S2599

An Act concerning prostitution and revising various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1982, c.77 (C.2A:4A-21) is amended to read as follows:

2. Purposes. This act shall be construed so as to effectuate the following purposes:

a. To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of juveniles coming within the provisions of this act;

b. Consistent with the protection of the public interest, to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor an adequate program of supervision, care and rehabilitation, and a range of sanctions designed to promote accountability and protect the public;

c. To separate juveniles from the family environment only when necessary for their health, safety or welfare or in the interests of public safety;

d. To secure for each child coming under the jurisdiction of the court such care, guidance and control, preferably in his own home, as will conduce to the child's welfare and the best interests of the State; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents;

e. To insure that children under the jurisdiction of the court are wards of the State, subject to the discipline and entitled to the protection of the State, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them; [and]

f. Consistent with the protection of the public interest, to insure that any services and sanctions for juveniles provide balanced attention to the protection of the community, the imposition of accountability for offenses committed, fostering interaction and dialogue between the offender, victim and community and the development of competencies to enable children to become responsible and productive members of the community; and

g. To insure protection and a safe environment for those sexually exploited juveniles who are charged with prostitution or
who are victims of human trafficking; and to provide these juveniles with the appropriate shelter, care, counseling and crisis intervention services from the time they are taken into custody and for the duration of any legal proceedings.

(cf: P.L. 2001, c.408, s.1).

2. Section 12 of P.L.1982, c.77 (C.2A:4A-31) is amended to read as follows:

12. Taking into custody. a. A juvenile may be taken into custody:

(1) Pursuant to an order or warrant of any court having jurisdiction; or

(2) For delinquency, when there has been no process issued by a court, by a law enforcement officer, pursuant to the laws of arrest, including when a juvenile is charged with an act which if committed by an adult would constitute prostitution in violation of N.J.S.2C:34-1 or a juvenile who is a victim of human trafficking pursuant to section 1 of P.L.2005, c. 77, and the Rules of Court.

b. Except where delinquent conduct is alleged, a juvenile may be taken into short-term custody by a law enforcement officer without order of the court when:

(1) The officer has reasonable grounds to believe that the health and safety of the juvenile is seriously in danger and taking into immediate custody is necessary for his protection;

(2) The officer has reasonable grounds to believe the juvenile has left the home and care of his parents or guardian without the consent of such persons; or

(3) An agency legally charged with the supervision of a child has notified the law enforcement agency that the child has run away from out of home placement, provided, however, that in any case where the law enforcement officer believes that the juvenile is an "abused or neglected child" as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21), the officer shall handle the case pursuant to the procedure set forth in that act.

c. The taking of a juvenile into custody shall not be construed as an arrest, but shall be deemed a measure to protect the health, morals and well being of the juvenile.

(cf: P.L.1982, c.77, s.12)

3. Section 13 of P.L.1982, c.77 (C.2A:4A-32) is amended to read as follows:

13. Short-term custody. a. Under no circumstances shall any juvenile taken into short-term custody under section 12 of P.L.1982, c.77 (C.2A:4A-31) be held more than six hours. A juvenile taken into short-term custody shall not be retained in a detention facility or jail. A juvenile taken into short-term custody shall be retained in a suitable residential facility if the juvenile is charged with a violation of N.J.S.2C:34-1 or if the juvenile is a victim of human trafficking pursuant to section 1 of P.L.2005, c.77. As used in this section, the juvenile-family crisis intervention unit means that unit established pursuant to P.L.1982, c.80 (C.2A:4A-76 et seq.).

b. An officer taking a juvenile into short-term custody shall inform the juvenile of the reason for custody and shall where possible transport, or arrange to have the juvenile transported to his home. The officer releasing a juvenile from such custody shall inform the juvenile's parents or guardian and the juvenile-family crisis intervention unit of the reason for taking the juvenile into custody and may, if he believes further services are needed, inform the juvenile and his parents of the nature and location of appropriate services.

