CHAPTER 125

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 116

AN ACT RELATING TO CRIMINAL CONSEQUENCES OF CONDUCT THAT INVOLVES CERTAIN TRAFFICKING OF PERSONS AND INVOLUNTARY SERVITUDE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 5, Subpart E, Title 11 of the Delaware Code by adding thereto a new “§ 787” to read:

Ҥ 787. Trafficking of persons and involuntary servitude; class F felony; class E felony; class C felony; class B felony; class A felony.

(a) For the purposes of this Section, the following definitions shall apply:

(1) 'blackmail' is to be given its ordinary meaning and includes but is not limited to a threat to expose any secret tending to subject any person to hatred, contempt, or ridicule;

(2) 'commercial sexual activity' means any sex act on account of which anything of value is given, promised to, or received by any person;

(3) 'forced labor or services' means labor, as defined in paragraph (4) of this subsection, or services, as defined in paragraph (7) of this subsection, that are performed or provided by another person and are obtained or maintained through coercion as enumerated in (b)(1) of this Section;

(4) 'labor' means work of economic or financial value;

(5) 'maintain' means in relation to labor or services, to secure continued performance thereof, regardless of any initial agreement on the part of the victim to perform such type of service;

(6) 'obtain' means in relation to labor or services, to secure performance thereof;

(7) 'services' means an ongoing relationship between a person and the person in which the person performs activities under the supervision of or for the benefit of the person. Commercial sexual activity and sexually explicit performances are forms of services under this Section. Nothing in this definition should be construed to legitimize or legalize prostitution;

(8) 'sexually explicit performance' means a live public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interest of patrons; and

(9) 'trafficking victim' means a person subjected to the practices set forth in subsections (b) of this Section.

(b) Prohibited Activities:

(1) Involuntary servitude. A person is guilty of holding another person in involuntary servitude when the person knowingly subjects, or attempts to subject, the person to forced labor or services.

(A) by causing or threatening to cause physical harm to any person which is a class B felony;

(B) by physically restraining or threatening to physically restrain another person which is a class B felony;

(C) by abusing or threatening to abuse the law or legal process which is a class C felony;

(D) by 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 which is a class E felony; or

(E) by using blackmail, or using or threatening to cause financial harm to, or by using financial control over any person which is a class F felony.

(2) Sexual servitude of a minor. A person is guilty of sexual servitude of a minor when the person knowingly (i) recruits, entices, harbors, transports, provides or obtains by any means, a minor under 18 years of age, knowing that the minor will engage in commercial sexual activity, a sexually-explicit performance, or the production of pornography, or (ii) causes a minor to engage in commercial sexual activity or a sexually explicit performance:

(A) sexual servitude of a minor in which the minor was between the ages of 14 and 18 years and which did not involve overt force or threat is a class C felony;

(B) sexual servitude of a minor in which the minor had not attained the age of 14 years and which did not involve overt force or threat is a class B felony;

(C) sexual servitude of a minor in which overt force or threat was involved is a class A felony.

(3) Trafficking of persons for forced labor or services. A person is guilty of trafficking of persons for forced labor or services when a person knowingly (i) recruits, entices, harbors, transports, provides or obtains by any means, another person, intending or knowing that the person will be subjected to forced labor or services; or (ii) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of this Section. Trafficking of persons for forced labor or services is a class B felony.

(4) Trafficking of persons for use of body parts. A person is guilty of trafficking of persons for use of body parts when a person knowingly (i) recruits, entices, harbors, provides or obtains by any means, another person, intending or knowing that the person will have body parts removed for sale or (ii) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of this Section. Such person shall be guilty of a class A felony. Nothing contained herein shall be construed as prohibiting the donation of an organ by an individual at a licensed medical facility after giving an informed voluntary consent.

(c) Restitution is mandatory under this Section. In addition to any other amount of loss identified, the court shall order restitution, including the greater of (1) the gross income or value to the defendant of the victim's labor or services or (2) the value of the victim's labor as guaranteed under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) or of Title 19 of the Delaware Code, whichever is greater.

(d) Assessment of victim protection needs.

(1) The Attorney General, in consultation with the Department of Health and Social Services, shall, no later than one (1) year from the effective date of this statute, issue a report outlining how existing victim/witness laws and regulations respond to the needs of trafficking victims, as defined in subsection (a)(9) of this Section, and suggesting areas of improvement and modification.

(2) The Department of Health and Social Services, in consultation with the Attorney General, shall, no later than one (1) year from the effective date of this statute, issue a report outlining how existing social service programs respond or fail to respond to the needs of trafficking victims, as defined in subsection (a)(9) of this Section, the interplay of such existing programs with federally funded victim service programs, and areas needing improvement and modification. The report must include a section that states the ability of State programs and licensing bodies to recognize Federal non-immigrant status for the purposes of benefits, programs, and licenses.”.

Section 2. If any provisions 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 that end, the provisions of this Act are declared to be severable.

Section 3. This Bill shall be effective on July 1, 2007.

Approved July 12, 2007