House Amendments to Senate Bill No. 2321
TO THE SECRETARY OF THE SENATE:
THIS IS TO INFORM YOU THAT THE HOUSE HAS ADOPTED THE AMENDMENTS SET OUT BELOW:
AMENDMENT NO. 1
Amend by striking all after the enacting clause and inserting in lieu thereof the following:
SECTION 1. For purposes of this act, the following words shall have the meanings ascribed herein unless the context requires otherwise:
(a) "Human trafficking" means the actions that constitute an offense under Section 97-3-54.1 or 97-3-54.3.
(b) "Venture" means any group of two (2) or more individuals associated in fact, whether or not a legal entity.
SECTION 2. (1) A defendant who engages in human trafficking or who willfully, intentionally and knowingly benefits from participating in a venture that trafficks another person is liable to the person trafficked, as provided by this act, for damages proximately caused by the trafficking of that person by the defendant or venture.
(2) The occurrence of human trafficking on the property of one not engaged in or benefitting from such human trafficking shall not, in and of itself, subject the property owner to liability under this act.
(3) It is not a defense to liability under this act that a defendant has been acquitted or has not been prosecuted or convicted under Section 97-3-54.1 or Section 97-3-54.4, or has been convicted of a different offense or of a different type or class of offense, for the conduct that is alleged to give rise to liability under this act.
(4) The cause of action created by this section is in addition to any other remedy provided by common law or statute.
SECTION 3. (1) A claimant who prevails in a suit under this act may be awarded:
(a) Compensatory damages, including damages for mental anguish even if an injury other than mental anguish is not shown;
(b) Court costs; and
(c) Reasonable attorney's fees.
(2) In addition to an award under subsection (1) of this section, a claimant who prevails in a suit under this act may recover punitive damages subject to the provisions of Section 11-1-65.
SECTION 4. A person who engages in human trafficking or who willfully, intentionally and knowingly benefits from participating in a venture that trafficks another person and who is found liable under this act for any amount of damages proximately caused by the trafficking is jointly liable with any other defendant found liable under this act for the entire amount of damages proximately caused by the trafficking.
SECTION 5. Sections 1 through 5 of this act shall be liberally construed and applied to promote its underlying purpose to protect persons from human trafficking and provide adequate remedies to victims of human trafficking.
SECTION 6. Section 97-29-51, Mississippi Code of 1972, is amended as follows:
97-29-51. (1) (a) A person commits the misdemeanor of procuring the services of a prostitute if the person knowingly or intentionally pays, or offers or agrees to pay, money or other property to another person for having engaged in, or on the understanding that the other person will engage in, sexual intercourse or sexual conduct with the person or with any other person. "Sexual conduct" includes cunnilingus, fellatio, masturbation of another, anal intercourse or the causing of penetration to any extent and with any object or body part of the genital or anal opening of another.
(b) Upon conviction under this subsection, a person shall be punished by a fine not exceeding Two Hundred Dollars ($200.00) or by confinement in the county jail for not more than six (6) months, or both. A second or subsequent violation of this section shall be a felony, punishable by a fine not exceeding One Thousand Dollars ($1,000.00), or by imprisonment in the custody of the Department of Corrections for not more than two (2) years, or both.
(c) However, in all cases, if the person whose services are procured in violation of this subsection (1) is a minor under eighteen (18) years of age, the person convicted shall be guilty of a felony and shall, upon conviction, be punished by imprisonment for not less than five (5) years, nor more than thirty (30) years, or by a fine of not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00), or both.
(d) Consent of a minor is not a defense to prosecution under this subsection (1).
(2) (a) A person commits the felony of promoting prostitution if the person:
(i) Knowingly or intentionally entices, compels, causes, induces, persuades, or encourages by promise, threat, violence, or by scheme or device, another person to become a prostitute, engage in conduct in violation of Section 97-29-49, regardless of whether the other person can be or is arrested for, charged with or convicted of the offense of prostitution;
(ii) Knowingly or intentionally solicits or offers or agrees to solicit, or receives or gives, or agrees to receive or give any money or thing of value for soliciting, or attempting to solicit, another person for the purpose of prostitution;
(iii) Knowingly induces, persuades, or encourages a person to come into or leave this state for the purpose of prostitution;
(iv) Having control over the use of a place or vehicle, knowingly or intentionally permits another person to use the place or vehicle for prostitution;
(v) Accepts, receives, levies or appropriates money or other property of value from a prostitute, without lawful consideration, with knowledge or reasonable cause to know it was earned, in whole or in part, from prostitution; or
(vi) Conducts, directs, takes, or transports, or offers or agrees to take or transport, or aids or assists in transporting, any person to any vehicle, conveyance, place, structure, or building, or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking or transporting is prostitution.