c. A law enforcement officer taking a juvenile into short-term custody may transport the juvenile to the home of a relative of the juvenile or to the home of another responsible adult or make arrangement for such transportation where the officer reasonably believes that the child will be provided with adequate care and supervision and that the child will remain in custody of the adult until such time as the juvenile-family crisis intervention unit can bring about the child's return home or an alternative living arrangement or out of home placement. A law enforcement officer placing a juvenile with a relative or responsible adult shall immediately notify the juvenile-family crisis intervention unit of this fact and the reason for taking the juvenile into custody.

d. A law enforcement officer acting reasonably and in good faith pursuant to this section in releasing a juvenile to a person other than a parent of a juvenile is immune from civil or criminal liability for his action. A person other than a parent of the juvenile who receives a child pursuant to this section and who acts reasonably and in good faith in doing so is immune from civil or criminal liability for the act of receiving the child. Immunity shall not release a person from liability under any other laws, including the laws regulating licensed child care or prohibiting child abuse and neglect.

(cf: P.L.1995, c.280, s.6)

4. Section 15 of P.L.1982, c.77 (C.2A:4A-34) is amended to read as follows:

15. Criteria for placing juvenile in detention.

a. Except as otherwise provided in this section, a juvenile charged with an act of delinquency shall be released pending the disposition of a case, if any, to any person or agency provided for in this section upon assurance being received that such person or persons accept responsibility for the juvenile and will bring him before the court as ordered.

b. No juvenile shall be placed in detention without the permission of a judge or the court intake service.

c. A juvenile charged with delinquency may not be placed or retained in detention under this act prior to disposition, except as otherwise provided by law, unless:

(1) Detention is necessary to secure the presence of the juvenile at the next hearing as evidenced by a demonstrable record of recent willful failure to appear at juvenile court proceedings or to remain where placed by the court or the court intake service or the juvenile is subject to a current warrant for failure to appear at court proceedings which is active at the time of arrest; or

(2) The physical safety of persons or property of the community would be seriously threatened if the juvenile were not detained and the juvenile is charged with an offense which, if committed by an adult, would constitute a crime of the first, second or third degree or one of the following crimes of the fourth degree: aggravated assault; stalking; criminal sexual contact; bias intimidation; failure to control or report a dangerous fire; possession of a prohibited weapon or device in violation of N.J.S.2C:39-3; or unlawful possession of a weapon in violation of N.J.S.2C:39-5; or

(3) With respect to a juvenile charged with an offense which, if committed by an adult, would constitute a crime of the fourth degree other than those enumerated in paragraph (2) of this subsection, or a disorderly persons or petty disorderly persons offense, and with respect to a juvenile charged with an offense enumerated in subsection c. when the criteria for detention are not met, the juvenile may be temporarily placed in a shelter, a residential facility or other non-secure placement if a parent or guardian cannot be located or will not accept custody of the juvenile. Police and court intake personnel shall make all reasonable efforts to locate a parent or guardian to accept custody of the juvenile prior to requesting or approving the juvenile's placement in a shelter or other non-secure placement. If, after the initial detention hearing, continued placement is necessary, the juvenile shall be returned to a shelter, a residential facility or other non-secure placement.

d. The judge or court intake officer prior to making a decision of detention shall consider and, where appropriate, employ any of the following alternatives:

(1) Release to parents;

(2) Release on juvenile's promise to appear at next hearing;

(3) Release to parents, guardian or custodian upon written assurance to secure the juvenile's presence at the next hearing;

(4) Release into care of a custodian or public or private agency reasonably capable of assisting the juvenile to appear at the next hearing;

(5) Release with imposition of restrictions on activities, associations, movements and residence reasonably related to securing the appearance of the juvenile at the next hearing;

(6) Release with required participation in a home detention program;

(7) Placement in a shelter care facility or residential facility; or

(8) Imposition of any other restrictions other than detention or shelter care reasonably related to securing the appearance of the juvenile.

e. In determining whether detention is appropriate for the juvenile, the following factors shall be considered:

(1) The nature and circumstances of the offense charged;

(2) The age of the juvenile;

(3) The juvenile's ties to the community;

(4) The juvenile's record of prior adjudications, if any; and

(5) The juvenile's record of appearance or nonappearance at previous court proceedings.

f. No juvenile 11 years of age or under shall be placed in detention unless he is charged with an offense which, if committed by an adult, would be a crime of the first or second degree or arson.

g. If the court places a juvenile in detention, the court shall state on the record its reasons for that detention.

h. For purposes of this section, a failure to appear at juvenile court proceedings or to remain where placed by the court or the court intake service shall be deemed recent if it occurred within the 12 months immediately preceding the detention hearing, or if it occurred within the period of 12 to 24 months preceding the detention hearing and the juvenile is unable to demonstrate a record of voluntary compliance with any subsequent court appearance and placement requirements.

(cf: P.L. 2005, c.361, s.1)

5. Section 23 of P.L.1982, c.77 (C.2A:4A-42) is amended to read as follows:

23. Predispositional evaluation. a. Before making a disposition, the court may refer the juvenile to an appropriate individual, agency or institution for examination and evaluation.

b. In arriving at a disposition, the court may also consult with such individuals and agencies as may be appropriate to the juvenile's situation, including the county probation division, the Department of Children and Families, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170), the county youth services commission, school personnel, clergy, law enforcement authorities, family members and other interested and knowledgeable parties. In so doing, the court may convene a predispositional conference to discuss and recommend disposition.

c. The predisposition report ordered pursuant to the Rules of Court may include a statement by the victim of the offense for which the juvenile has been adjudicated delinquent or by the nearest relative of a homicide victim. The statement may include the nature and extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss to include loss of earnings or ability to work suffered by the victim and the effect of the crime upon the victim's family. The probation division shall notify the victim or nearest relative of a homicide victim of his right to make a statement for inclusion in the predisposition report if the victim or relative so desires. Any statement shall be made within 20 days of notification by the probation division. The report shall further include information on the financial resources of the juvenile. This information shall be made available on request to the Victims of Crime Compensation Board established pursuant to section 3 of P.L.1971, c.317 (C.52:4B-3) or to any officer authorized under section 3 of P.L.1979, c.396 (C.2C:46-4) to collect payment of an assessment, restitution or fine. Any predisposition report prepared pursuant to this section shall include an analysis of the circumstances attending the commission of the act, the impact of the offense on the community, the offender's history of delinquency or criminality, family situation, financial resources, the financial resources of the juvenile's parent or guardian, and information concerning the parent or guardian's exercise of supervision and control relevant to commission of the act. If the juvenile is charged with prostitution or if the juvenile is a victim of human trafficking the report shall also include an analysis of whether the juvenile was coerced into committing the offense.

Information concerning financial resources included in the report shall be made available to any officer authorized to collect payment on any assessment, restitution or fine.

(cf: P.L. 2006, c.47, s.17)

6. Section 2 of P.L.1982, c.81 (C.2A:4A-71) is amended to read as follows:

2. Review and processing of complaints.

a. The jurisdiction of the court in any complaint filed pursuant to section 11 of P.L. 1982, c. 77 (C. 2A:4A-30) shall extend to the juvenile who is the subject of the complaint and his parents or guardian.

b. Every complaint shall be reviewed by court intake services for recommendation as to whether the complaint should be dismissed, diverted, or referred for court action. Where the complaint alleges a crime which, if committed by an adult, would be a crime of the first, second, third or fourth degree, or alleges a repetitive disorderly persons offense or any disorderly persons offense defined in chapter 35 or chapter 36 of Title 2C, the complaint shall be referred for court action, unless the prosecutor otherwise consents to diversion or unless the juvenile is charged with the offense of prostitution or is a victim of human trafficking, in which case court intake services shall recommend diversion of the complaint. Court intake services shall consider the following factors in determining whether to recommend diversion:

(1) The seriousness of the alleged offense or conduct and the circumstances in which it occurred;

(2) The age and maturity of the juvenile;

(3) The risk that the juvenile presents as a substantial danger to others;

(4) The family circumstances, including any history of drugs, alcohol abuse or child abuse on the part of the juvenile, his parents or guardian;

(5) The nature and number of contacts with court intake services and the court that the juvenile or his family have had;

(6) The outcome of those contacts, including the services to which the juvenile or family have been referred and the results of those referrals;

(7) The availability of appropriate services outside referral to the court;

(8) Any recommendations expressed by the victim or complainant, or arresting officer, as to how the case should be resolved; and

(9) Any recommendation expressed by the county prosecutor.

(cf: P.L.1988, c.44, s.17)

7. Section 1 of P.L.2005, c.77 (C.2C:13-8) is amended to read as follows.

1. Human trafficking. a. A person commits the crime of human trafficking if he :

(1) knowingly holds, recruits, lures, entices, harbors,transports, provides or obtains, by any means, another, to engage in sexual activity as defined in paragraph (2) of subsection a. of N.J.S.2C:34-1 or to provide labor or services:

(a) by threats of serious bodily harm or physical restraint against the person or any other person;

(b) by means of any scheme, plan or pattern intended to cause the person to believe that the person or any other person would suffer serious bodily harm or physical restraint;

(d) by destroying, concealing, removing, confiscating, or possessing any passport, immigration-related document as defined in section 1 of P.L.1997, c.1 (C.2C:21-31), or other document issued by a governmental agency to any person which could be used as a means of verifying the person's identity or age or any other personal identifying information; or

(e) by means of the abuse or threatened abuse of the law or legal process; or

(2) receives anything of value from participation as an organizer, supervisor, financier or manager in a scheme or course of conduct which violates paragraph (1) of this subsection.

b. An offense under this section constitutes a crime of the first degree.

c. It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the offense of human trafficking created by this section, the defendant was a victim of human trafficking.

d. Notwithstanding the provisions of N.J.S.2C:43-6, the term of imprisonment imposed for a crime of the first degree under paragraph (2) of subsection a. shall be either a term of 20 years during which the actor shall not be eligible for parole, or a specific term between 20 years and life imprisonment, of which the actor shall serve 20 years before being eligible for parole.

e. In addition to any other disposition authorized by law, any person who violates the provisions of this section shall be sentenced to make restitution to any victim. The court shall award to the victim restitution which is the greater of:

(1) the gross income or value to the defendant of the victim's labor or services; or

(2) the value of the victim's labor or services as determined by the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.), the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), the Seasonal Farm Labor Act, P.L.1945, c.71 (C.34:9A-1 et seq.), the laws concerning the regulation of child labor in chapter 2 of Title 34 of the Revised Statutes, or any other applicable State law, and the "Fair Labor Standards Act of 1938," 29 U.S.C. s.201 et seq. or any other applicable federal law.

f. Presumption. If the defendant was under the age of 18 during the time of the alleged commission of the offense, there shall be a presumption that the defendant was coerced into committing the offense.

(cf: P.L.2005, c.77, s.1)

8. N.J.S. 2C:34-1 is amended to read as follows:

2C:34-1. Prostitution and Related Offenses.

a. As used in this section:

(1) "Prostitution" is sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value.

(2) "Sexual activity" includes, but is not limited to, sexual intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal contact, whether between persons of the same or opposite sex; masturbation; touching of the genitals, buttocks, or female breasts; sadistic or masochistic abuse and other deviate sexual relations.

(3) "House of prostitution" is any place where prostitution or promotion of prostitution is regularly carried on by one person under the control, management or supervision of another.

