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Delaware General Assembly· HB 201Signed

Human Trafficking Victims/Strengthen Protections, the official text

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SPONSOR: Rep. K. Williams & Rep. Michael Smith & Sen. Poore &
                                                                 Sen. Richardson & Sen. Pinkney
                                                                 Reps. Hilovsky, Yearick, Bush, Phillips, Cooke, Gorman,
                                                                 Griffith, Romer, Berry, Harris; Sens. Hoffner, Lawson,
                                                                 Walsh, Wilson, Huxtable, Brown, Buckson, Cruce,
                                                                 Hansen, Hocker, Lockman, Mantzavinos, Paradee,
                                                                 Pettyjohn, Seigfried, Sokola, Sturgeon, Townsend

                                             HOUSE OF REPRESENTATIVES
                                               153rd GENERAL ASSEMBLY

                                                 HOUSE BILL NO. 201

    AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO VICTIMS OF HUMAN
    TRAFFICKING.

1   WHEREAS, the Delaware Anti-Trafficking Action Council (Council) was established to, among other things,

2 develop a comprehensive plan to provide victims of human trafficking with services; effectuate coordination between

3 agencies, departments, and the courts with victims of human trafficking; and collect and evaluate data on human trafficking

4 in this State; and

5   WHEREAS, while collecting and evaluating data on human trafficking in this State, the Council found that

6 victims of human trafficking are not seeking remedies available to them under the law, including petitioning to vacate

7 adjudications of delinquency or convictions obtained as a result of being a victim of human trafficking and expunging the

8 related criminal or juvenile records; and

9   WHEREAS, reducing barriers to vacating adjudications and convictions and expungement remedies furthers an

10 important public policy goal in this State to provide support to victims of human trafficking in rebuilding their lives after

11 being trafficked.

12  NOW, THEREFORE:

13  BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

14  Section 1. Amend § 787, Title 11 of the Delaware Code by making deletions as shown by strike through and

15 insertions as shown by underline as follows:

16  § 787. Trafficking an individual, forced labor and sexual servitude; class D felony; class C felony; class B felony;

17 class A felony.

18  (h) Defense to charge of prostitution or loitering. — An individual charged with prostitution or loitering

19 committed as a direct result of being a victim of human trafficking may assert as an affirmative defense that the individual

20 is a victim of human trafficking.

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21  (j) Application for pardon and petition to expunge; motion to vacate adjudication of delinquency or conviction and

22 expungement record. — Pardon and petition to expunge; motion to vacate adjudication or conviction and expungement of

23 related police and court records. (1) Notwithstanding any provision of Chapter 43 of this title or any other law to the

24 contrary, a Pardon. A person arrested or convicted of any crime, except those deemed to be violent felonies pursuant to

25 § 4201 of this title a crime committed as a direct result of being a victim of human trafficking may file an application for a

26 pardon pursuant to article under Article VII of the Delaware Constitution and § 4361 et seq. of this title and may file a

27 petition requesting expungement of such that criminal record pursuant to under § 4371 et seq. of this title.

28  (2) Motion to vacate adjudication or conviction.

29  a. For purposes of this subsection:

30                  1. “Adjudication” means an adjudication of delinquency.

31                  2. “Case” means a charge or set of charges related to a complaint or incident that are or could be

32  properly joined for prosecution.

33                  3. “Court” means a State court.

34                  4. “Official documentation” means any document issued by a local, state, or federal government

35  agency in that agency’s official capacity.

36  b. A person convicted or adjudicated delinquent of any a crime committed, except those deemed to be

37  violent felonies pursuant to under § 4201 of this title, committed as a direct result of being a victim of human

38  trafficking may trafficking, may get the adjudication or conviction vacated. To vacate the adjudication or

39  conviction, the person must file a motion in the court in which the adjudication of delinquency or conviction was

40  obtained to vacate the adjudication or judgment of conviction. obtained. A motion filed under this paragraph must:

41  (j)(2)b. must satisfy all of the following:

42                  a. 1. Be in writing; writing.