(b) Upon conviction, a person shall be punished by a fine not exceeding Five Thousand Dollars ($5,000.00) or by imprisonment in the custody of the Department of Corrections for not more than ten (10) years, or both. A second or subsequent violation shall be punished by a fine not exceeding Twenty Thousand Dollars ($20,000.00) or by imprisonment in the custody of the Department of Corrections for up to twenty (20) years, or both.
(c) However, in all cases, if the person whose services are promoted in violation of this subsection (2) is a minor under eighteen (18) years of age, the person convicted shall be guilty of a felony and shall, upon conviction, be punished by imprisonment for not less than five (5) years, nor more than thirty (30) years, or by a fine of not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00), or both. There is no requirement that the defendant have actual knowledge of the age of the person and consent of a minor is not a defense to prosecution under this section.
(3) If it is determined that a person suspected of or charged with promoting prostitution is a trafficked person, as defined by Section 97-3-54.4, that fact shall be considered a mitigating factor in any prosecution of that person for prostitution, and the person shall be referred to appropriate resources for assistance. If it is determined that a person suspected of or charged with promoting prostitution is a minor under eighteen (18) years of age who meets the definition of a trafficked person as defined in Section 97-3-54.4, the minor is immune from prosecution for promoting prostitution as a juvenile or adult and provisions of Section 97-3-54.1(4) shall be applicable.
(4) Any partnership, association, corporation or other entity violating any provision of subsection (2) against the promotion of prostitution shall, upon conviction, be punished by a fine not exceeding Fifty Thousand Dollars ($50,000.00). If the person whose services are promoted is under eighteen (18) years of age, the partnership, association, corporation or other legal entity convicted shall be punished by a fine not exceeding One Million Dollars ($1,000,000.00). There is no requirement that the defendant have knowledge of the age of the person. Consent of a minor is not a defense to prosecution under this section.
(5) Investigation and prosecution of a person, partnership, association, corporation or other entity under this section shall not preclude investigation or prosecution against that person, partnership, association, corporation or other entity for a violation of other applicable criminal laws, including, but not limited to, the Mississippi Human Trafficking Act, Section 97-3-54 et seq.
SECTION 7. Section 97-3-54.7, Mississippi Code of 1972, is amended as follows:
97-3-54.7. Forfeiture of assets and disposition of proceeds.
(1) In addition to any other civil or criminal penalties provided by law, any property used in the commission of a violation of this act shall be forfeited as provided herein.
(a) The following property shall be subject to forfeiture if used or intended for use as an instrumentality in or used in furtherance of a violation of this act:
(i) Conveyances, including aircraft, vehicles or vessels;
(ii) Books, records, telecommunication equipment, or computers;
(iii) Money or weapons;
(iv) Everything of value furnished, or intended to be furnished, in exchange for an act in violation and all proceeds traceable to the exchange;
(v) Negotiable instruments and securities;
(vi) Any property, real or personal, directly or indirectly acquired or received in a violation or as an inducement to violate;
(vii) Any property traceable to proceeds from a violation; and
(viii) Any real property, including any right, title and interest in the whole of or any part of any lot or tract of land used in furtherance of a violation of this act.
(b) (i) No property used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the property is a consenting party or privy to a violation of this act;
(ii) No property is subject to forfeiture under this section by reason of any act or omission proved by the owner thereof to have been committed or omitted without his knowledge or consent; if the confiscating authority has reason to believe that the property is a leased or rented property, then the confiscating authority shall notify the owner of the property within five (5) days of the confiscation or within five (5) days of forming reason to believe that the property is a leased or rented property;
(iii) Forfeiture of a property encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.
(2) No property shall be forfeited under the provisions of this section, to the extent of the interest of an owner, by reason of any act or omission established by him to have been committed or omitted without his knowledge or consent.
(3) Seizure without process may be made if the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
(4) (a) When any property is seized under this section, proceedings shall be instituted within a reasonable period of time from the date of seizure or the subject property shall be immediately returned to the party from whom seized.
(b) A petition for forfeiture shall be filed by the Attorney General or a district attorney in the name of the State of Mississippi, the county, or the municipality, and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought, or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21. A copy of the petition shall be served upon the following persons by service of process in the same manner as in civil cases:
(i) The owner of the property, if address is known;
(ii) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of the secured party can be ascertained by the entity filing the petition by making a good faith effort to ascertain the identity of the secured party;
(iii) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the seizing law enforcement agency has actual knowledge; and
(iv) Any person in possession of property subject to forfeiture at the time that it was seized.
