S3891

An Act concerning human trafficking committed through video game marketplaces, amending P.L.2005, c.77 and P.L.2013, c.51, and supplementing Title 2C of the New Jersey Statutes.

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

1. 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 causing or threatening to cause 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;

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

(f) by means of fraud, deceit, or misrepresentation against the person; or

(g) by facilitating access to a controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes; 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; or

(3) knowingly holds, recruits, lures, entices, harbors, transports, provides or obtains, by any means, a child under 18 years of age, to engage in sexual activity as defined in paragraph (2) of subsection a. of N.J.S.2C:34-1, whether or not the actor mistakenly believed that the child was 18 years of age or older, even if that mistaken belief was reasonable; or

(4) knowingly recruits, exploits, or facilitates the trafficking of a person through the use of the Internet, an Internet connected device, a mobile telephone network, a social media network, a gaming platform, a video game marketplace, or any other computer network.

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), [or] (3), or (4) of subsection a. of this section 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. Notwithstanding the provisions of N.J.S.2C:43-3, the sentence for a conviction for a crime of the first degree under this section shall include a fine in an amount [of not less than $25,000] between $100,000 and $500,000, which shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4) and forwarded to the Department of the Treasury to be deposited in the “Human Trafficking Survivor’s Assistance Fund” established by section 2 of P.L.2013, c.51 (C.52:17B-238).

e. In addition to any other disposition authorized by law, any person who violates the provisions of this section shall be ordered 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. As used in this section:

“Gaming platform” means an electronic delivery system used to launch or play an interactive game; broadcast, transmit, record, or view the playing of an interactive game; or otherwise allow a person to participate in the playing or viewing of an interactive game. Gaming platform includes systems using the Internet, an Internet connected device, proprietary computer network, or a mobile telephone network. Gaming platform also includes systems through which a person may engage in off-track wagering pursuant to the “Off-Track and Account Wagering Act,” P.L.2001, c.199 (C.5:5-127 et seq.); Internet gaming pursuant to P.L.2013, c.27 (C.5:12-95.17 et seq.); sports wagering pursuant to P.L.2018, c.33 (C.5:12A-10 et seq.); fantasy sports activities pursuant to section 2 of P.L.2017, c.231 (C.5:20-2); or any game regulated by the Legalized Games of Chance Control Commission.

“Video game marketplace” means a gaming platform, or any facility, including but not limited to, a physical commercial premises; trade exhibition, show, fair, or convention; Internet website or Internet connected device; proprietary computer network, or mobile telephone network, the primary business or purpose of which is to allow or facilitate the sale, offer for sale, purchase, rental, trading, collecting, advertising, marketing, promotion, distribution, downloading, archiving, programming, or discussion of interactive games or the features thereof, whether or not for any fee or remuneration.

(cf.: P.L.2013, c.51, s.3)

2. Section 5 of P.L.2013, c.51 (C.2C:13-9) is amended to read as follows:

5. a. A person commits a crime of the second degree if he:

(1) provides services, resources, or assistance with the knowledge that the services, resources, or assistance are intended to be used in furtherance of the commission of the crime of human trafficking in violation of section 1 of P.L.2005, c.77 (C.2C:13-8).

(a) For purposes of this paragraph, “services, resources, or assistance” shall include financial support, business services, lodging, transportation, the provision of false documentation or identification, equipment, facilities, or any other service or property with a pecuniary value that exceeds $200, or the provision of a forum including but not limited to a gaming platform or video game marketplace operating in violation of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), whether or not a person is compensated for the services, resources, or assistance, but shall not include humanitarian or charitable aid or services provided directly to a victim of human trafficking.