43                  b. 2. Be sent to the Delaware Department of Justice; served on the Attorney General.

44                  c. [Repealed.]

45                  d. 3. Describe the evidence and provide copies of any official documents documentation showing

46  that the person movant is entitled to relief under this paragraph. paragraph (j)(2)b.

47  c. On receipt of a motion to vacate, the Attorney General shall contact any victim of the underlying crime

48  sought to be vacated at the victim’s last known address or telephone number to inform the victim about the motion

49  and ascertain the victim’s position on the motion. The Attorney General shall provide the victim’s position, if

50  known, in the Attorney General’s answer to the motion.

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51  d. If the motion satisfies the foregoing requirements, the court shall hold a hearing on a motion, provided

52  that the The court shall summarily issue an order vacating the adjudication or conviction if the movant

53  demonstrates by a preponderance of the evidence that the movant is entitled to relief under paragraph (j)(2)b. of

54  this section and the Attorney General does either of the following:

55                  1. Consents to the motion to vacate.

56                  2. Fails to respond to the motion to vacate in writing to the court within 30 days of being served with

57  the motion, or within any extension of time granted under paragraph (j)(2)h. of this section.

58  e. The court may hold a hearing on the motion if the court requires additional information to determine

59  whether the movant is entitled to relief under paragraph (j)(2)b. of this section.

60  f. The court shall hold a hearing on the motion if the Attorney General files an answer objecting to the

61  motion to vacate within 30 days of being served with the motion, or within any extension of time granted under

62  paragraph (j)(2)h. of this section.

63  g. The court may dismiss a motion without a hearing if the court finds that the motion fails to assert

64  grounds on which relief may be granted.

65  h. The court shall grant the Attorney General’s request for an extension of time to review and respond to

66  a motion under paragraph (j)(2)b. of this section if all of the following occur:

67                  1. The Attorney General requests the extension of time within 30 days of the motion being served on

68  the Attorney General.

69                  2. The request for an extension of time is in writing.

70                  3. The Attorney General demonstrates good cause for an extension of time. For purposes of this

71  paragraph (j)(2)h.3., “good cause” includes difficulty obtaining records related to the adjudication or

72  conviction sought to be vacated or locating a victim of the underlying adjudication or conviction.

73  i.1. A court shall seal or close:

74                  A. A motion filed under paragraph (j)(2)b. of this section.

75                  B. A hearing or proceeding held in relation to a motion filed under paragraph (j)(2)b. of this

76  section.

77                  C. A record relating to the motion, hearing, or proceeding, including a docket entry.

78                  2. Notwithstanding paragraph (j)(2)i.1. of this section, if a court finds there is good cause to do so,

79  the court may require that a hearing or proceeding be open or that a motion or record be unsealed.

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80   j. The movant is not required to attend a hearing or a proceeding in person unless ordered to do so by the

81   court. The court may take testimony from the movant remotely.

82   k. Official documentation of the person’s movant’s status as a victim of this section, “trafficking in

83   persons”, or “a severe form of trafficking” from a federal, state, or local government agency shall create creates a

84   presumption that the person’s movant’s participation in any crime committed, except those deemed to be violent

85   felonies pursuant to under § 4201 of this title, committed was a direct result of having been a victim of human

86   trafficking but shall is not be required for the court to grant a petition under this paragraph. motion under

87   paragraph (j)(2)b. of this section.

88   l. If the petitioner can show to the satisfaction of the court that such petitioner is If the movant can show,

89   by a preponderance of the evidence, that the movant is entitled to relief in the motion or at a hearing or proceeding

90   under this paragraph, this paragraph (j)(2)b., then the court shall do all of the following:

91                   1. grant the motion and, pursuant to this paragraph, enter Grant the movant’s motion to vacate.

92                   2. Enter an order vacating the adjudication of delinquency or judgment of conviction and dismissing

93   the accusatory pleading, and pleading, underlying charges, and indicia of arrest.

