To: New Jersey Law Revision Commission
From:
Susan G. Thatch
Re: Uniform Act on Prevention of and Remedies
for Human Trafficking
Date: October 6, 2014
MEMORANDUM
This
Memorandum is intended to provide the Commission with additional information
regarding the Uniform Act on Prevention of and Remedies for Human Trafficking
and its potential applicability to New Jersey law.
Executive
Summary
Staff requests the Commission’s
approval to conduct further research and draft statutory language that will
enhance and strengthen New Jersey’s present human trafficking laws.
Introduction
In February 10, 2014, the Commission released a Draft Final
Report reviewing the potential applicability of the Uniform Act on Prevention
of and Remedies for Human Trafficking (“Uniform Act”). The Draft Final Report
recognized the significant and serious nature of the crime of human trafficking
and lauded the New Jersey Legislature’s substantial efforts to draft, implement
and enforce stringent anti-trafficking laws. In light of New Jersey’s strong
commitment to enforcing it’s recently enhanced human trafficking laws similar
to the Uniform Act, the Draft Final Report recommended suspending the project
until the new laws have had ample time to be more fully utilized.
Following the release of the Draft Final Report, Staff was
contacted by the Rutgers School of Law – Newark’s International Human Rights
Clinic (“Clinic”). Penny M. Venetis, the Director of the Clinic requested the
Draft Final Report be held in abeyance until the Clinic had an opportunity to
thoroughly evaluate the Uniform Act and comment more substantially.
In May of 2014, the Clinic provided Staff with an eighteen page
Memorandum detailing four primary areas in which they believe New Jersey’s
human trafficking law could be further strengthened. Staff has reviewed these
recommendations and will analyze each in turn.
Background
The crime of human trafficking has long existed in both World
and U.S. history. The most modern conceptions of crimes of human servitude have
been framed in the terms “prostitute/pimp.” In recent times, the popular and
statutory language surrounding human servitude has adapted to better convey
both the pervasive nature and varied presentation of the crime. It no longer
suffices to address those selling other individuals as “pimps” or as “those
promoting prostitution”; they are engaging in the trafficking of humans. Similarly,
many individuals identified as prostitutes may be forced or coerced to remain
participants in commercial sexual activities. Also, these types of crimes are
not limited to sexual services – many individuals are trafficked to perform manual
labor or other physical tasks. The linguistic re-categorization of these
offenses has opened the door to legal schemes that more accurately recognize
perpetrators and victims.
The Uniform Law Commission (“ULC”) acknowledged and addressed
the pernicious crime of human trafficking in its publication of the Uniform Act.
In its prefatory note, the ULC noted that “[m]illions are subjected to human trafficking
every year. In 2012, the International Labour Organization issued a
comprehensive and sophisticated statistical analysis, finding 20.9 million
people in forced labor worldwide…”[1]
In response, the ULC adopted the Uniform Act with sought to model a clear and
complete set of criminal proscriptions and essential victim remedies and
protections, as well as to encourage state coordination.[2]
Simultaneously, New Jersey has recognized the scourge of human
trafficking and has taken an aggressive approach to combating this crime. In
2013, the NJ Legislature updated its human trafficking laws by passing the
Human Trafficking Prevention, Protection and Treatment Act (“NJ Act”)[3]
which amended and supplemented various portions of existing law. The NJ Act was
widely applauded for its expansive and tough stance on human trafficking.[4]
Analysis
The Clinic identified
four principal areas in which it believes NJ Act is not as rigorous as the Uniform
Act and seeks modifications to New Jersey’s law as follows:
· Amendment of New Jersey law immunizing human
trafficking victims, particularly minors, from prosecution for prostitution-related
offenses;
· Revision of New Jersey law to establish
business entity liability for human trafficking crimes;
· Expansion of the New Jersey Human Trafficking
Commission’s duties to include oversight of a broader anti-trafficking public
awareness campaign; and
· Clarification of some inconsistent and
confusion language existing in current New Jersey anti-trafficking laws.[5]
The Clinic posits that upon adoption of the
proposed changes, “New Jersey’s anti-trafficking laws will be the best and most
comprehensive in the country.”[6]
I.
Amendment of New Jersey law to immunize human
trafficking victims from prosecution of prostitution-related offenses
As currently
comprised, New Jersey’s statutes criminalize human trafficking victims who are
prostituted against their will.[7]
However, New Jersey’s law does offer certain protections to human trafficking
victims; N.J.S. § 2C:34-1(e) provides trafficking victims with an affirmative
defense during prosecutions for prostitution. Additionally, N.J.S. § 2C:44-1.1
permits trafficking victims to move to vacate and expunge prostitution related
convictions. While the Uniform Act makes age-based distinction in its treatment
of prostitution charges, New Jersey law does not presently distinguish between
human trafficking victims who are minors and those who are of legal age in
affording these statutory protections. In light of the Uniform Act’s
distinction, it is useful to bifurcate discussion of different victim age
groups.
a. Underage human trafficking victims
The Clinic notes that
the Uniform Act is more protective of minor aged human trafficking victims than
New Jersey law in that it offers immunity[8]
from criminal prosecutions or juvenile delinquency proceedings, while New
Jersey provides the above-mentioned affirmative defense and vacatur/expungement
mechanism.