(b) For purposes of this paragraph, the requisite knowledge that services, resources, or assistance are intended to be used in furtherance of the commission of the crime of human trafficking may be inferred if the defendant was aware that a person to whom the defendant was providing services, resources, or assistance: (i) was subject to or subjected another to restrictions on the person’s freedom of movement, so that the person could not leave without accompaniment of another person or was otherwise subjected to obvious restrictions on mobility; or (ii) did not possess or have access to any means of communication, including but not limited to a cellular or other wireless telephone or other electronic communication device, and was not permitted or was otherwise unable to communicate with another person without supervision or permission; or

(2) procures or attempts to procure a person 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, whether for himself or another person, knowing that the person provided or to be provided was a victim of human trafficking, or under circumstances in which a reasonable person would conclude that there was a substantial likelihood that the person was a victim of human trafficking.

(a) For purposes of this paragraph, there shall be a rebuttable presumption that the defendant knew, and that a reasonable person would conclude there was a substantial likelihood, that a person was a victim of human trafficking if the person: (i) could not leave the premises where the person provided labor or services without accompaniment of another person or was otherwise subjected to significant restrictions on the person’s freedom of movement; or (ii) did not possess or have access to any means of communication, including but not limited to a cellular or other wireless telephone or other electronic communication device, and was not permitted or was otherwise unable to communicate with another person without supervision or permission.

(b) For the purposes of this paragraph, there shall be a rebuttable presumption that: (i) a person knew that a child under the age of 18 years of age procured to engage in sexual activity or for whom attempts were made to procure for that activity was a victim of human trafficking; and (ii) a reasonable person would conclude that there was a substantial likelihood that a child under the age of 18 years of age procured to engage in sexual activity or for whom attempts were made to procure for that activity was a victim of human trafficking.

b. (1) It is an affirmative defense to prosecution for a violation of this section that, during the time of the alleged commission of the crime, the defendant was a victim of human trafficking.

(2) There shall be a rebuttable presumption that a child under the age of 18 years of age charged with a violation of this section was a victim of human trafficking.

(3) It is an affirmative defense to prosecution for a violation of paragraph (1) of subsection a. of this section that, upon actual or constructive knowledge that services, resources, or assistance are being used, or are intended to be used, in furtherance of the crime of human trafficking, the provider of the services, resources, or assistance took prompt and affirmative action to: (a) report the human trafficking activity to law enforcement; and (b) prevent the future misuse of services, resources, or assistance in furtherance of human trafficking.

c. (1) Notwithstanding any provision of law to the contrary, a person convicted for a violation of this section shall be sentenced to a term of imprisonment, which shall include a period of parole ineligibility of one-third to one-half of the term of imprisonment imposed or three years, whichever is greater. Notwithstanding the provisions of N.J.S.2C:43-3, the sentence for a conviction under this section shall include a fine in an amount of not less than [$15,000] $50,000, which shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4) and forwarded to the Department of the Treasury to be deposited in the “Human Trafficking Survivor’s Assistance Fund” established by section 2 of P.L.2013, c.51 (C.52:17B-238).

(2) Additionally, upon a finding of guilt or entry of a guilty plea for a crime described under this section, the court shall direct any issuing State, county, or municipal governmental agency to revoke any license, permit, certificate, approval, registration, charter, or similar form of business or professional authorization required by law concerning the operation of that person’s business or profession, if that business or profession was used in the course of the crime.

d. Nothing in this section shall be construed to preclude, or limit in any way, the prosecution and conviction for any other offense, including prosecution and conviction pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8), human trafficking, N.J.S.2C:34-1, prostitution and related offenses, and N.J.S.2C:2-6, liability for another’s conduct.

