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An Act to amend and reenact §§
19.2-327.15
through
19.2-327.19
of the Code of Virginia, relating to issuance of vacatur for victims of human trafficking.
Be it enacted by the General Assembly of Virginia:
1. That §§
19.2-327.15
through
19.2-327.19
of the Code of Virginia are amended and reenacted as follows:
§
19.2-327.15
. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Ancillary matter" means any (i) violation or alleged violation of the terms and conditions of a suspended sentence, probation, or parole; (ii) violation or alleged violation of contempt of court; (iii) charge or conviction for failure to appear; or (iv) appeal from a bail, bond, or recognizance order related to a qualifying offense.
"Labor trafficking" means the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to debt bondage, involuntary servitude, peonage, or slavery.
"Official documentation" means any documentation issued by a federal, state, or local agency, a multidisciplinary team or task force, a licensed psychologist, a licensed clinical social worker, or an otherwise qualified subject matter expert.
"Qualifying offense" means
a conviction or adjudication of delinquency for
any attempted, completed, or conspired (i)
violation of §
18.2-250
or (ii)
felony that is not a violent felony offense listed under subsection C of §
17.1-805
, (ii)
misdemeanor
violation of §
18.2-96
; subsection A of §
18.2-108
; §
18.2-108.01
,
18.2-117
,
18.2-118
,
18.2-119
,
18.2-137
,
18.2-146
,
18.2-147
,
18.2-160.2
,
18.2-173
,
18.2-178
,
18.2-181
, or
18.2-186.2
; subdivision B 1 of §
18.2-186.3
; §
18.2-195
,
18.2-197
,
18.2-206
,
18.2-258
,
18.2-266.1
,
18.2-346
,
18.2-347
,
18.2-349
,
18.2-388
,
18.2-415
,
46.2-300
, or
46.2-301
; or subdivision A 1, 2, or 3 of §
46.2-346
, or (iii) specifically identified ancillary matter
.
"Sex trafficking" means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act that is induced by force, fraud, or coercion or in which the person induced to perform such act has not attained 18 years of age.
"Victim of human trafficking" means any person subjected to an act or the practice of labor trafficking or sex trafficking, regardless of whether any other person has been charged
with
or convicted of an offense related to the labor trafficking or sex trafficking of such person.
§
19.2-327.16
. Issuance of writ of vacatur for victims of human trafficking.
A. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was
arrested for, charged with, or
convicted or adjudicated delinquent of a qualifying offense, the circuit court of the county or city in which
the
such arrest, charge,
conviction
,
or adjudication of delinquency was entered shall have the authority to issue writs of vacatur under this chapter.
Such court shall also have the authority to issue writs of vacatur under this chapter for any specifically identified ancillary matter.
B. The Rules of Supreme Court of Virginia governing practice and procedures in civil actions shall be applicable to proceedings under this chapter.
C. The circuit court shall have the authority to conduct hearings on petitions for vacatur.
D. Any party aggrieved by the decision of the circuit court may appeal
the
such
decision to the Supreme Court of Virginia.
§
19.2-327.17
. Contents and form of the petition for vacatur.
A. Any victim of human trafficking may file a petition for vacatur setting forth the relevant facts and requesting that
any arrest record or charge,
the judgment of a conviction or adjudication of delinquency
, or an ancillary matter, if any,
be vacated. Such petition shall allege categorically and with specificity, under oath, all of the following:
1. The petitioner was
arrested for, charged with, or
convicted or adjudicated delinquent of a qualifying offense, including the date on which the qualifying offense occurred, the date of final disposition
on which the conviction or adjudication of delinquency was entered
, the petitioner's date of birth, and the full name used by the petitioner at the time of the offense;
2. The petitioner was a victim of human trafficking at the time he committed
, was arrested for, or was charged with
the qualifying offense and his status as a victim of human trafficking was the proximate cause of
the
such arrest, charge, or
commission
of the qualifying offense
; and
3. Whether the petitioner has previously filed any other petition in accordance with this chapter in any circuit court and, if so, the disposition of such petition.
B.