Critics of New
Jersey’s statutory approach maintain that criminalization of human trafficking
victims is anathema to our laws.[9]
A City of New York School of Law report entitled “Clearing the Slate: Seeking
Effective Remedies for Criminalized Trafficking Victims” states:
By the time arraignment takes place, the individual is usually
poorly clothed, tired, hungry, and has endured miserable conditions overnight. The
arrest compounds the trauma that the victim of trafficking is already
experiencing. Not only is a victim of trafficking being charged for a crime he
or she was forced to commit, the individual is also being forced to endure the
often humiliating experiences of arrest and incarceration.[10]
The Uniform Law
Commission was similarly concerned about the prosecution of minor aged human
trafficking victims. The Comment to the Uniform Act states that granting child
victims immunity achieves important policy goals:
“[M]inor victims of human trafficking should not be viewed as
legally capable of consenting to their own commercial sexual exploitation. Immunity
in such cases recognizes the facts that: (a) the real culpability for these
offenses of the minor resides with the coercing or exploiting party; and (b)
the minor is a child in need of counseling, treatment, and support rather than
prosecution.”[11]
In 2013, the U.S.
Government also weighed in on the prosecution of minors for prostitution when Congress
modified its Model State Criminal Law Protection for Child Trafficking Victims
and Survivors. Pursuant to P.L. 113-4, Section 225(b) of the Trafficking
Victims Reauthorization Act of 2008 (the “TVRA”) was amended to include safe
harbor provisions which would effectively provide under age human trafficking
victims with immunity from prosecution for prostitution.[12]
Twelve other U.S.
states have adopted the immunity provisions for minor victims of human
trafficking victims similar to those proposed by the Uniform Act each with
various modifications.[13]
Similar to New Jersey, fifteen other states afford an affirmative defense to a
prostitution charge for minors.[14]
The New Jersey
Legislature has given its own specific consideration to the prosecution of
human trafficking victims. Prior to the passage of the NJ Act in 2013, N.J.S. §
2C:34-1(e) provided an affirmative defense to prosecution for prostitution or
promoting prostitution if the defendant was either a victim of human
trafficking or under the age of 18.[15]
Arguably, this created unintended consequences; under the 2011 law, any minor
under 18 had a valid defense for either prostitution or promoting prostitution
(pimping).[16] The
organization Concerned Women for America (“CWA”) made specific
recommendations to repeal this broad prostitution and promotion of prostitution
for minors provision on the ground that it actually made it easier for human
traffickers to take advantage of the victims.[17]
The NJ Act modified
the language of 2C:34-1(e) to afford the protection of an affirmative defense against
prostitution charges to defendants who are “a victim of human trafficking
pursuant to N.J.S. § 2C:13-8 or compelled by another to engage in sexual
activity, regardless of the defendant’s age.”[18]
Also, the NJ Act added a mechanism in N.J.S. § 44-1.1 for vacating and
expunging convictions of “prostitution and related offenses, loitering for the
purpose of engaging in prostitution, or a similar local ordinance” when such
offenses occurred as a result of being a victim of human trafficking.[19]
With specific
applicability to underage human trafficking victims, N.J.S § 2A:4A-22 deems a minor
to be in a “Juvenile-family crisis” upon the occurrence of “an act which if
committed by an adult would constitute prostitution in violation of N.J.S. § 2C:34-1
or any offense which the juvenile alleges is related to the juvenile being a
victim of human trafficking.” A minor determined to be in a Juvenile-family
crisis is not permitted to be held in any institution or facility designed for
delinquency,[20]
is entitled to a predispositional evaluation[21],
and may be diverted to a court intake service conference which may result in,
but not be necessarily limited to, “counseling, restitution, referral to
appropriate community agencies, or any other community work programs or other
conditions consistent with diversion.”[22]
It does seem patently
inconsistent that minors in New Jersey incapable of legally consenting to sexual
activity[23]
could be charged with prostitution regardless of whether they later have an
affirmative defense or can have any conviction vacated or expunged. However, some
argue that a blanket cloak of statutory immunity could well prevent law
enforcement officers from having a successful intervention with an underage
victim.[24]
Indeed, those weighing in against immunity for minors reference the fact that
“because strategies of persuasion and common sense have failed with these
youth, it is necessary to place them in secure custody for their own
protection.” [25]
While indisputable that
these minors are in need of protection and services, criminalizing a prostituted
child is inconsistent with the child-centered approach of the TVPA and the Uniform
Act. Staff requests whether the Commission finds it appropriate to draft a statutory
immunity provision for underage human trafficking victims consistent with those
in other jurisdictions which guarantees immunity from prosecution and more
clearly references the child protective provisions contained in N.J.S. §
2A:4A-20 et seq. in an effort to address
them as victims rather than offenders.
b. Adult human trafficking victims
The Clinic further
advocates that adult trafficking victims should also be immunized against
criminal prosecution for prostitution related offenses. Unlike for minors, New
Jersey has never decriminalized prostitution for those over the age of 18.
