HB1299sam002 94TH GENERAL ASSEMBLY

Sen. Iris Y. Martinez

Filed: 2/9/2006

09400HB1299sam002 LRB094 09423 LCT 55262 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 proclaims that prostitution and 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 prostitution, their initial experiences could not have occurred in the absence of an environment that was "supportive" of their prostitution 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.

(3) Individuals, organizations, and entities often recruit and maintain persons, largely women and girls, into the sex trade through predatory behaviors including coercion, violence, abuse, and exploitation. Individuals, organizations, and entities often use such predatory tactics to maximize profit from persons' sex trade activity.

(4) 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, and 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.

(5) 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.

(6) 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, harmed, profited from, or maintained them in the sex trade.

Section 10. Definitions. As used in this Act:

"Sex trade" means any act in violation of: any of the following Sections of the Criminal Code of 1961: 11-15 (soliciting for a prostitute); 11-15.1 (soliciting for a juvenile prostitute); 11-16 (pandering); 11-17 (keeping a place of prostitution); 11-17.1 (keeping a place of juvenile prostitution); 11-19 (pimping); 11-19.1 (juvenile pimping and aggravated juvenile pimping); 11-19.2 (exploitation of a child); 11-20 (obscenity); or 11-20.1 (child pornography); or Article 10A of the Criminal Code of 1961 (trafficking of persons and involuntary servitude).

"Sex trade" activity may involve adults and youth of all genders and sexual orientations.

"Victim of the sex trade" means a person from whom sexual acts are obtained or expected in exchange for anything of value, such as a prostitute, a juvenile prostitute, or a person whose image or likeness is used in any sex trade activity.

Section 15. Cause of action.

(a) Violations of this Act are actionable in civil court.

(b) A victim of the sex trade has a cause of action against a person or entity who:

(1) engages in sex trade; or

(2) advertises or publishes advertisements for purposes of recruitment into sex trade activity.

(c) A separate action may be brought under this Act against any individual who has engaged in retaliation against: (1) any victim of the sex trade in a proceeding under this Act; (2) any member of the family of a victim of the sex trade; (3) any person who in good faith has opposed anything that he or she reasonably believed to be a violation of this Act; or (4) any person who has filed a complaint, testified, assisted, or participated in a proceeding pursuant to this Act.

Section 20. Relief.

(a) A prevailing victim of the sex trade shall be entitled to all relief that would make him or her 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) compensatory damages including, but not limited to:

(A) economic loss, including damage, destruction, or loss of use of personal property, and loss of past or future earning capacity; and

(B) damages for death, personal injury, disease, and mental and emotional harm, including medical, rehabilitation, burial expenses, pain and suffering, and physical impairment;

(5) punitive damages; and

(6) additional restitution, which shall be calculated based upon the gross proceeds received, if any, by the defendant as a result of his or her criminal offense, but shall not represent wage payment for sexual services.

Section 25. Non-defenses.

(a) It is not a defense to an action brought under this Act that:

(1) the victim of the sex trade and the defendant had a marital or consenting sexual relationship;

(2) the defendant is related to the victim of the sex trade by blood or marriage, or has lived with the defendant in any formal or informal household arrangement;

(3) the victim of the sex trade was paid or otherwise compensated for sex trade activity;

(4) the victim of the sex trade engaged in sex trade activity prior to any involvement with the defendant;

(5) the victim of the sex trade made no attempt to escape, flee, or otherwise terminate contact with the defendant;

(6) the victim of the sex trade consented to engage in acts of the sex trade;

(7) it was a single incident of activity; or

(8) there was no physical contact involved.

(b) Any illegality of the sex trade activity on the part of the victim of the sex trade shall not be an affirmative defense to any action brought under this Act.

Section 30. Evidence. In the course of litigation under this Act, any transaction about which a victim of the sex trade testifies or produces evidence does not subject him or her 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 victim of the sex trade or a witness for a victim of the sex trade 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.

Section 35. Statute of limitations.

(a) An action for damages must be commenced within 10 years of the time the victim of the sex trade knew and fully understood that:

(1) she or he had been injured; and

(2) 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 victim of the sex trade 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 victim of the sex trade may not be compelled to personally appear to attest to these facts. Affidavits from the victim of the sex trade and his or her doctor stating the required facts are sufficient to constitute a showing as required by this subsection.

(c) The court shall toll the limitations period upon a showing that despite reasonable efforts, the victim of the sex trade was unable to ascertain the identity, true name, or location of the defendant during the limitations period. In determining whether the victim of the sex trade's efforts were reasonable, the court shall consider the totality of the victim of the sex trade's circumstances during the limitations period, including the victim of the sex trade'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 victim of the sex trade's understanding of the right to pursue the cause of action or the victim of the sex trade's ability to pursue the cause of action. Behavior constituting inhibition includes, but is not limited to:

(l) minimizing by words or deeds the harm inflicted upon the victim of the sex trade;

(2) isolating the victim of the sex trade from access to legal representation;

(3) threatening the victim of the sex trade with retaliation for pursuing the claim; or

(4) misrepresenting the injury as the fault of the victim of the sex trade rather than the fault of the abuser.

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

(f) If the person entitled to bring the action was a minor at the time the cause of action accrued, upon turning 18, the action must be commenced within the time period described in subsection (a) of this Section.

Section 40. Remedies preserved. This Act does 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 victim of the sex trade 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. Any 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. No 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 victim of the sex trade.

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 application 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.".