Florida Senate - 2013                                     SB 974
       
       
       
       By Senator Sobel
       
       
       
       
       33-00321B-13                                           2013974__
    1                        A bill to be entitled                      
    2         An act relating to human trafficking; creating the
    3         “Florida Victim’s Relief Act”; creating s. 90.50355,
    4         F.S.; defining the terms “confidential communication,”
    5         “human-trafficking counselor,” “trained volunteer,”
    6         and “victim”; providing that a victim of human
    7         trafficking has a privilege to refuse to disclose, and
    8         to prevent any other person from disclosing, a
    9         confidential communication made by the victim to a
   10         human-trafficking counselor or trained volunteer or
   11         any record made in the course of advising, counseling,
   12         or assisting the victim; providing that the
   13         confidential communication or record may be disclosed
   14         only with the prior written consent of the victim;
   15         specifying by whom the privilege may be claimed;
   16         amending s. 772.104, F.S.; authorizing a court to
   17         award punitive damages to a person who proves by clear
   18         and convincing evidence that he or she has been
   19         subjected to sex trafficking or human trafficking;
   20         amending s. 787.06, F.S.; providing that in each
   21         instance in which a defendant pleads nolo contendere
   22         to, or is convicted of, or adjudicated delinquent for,
   23         the crime of human trafficking, the victim of that
   24         crime is entitled to all benefits, rights, and
   25         compensation granted pursuant to law; providing that a
   26         defendant may assert an affirmative defense that the
   27         person was acting under duress or coerced into
   28         committing the offense of human trafficking for which
   29         he or she is being subject to prosecution; creating s.
   30         796.095, F.S.; authorizing a person convicted of
   31         committing the offense of prostitution and other sex
   32         crimes to file a motion to vacate the conviction if
   33         the person’s participation in the offense was the
   34         result of the person having been a victim of human
   35         trafficking or of a severe form of trafficking;
   36         requiring certain specified conditions be met in order
   37         to file the motion; requiring the court to hold a
   38         hearing on a motion to vacate the conviction;
   39         permitting the court to dismiss the motion to vacate
   40         the conviction without a hearing if the court finds
   41         that the motion fails to assert grounds on which
   42         relief may be granted; providing that the person
   43         filing a motion to vacate the conviction has the
   44         burden of proof by a preponderance of the evidence;
   45         providing that a minor is not required to show that
   46         force, fraud, or coercion was used against him or her
   47         at the time of the offense; providing an effective
   48         date.
   49  
   50  Be It Enacted by the Legislature of the State of Florida:
   51  
   52         Section 1. This act may be cited as the “Florida Victim’s
   53  Relief Act.”
   54         Section 2. Section 90.50355, Florida Statutes, is created
   55  to read:
   56         90.50355Human-trafficking counselor-victim privilege.—
   57         (1) As used in this section, the term:
   58         (a)“Confidential communication” means a communication
   59  between a human-trafficking counselor or trained volunteer and a
   60  victim. The communication is confidential if it is not intended
   61  to be disclosed to a third person other than those persons who
   62  are:
   63         1. Present to further the interest of the victim in the
   64  consultation, examination, or interview;
   65         2. Necessary for the transmission of the communication; and
   66         3. Reasonably necessary to accomplish the purposes for
   67  which the human-trafficking counselor or the trained volunteer
   68  is consulted.
   69         (b) “Human-trafficking counselormeans:
   70         1. A psychotherapist as that term is defined in s. 90.503;
   71  or
   72         2.A person who is employed and supervised by one of the
   73  persons specified in s. 90.503, who renders services to a victim
   74  of human trafficking, and who has received 40 hours of state
   75  accredited training in assisting a victim of human trafficking;
   76  in civil and criminal law as it relates to human trafficking; in
   77  the trauma issues associated with victims of human trafficking;
   78  in peer counseling techniques; in the medical, legal, emotional,
   79  and social service needs of victims of human trafficking; and in
   80  the federal, state, and community resources available to meet
   81  the needs of victims of human trafficking.
   82         (c) Trained volunteer” means a person who has completed 40
   83  hours of state-accredited training in assisting a victim of
   84  human trafficking identical to that provided to a human
   85  trafficking counselor, who is supervised by members of the staff
   86  of the psychotherapist or human-trafficking counselor, and who
   87  is included on a list of volunteers which is maintained by the
   88  human-trafficking counselors.
   89         (d) Victim” is a person who consults a human-trafficking
   90  counselor or a trained volunteer for the purpose of securing
   91  advice, counseling, or assistance concerning a mental, physical,
   92  or emotional condition caused by human trafficking, alleged
   93  human trafficking, or attempted human trafficking.
   94         (3) A victim has a privilege to refuse to disclose, and to
   95  prevent any other person from disclosing, a confidential
   96  communication made by the victim to a human-trafficking
   97  counselor or trained volunteer or of any record made in the
   98  course of advising, counseling, or assisting the victim. The
   99  confidential communication or record may be disclosed only with
  100  the prior written consent of the victim. This privilege includes
