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Sen. Iris Y. Martinez
Filed: 2/9/2006
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LRB094 09423 LCT 55262 a |
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| AMENDMENT TO HOUSE BILL 1299
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| AMENDMENT NO. ______. Amend House Bill 1299 by replacing |
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| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the |
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| Predator Accountability Act. |
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| Section 5. Findings. The General Assembly finds: |
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| (1) The United Nations Convention of December 2, 1949 |
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| proclaims that prostitution and trafficking are |
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| "incompatible with the dignity and worth of the human |
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| person and endanger the welfare of the individual, the |
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| family and the community". Sex trade activities and sex |
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| trafficking are supported by inequality and oppression |
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| based on gender, race, socioeconomic status, sexual |
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| orientation, and age. The sex trade and sex trafficking |
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| disproportionately affect women and children, particularly |
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| women of color. Men are also trafficked and exploited in |
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| the sex trade.
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| (2) Regardless of the specific pathway the women took |
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| to prostitution, their initial experiences could not have |
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| occurred in the absence of an environment that was |
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| "supportive" of their prostitution activities, as well as |
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| partners who were willing to pay for sex. Research and |
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| evidence suggests that the sex trade is inherently |
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| coercive, abusive, and exploitative.
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| (3) Individuals, organizations, and entities often |
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| recruit and maintain persons, largely women and girls, into |
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| the sex trade through predatory behaviors including |
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| coercion, violence, abuse, and exploitation. Individuals, |
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| organizations, and entities often use such predatory |
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| tactics to maximize profit from persons' sex trade |
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| activity.
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| (4) These practices often cause severe trauma and |
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| long-term physical, emotional, and psychological damage. |
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| Often, individuals enter sex trade related activities |
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| prior to age 18, are homeless or runaways, victims of |
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| childhood sexual, physical, and emotional abuse, and have |
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| mental health or substance abuse issues. Many adult persons |
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| in the sex trade are victimized by many forms of violence |
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| and abuse while in the sex trade. This violence is often |
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| perpetrated to maintain their participation in the sex |
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| trade.
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| (5) Many persons, organizations, and entities that |
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| subject individuals to or maintain them in the sex trade |
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| are not held accountable by the criminal justice system. In |
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| some parts of the State, less than 1% of all prostitution |
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| related arrests are for pimps or panderers.
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| (6) This Act allows persons who have been or are |
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| subjected to the sex trade to seek civil damages and |
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| remedies from individuals and entities that recruited, |
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| harmed, profited from, or maintained them in the sex trade.
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| Section 10. Definitions. As used in this Act: |
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| "Sex trade" means any act in violation of: any of the |
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| following Sections of the Criminal Code of 1961: 11-15 |
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| (soliciting for a prostitute); 11-15.1 (soliciting for a |
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| juvenile prostitute); 11-16 (pandering); 11-17 (keeping a |
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| place of prostitution); 11-17.1 (keeping a place of juvenile |
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| prostitution); 11-19 (pimping); 11-19.1 (juvenile pimping and |
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| aggravated juvenile pimping); 11-19.2 (exploitation of a |
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| child); 11-20 (obscenity); or 11-20.1 (child pornography); or |
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| Article 10A of the Criminal Code of 1961 (trafficking of |
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| persons and involuntary servitude). |
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| "Sex trade" activity may involve adults and youth of all |
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| genders and sexual orientations.
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| "Victim of the sex trade" means a person from whom sexual |
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| acts are obtained or expected in exchange for anything of |
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| value, such as a prostitute, a juvenile prostitute, or a person |
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| whose image or likeness is used in any sex trade activity. |
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| Section 15. Cause of action. |
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| (a) Violations of this Act are actionable in civil court. |
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| (b) A victim of the sex trade has a cause of action against |
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| a person or entity who: |
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| (1) engages in sex trade; or |
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| (2) advertises or publishes advertisements for |
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| purposes of recruitment into sex trade activity. |
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| (c) A separate action may be brought under this Act against |
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| any individual who has engaged in retaliation against: (1) any |
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| victim of the sex trade in a proceeding under this Act; (2) any |
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| member of the family of a victim of the sex trade; (3) any |
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| person who in good faith has opposed anything that he or she |
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| reasonably believed to be a violation of this Act; or (4) any |
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| person who has filed a complaint, testified, assisted, or |
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| participated in a proceeding pursuant to this Act. |
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| Section 20. Relief. |
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| (a) A prevailing victim of the sex trade shall be entitled |
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| to all relief that would make him or her whole. This includes, |
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| but is not limited to: |
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| (1) declaratory relief;
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| (2) injunctive relief;
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| (3) recovery of costs and attorney fees including, but |
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| not limited to, costs for expert testimony and witness |
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| fees; |
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| (4) compensatory damages including, but not limited |
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| to: |
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| (A) economic loss, including damage, destruction, |
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| or loss of use of personal property, and loss of past |
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| or future earning capacity; and |
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| (B) damages for death, personal injury, disease, |
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| and mental and emotional harm, including medical, |
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| rehabilitation, burial expenses, pain and suffering, |
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| and physical impairment; |
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| (5) punitive damages; and |
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| (6) additional restitution, which shall be calculated |
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| based upon the gross proceeds received, if any, by the |
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| defendant as a result of his or her criminal offense, but |
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| shall not represent wage payment for sexual services. |
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| Section 25. Non-defenses. |
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| (a) It is not a defense to an action brought under this Act |