(4) "Promoting prostitution" is:

(a) Owning, controlling, managing, supervising or otherwise keeping, alone or in association with another, a house of prostitution or a prostitution business;

(b) Procuring an inmate for a house of prostitution or place in a house of prostitution for one who would be an inmate;

(d) Soliciting a person to patronize a prostitute;

(e) Procuring a prostitute for a patron;

(f) Transporting a person into or within this State with purpose to promote that person's engaging in prostitution, or procuring or paying for transportation with that purpose; or

(g) Knowingly leasing or otherwise permitting a place controlled by the actor, alone or in association with others, to be regularly used for prostitution or promotion of prostitution, or failure to make a reasonable effort to abate such use by ejecting the tenant, notifying law enforcement authorities, or other legally available means.

b. A person commits an offense if:

(1) The actor engages in prostitution;

(2) The actor promotes prostitution;

(3) The actor knowingly promotes prostitution of a child under 18 whether or not the actor mistakenly believed that the child was 18 years of age or older, even if such mistaken belief was reasonable;

(4) The actor knowingly promotes prostitution of the actor's child, ward, or any other person for whose care the actor is responsible;

(5) The actor compels another to engage in or promote prostitution;

(6) The actor promotes prostitution of the actor's spouse; or

(7) The actor knowingly engages in prostitution with a person under the age of 18, or if the actor enters into or remains in a house of prostitution for the purpose of engaging in sexual activity with a child under the age of 18, or if the actor solicits or requests a child under the age of 18 to engage in sexual activity. It shall be no defense to a prosecution under this paragraph that the actor mistakenly believed that the child was 18 years of age or older, even if such mistaken belief was reasonable.

c. Grading of offenses under subsection b.

(1) An offense under subsection b. constitutes a crime of the second degree if the offense falls within paragraph (3) or (4) of that subsection.

(2) An offense under subsection b. constitutes a crime of the third degree if the offense falls within paragraph (5), (6) or (7) of that subsection.

(3) An offense under paragraph (2) of subsection b. constitutes a crime of the third degree if the conduct falls within subparagraph (a), (b), or (c) of paragraph (4) of subsection a. Otherwise the offense is a crime of the fourth degree.

(4) An offense under subsection b. constitutes a disorderly persons offense if the offense falls within paragraph (1) of that subsection except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree. In addition, where a motor vehicle was used in the commission of any offense under paragraph (1) of subsection b. the court shall suspend for six months the driving privilege of any such offender who has a valid driver's license issued by this State. Upon conviction, the court shall immediately collect the offender's driver's license and shall forward it, along with a report stating the first and last day of the suspension imposed pursuant to this paragraph, to the New Jersey Motor Vehicle Commission.

d. Presumptions.

(1) Presumption from living off prostitutes. A person, other than the prostitute or the prostitute's minor child or other legal dependent incapable of self-support, who is supported in whole or substantial part by the proceeds of prostitution is presumed to be knowingly promoting prostitution.

(2) Presumption that the defendant was coerced. If the defendant was under the age of 18 during the time of the alleged commission of the offense, there shall be a presumption that the defendant was coerced into committing the offense.

e. It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8).

(cf: P.L. 2005, c.77, s.2)

9. (New section) The Attorney General shall, in consultation with the Commissioner of the Department of Health and Senior Services, the Commissioner of Children and Families, the Superintendent of State Police and representatives of providers of services to victims of human trafficking and sexually exploited minors, coordinate the establishment of standard protocols for the provision of information and services to victims of human trafficking and to minors under the age of 18 who are charged with prostitution, including coordination of efforts with the appropriate federal authorities pursuant to the "Trafficking Victims Protection Reauthorization Act of 2003," 22 U.S.C. s.7101 et seq. and shall make such protocols available upon request.

10. This act shall take effect immediately and shall be applicable to all offenses committed on or after the effective date.

STATEMENT

Under the current statutory scheme reasonable efforts are made to provide appropriate placement for juveniles taken into custody or waiting disposition of the matter. Unfortunately, some gaps exist in the present system concerning juveniles who are charged with prostitution or who are victims of human trafficking. These sexually exploited and severely trafficked children should be directed towards placement in a residential facility or shelter instead of detention. It is the sponsor’s intent to address these gaps in the current law by amending the current law to insure that these sexually exploited and severely trafficked children are treated as victims and are provided with appropriate services, including shelter, care, counseling and crisis intervention services. In this regard, this bill would amend various sections of the current law to insure services are provided to these individuals. This bill would also amend the prostitution and human trafficking laws to create a presumption of coercion under certain circumstances.