  101  any advice given by the human-trafficking counselor or trained
  102  volunteer in the course of that relationship.
  103         (4) The privilege may be claimed by:
  104         (a) The victim or the victim’s attorney on his or her
  105  behalf.
  106         (b) A guardian or conservator of the victim.
  107         (c) The personal representative of a deceased victim.
  108         (d) The human-trafficking counselor or trained volunteer,
  109  but only on behalf of the victim. The authority of a human
  110  trafficking counselor or trained volunteer to claim the
  111  privilege is presumed in the absence of evidence to the
  112  contrary.
  113         Section 3. Section 772.104, Florida Statutes, is amended to
  114  read:
  115         772.104 Civil cause of action.—
  116         (1) A Any person who proves by clear and convincing
  117  evidence that he or she has been subjected to a injured by
  118  reason of any violation of the provisions of s. 772.103 has
  119  shall have a cause of action for threefold the actual damages
  120  sustained and, in any such action, is entitled to minimum
  121  damages in the amount of $200, and reasonable attorney
  122  attorney’s fees and court costs in the trial and appellate
  123  courts.
  124         (2) As an alternative to recovery under subsection (1), a
  125  any person who proves by clear and convincing evidence that he
  126  or she has been injured by reason of a any violation of the
  127  provisions of s. 772.103 due to sex trafficking or human
  128  trafficking has shall have a cause of action for threefold the
  129  amount gained from the sex trafficking or human trafficking and
  130  in any such action is entitled to minimum damages in the amount
  131  of $200 and reasonable attorney attorney’s fees and court costs
  132  in the trial and appellate courts.
  133         (3) In no event shall Punitive damages may be awarded under
  134  this section. The defendant may shall be entitled to recover
  135  reasonable attorney attorney’s fees and court costs in the trial
  136  and appellate courts upon a finding that the claimant raised a
  137  claim which was without substantial fact or legal support. In
  138  awarding attorney attorney’s fees and costs under this section,
  139  the court may shall not consider the ability of the opposing
  140  party to pay such fees and costs. Nothing under This section
  141  does not limit shall be interpreted as limiting any right to
  142  recover attorney attorney’s fees or costs provided under other
  143  provisions of law.
  144         Section 4. Subsections (8) and (9) are added to section
  145  787.06, Florida Statutes, to read:
  146         787.06 Human trafficking.—
  147         (8) In each instance in which a defendant pleads nolo
  148  contendere to, or is convicted of, or adjudicated delinquent
  149  for, the crime of human trafficking under this section, the
  150  human-trafficking victim is entitled to all benefits, rights,
  151  and compensation granted pursuant to law.
  152         (9) When a defendant who is being prosecuted for
  153  trafficking in persons is also a victim of human trafficking, it
  154  is an affirmative defense that the defendant was acting under
  155  duress or coerced into committing the offenses for which he or
  156  she is being subject to prosecution. A human-trafficking victim
  157  who is also trafficking in persons is not criminally liable for
  158  a commercial sex act or illegal sexually explicit performance
  159  committed as a direct result of, or incident or related to,
  160  being trafficked.
  161         Section 5. Section 796.095, Florida Statutes, is created to
  162  read:
  163         796.095 Prostitution; motion to vacate conviction.—
  164         (1) A person convicted of committing the offense of
  165  offering, committing, or engaging in prostitution under s.
  166  796.07(1), or convicted of a lesser offense when originally
  167  charged with a violation of s. 796.07(1), may file a motion to
  168  vacate the conviction if the person’s participation in the
  169  offense was the result of the person having been a victim of
  170  human trafficking, as defined in s. 787.06, s. 796.04, or s.
  171  796.045, or if the person is a victim of a severe form of
  172  trafficking as defined in 22 U.S.C. s. 7102(13).
  173         (2) A motion filed under this section must:
  174         (a) Be in writing;
  175         (b) Be signed and sworn to by the petitioner;
  176         (c) Be made within 6 years after the date that the person
  177  ceases to be a victim, subject to reasonable concerns for the
  178  safety of the defendant, family members of the defendant, or
  179  other victims of the trafficking that may be jeopardized by the
  180  bringing of a motion, or for other reasons consistent with the
  181  purpose of this section;
  182         (d) Describe all the grounds and evidence for vacation of a
  183  conviction which are available to the petitioner and of which
  184  the petitioner has or by the exercise of reasonable diligence
  185  should have knowledge, and provide copies of any official
  186  documents showing that the defendant is entitled to relief under
  187  this section; and
  188         (e) Be subject to the review and written approval of the
  189  state attorney responsible for prosecuting the offense that is
  190  the subject of the motion to vacate conviction.
  191         (3) The court shall hold a hearing on a motion filed under
  192  this section if the motion satisfies the requirements of
  193  subsection (2). The court may dismiss a motion without a hearing
  194  if the court finds that the motion fails to assert grounds on
  195  which relief may be granted.
  196         (4) If the court grants a motion filed under this section,
  197  the court shall vacate the conviction.
  198         (5) A person making a motion to vacate pursuant to this
  199  section has the burden of proof by a preponderance of the
  200  evidence. A person making a motion regarding a conviction
  201  related to an offense committed while he or she was a minor is
  202  not required to show that force, fraud, or coercion was used
  203  against him or her at the time of the offense.
  204         Section 6. This act shall take effect October 1, 2013.