is ordered.
(7) A government agency or official may not divulge information or records that have
been deleted regarding the petitioner for vacatur contained in a record of arrest, investigation,
detention, or conviction after receiving an order for vacatur to any person or agency, except for
the petitioner for vacatur.
(8) The bureau may not count vacated convictions against any future expungement
eligibility.
Section 8. Section 
77-40-112
 is amended to read:
77-40-112.
Penalty.
[
Any person who willfully violates any prohibition in this chapter is guilty of a class A
misdemeanor unless the prohibition specifically indicates a different penalty.
] 
Any person who
knowingly or intentionally discloses any identifying information from any record of conviction
that has been pardoned, expunged, or vacated, unless allowed by law, is guilty of a class A
misdemeanor.
Legislative Review Note
Office of Legislative Research and General Counsel