ARIZONA HOUSE OF REPRESENTATIVES

Fifty-sixth Legislature

Second Regular Session

House: JUD DPA 6-2-0-1

HB 2665: child sex trafficking; facilitating prostitution

Sponsor: Representative Biasiucci, LD 30

House Engrossed

Overview

Amends existing child sex trafficking offenses to include conduct relating to the facilitation of prostitution with certain minors and requires a court to impose certain conditions on a person who is released on own recognizance or bail in child sex trafficking cases. Adds additional offenses to statute barring certain evidence of a victim's past sexual conduct from being introduced in certain prosecutions and to statute requiring a mandatory assessment to cover the cost of investigations for certain sexual offenses.

History

A.R.S. title 13, chapter 14 (sexual offenses) includes numerous offenses that specifically relate to or may involve minors, including sexual abuse (A.R.S. § 13-1404), sexual conduct with a minor (A.R.S. § 13-1405), sexual assault (A.R.S. § 13-1406) and others.

Under A.R.S. § 13-1421 (commonly referred to as the rape-shield statute), evidence relating to a victim's chastity and opinion evidence relating to a victim's chastity is generally deemed to be to be inadmissible in any prosecution for an offense in chapter 14. However, evidence of specific instances of the victim's prior sexual conduct may be admitted only if both of the following are met:

1) a judge finds the evidence is relevant and is material to a fact in issue in the case that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence; and

2) the evidence is one of the following:

a) evidence of the victim's past sexual conduct with the defendant;

b) evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.

c) Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime;

d) Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue; or

e) Evidence of false allegations of sexual misconduct made by the victim against others.

The standard for admissibility of the evidence described above is clear and convinced evidence, and the evidence may not be referred to in any statements to a jury or introduced at trial without a court order following a hearing on written motions from the parties.

Chapter 35.1 of the criminal code (sexual exploitation of children) defines several other offenses specifically relating to minors, such as sexual exploitation of a minor (A.R.S. § 13-3553), luring a minor for sexual exploitation (A.R.S. § 13-3554) and unlawful age misrepresentation (A.R.S. § 13-3561).

Under A.R.S. § 13-3967, subsection E, a judicial officer is required to impose both of the following conditions on a person who is charged with a felony offense under chapter 14 or 35.1 of the criminal code and released on his or her own recognizance or bail, in addition to any other conditions that may be imposed:

1) electronic monitoring where available; and

2) a condition prohibiting the person from having any contact with the victim.

Chapter 32 of the criminal code establishes several criminal offenses relating to prostitution, which is defined in A.R.S. § 13-3211 as engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration. One of the offenses in chapter 32 is child sex trafficking, which can be committed in various ways that are enumerated in A.R.S. § 13-3212, subsections A and B. Specifically, under subsection B, a person who is at least 18 years old commits child sex trafficking by knowingly doing any of the following:

1) engaging in prostitution with a minor who is under 15 years old (paragraph 1);

2) engaging in prostitution with a minor who the person knows or should have known is 15, 16 or 17 years old (paragraph 2); or

3) engaging in prostitution with a minor who is 15, 16 or 17 years old (paragraph 3).

For purposes of violations under paragraphs 1 and 2 above, it is not a defense that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor.

Child sex trafficking under paragraph 1 is a class 2 felony and is punishable as a dangerous crime against children (DCAC). Child sex trafficking under paragraph 2 is also a class 2 felony but is subject to special sentencing ranges delineated in subsection I that may be mitigated or aggravated, and a person convicted of this offense is generally ineligible for release until the sentence imposed has been served or commuted. Finally, child sex trafficking under paragraph 3 is a class 5 felony and, if the court imposes probation, the convicted person must serve at least 180 days in the county jail. However, if the person has previously been convicted of child sex trafficking or attempted child sex trafficking, an offense under paragraph 3 becomes a class 2 felony and a convicted person is generally ineligible for release until the imposed sentence has been served or commuted.

DCACs are a category of criminal offenses—many of which are included in the criminal code chapters described above—for which a convicted person may be subject to enhanced penalties when the victim is under 15 years old (A.R.S. § 13-705). Among these enhanced penalties is a mandatory $500 assessment under A.R.S. § 12-116.07, which must be imposed on a defendant who is convicted of a DCAC or sexual assault. This assessment is in addition to any other assessment or restitution, cannot be waived and is not subject to a surcharge. All assessment monies that a court collects under this provision must be transmitted to the applicable County Treasurer for the purpose of defraying the cost of investigations for certain sexual offenses.

Under A.R.S. § 13-909, which is commonly referred to as the vacatur law, a person who is convicted of a prostitution offense that was committed on or before July 24, 2014 to apply to have the person's conviction and sentence vacated if the person can make a requisite showing that he or she was a sex trafficking victim at the time of the offense.

Provisions

1. Amends child sex trafficking offenses under A.R.S. § 13-3212, subsection B, by adding the following:

a) that a person can commit an offense under paragraph 1 by engaging in prostitution with a person for the purpose of facilitating the prostitution of a minor under 15 years old;

b) that a person can commit an offense under paragraph 2 by engaging in prostitution with a person for the purpose of facilitating the prostitution of a minor who the person knows or should have known is 15, 16 or 17 years old; and

c) that it is not a defense to a prosecution under paragraphs 1 and 2 that the other person is a peace officer posing as a person facilitating the prostitution of a minor. (Sec. 4)

2. Makes the rape-shield statute (A.R.S. § 13-1421) applicable in prosecutions for child sex trafficking (A.R.S. § 13-3212) or any offense in A.R.S. title 13, chapter 35.1 (sexual exploitation of minors), in addition to sexual offenses under chapter 14. (Sec. 3)

3. Applies the mandatory $500 assessment in A.R.S. § 12-116.07 to a person who is convicted of sexual abuse (A.R.S. § 13-1404), sexual conduct with a minor (A.R.S. § 13-1405) or child sex trafficking (A.R.S. § 13-3212), in addition to DCACs and sexual assault. (Sec. 1)

4. Requires a judicial officer to impose the mandatory conditions in A.R.S. § 13-3967, subsection E on a person with is charged with child sex trafficking (A.R.S. § 13-3212), in addition to any felony offense in A.R.S. title 13, chapters 14 or 35.1. (Sec. 5)

5. Amends the vacatur law to remove the requirement that the prostitution offense was committed before July 24, 2014 in order to seek to have the prostitution offense vacated. (Sec. 2)

6. Makes technical and conforming changes. (Sec. 1, 2, 3)

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10. HB 2665

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