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

Legislation Document

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.

WHEREAS, the Delaware Anti-Trafficking Action Council (Council) was established to, among other things, develop a comprehensive plan to provide victims of human trafficking with services; effectuate coordination between agencies, departments, and the courts with victims of human trafficking; and collect and evaluate data on human trafficking in this State; and

WHEREAS, while collecting and evaluating data on human trafficking in this State, the Council found that victims of human trafficking are not seeking remedies available to them under the law, including petitioning to vacate adjudications of delinquency or convictions obtained as a result of being a victim of human trafficking and expunging the related criminal or juvenile records; and

WHEREAS, reducing barriers to vacating adjudications and convictions and expungement remedies furthers an important public policy goal in this State to provide support to victims of human trafficking in rebuilding their lives after being trafficked.

NOW, THEREFORE:

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

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

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

(h)

Defense to charge of prostitution or loitering. —

An individual charged with prostitution or loitering committed as a

direct

result of being a victim of human trafficking may assert as an affirmative defense that the individual is a victim of human trafficking.

(j)

Application for pardon and petition to expunge; motion to vacate adjudication of delinquency or conviction and expungement record. —

Pardon and petition to expunge; motion to vacate adjudication or conviction and expungement of related police and court records.

(1)

Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, a

Pardon. A

person arrested or convicted of

any crime, except those deemed to be violent felonies pursuant to § 4201 of this title

a crime

committed as a

direct

result of being a victim of human trafficking may file an application for a pardon

pursuant to article

under Article

VII of the Delaware Constitution and § 4361 et seq. of this title and may file a petition requesting expungement of

such

that

criminal record

pursuant to

under

§ 4371 et seq. of this title.

(2)

Motion to vacate adjudication or conviction.

a. For purposes of this subsection:

1. “Adjudication” means an adjudication of delinquency.

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

3. “Court” means a State court.

4. “Official documentation” means any document issued by a local, state, or federal government agency in that agency’s official capacity.

b.

A person convicted or adjudicated delinquent of

any

a

crime

committed

, except those deemed to be violent felonies

pursuant to

under

§ 4201 of this title,

committed

as a

direct

result of being a victim of human

trafficking may

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

file a motion in the court in which the adjudication

of delinquency

or conviction was

obtained to vacate the adjudication or judgment of conviction.

obtained.

A motion filed under this paragraph

must:

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

a.

1.

Be in

writing;

writing.

b.

2.

Be

sent to the Delaware Department of Justice;

served on the Attorney General.

c. [Repealed.]

d.

3.

Describe the evidence and provide copies of any official

documents

documentation

showing that the

person

movant

is entitled to relief under this

paragraph.

paragraph (j)(2)b.

c. On receipt of a motion to vacate, the Attorney General shall contact any victim of the underlying crime sought to be vacated at the victim’s last known address or telephone number to inform the victim about the motion and ascertain the victim’s position on the motion. The Attorney General shall provide the victim’s position, if known, in the Attorney General’s answer to the motion.

d.

If the motion satisfies the foregoing requirements, the court shall hold a hearing on a motion, provided that the

The court shall summarily issue an order vacating the adjudication or conviction if the movant demonstrates by a preponderance of the evidence that the movant is entitled to relief under paragraph (j)(2)b. of this section and the Attorney General does either of the following:

1. Consents to the motion to vacate.

2. Fails to respond to the motion to vacate in writing to the court within 30 days of being served with the motion, or within any extension of time granted under paragraph (j)(2)h. of this section.

e. The court may hold a hearing on the motion if the court requires additional information to determine whether the movant is entitled to relief under paragraph (j)(2)b. of this section.

f. The court shall hold a hearing on the motion if the Attorney General files an answer objecting to the motion to vacate within 30 days of being served with the motion, or within any extension of time granted under paragraph (j)(2)h. of this section.

g. The

court may dismiss a motion without a hearing if the court finds that the motion fails to assert grounds on which relief may be granted.

h. The court shall grant the Attorney General’s request for an extension of time to review and respond to a motion under paragraph (j)(2)b. of this section if all of the following occur:

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

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

3. The Attorney General demonstrates good cause for an extension of time. For purposes of this paragraph (j)(2)h.3., “good cause” includes difficulty obtaining records related to the adjudication or conviction sought to be vacated or locating a victim of the underlying adjudication or conviction.

i.1. A court shall seal or close:

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

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

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

2. Notwithstanding paragraph (j)(2)i.1. of this section, if a court finds there is good cause to do so, the court may require that a hearing or proceeding be open or that a motion or record be unsealed.

j. The movant is not required to attend a hearing or a proceeding in person unless ordered to do so by the court. The court may take testimony from the movant remotely.

k.

Official documentation of the

person’s

movant’s

status as a victim of this section, “trafficking in persons”, or “a severe form of trafficking”

from a federal, state, or local government agency shall create

creates

a presumption that the

person’s

movant’s

participation in any crime

committed

, except those deemed to be violent felonies

pursuant to

under

§ 4201 of this title,

committed

was a

direct

result of having been a victim of human trafficking but

shall

is

not

be

required for the court to grant a

petition under this paragraph.

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

l

.

If the petitioner can show to the satisfaction of the court that such petitioner is

If the movant can show, by a preponderance of the evidence, that the movant is

entitled to relief in

the motion or at

a

hearing or

proceeding under

this paragraph,

this paragraph (j)(2)b., then

the court shall

do all of the following:

1.

grant the motion and, pursuant to this paragraph, enter

Grant the movant’s motion to vacate.

2. Enter

an order vacating the adjudication

of delinquency

or

judgment of

conviction and dismissing the accusatory

pleading, and

pleading, underlying charges, and indicia of arrest.

3. Enter a final disposition of the adjudication or conviction indicating that it is dismissed and terminated in favor of the movant.

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

5.

may take such

Take

additional action as is appropriate in the circumstances or as justice requires.

m

.

An adjudication or conviction vacated under this section is not a showing that the conviction was wrongful for purposes of Chapter 70 of Title 10.

n. A fine, fee, restitution, or any other financial obligation associated with the conviction or adjudication that has been paid is nonrefundable.

(3)

Expungement.

Notwithstanding any provisions of Chapter 43 of this title, Chapter 9 of Title 10, or any other law to the contrary, any person filing a motion under paragraph (j)(2) of this section in Superior Court or Family Court may also seek in that motion expungement of the criminal or juvenile record related to such conviction. If the court grants the motion to vacate the adjudication of delinquency or conviction under paragraph (j)(2) of this section and the movant also requested expungement, the court’s order shall require expungement of the police and court records relating to the charge and conviction or adjudication of delinquency. This order must contain a statement that the expungement is ordered under this paragraph (j)(3) and, notwithstanding any limitations to the contrary, that the provisions of §§ 4372(e), 4376, and 4377 of this title and § 1019 of Title 10 apply to the order.

a. The vacated case is eligible for automatic mandatory expungement and may also be expunged as provided under §§ 1013 through 1019 of Title 10 or Chapter 43 of this title.

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

(4) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, upon granting the motion, the Court of Common Pleas shall provide Superior Court with the certified order granting the motion to vacate. Upon finding that the Court of Common Pleas entered an order under paragraph (j)(2) of this section, the Superior Court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. This order must contain a statement that the expungement is ordered under this paragraph (j)(4) and, notwithstanding any limitations to the contrary, that the provisions of § § 4372(e), 4376, and 4377 of this title apply to 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.