The Uniform Act
declines to extend criminal immunity to adult trafficking victims. Rather, consistent with current New Jersey law,
the Uniform Act permits a victim to assert an affirmative defense to any
prostitution related charges[26]
and also allows a victim to motion to vacate and expunge the record of
conviction upon a finding that the “individual’s participation in the offense
was a direct result of being a victim” of human trafficking.[27]
Additionally, anti-trafficking policy organization Polaris Project[28]
similarly recommends the vacatur/expungement approach. Moreover, a grant of
immunity to adult trafficking victims could theoretically undermine the
prosecution of willful, non-coerced prostitution; a dubious claim that an
individual had been forced or coerced by a unlocatable third party would theoretically
absolve the crime.
Staff believes that
expansion of criminal immunity for adult trafficking victims is a substantial
policy decision and seeks the Commission’s guidance on whether to further
research this proposed expansion.
c. Human trafficking diversion courts
Lastly, to facilitate
identification and appropriate handling of human trafficking victims, the Clinic
suggests that New Jersey should create a “diversion part” in the New Jersey
criminal courts for human trafficking victims.[29]
These courts would have heightened awareness of the physical and psychological
trauma caused by human trafficking and would be better able to direct victims
to appropriate services. While a model of such a special court exists in New
York[30],
the creation of this special type of court is not contemplated by the Uniform
Act. Further, the Human Trafficking
Intervention Court in New York was judicially rather than legislatively
created.[31]
New Jersey does have
some interest and history in creating separate, streamlined court systems to
achieve certain policy goals. For example, the New Jersey Adult Drug Court
Program was first piloted in 1996 with the goal of rehabilitating rather than
punishing nonviolent criminal offenders.[32]
These special diversion Drug Courts have been expanded over the years and by
many accounts, have been successful in both breaking the cycle of addiction and
crime and reducing the recidivism of addicted
offenders.[33]
To be sure, the
creation of human trafficking courts appears to be a laudable and perhaps beneficial
undertaking; however such a recommendation may well fall beyond the purview of
the Commission’s legislative mandate. Staff seeks the Commission’s guidance on
whether it would be appropriate to draft statutory language proposing this type
of diversion court.
II.
Revision of New Jersey law to establish
business entity liability for human trafficking crimes
The Clinic maintains
that New Jersey should adopt more comprehensive business entity liability for
human trafficking crimes. According to the International Labour Organization: “[o]f
the total number of 20.9 million forced labourers, 18.7 million (90%) are exploited
in the private economy, by individuals or enterprises.”[34]
The United Nations Office on Drugs and Crime has identified several industries
in which trafficked labor is most common: “agriculture or horticulture,
construction, garments and textiles under sweatshop conditions, catering and
restaurants, domestic work, entertainment and the sex industry.”[35]
Enterprises in the
above-mentioned industries may use cheap and trafficked labor to maximize their
profits, sometimes inadvertently.[36]
Often, complex supply chains reduce a business’s awareness of the working
conditions in the production of goods.[37]
The use of subcontractors or partners who use trafficked labor to supply
materials, produce a good, or provide a service creates a system of reliance on
trafficking by otherwise legal business entities.[38]
In the Uniform Act,
the Uniform Law Commission recognized the need for a comprehensive business
liability statute which would “[a]ddress the demand for trafficking, including
questions of corporate liability and demand-reduction strategies for sex
trafficking.”[39]
Section 8 of the Uniform Act holds liable a business that “knowingly engages in
conduct that constitutes human trafficking.”[40]
Additionally, Section 8 holds business entities accountable when an employee or
agent commits the act of human trafficking for the benefit of the entity when
the business entity knew it was occurring and failed to take effective action
to stop it.[41]
New Jersey has
grappled with the issue of entity liability in its various human trafficking
laws and revisions. N.J.S. § 2C:13-8(2) states that a “person commits the crime
of human trafficking if he: receives anything of value from participation as an
organizer, supervisor, financier, or manager in a scheme or course of conduct
which violates this paragraph.” Currently pending NJ Assembly Bill 2420 would
add language making those who “benefit financially” from human trafficking
liable under this same provision. However, while the proposed more expansive
language is an improvement, the comments to the bill reference expansion to “individuals who receive a financial
benefit from participating in human trafficking without necessarily being an
‘organizer, supervisor, financier or manager’ of the enterprise or scheme, such as drivers or hotel employees
(emphasis added).[42]
Thus, in terms of legislative intent, this modification seems primarily
concerned with individuals rather than corporate or business entities.