94                   3. Enter a final disposition of the adjudication or conviction indicating that it is dismissed and

95   terminated in favor of the movant.

96                   4. Discharge any unpaid fine, fee, restitution, or other financial obligation.

97                   5. may take such Take additional action as is appropriate in the circumstances or as justice requires.

98   m. An adjudication or conviction vacated under this section is not a showing that the conviction was

99   wrongful for purposes of Chapter 70 of Title 10.

100  n. A fine, fee, restitution, or any other financial obligation associated with the conviction or adjudication

101  that has been paid is nonrefundable.

102  (3) Expungement. Notwithstanding any provisions of Chapter 43 of this title, Chapter 9 of Title 10, or

103  any other law to the contrary, any person filing a motion under paragraph (j)(2) of this section in Superior Court or

104  Family Court may also seek in that motion expungement of the criminal or juvenile record related to such

105  conviction. If the court grants the motion to vacate the adjudication of delinquency or conviction under paragraph

106  (j)(2) of this section and the movant also requested expungement, the court’s order shall require expungement of

107  the police and court records relating to the charge and conviction or adjudication of delinquency. This order must

108  contain a statement that the expungement is ordered under this paragraph (j)(3) and, notwithstanding any

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109  limitations to the contrary, that the provisions of §§ 4372(e), 4376, and 4377 of this title and § 1019 of Title 10

110  apply to the order.

111              a. The vacated case is eligible for automatic mandatory expungement and may also be expunged as

112  provided under §§ 1013 through 1019 of Title 10 or Chapter 43 of this title.

113              b. A court may order immediate expungement sua sponte or at the request of the movant.

114  (4) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, upon granting

115  the motion, the Court of Common Pleas shall provide Superior Court with the certified order granting the motion to

116  vacate. Upon finding that the Court of Common Pleas entered an order under paragraph (j)(2) of this section, the

117  Superior Court shall enter an order requiring expungement of the police and court records relating to the charge and

118  conviction. This order must contain a statement that the expungement is ordered under this paragraph (j)(4) and,

119  notwithstanding any limitations to the contrary, that the provisions of § § 4372(e), 4376, and 4377 of this title apply to

120  the order.

                                                                         SYNOPSIS

               This Act strengthens essential protections for victims of human trafficking by removing practical barriers that
     prevent victims from getting convictions or juvenile delinquency adjudications obtained as a result of being a victim of
     human trafficking vacated and the related criminal or juvenile records expunged.

     This Act amends § 787 of Title 11 in the following ways:

               (1) Requires a showing that the offense to be vacated was committed “as a result”, instead of “as a direct result”,
     of the victims having been trafficked, which recognizes that victims of human trafficking may engage in a range of criminal
     behaviors related to their exploitation.

               (2) Provides that a motion to vacate and any hearing or proceeding related to the motion to vacate must remain
     confidential, unless the court determines good cause exists to open the proceeding, so a victim of human trafficking may
     seek relief without fear of revictimization.

               (3) Eliminates the requirement of a mandatory hearing on a motion to vacate unless the Attorney General files a
     timely objection to the motion. This will allow victims to obtain relief on uncontested motions without needing to relive
     their trauma through questioning at a formal hearing.

               (4) Clarifies that the standard of proof for determining eligibility for vacating an adjudication or conviction under
     § 787(j) is by a preponderance of evidence.

               (5) Allows a victim to vacate a conviction or adjudication of delinquency under § 787(j) and expunge the records
     of that conviction or adjudication. Additionally, this Act allows the court to order immediate expungement sua sponte or on
     request and allows expungements to be ordered by the court deciding the motion to vacate.

               (6) Establishes guidelines for the Attorney General to request an extension of time, if needed, to respond to a
     motion to vacate.

               This Act also aligns the standards for a defense to a charge of prostitution or loitering from “as a direct result” to
     “as a result” of human trafficking. This matches the change made to the vacatur provisions and keeps the standards in § 787
     consistent.

               This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative
     Drafting Manual.

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