Such
Subject to the reasonable concerns for the safety of the petitioner, the petitioner's family, or any other victim of human trafficking who may be jeopardized by the filing of a petition, such
petition shall contain all relevant allegations of facts that are known to the petitioner at the time of filing, which shall include a short, plain statement demonstrating (i) that the petitioner is entitled to relief under this chapter; (ii) the identity of the human trafficker, to the best of the petitioner's knowledge; (iii) the approximate date, time, place, and manner in which the petitioner became a victim of human trafficking; (iv) the petitioner's age at the time he became a victim of human trafficking; (v) how the petitioner became involved in the activities resulting in his arrest, prosecution, and conviction or adjudication; and (vi) that the petitioner has ceased to be a victim of human trafficking or has sought rehabilitative services. Such statement shall be filed under seal and provided only to the circuit court and the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may provide the information provided in such statement, with the exception of the petitioner's identity, to any law-enforcement agency to investigate or prosecute criminal activity. The identity of the petitioner shall only be provided to law enforcement upon notice to the petitioner and an order of the circuit court authorizing such disclosure. Nothing in this subsection shall be construed to mandate a petitioner's cooperation with law enforcement in any resulting investigation or prosecution.
The petition shall be filed on a form
provided
prescribed
by the Supreme Court. If the petitioner fails to submit a completed form, the circuit court may allow the petitioner to amend the petition to correct any deficiency. If the petitioner fails to submit a completed form containing the allegations set forth in subsection A, or if the circuit court has previously dismissed a petition for vacatur from the same petitioner for the same qualifying offense following a hearing conducted pursuant to §
19.2-327.18
, the court may dismiss the petition. Any false statement in the petition, if such statement is knowingly or willfully made, shall be
a ground
grounds
for prosecution of perjury as provided for in §
18.2-434
.
C. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall file those fingerprints with the circuit court with the petition.
D. The Commonwealth shall be made party defendant to the proceeding. The petitioner shall provide a copy of the petition by delivery or by first-class mail, postage prepaid, to the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 30 days after receipt of the petition. Upon the motion of the attorney for the Commonwealth and for good cause shown, the court may allow the attorney for the Commonwealth up to an additional 30 days to respond to the petition.
E. A person
arrested for, charged with, or
convicted or adjudicated delinquent of multiple qualifying offenses shall include all qualifying offenses in one petition, if such
arrests, charges,
convictions
,
or adjudications were all entered in the same city or county
, and ancillary matters, if any
. A person
arrested for, charged with, or
convicted or adjudicated delinquent of qualifying offenses in different cities or counties shall file petitions in the circuit courts of the cities or counties in which
the
such arrests, charges,
convictions
or
,
adjudications of delinquency
, or ancillary matters, if any,
were entered.
§
19.2-327.18
. Hearing on petition for vacatur.
A. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court that he does not object to the petition and (ii) stipulates in such written notice that the petitioner was
arrested for, charged with, or
convicted or adjudicated delinquent of a qualifying offense and that the petitioner was a victim of human trafficking at the time he committed
, or was arrested for or charged with,
the qualifying offense and his status as a victim of human trafficking was the proximate cause of
the
such arrest, charge, or
commission
of the qualifying offense
, the circuit court may grant the writ and vacate the qualifying offense without conducting a hearing.
B. If the attorney for the Commonwealth of the county or city in which the petition is filed objects to the petition or does not file an answer, the court shall conduct a hearing on the petition after reasonable notice has been provided to both the petitioner and the attorney for the Commonwealth. The attorney for the Commonwealth shall make reasonable efforts to notify any victim, as defined in §
19.2-11.01
, of any qualifying offense of such hearing. In any such hearing, the attorney for the Commonwealth may proffer any evidence pertaining to the guilt or innocence of the petitioner, including evidence that was suppressed at trial. The circuit court shall not be required to conduct a hearing if it has previously dismissed a petition for vacatur from the same petitioner for the same qualifying offense.
C. Upon finding that the petitioner has by a preponderance of the evidence proven the elements contained in subsection A of §
19.2-327.17
, the circuit court shall grant the writ and vacate the qualifying offense. If the petitioner fails to prove any of these elements, the court shall dismiss the petition.