(5) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, inquiry of the Department of Revenue shall be made as to what the records of the Department of Revenue show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest that affects the vehicle.
(6) If the property is a motor vehicle and is not titled in the State of Mississippi, then an attempt shall be made to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, inquiry of the appropriate agency of that state shall be made as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device that affects the vehicle.
(7) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, inquiry of the appropriate office designated in Section 75-9-501, shall be made as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.
(8) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, inquiry of the Mississippi Department of Transportation shall be made as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.
(9) If the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust that affects the property, the record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest, or holder of an encumbrance, mortgage or deed of trust that affects the property is to be named in the petition of forfeiture and is to be served with process in the same manner as in civil cases.
(10) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, there shall be filed with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, and shall be served as provided in Section 11-33-37, for publication of notice for attachments at law.
(11) No proceedings instituted pursuant to the provisions of this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by this section shall be introduced into evidence at the hearing.
(12) (a) An owner of a property that has been seized shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the seizing law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court if court would not be in session within thirty (30) days after filing the answer. The court may postpone the forfeiture hearing to a date past the time any criminal action is pending against the owner upon request of any party.
(b) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The burden of proof placed upon the petitioner in regard to property forfeited under the provisions of this chapter shall be by a preponderance of the evidence.
(c) At the hearing any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.
(d) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest, or any holder of a bona fide encumbrance, mortgage or deed of trust is greater than or equal to the present value of the property, the court shall order the property released to him. If the interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited.
(13) Unless otherwise provided herein, all personal property which is forfeited under this section shall be liquidated and, after deduction of court costs and the expense of liquidation, the proceeds shall be divided as follows:
(a) If only one (1)
law enforcement agency participates in the underlying criminal case out of which
the forfeiture arises, fifty percent (50%) of the proceeds shall be forwarded
to the State Treasurer and deposited in the * * * Victims of Human Trafficking and Commercial Sexual Exploitation
Fund, and fifty percent (50%) shall be deposited and credited to the
budget of the participating law enforcement agency.
(b) If more than one
(1) law enforcement agency participates in the underlying criminal case out of
which the forfeiture arises, fifty percent (50%) of the proceeds shall be
forwarded to the State Treasurer and deposited in the * * * Victims
of Human Trafficking and Commercial Sexual Exploitation Fund, twenty-five
percent (25%) of the proceeds shall be deposited and credited to the budget of
the law enforcement agency whose officers initiated the criminal case and
twenty-five percent (25%) shall be divided equitably between or among the other
participating law enforcement agencies, and shall be deposited and credited to
the budgets of the participating law enforcement agencies. In the event that
the other participating law enforcement agencies cannot agree on the division
of their twenty-five percent (25%), a petition shall be filed by any one of
them in the court in which the civil forfeiture case is brought and the court
shall make an equitable division.
(14) All money forfeited under this section shall be divided, deposited and credited in the same manner as provided in subsection (13).
(15) All real estate forfeited under the provisions of this section shall be sold to the highest and best bidder at a public auction for cash, the auction to be conducted by the chief law enforcement officer of the initiating law enforcement agency, or his designee, at such place, on such notice and in accordance with the same procedure, as far as practicable, as is required in the case of sales of land under execution at law. The proceeds of the sale shall first be applied to the cost and expense in administering and conducting the sale, then to the satisfaction of all mortgages, deeds of trust, liens and encumbrances of record on the property. The remaining proceeds shall be divided, forwarded and deposited in the same manner as provided in subsection (13).
(16) (a) Any county or municipal law enforcement agency may maintain, repair, use and operate for official purposes all property described in subsection (1)(a)(i) of this section that has been forfeited to the agency if it is free from any interest of a bona fide lienholder, secured party or other party who holds an interest in the property in the nature of a security interest. The county or municipal law enforcement agency may purchase the interest of a bona fide lienholder, secured party or other party who holds an interest so that the property can be released for its use. If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law, the law enforcement agency shall be deemed to be the purchaser, and the certificate of title shall be issued to it as required by subsection (9) of this section.
(b) (i) If a vehicle is forfeited to or transferred to a sheriff's department, then the sheriff may transfer the vehicle to the county for official or governmental use as the board of supervisors may direct.
(ii) If a vehicle is forfeited to or transferred to a police department, then the police chief may transfer the vehicle to the municipality for official or governmental use as the governing authority of the municipality may direct.
(c) If a motor vehicle forfeited to a county or municipal law enforcement agency becomes obsolete or is no longer needed for official or governmental purposes, it may be disposed of in accordance with Section 19-7-5 or in the manner provided by law for disposing of municipal property.
