Senate Bill 2104

AN ACT TO AMEND SECTION 97-3-54.1, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE FORFEITURE OF ANY VEHICLE USED IN FURTHERANCE OF HUMAN TRAFFICKING; TO CREATE SECTION 97-3-54.5, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR FORFEITURE; TO BRING FORWARD SECTION 97-5-5, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF CONFORMING AMENDMENT; TO AMEND SECTION 97-29-49, MISSISSIPPI CODE OF 1972, TO PROVIDE IMMUNITY, VICTIM STATUS AND PROTECTIVE CUSTODY FOR CERTAIN MINORS WHO WOULD BE SUBJECT TO BEING CHARGED WITH PROSTITUTION HAD THEY BEEN OVER 18; TO AMEND SECTION 97-29-51, MISSISSIPPI CODE OF 1972, TO REVISE FOR GENDER NEUTRALITY THE CRIME OF PROCURING FOR PROSTITUTION; TO AMEND SECTION 97-29-53, MISSISSIPPI CODE OF 1972, TO REVISE THE PUNISHMENT FOR PROCURING PROSTITUTION OF CERTAIN MINORS; TO AMEND SECTION 97-3-54, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:

97-3-54.1. (1) (a) A person who 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, shall be guilty of the crime of human trafficking.

(b) A person who knowingly subjects, or attempts to subject, another person to forced labor or services shall be guilty of the crime of procuring involuntary servitude.

(c) A person who 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 production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and shall be punished by commitment to the custody of the Department of Corrections for not more than thirty (30) years.

(2) (a) A person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section, or who benefits, whether financially or by receiving anything of value, from participation in a venture that has engaged in an act described in this section, shall be committed to the custody of the Department of Corrections for not more than twenty (20) years.

(b) In addition to any other penalty provided by law, a property used in the commission of a violation of this section shall be forfeited as provided in Section 97-3-54.5.

SECTION 2. The following shall be codified as Section 97-3-54.5, Mississippi Code of 1972:

97-3-54.5 (1) (a) The following shall be subject to forfeiture if used or intended for use as an instrumentality in or used in furtherance of a violation of Sections 97-3-54 through 97-3-54.4:

(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 and any property.

(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 Sections 97-3-54 through 97-3-54.5;

(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;

(iii) A 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 thirty (30) days 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 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 such secured party can be ascertained by the Bureau of Narcotics or the local law enforcement agency 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 which 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 which 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 which affects the property, the record owner and also any lienholder, secured party, other person who holds an interest in the property of a security interest, or holder of an encumbrance, mortgage or deed of trust which affects the property to be named in the petition of forfeiture and 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 said forfeiture hearing to a date past the time any criminal action is pending against said 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 standard of proof placed upon the petitioner in regard to property forfeited under the provisions of Sections 97-3-54 through 97-3-54.5 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 such 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) 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 3. Section 97-5-5, Mississippi Code of 1972, is brought forward as follows:

97-5-5. Every person who shall maliciously, willfully, or fraudulently lead, take, carry away, decoy or entice away, any child under the age of fourteen (14) years, with intent to detain or conceal such child from its parents, guardian, or other person having lawful charge of such child, or for the purpose of prostitution, concubinage, or marriage, shall, on conviction, be imprisoned in the Penitentiary not exceeding ten (10) years, or imprisoned in the county jail not more than one (1) year, or fined not more than One Thousand Dollars ($1,000.00), or both.

SECTION 4. Section 97-29-49, Mississippi Code of 1972, is amended as follows:

97-29-49. (1) It shall be unlawful to engage in prostitution or to aid or abet prostitution or to procure or solicit for the purposes of prostitution, or to reside in, enter, or remain in any place, structure, or building, or to enter or remain in any vehicle or property for the purpose of lewdness, assignation, or prostitution, or to keep or set up a house of ill-fame, brothel or bawdy house, or to receive any person for purposes of lewdness, assignation, or prostitution into any vehicle, property, place, structure or building, or to permit any person to remain for the purpose of lewdness, assignation, or prostitution in any vehicle, property, place, structure, or building, or to direct, take, or transport, or to offer or agree to take or transport, or aid or assist in transporting, any person to any vehicle, property, 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, lewdness or assignation, or to lease or rent or contract to lease or rent any vehicle, property, place, structure, or building, or part thereof, knowing or with good reason to know that it is intended to be used for any of the purposes herein prohibited, or to aid, abet, or participate in the doing of any of the acts herein prohibited.

(2) If it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with prostitution is a minor under eighteen (18) years of age, the minor shall be immune from prosecution for prostitution as a juvenile or adult and shall be subject to the protective custody of the Department of Human Services as a possible victim of child sexual abuse. A law enforcement officer who takes a minor under eighteen (18) years of age into custody for suspected prostitution shall immediately report the suspected child sexual abuse to the Department of Human Services as required in Section 43-21-353; and the department shall commence an initial investigation into the suspected child sexual abuse, as required in Section 43-21-353.

SECTION 5. Section 97-29-51, Mississippi Code of 1972, is amended as follows:

97-29-51. It shall further be unlawful to procure * * * an inmate for a house of prostitution, or to cause, induce, persuade, or encourage by promise, threat, violence, or by scheme or device, a person to become a prostitute or to remain an inmate of a house of prostitution, or to induce, persuade, or encourage a person to come into or leave this state for the purpose of prostitution, or to become an inmate in a house of prostitution, or to receive or give, or agree to receive or give any money or thing of value for procuring, or attempting to procure any person to become a prostitute or an inmate in a house of prostitution, or to knowingly accept, receive, levy or appropriate any money or other thing of value without consideration from a prostitute or from the proceeds of any person engaged in prostitution.

SECTION 6. Section 97-29-53, Mississippi Code of 1972, is amended as follows:

97-29-53. Any person, partnership, association or corporation violating any provision of Section 97-29-49 or 97-29-51 shall, upon conviction, 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 by both such fine and imprisonment, except that if the person alleged to have been procured or solicited for prostitution, or aided or abetted for the purpose of prostitution, was a minor under the age of eighteen (18) at the time of the alleged offense, the offense shall be a felony punishable by commitment to the custody of the Department of Corrections for not more than six (6) years, and a fine of not more than Three Thousand Dollars ($3,000.00).

SECTION 7. Section 97-3-54, Mississippi Code of 1972, is amended as follows:

97-3-54. Sections 97-3-54 through 97-3-54.5 may be known and cited as the Mississippi Anti-Human Trafficking Act.

SECTION 8. This act shall take effect and be in force from and after July 1, 2012.