Additionally, the circuit court may issue a writ of vacatur for any specifically identified ancillary matter.
D. Prior to any decision to grant the writ, the court shall determine whether any restitution is unpaid under the terms of the sentencing order for the qualifying offense. If the court grants the writ, the petitioner shall be forever discharged from any such restitution obligation, and the victim, as defined in §
19.2-11.01
, of the qualifying offense shall be deemed a victim of crime as defined in §
19.2-368.2
. Such victim shall be eligible to petition for awards pursuant to Chapter 21.1 (§
19.2-368.1
et seq.), and his claim for restitution reimbursement shall be deemed to accrue on the date the court grants the writ.
E. The court may grant the writ and vacate the qualifying offense
and ancillary matter, if any,
regardless of whether any person other than the petitioner has been
arrested for,
charged
with,
or convicted
or adjudicated delinquent
of an offense related to the petitioner being a victim of human trafficking.
F. There shall be a rebuttable presumption that the petitioner was a victim of human trafficking if there is official documentation of the petitioner's status as a victim of human trafficking at the time of the offense. If official documentation addressing proximate cause is offered, that documentation shall establish a prima facie case of proximate cause.
§
19.2-327.19
. Relief under writ of vacatur.
A. Upon granting a writ of vacatur pursuant to subsection C of §
19.2-327.18
, the circuit court shall provide the petitioner with a copy of the writ, and such copy shall be sufficient proof that the person named in the writ is no longer under any disability, disqualification, or other adverse consequence resulting from the vacated
arrest, charge,
conviction
or
,
adjudication of delinquency
, or ancillary matter, if any
.
B. If a writ of vacatur is granted
,
and
(i)
no appeal is made to the Supreme Court
, or
, (ii)
the Supreme Court refuses or denies the Commonwealth's petition for appeal
,
or
(iii) the Supreme Court
upholds the decision of the circuit court, an order of expungement for the qualifying offense
and ancillary matter, if any,
shall be entered by the circuit court. Upon entry of the order of expungement, the clerk of court shall cause a copy of the writ of vacatur, the order of expungement, and the complete set of petitioner's fingerprints to be forwarded to the Department of State Police, which shall expunge the qualifying offense
and ancillary matter, if any
.
C. The writ to vacate the qualifying offense
and ancillary matter, if any,
and the record of the proceedings shall not be expunged pursuant to subsection B and shall be maintained by the circuit court. Access to the writ or the record of the proceedings may be provided only upon court order. Any person seeking access to the writ or the record of the proceedings may file a written motion setting forth why such access is needed. The court shall issue an order to disclose the writ or the record of the proceedings upon the written motion of the petitioner named in the writ or the attorney for the Commonwealth of the city or county in which the petition is filed. The court may issue an order to disclose the writ or the record of the proceedings if it finds that such disclosure best serves the interests of justice. Court-ordered disclosure of the record of the proceedings pursuant to this subsection shall not subject the recipient of the disclosure to the provisions of §
19.2-392.3
.
D. Costs shall be as provided in §
17.1-275
but shall not be recoverable against the Commonwealth. A petitioner shall not be required to pay any fees or costs for filing a petition pursuant to this chapter if the petitioner is found to be unable to pay fees or costs pursuant to §
17.1-606
. If the circuit court enters a writ of vacatur, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
E. If the court enters a writ of vacatur, the petitioner shall be entitled to a refund of all fines and penalties paid in relation to the qualifying offense
and ancillary matter, if any,
that was vacated. If the clerk of the court where the conviction
or adjudication
was entered is in possession of any records detailing any fines and penalties paid by the petitioner for a qualifying offense
and ancillary matter, if any,
that was vacated, the petitioner shall be entitled to a refund of such amount. If the clerk of the court where the conviction
or adjudication
was entered is no longer in possession of any records detailing any fines and penalties paid by the petitioner for a qualifying offense
and ancillary matter, if any,
that was vacated, a refund shall be provided only upon a showing by the petitioner of the amount of fines and penalties paid.