(17) The forfeiture procedure set forth in this section is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, injunction, supersedeas or in any other manner.
SECTION 8. Section 97-3-54.9, Mississippi Code of 1972, is amended as follows:
97-3-54.9. Statewide Human Trafficking Coordinator; duties.
(1) There is created the position of statewide human trafficking coordinator within the Mississippi Bureau of Investigation of the Department of Public Safety office. The duties of the coordinator shall be as follows:
(a) Coordinate the implementation of this act;
(b) Evaluate state efforts to combat human trafficking;
(c) Collect data on human trafficking activity within the state on an ongoing basis, including types of activities reported, efforts to combat human trafficking, and impact on victims and on the state;
(d) Exclude from publicly released portions of the data collected under subsection (1)(c) the identity of any victim and the victim's family;
(e) Promote public awareness about human trafficking, remedies and services for victims, and national hotline information;
(f) Create and maintain a website to publicize the coordinator's work;
(g) Submit to the Legislature an annual report of its evaluation under subsection (1)(b) and any other annual report required by law, including any recommendations, and summary of data collected under subsection (1)(c) and any other data otherwise required by law to be collected by the coordinator;
* * *
( * * *h) Assist in the creation and
operations of local human trafficking task forces or working groups around the
state, including serving on a task force or a multidisciplinary child
protection team;
( * * *i) Conduct other activities, including,
but not limited to, applying for grants to enhance investigation and
prosecution of trafficking offenses or to improve victim services to combat
human trafficking within this state which are appropriate; and
( * * *j) Perform any other duties specifically
required by law for the coordinator.
(2) The coordinator shall be authorized to seek input and assistance from state agencies, nongovernmental agencies, service providers and other individuals in the performance of the foregoing duties.
(3) Each state agency, board and commission shall be required to fully cooperate with the coordinator in the performance of the duties of that position.
(4) Every investigation of an offense under this chapter shall be reported to the coordinator by the initiating law enforcement agency pursuant to guidelines established by the coordinator.
(5) Notwithstanding the provisions of Section 43-21-261, disclosure by any state agency, nongovernmental agency, service provider or local or state law enforcement agency of nonidentifying information regarding a minor victim to the coordinator for the purposes of evaluating and collecting data regarding trafficking offenses in the state is specifically authorized.
SECTION 9. Section 97-3-54.8, Mississippi Code of 1972, which provides for the Victims of Human Trafficking Fund, is repealed.
SECTION 10. This act shall take effect and be in force from and after July 1, 2022, and shall stand repealed on June 30, 2022.
Further, amend by striking the title in its entirety and inserting in lieu thereof the following:
AN ACT TO CREATE A CIVIL CAUSE OF ACTION FOR ENGAGING IN HUMAN TRAFFICKING OR WILLFULLY, INTENTIONALLY AND KNOWINGLY BENEFITTING FROM PARTICIPATION IN HUMAN TRAFFICKING; TO DEFINE TERMS; TO PROVIDE THAT A DEFENDANT WHO ENGAGES IN HUMAN TRAFFICKING OR WHO WILLFULLY, INTENTIONALLY AND KNOWINGLY BENEFITS FROM PARTICIPATING IN A VENTURE THAT TRAFFICKS ANOTHER PERSON IS LIABLE TO THE PERSON TRAFFICKED FOR DAMAGES PROXIMATELY CAUSED BY THE TRAFFICKING OF THAT PERSON BY THE DEFENDANT OR VENTURE; TO PROVIDE FOR SHAREHOLDER OR MEMBER LIABILITY; TO CLARIFY THAT THE OCCURRENCE OF HUMAN TRAFFICKING ON THE PROPERTY OF ONE NOT ENGAGED IN OR BENEFITTING FROM SUCH HUMAN TRAFFICKING SHALL NOT, IN AND OF ITSELF, SUBJECT THE PROPERTY OWNER TO LIABILITY; TO AMEND SECTION 97-29-51, MISSISSIPPI CODE OF 1972, TO CLARIFY THE CRIME OF PROMOTION OF PROSTITUTION; TO AMEND SECTION 97-3-54.7, MISSISSIPPI CODE OF 1972, TO REVISE WHERE THE PROCEEDS OF FORFEITED ASSETS FROM HUMAN TRAFFICKING ARE DEPOSITED; TO AMEND SECTION 97-3-54.9, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; TO REPEAL SECTION 97-3-54.8, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE "RELIEF FOR VICTIMS OF HUMAN TRAFFICKING FUND"; AND FOR RELATED PURPOSES.
HR12\SB2321A.1J
Andrew Ketchings
Clerk of the House of Representatives