Juvenile Code:

The bill amends N.J.S.A.2A:4A-21, the purpose section of the juvenile code, to insure that protection and insuring a safe environment for sexually exploited juveniles charged with prostitution or who are victims of human trafficking should be one of the underlying purposes of the juvenile code.

N.J.S.A.2A:4A-31 currently provides that a juvenile may be taken into custody pursuant to a court order or a warrant or for delinquency by a law enforcement officer, when no process has been issued by the court. This bill amends this section to clarify that a juvenile may also be taken into custody when a juvenile is charged with prostitution or a juvenile is a victim of human trafficking.

In addition, the bill amends N.J.S.A.2A:4A-32 to clarify that if a juvenile is charged with prostitution or is a victim of human trafficking and that juvenile is taken into short term custody then that juvenile should be retained in a suitable residential facility. The bill also amends N.J.S.2A:4A-34 to clarify that placement in a residential facility should be considered as an alternative by the judge or court intake officer in addition to the current alternatives such as temporary placement in a shelter or other non-secure placement.

To insure that all reasonable efforts are made in providing appropriate services, the bill amends N.J.S.A.2A:4A-42 concerning predisposition evaluations. Currently, before making a disposition, the court may refer a juvenile to an appropriate agency or institution for an examination and evaluation. The court may consult with any agency, including the Department of Children and Families, law enforcement authorities, family members or other interested parties. In so doing, the court may convene a predisposition conference to discuss and recommend disposition of the matter. The predisposition report can include information concerning the impact of the crime on the victim and the community as well as the circumstances surrounding the commission of the offense. This bill amends this section to provide that if the juvenile is charged with prostitution or is a victim of human trafficking the report would also include an analysis of whether the juvenile was coerced into committing the offense.

The bill also amends N.J.S.A.2A:4A-71 concerning court intake services. At present, this section provides that if the complaint alleges a crime which, if committed by an adult, would be a crime of the first, second, third or fourth degree, or alleges a repetitive disorderly persons offense or any disorderly persons offense defined in chapter 35 or chapter 36 of Title 2C, the complaint must be referred for court action, unless the prosecutor otherwise consents to diversion. This bill would amend this section to provide an exception to this general rule. Under the bill, a complaint can also be referred to diversion if the juvenile is charged with the offense of prostitution or is a victim of human trafficking.

Human Trafficking:

This bill also amends N.J.S.A.2C:13-8, human trafficking, to create a presumption of coercion. Under the bill, if the defendant was under the age of 18 during the time of the alleged commission of the offense, there would be a presumption that the defendant was a severely trafficked person who was coerced into committing the offense.

Prostitution:

This bill amends N.J.S.A.2C:34-1, prostitution, to create a similar presumption and make this section consistent to human trafficking. Currently, this section provides for the presumption that a person, other than the prostitute or the prostitute’s minor child or other legal dependent incapable of self support, who is supported in whole or substantial part by the proceeds of prostitution is presumed to be knowingly promoting prostitution. This bill would create a second presumption that if the defendant was under the age of 18 during the commission of the offense, there shall be a presumption that the defendant was coerced into committing the offense.

Standard of Protocols:

In addition, the bill requires the Attorney General to establish standard protocols for the provision of information and services to victims of human trafficking and to minors under the age of 18 who are charged with prostitution, including coordination of efforts with the appropriate federal authorities and to make such protocols available upon request. The Attorney General would establish these protocols in consultation with the Commissioner of the Department of Health and Senior Services, the Commissioner of Children and Families, the Superintendent of State Police and representatives of providers of services to victims of human trafficking and sexually exploited minors.