Pursuant to New Jersey
law, a person includes “corporations, companies, associations, societies,
firms, partnerships and joint stock companies as well as individuals, unless
restricted by the context to an individual as distinguished from a corporate
entity.”[43] Therefore,
a business entity could be charged with human trafficking to the extent it “receives
anything of value as participation as an organizer, supervisor or manage in a
scheme or course of conduct violating” §
2C:13-8. New Jersey law as presently
written conflates individual and business entity liability while the language
of the Uniform Act more clearly articulates the circumstances under which a
business entity could be held liable for human trafficking violations. Staff
has proposed modifications to NJ law for the Commission’s consideration that
would incorporate some of the Uniform Act’s language and more clearly delineate
when a business entity could be held liable using terminology more applicable
to business operations, such as employees and nonemployee agents.
Of note, in 2013, the
NJ Legislature sought to additionally expand certain forms of business
liability in codifying the first degree crime of advertising commercial sexual
abuse of a minor in N.J.S. § 2C:13-10.[44]
However, in Backpage.com, LLC v. Hoffman[45] the U.S. District Court enjoined
enforcement of this law on the grounds that it is likely pre-empted by Section
230 of the Communications Decency Act of 1996[46],
that it likely violates the first and fourteenth amendment[47]
and that it likely violates the Commerce Clause.[48]
This piece of legislation mirrored legislation of other states, which were similarly
enjoined and, in once instance, repealed by the applicable legislative body.[49]
In any event, this law was a narrow expansion of the concept of business entity
liability and is unlikely to survive further judicial scrutiny. In moving
forward with this project, Staff will seek language in other State’s statutes
that may address this important policy concern without running afoul of
Constitutional limitations.
III.
Expansion of New Jersey Human Trafficking
Commission’s duties to include oversight of a broader public awareness campaign
The Clinic highlights
the Uniform Act’s strong commitment to public awareness. In particular, Section
20 of the Uniform Act contemplates the development and distribution of
public-awareness signs with the appropriate human trafficking information as
well as the availability of the National Human Trafficking Resource Hotline. These
signs would be displayed conspicuously at locations such “as transportation
centers, state welcome areas, and hospitals, as well as in sexually-oriented
businesses.”[50] A
fine would be assessed, similar to those for other workplace rules, for failure
to display the sign. Eleven states have enacted legislation to either require or
encourage the development and posting of similar signs.[51]
Pursuant to N.J.S. §
52:17B-237, New Jersey has developed a Commission on Human Trafficking charged
with, among other tasks, the duty to promote public awareness of human
trafficking, through the promotion of the national human trafficking hotline as
well as the development of training programs for law enforcement personnel. The
statutory language does not specifically contemplate the development or
deployment of public awareness signs.
While it may indeed be
preferable to require the distribution of Anti-Trafficking public awareness
signs statewide, this may be a mandate which stretches or is beyond the Human
Trafficking Commission’s budgetary allotment. Nevertheless, proposed language
requiring such public awareness signs is attached for the Commission’s review.
IV.
Clarification of some inconsistent and
confusing language existing in current New Jersey anti-trafficking laws.
The Clinic also
recommends clarifying some of the prostitution and human trafficking laws for
consistency and to minimize confusion. In particular, certain criminal acts
commonly referred to as “pimping” could be prosecuted under both New Jersey’s
prostitution statute[52]
and the NJ Act, yet the definitions of the criminal acts vary and the consequences
attached to each differ. With the Commission’s authorization, Staff will
contemplate some ways in which the various statutes might be harmonized and/or
streamlined.
Conclusion
If the Commission authorizes the project directions set forth
herein, Staff will conduct outreach with various stakeholders in the
development of a Draft Tentative Report and prepare such additional statutory
language as is consistent with the Commission’s determinations.
Draft statutory language: Proposed insertions are shown with
underlining and proposed deletions with strike-out.
2C:13-8. Human
trafficking
a. A
person commits the crime of human trafficking if he:
(1) knowingly holds, recruits,
lures, entices, harbors, transports, provides or obtains, by any means,
another, to engage in sexual activity as defined in paragraph (2) of subsection
a. of N.J.S.2C:34-1 or to provide labor or services:
(a) by causing or threatening to
cause serious bodily harm or physical restraint against the person or any other
person;
(b) by means of any scheme, plan, or
pattern intended to cause the person to believe that the person or any other
person would suffer serious bodily harm or physical restraint;
(d) by destroying, concealing,
removing, confiscating, or possessing any passport, immigration-related
document as defined in section 1 of P.L.1997, c. 1 (C.2C:21-31), or other document issued by a governmental agency to any
person which could be used as a means of verifying the person's identity or age
or any other personal identifying information;
(e) by means of the abuse or
threatened abuse of the law or legal process;
(f) by means of fraud, deceit, or
misrepresentation against the person; or
(g) by facilitating access to a
controlled dangerous substance or controlled substance analog as set forth in
chapter 35 of Title 2C of the New Jersey Statutes;1 or
(2) receives anything of value from
participation as an organizer, supervisor, financier or manager in a scheme or
course of conduct which violates paragraph (1) of this subsection; or
(3) knowingly holds, recruits,
lures, entices, harbors, transports, provides or obtains, by any means, a child
under 18 years of age, to engage in sexual activity as defined in paragraph (2)
of subsection a. of N.J.S.2C:34-1, whether or not the actor mistakenly believed that the
child was 18 years of age or older, even if that mistaken belief was
reasonable.
b.