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| that: |
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| (1) the victim of the sex trade and the defendant had a |
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| marital or consenting sexual relationship;
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| (2) the defendant is related to the victim of the sex |
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| trade by blood or marriage, or has lived with the defendant |
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| in any formal or informal household arrangement;
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| (3) the victim of the sex trade was paid or otherwise |
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| compensated for sex trade activity;
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| (4) the victim of the sex trade engaged in sex trade |
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| activity prior to any involvement with the defendant;
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| (5) the victim of the sex trade made no attempt to |
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| escape, flee, or otherwise terminate contact with the |
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| defendant;
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| (6) the victim of the sex trade consented to engage in |
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| acts of the sex trade;
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| (7) it was a single incident of activity;
or |
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| (8) there was no physical contact involved. |
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| (b) Any illegality of the sex trade activity on the part of |
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| the victim of the sex trade shall not be an affirmative defense |
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| to any action brought under this Act. |
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| Section 30. Evidence. In the course of litigation under |
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| this Act, any transaction about which a victim of the sex trade |
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| testifies or produces evidence does not subject him or her to |
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| criminal prosecution or any penalty or forfeiture. Any |
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| testimony or evidence, documentary or otherwise, or |
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| information directly or indirectly derived from that testimony |
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| or evidence that is given or produced by a victim of the sex |
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| trade or a witness for a victim of the sex trade may not be used |
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| against that person in any other investigation or proceeding |
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| other than a criminal investigation or proceeding for perjury |
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| committed while giving the testimony or producing the evidence. |
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| Section 35. Statute of limitations. |
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| (a) An action for damages must be commenced within 10 years |
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| of the time the victim of the sex trade knew and fully |
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| understood that: |
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| (1) she or he had been injured; and |
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| (2) the injury was caused by conduct of the defendant |
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| described in this Act.
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| (b) The court shall toll the limitations period upon a |
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| showing that the victim of the sex trade was or is unable, due |
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| to sex trade-related injury, to commence the action within the |
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| limitations period. The injury may be psychological and need |
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| not be traceable to any action by the defendant. A victim of |
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| the sex trade may not be compelled to personally appear to |
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| attest to these facts. Affidavits from the victim of the sex |
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| trade and his or her doctor stating the required facts are |
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| sufficient to constitute a showing as required by this |
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| subsection.
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| (c) The court shall toll the limitations period upon a |
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| showing that despite reasonable efforts, the victim of the sex |
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| trade was unable to ascertain the identity, true name, or |
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| location of the defendant during the limitations period. In |
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| determining whether the victim of the sex trade's efforts were |
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| reasonable, the court shall consider the totality of the victim |
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| of the sex trade's circumstances during the limitations period, |
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| including the victim of the sex trade's emotional condition, |
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| financial resources, freedom of movement and communication, |
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| and reasonable fear of the defendant for self or others. |
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| (d) The court shall toll the limitations period upon a |
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| showing that the defendant in any way inhibited the victim of |
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| the sex trade's understanding of the right to pursue the cause |
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| of action or the victim of the sex trade's ability to pursue |
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| the cause of action. Behavior constituting inhibition |
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| includes, but is not limited to: |
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| (l) minimizing by words or deeds the harm inflicted |
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| upon the victim of the sex trade;
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| (2) isolating the victim of the sex trade from access |
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| to legal representation;
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| (3) threatening the victim of the sex trade with |
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| retaliation for pursuing the claim; or
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| (4) misrepresenting the injury as the fault of the |
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| victim of the sex trade rather than the fault of the
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| abuser.
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| (e) There is no limitation of time on actions for |
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| declaratory or injunctive relief under this Act.
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| (f) If the person entitled to bring the action was a minor |
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| at the time the cause of action accrued, upon turning 18, the |
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| action must be commenced within the time period described in |
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| subsection (a) of this Section. |
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| Section 40. Remedies preserved. This Act does not affect |
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| the right of any person to bring an action or use any remedy |
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| available under other law, including common law, to recover |
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| damages arising out of the use of the victim of the sex trade |
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| in the sex trade nor does this Act limit or restrict the |
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| liability of any person under other law. This Act does not |
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| reflect a determination of a policy regarding the applicability |
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| of strict liability to activities relating to the sex trade. |
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| Section 45. Double recovery prohibited. Any person who |
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| recovers damages under this Act may not recover the same costs |
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| or damages under any other Act. A person who recovers damages |
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| under any other Act may not recover for the same costs or |
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| damages under this Act.
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| Section 50. No avoidance of liability. No person may avoid |
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| liability under this Act by means of any conveyance of any |
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| right, title, or interest in real property, or by any |
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| indemnification, hold harmless agreement, or similar agreement |
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| that purports to show consent of the victim of the sex trade. |
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| Section 55. Severability. If any provision of this Act or |
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| its application to any person or circumstance is held invalid, |
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| the invalidity of that provision or its application does not |
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| affect other provisions or application of this Act that can be |
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| given effect without the invalid provision or application.
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| Section 99. Effective date. This Act takes effect upon |
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| becoming law.".
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