HB1299ham001 94TH GENERAL ASSEMBLY

Judiciary I - Civil Law Committee

Filed: 3/9/2005

09400HB1299ham001 LRB094 09423 LCB 42378 a

AMENDMENT TO HOUSE BILL 1299

AMENDMENT NO. ______. Amend House Bill 1299 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Predator Accountability Act.

Section 5. Findings. The General Assembly finds:

(1) The United Nations Convention of December 2, 1949 proclaimed that prostitution and sex trafficking are "incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community." Sex trade activities and sex trafficking are supported by inequality and oppression based on gender, race, socioeconomic status, sexual orientation, and age. The sex trade and sex trafficking disproportionately affect women and children, particularly women of color. Men are also trafficked and exploited in the sex trade.

(2) Regardless of the specific pathway the women took to trading sex, their initial experiences could not have occurred in the absence of an environment that was supportive of their sex trade activities, as well as partners who were willing to pay for sex. Research and evidence suggests that the sex trade is inherently coercive, abusive, and exploitative. Individuals, organizations, and entities often recruit and maintain persons, largely women and girls, in the sex trade through predatory behaviors including coercion, violence, abuse, and exploitation.

(3) These practices often cause severe trauma and long-term physical, emotional, and psychological damage. Often, individuals enter sex trade-related activities prior to age 18, are homeless or runaways, victims of childhood sexual, physical, and emotional abuse, or have mental health or substance abuse issues. Many adult persons in the sex trade are victimized by many forms of violence and abuse while in the sex trade. This violence is often perpetrated to maintain their participation in the sex trade.

(4) Many persons, organizations, and entities that subject individuals to or maintain them in the sex trade are not held accountable by the criminal justice system. In some parts of the State, less than 1% of all prostitution related arrests are for pimps or panderers.

(5) This Act allows persons who have been or are subjected to the sex trade to seek civil damages and remedies from individuals and entities that recruited, profited from, or maintained them in the sex trade.

Section 10. Definitions. As used in this Act:

"Sex trade" means any type of sexual activity in exchange for any type of consideration, including a single incident of activity. Forms of "sex trade" include, but are not limited to, sex trafficking, street-level sex trade activity, stripping, massage parlors, pornography, and escort services and involve adults and youth of all gender and sexual orientations, whether or not physical contact is involved.

Section 15. Cause of action.

(a) An individual subjected to the sex trade has a cause of action against a person or entity who:

(1) recruited, hired, offered, agreed, or attempted to hire the individual to engage in the sex trade;

(2) procured, enticed, led away, pimped, trafficked, financed, or profited from his or her sex trade activity;

(3) collected or received any of the individual's earnings derived from the sex trade; or

(4) advertised or published advertisements for purposes of recruitment into illegal sex trade activity.

(b) A separate cause of action may be brought under this Act against any individual who has engaged in retaliation against any plaintiff in a proceeding under this Act, any member of a plaintiff's family, any person who in good faith has opposed anything that he or she reasonably believed to be a violation of this Act, or any person who has filed a complaint, testified, assisted, or participated in a proceeding pursuant to this Act.

Section 20. Relief. A prevailing plaintiff shall be entitled to all relief that would make the plaintiff whole. This includes, but is not limited to:

(1) declaratory relief;

(2) injunctive relief;

(3) recovery of costs and attorney fees, including but not limited to costs for expert testimony and witness fees;

(4) profits from sex trade activity;

(5) compensatory damages, such as (i) economic loss, including damage, destruction, or loss of use of personal property and loss of past or future income or earning capacity, and (ii) damages for death, personal injury, disease, and mental and emotional harm, including medical, rehabilitation, and burial expenses, and pain and suffering, including physical impairment; and

(6) punitive damages.