A person that is a business entity may be prosecuted for an offense under
Sections 1 through 3 only if:
(1) the business entity knowingly
engages in conduct that constitutes human trafficking as defined herein; or
(2) an employee or nonemployee agent
of the business entity engages in conduct that constitutes human trafficking
and the conduct is part of a pattern of activity in violation of this Section
2C:13-8 for the benefit of the business entity, which the business entity knew
was occurring and failed to take effective action to stop.
cb. An offense under this section constitutes a crime of the
first degree.
dc. It is an affirmative defense to prosecution for a violation
of this section that, during the time of the alleged commission of the offense
of human trafficking created by this section, the defendant was a victim of
human trafficking.
ed. Notwithstanding the provisions of N.J.S.2C:43-6, the term of imprisonment imposed for a crime of the first
degree under paragraph (2) or (3) of subsection a. of this section shall be
either a term of 20 years during which the actor shall not be eligible for
parole, or a specific term between 20 years and life imprisonment, of which the
actor shall serve 20 years before being eligible for parole. Notwithstanding
the provisions of N.J.S.2C:43-3, the sentence for a conviction for a crime of the first
degree under this section shall include a fine in an amount of not less than
$25,000, which shall be collected as provided for the collection of fines and
restitutions in section 3 of P.L.1979, c. 396 (C.2C:46-4) and forwarded to the Department of the Treasury to be
deposited in the “Human Trafficking Survivor's Assistance Fund” established by
section 2 of P.L.2013, c. 51 (C.52:17B-238).
fe.
In addition to any other disposition authorized by law, any person who violates
the provisions of this section shall be ordered to make restitution to any
victim. The court shall award to the victim restitution which is the greater
of:
(1) the gross income or value to the
defendant of the victim's labor or services; or
(2) the value of the victim's labor
or services as determined by the “New Jersey Prevailing Wage Act,” P.L.1963, c.
150 (C.34:11-56.25 et seq.), the “New Jersey State Wage and
Hour Law,” P.L.1966, c. 113 (C.34:11-56a et seq.), the Seasonal Farm Labor Act, P.L.1945, c. 71 (C.34:9A-1 et seq.), the laws concerning the regulation of child labor in
chapter 2 of Title 34 of the Revised Statutes, or any other applicable State
law, and the “Fair Labor Standards Act of 1938,” 29 U.S.C. s.201 et seq., or any other applicable federal
law.
COMMENT
The addition of 2C:13-8(b) tracks the language
of the Uniform Act with respect to business entity liability. While under New
Jersey law, the term “person” used in § 2C:13(a) is applicable to individuals
and businesses alike, the proposed addition more clearly delineates
circumstances under which a business entity may be held liable. This language also
more accurately reflects the potential role a business entity may have in the
crime of human trafficking but also preserves and reinforces the necessary
scienter.
52:17B-237. Commission
on Human Trafficking; establishment; membership; term of office; compensation;
duties; regulations; annual report
a. [Creation of
Commission – no modifications]
b. [Appointment of
Commission members – no modifications]
c. [Organization of
the Commission – no modifications]
d. [Authorizing
reimbursement to members of commission for necessary and reasonable expenses –
no modifications]
e. [Authorizing
commission to incur expenses to perform duties within the limits of funds
appropriated or otherwise made available – no modifications]
f. It shall be
the duty of the commission to:
(1) Evaluate the existing
law concerning human trafficking and the enforcement thereof, and to make
recommendations for legislation, if appropriate;
(2) Review existing
victim assistance programs and analyze the costs, organization, and
availability of these services for victims of human trafficking and to make
recommendations for legislation, if appropriate;
(3) Promote a
coordinated response by public and private resources for victims of human
trafficking; and
(4) Develop mechanisms
to promote public awareness of human trafficking, victim remedies and
services, and trafficking prevention including the creation of a
public-awareness sign promotingion of the national, 24-hour toll-free hotline telephone
service on human trafficking described under section 18 of P.L.2013, c. 51 (C.2C:13-11), and the promotion of training courses and other
educational materials for use by persons required under section 19 of P.L.2013, c. 51 (C. 2C:13-12) to undergo training on the handling of and response procedures for suspected human trafficking activities.
g. [Commission reporting
requirements – no modifications]
[New] Section 1. Display
of Human Trafficking Public-Awareness Sign; Penalty for Failure to Display:
a.
Pursuant to C.52:17B-237, the Commission on Human Trafficking shall develop a
public-awareness sign that contains the national, 24-hour toll-free hotline
telephone service on human trafficking described under C.2C:13-11 and otherwise
meets the requirements contained in subsection (c).
b.
The following establishments shall display the public–awareness sign described
in subsection (a) in a place that is clearly conspicuous and visible to
employees and the public:
(1) Strip
clubs or sexually oriented business defined in C:2C:33-12.2(a)(1)(a);
(2) Business
entities found to be a nuisance for prostitution under C:2C:33-12;
(3) Hospital
emergency rooms;
(4) Urgent
care centers;
(5) Airports;
(6) Train
stations; and
(7) Truck
stops defined in N.J.A.C. § 14:29-1.2.
c.
The notice to be posted pursuant to subsection (b) shall be no smaller than
eight and one-half inches by eleven inches in size, in English and Spanish and
shall state the following:
“If you or someone you know is being forced to
engage in any activity and cannot leave – whether it is commercial sex,
housework, farm work or any other activity – call the National Human
Trafficking Resource Center Hotline at 1-888-373-7888 or the New Jersey Human
Trafficking Task Force Hotline at 1-855-363-6548 to access help and services.
Victims
of human trafficking are protected under United States and New Jersey law.
The toll-free hotlines are:
·
Available 24 hours a day, 7
days a week.
·
Operated by a nonprofit,
nongovernmental organization
·
Anonymous and confidential
·
Accessible in more than 160
languages
·
Able to provide help, referral
to services, training, and general information.
d. A business or establishment that fails to
comply with the requirements of this section shall be liable for a civil
penalty of three hundred dollars ($300) for a first offense and one thousand
dollars ($1,000) for each subsequent offense.
COMMENT
These proposed modifications integrate the Uniform
Act’s recommendation that State’s promulgate and mandate the display of signs
containing anti-human trafficking information in certain establishments. To
date, eleven states have enacted similar provisions. Please note that five of
those states have enacted this provision as a permissive statement rather than
mandatory obligation. The other six states with laws relating to human
trafficking posters have created mandatory obligations with accompanying
penalty provisions for failure to comply.
Alabama: See Ala. Code §
13A-6-170. (2012) (Posting of National Human Trafficking
Resource Center Hotline in certain establishments) (requiring poster no smaller
than 8 ½ x 11 containing toll-free hotline information in liquor stores, hotels
cited as a nuisance, airports, train stations, bus stations and strip clubs.)
Arkansas: See Ark. Code Ann. § 12-19-102 (West 2013) (Posting
information about the National Human Trafficking Resource Center Hotline) (requiring
poster no smaller than 8 ½ x 11 containing toll –free hotline information in
hotels cited as nuisances, strip clubs, bars that are not food service
establishments, airports, train stations, bus stations and truck stops).
California: See Cal. Civil Code § 52.6 (West 2013) (Notice to be posted at
specified businesses and establishments) (requiring poster no smaller than
8 ½ x 11 in English and Spanish
containing toll-free hotline information to be displayed in on-sale general
public premises licensee businesses (as defined by California law), adult or
sexually oriented business, primary airports, rail stations, bus stations,
truck stops, emergency rooms, urgent care centers, farm labor contractors,
privately operated job recruitment centers, roadside rest areas and businesses
that offer massage or bodywork services).
Louisiana: See La. Rev. Stat.
Ann. § 15:541.1 (2013) (Posting of the National Human Trafficking
Resource Center hotline; content; languages; civil penalty) (requiring poster
no smaller than 8 ½ x 11 in English,
Louisiana French, Spanish containing toll-free hotline information in every
massage parlor, spa or hotel found to be a public nuisance for prostitution,
every strip club or sexually-oriented business and every gas station adjacent
to interstate highway or rest stop).
Maryland: See Md. Code Ann.,
Bus. Reg. § 15-207 (West 2010) (Posting
of sign relating to human trafficking) (requiring sign no smaller than 3 x 5 in
English and Spanish containing toll-free hotline information which law
enforcement agency may require to be
posted in any lodging establishments located where arrests leading to
convictions of prostitution, solicitation of a minor or human trafficking have
occurred).
Nebraska: See Neb. Rev. Stat.
Ann. § 81-1430 (West 2013) (Task force; established; members; terms;
duties; quorum; report; Department of Labor; posters) (requiring posters in
English and Spanish containing toll-free hotline information in every rest stop
and strip club and encouraging voluntary placement in high schools,
postsecondary institutions, gas stations, hotels, hospitals, health care
clinics, urgent care centers, airports, train stations, bus stations and other
appropriate locations).
Ohio: See Ohio Rev. Code
Ann. § 5502.63 (West 2012) (Safe firearms practice poster and brochure;
poster providing information regarding national human trafficking resource center
hotline) (requiring development of posters no smaller than 8 ½ x 11 in English
and Spanish containing toll-free hotline information and encouraging display at truck stops, hotels, adult entertainment
establishments, beauty salons, agricultural labor camp, hospital or urgent care
centers, professional or NCAA sport athletic competitions, massage parlors or
fairs).
Tennessee: See Tenn. Code Ann.
§ 39-13-313 (West 2012) (Tennessee Human Trafficking Resource Center Hotline
Act) (requiring development of sign no smaller than 8 ½ x 11 containing
toll-free hotline information and strongly
encourages posting at certain businesses or establishments offering
entertainment, transportation, lodging, dining, educational, medical or leisure
activities or services).