Section 25. Non-defenses. It is not a defense to an action under this Act that:

(1) the plaintiff consented to engage in acts of the sex trade;

(2) the plaintiff and defendant had a marital or consenting sexual relationship;

(3) the defendant is related to plaintiff by blood or marriage, or has lived with the defendant in any formal or informal household arrangement;

(4) the plaintiff was paid or otherwise compensated for sex trade activity;

(5) the plaintiff engaged in sex trade activity prior to any involvement with the defendant;

(6) the defendant had not engaged in prior sex trade activity with the plaintiff;

(7) the plaintiff owed a debt to the defendant, monetary or otherwise;

(8) the defendant signed a legal or illegal contract with the plaintiff;

(9) the plaintiff apparently initiated involvement with the defendant;

(10) the plaintiff made no attempt to escape, flee, or otherwise terminate contact with the defendant;

(11) the plaintiff continued to engage in sex trade activity after terminating contact with defendant;

(12) as a condition of employment, the defendant required the plaintiff to agree not to engage in the sex trade; or

(13) the defendant's place of business was posted with signs prohibiting illegal sex trade activity.

Section 30. Evidence. In the course of litigation under this Act, any transaction about which a plaintiff testifies or produces evidence does not subject the plaintiff to criminal prosecution or any penalty or forfeiture. Any testimony or evidence, documentary or otherwise, or information directly or indirectly derived from that testimony or evidence that is given or produced by a plaintiff or a witness for a plaintiff may not be used against that person in any other investigation or proceeding, other than a criminal investigation or proceeding for perjury committed while giving the testimony or producing the evidence.

Evidence of any prior convictions, particularly for sex trade or sex trade-related offenses, shall be inadmissible in a proceeding brought under this Act for purposes of attacking the plaintiff's credibility. If the court admits evidence of prior convictions for purposes permitted under the rules of evidence with respect to motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, the fact finder may consider the evidence solely for those purposes and shall disregard details offered to prove any fact that is not relevant.

Section 35. Statute of limitations.

(a) If the person entitled to bring the action was a minor at the time the cause of action accrued, the action must be commenced within 10 years after the person reaches the age of 18. An action for damages under this Act must be commenced within 10 years of the time the plaintiff knew and fully understood:

(1) that the plaintiff had been injured; and

(2) that the injury was caused by conduct of the defendant described in this Act.

(b) The court shall toll the limitations period upon a showing that the plaintiff was or is unable, due to sex trade-related injury, to commence the action within the limitations period. The injury may be psychological and need not be traceable to any action by the defendant. A plaintiff may not be compelled to personally appear to attest to these facts. Affidavits from the plaintiff and the plaintiff's doctor stating the required facts shall be sufficient to constitute a showing as required by this subsection (b).

(c) The court shall toll the limitations period upon a showing that despite reasonable efforts, the plaintiff was unable to ascertain the identity, true name, or location of the defendant during the limitations period. In determining whether the plaintiff's efforts were reasonable, the court shall consider the totality of the plaintiff's circumstances during the limitations period, including the plaintiff's emotional condition, financial resources, freedom of movement and communication, and reasonable fear of the defendant for self or others.

(d) The court shall toll the limitations period upon a showing that the defendant in any way inhibited the plaintiff's understanding of the right to pursue the cause of action or the plaintiff's ability to pursue the cause of action. Behavior constituting inhibition includes, but is not limited to:

(1) minimizing by words or deeds the harm inflicted upon plaintiff;

(2) isolating plaintiff from access to legal representation;

(3) threatening plaintiff with retaliation for pursuing the claim; and

(4) misrepresenting the injury as the plaintiff's fault rather than the fault of the abuser.

(e) There is no limitation of time on actions for declaratory or injunctive relief under this Act.

Section 40. Other remedies preserved. The provisions of this Act do not affect the right of any person to bring an action or use any remedy available under other law, including common law, to recover damages arising out of the use of the individual in the sex trade nor does this Act limit or restrict the liability of any person under other law. This Act does not reflect a determination of a policy regarding the applicability of strict liability to activities relating to the sex trade.

Section 45. Double recovery prohibited. A person who recovers damages under this Act may not recover the same costs or damages under any other Act. A person who recovers damages under any other Act may not recover for the same costs or damages under this Act.

Section 50. Avoidance of liability. No person may avoid liability under this Act by means of any conveyance of any right, title, or interest in real property, or by any indemnification, hold harmless agreement, or similar agreement that purports to show consent of the plaintiff.

Section 55. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or its application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

Section 99. Effective date. This Act takes effect upon becoming law.".