Vermont: See Vt. Stat. Ann. tit.
13, § 2661 (West 2011) (Resource guide posting) (requiring notice to be
developed containing toll-free hotline information which may be posted in prominent and accessible locations in workplaces).
Virginia: See Va. Code Ann.
§ 40.1-11.3 (West 2013) (Human trafficking hotline; posted notice required;
civil penalty) (requiring strip clubs and truck stops to post notice containing
information regarding the existence of
toll-free hotline).
Washington: See Wash. Rev. Code
Ann. § 47.38.080 (West 2010) (Human Trafficking informational posters at
rest areas) (stating the department may
develop informational posters containing toll-free hotline information and
Washington state office of crime victims advocacy for placement in bathroom
stalls in rest areas).
[1]Uniform Law
Commission, Uniform Act on Prevention of and Remedies for Human Trafficking, Prefatory Note (July 2013).
[2] Id.
[3] Human Trafficking, Prevention,
Protection and Treatment Act, Pub. L. 2013, c.51 (2013).
[4] See
e.g. Statement by Kate Keisel, Director of Polaris Project New Jersey, http://www.polarisproject.org/media-center/news-and-press/press-releases/793-comprehensive-anti-trafficking-legislation-signed-into-law-in-new-jersey ; See
also NJ Coalition Against Human Trafficking Applauds Governor Christie for
Making Tough Anti-Trafficking Legislation in NJ, http://jfedgmw.org/local_includes/downloads/62981.pdf
[5] Memorandum
from the Rutgers Law School International Human Rights Clinic (May 14,
2014) (on file
with
author).
[6] Id.
[7] Id.
[8] See
Uniform Act, supra note 1, at §16.
[10] Int’l Women’s Human Rights Clinic, Clearing
the Slate: Seeking Effective Remedies for Criminalized Trafficking Victims
at 18 (2012), available at http://www.law.cuny.edu/academics/clinics/iwhr/publications/Clearing-the-Slate.pdf
[11] See
Uniform Act, supra note 1, at §16.
[12] As of March 7, 2013, 22
U.S.C. § 7101 was amended to include:
‘‘(2)
protects children exploited through prostitution by including safe harbor
provisions that—
‘‘(A)
treat an individual under 18 years of age who has been arrested for engaging
in, or attempting to engage in, a sexual act with another person in exchange
for monetary compensation as a victim of a severe form of trafficking in
persons;
‘‘(B)
prohibit the charging or prosecution of
an individual described in subparagraph (A) for a prostitution offense
(emphasis added);
‘‘(C)
require the referral of an individual described in subparagraph (A) to
appropriate service providers, including comprehensive service or
community-based programs that provide assistance to child victims of commercial
sexual exploitation; and
‘‘(D)
provide that an individual described in subparagraph (A) shall not be required
to prove fraud, force, or coercion in order to receive the protections
described under this paragraph;’’
[13]Tessa L. Dysart, Child, Victim, or Prostitute?
Justice through Immunity for Prostituted Children, Duke Journal of Gender Law & Policy,
255, 275 (2014). For example, Illinois law provides that “if it is determined,
after a reasonable detention for investigative purposes, that a person
suspected of or charged with a violation of this Section is a person under the
age of 18, that person shall be immune from prosecution for a prostitution
offense . . . and shall be subject to the temporary protective custody
provisions of . . . the Juvenile Court Act of 1987.” 720 Ill. Comp. Stat. 5/11-14 (2014). Tennessee similarly provides that “if it is
determined, after a reasonable detention for investigative purposes, that a
person suspected of or charged with a violation . . . is under eighteen (18) years
of age, that person shall be immune from prosecution as a juvenile or adult. A
law enforcement officer shall, upon determination that the person is a minor,
provide the minor with the telephone number for the national human trafficking
resource center hotline and release the minor to the custody of a parent or
legal guardian. Tenn. Code Ann. §
39-13-513 (2012). Nebraska also provides that “if the law enforcement officer
determines, after a reasonable detention for investigative purposes, that a
person suspected or charged with a violation . . . such person shall be immune
from prosecution for a prostitution offense and shall be subject to temporary
custody . . . and further disposition under the Nebraska Juvenile Code.” Neb. Rev. Stat. § 28-801 (2013).
[15] In relevant part: “It is an affirmative
defense to prosecution for a violation of this section that, during the time of
the alleged commission of the offense, the defendant was a victim of human
trafficking pursuant to N.J.S. § 2C:13-8 or the defendant was under the age of
18.
[16] See Brenda Zurita, New Jersey “Safe Harbor” Law Provides a Lesson in Unintended
Consequences, American Thinker, 2014.
[17]
Id. (stating, [i]f a
police officer finds a minor in prostitution, all the minor has to say is they
have no pimp (even if they do) and, legally, she is allowed to continue. What
do you think pimps would tell victims to say in this situation?”)
[18] N.J.S. § 2C: 34-1(e)(2013).
[19] N.J.S. § 2C:44-1.1 (2013).
[20] N.J.S. § 2A-46 (2010).
[23] N.J.S. § 2C:14-2 provides that the legal
age for consent to sexual acts with an adult is 16 years old and that minors
under the age of 13 cannot legally
consent to sexual acts.
[24] Tamar R. Birckhead, The “Youngest Profession”:
Consent, Autonomy, and Prostituted Children, 88 Wash. U. L. Rev. 1055, 1066 (2011); see also Dysart, supra note 13, at 281.
[25] Birckhead at 1085; Dysart, supra note 13, at 281.
[27] Uniform Act, supra note 1, at §17.
[28] Polaris Project is an organization
committed to fighting human trafficking through policy advocacy, services for
victims, and training. For more information see www.polarisproject.org.
[29] Memorandum,
supra note 5, at 7.
[30] The Human Trafficking Intervention Court
existing in all five boroughs of New York City, is a judicially created
“diversion part” that exclusively hears prostitution and loitering cases. The
program revealed that these special courts were more effective at identifying
and protecting victims than regular criminal courts. Similar human trafficking
courts appear in various forms in other cities such as Chicago, Dallas and
Seattle. Memorandum, supra note 5, at
8.
[31] According to a New York Courts Press
Release: “All cases charging prostitution
or related offenses that continue past arraignment will be transferred to the
Human Trafficking Court, where they will be evaluated by the judge, defense
attorney and prosecutor. If there is a consensus that the case involves a
victim in need of resources, the court will connect the defendant to tailored
services, which may range from shelter and healthcare to immigration assistance
and drug treatment. Human Trafficking Courts will also link participants to
education and job training programs to help prevent their return to the
commercial sex industry. A defendant’s charges may be dismissed or reduced
contingent upon compliance with court-mandated services and programs.” Press
Release, New York State Unified Court System, NY Judiciary Launches Nation’s First Statewide Human Trafficking
Intervention Initiative (Sept. 25, 2013) (on file with author).
[32] N.J. Courts, A Model for Success, A Report
on New Jersey’s Adult Drug Courts (October 2010), available at http://www.judiciary.state.nj.us/drugcourt/DrugCourtReport.pdf .
[33] Id.
at 6. See also N.J.A.C. Exec. Order
No. 83 (2011) which praises and broadens New Jersey’s Drug Court Program.
[34] ILO Special Action Programme to combat
Forced Labour, 2012 Global Estimate of
Forced Labour Executive Summary (Jun. 1, 2012), available at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_181953.pdf.
[35] United Nations Office on Drugs and
Crime, Human Trafficking FAQs, http://www.unodc.org/unodc/en/human-trafficking/faqs.html#What_types_of_industries_are_involved_with_human_trafficking .
[36] Memorandum,
supra note 5, at 11.
[37]UN.GIFT, Human Trafficking, Everybody’s Business (Oct. 2009), available at http://www.ungift.org/docs/ungift/pdf/Human_Trafficking_-_Everybodys_Business.pdf.
[38] Id.
at 1.
[39] ABA Center for Human Rights, Uniform Law Commission Project Proposal
Uniform Human Trafficking Law (July
2010), available at http://www.law.washington.edu/AsianLaw/HumanTrafficking/ULC-ProjectProposal.pdf.
[40] Uniform
Act, supra note 1, at §8.
[41] Id.
[42] Comments to NJ Assembly Bill No. 2420.
[43] N.J.S.§ 1:1-2 (2014); see also Bankers Trust Co. v. New York
Women’s League for Animals, 23 N.J. Super, 170 (App. Div. 1953).
[44] N.J.S. § 2C:13-10 provides in relevant
part that “[a] person commits the offense of advertising commercial sexual abuse of a minor if:
(1) the
person knowingly publishes, disseminates, or displays, or causes directly or
indirectly to be published, disseminated, or displayed, any advertisement for a
commercial sex act, which is to take place in this State and which includes the
depiction of a minor; or
(2) the
person knowingly purchases advertising in this State for a commercial sex act
which includes the depiction of a minor.
[45] 2013 WL 4502097 (D. N.J. 2013).
[46] Id.
at 5, citing 47 U.S.C. § 230 (1996)
[47] Id.
at 7.
[48] Id.
at 11.
[49] See
Wash. Rev. Code Ann § 9.68A.104
(2012), enjoined by Backpage.com, LLC v.
McKenna, 881 F.Supp 1262 (W.D. Wash. 2012), repealed by Wash. Laws
2013, ch.9, § 2 (2013); see also Tenn. Code. Ann. § 39-13-315 (2012), enjoined by Backpage.com, LLC v. Cooper,
2013 WL 1558785 (M.D. Tenn, 2013).
[50] Uniform
Act, supra note 1, at § 20.
[51] See the comment section of the proposed
statutory language for specific discussion of individual States’ implementation
of this provision.
[52] N.J.S. § 2C:34-1 (2013)
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