(cf: P.L.2013, c.51, s.5)

3. Section 12 of P.L.2013, c.51 (C.2C:13-10) is amended to read as follows:

12. a. The Legislature finds and declares that:

(1) There reportedly are more than 12 million victims of human trafficking and it is estimated that this figure could actually be as high as 27 million;

(2) According to the National Center for Missing and Exploited Children, at least 100,000 human trafficking victims are American children who are an average age of 13 years old;

(3) Advertisements for selling the services of girls as escorts on Internet websites falsely claim that these girls are 18 years of age or older, when the girls actually are minors;

(4) The advertising of these escort services includes minors who are being sold for sex, which constitutes sex trafficking and commercial sexual abuse of minors;

(5) Responding to political and public outcry, the Internet website craigslist.com removed its escort section, but another website with an escort section, backpage.com, has to date refused to do so;

(6) The states of Washington and Connecticut recently enacted laws to require Internet websites, such as backpage.com, and the patrons who advertise on websites, to maintain documentation that they have proved the age of the escorts presented in the advertisements;

(7) The State of New Jersey criminalized human trafficking in 2005; and

(8) Sex trafficking of minors should be eliminated in conformity with federal laws prohibiting the sexual exploitation of children.

b. A person commits the offense of advertising commercial sexual abuse of a minor if:

(1) the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor; or

(2) the person knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor.

c. A person who commits the offense of advertising commercial sexual abuse of a minor as established in subsection b. of this section is guilty of a crime of the first degree. Notwithstanding the provisions of N.J.S.2C:43-3, the fine imposed for an offense under this section shall be a fine of [at least $25,000] between $100,000 and $500,000, which shall be collected as provided for the collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4) and forwarded to the Department of the Treasury to be deposited in the “Human Trafficking Survivor’s Assistance Fund” established by section 2 of P.L.2013, c.51 (C.52:17B-238).

d. Nothing in this section shall preclude an indictment and conviction for any other offense defined by the laws of this State.

e. For the purposes of this section:

“Advertisement for a commercial sex act” means any advertisement or offer in electronic or print media, including the Internet, or a gaming platform or video game marketplace as those terms are defined in section 1 of P.L.2005, c.77 (C.2C:13-8), which includes either an explicit or implicit offer for a commercial sex act to occur in this State.

“Commercial sex act” means any act of sexual contact or sexual penetration, as defined in N.J.S.2C:14-1, or any prohibited sexual act, as defined in N.J.S.2C:24-4, for which something of value is given or received by any person.

“Depiction” means any photograph or material containing a photograph or reproduction of a photograph.

“Minor” means a person who is under 18 years of age.

“Photograph” means a print, negative, slide, digital image, motion picture, or videotape, and includes anything tangible or intangible produced by photographing.

f. It shall not be a defense to a violation of this section that the defendant:

(1) did not know the age of the minor depicted in the advertisement; or

(2) claims to know the age of the person depicted, unless there is appropriate proof of age obtained and produced in accordance with subsections g. and h. of this section.

g. It shall be a defense to a violation of this section that the defendant made a reasonable, bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, production of a driver’s license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written representations of the minor’s age, or the apparent age of the minor as depicted. The defendant shall prove the defense established in this subsection by a preponderance of the evidence.

h. The defendant shall maintain and, upon request, produce a record of the identification used to verify the age of the person depicted in the advertisement.

(cf: P.L.2013, c.51, s.12)

4. (New section) a. Any gaming platform or video game marketplace, as those terms are defined in section 1 of P.L.2005, c.77 (C.2C:13-8), that does business in, is based in, or operates from this State, or is otherwise accessible to residents in this State, shall:

(1) adopt a written policy to prevent the use of the gaming platform or video game marketplace in furtherance of the commission of the crime of human trafficking, which shall, at minimum:

(a) be publicly and conspicuously available;

(b) include procedures for moderating or reporting content that promotes human trafficking activity;

(c) include procedures for responding to suspected cases of human trafficking and the reporting of suspected cases to law enforcement agencies within 24 hours;

(d) include procedures for the preservation of evidence of suspected or reported human trafficking, in furtherance of a law enforcement investigation; and

(e) include procedures for providing users of the gaming platform or video game marketplace with information on how to contact the National Human Trafficking Hotline;

(2) annually review and update, as necessary, the policy required pursuant to paragraph (1) of this subsection, and send a copy of the policy annually to the Commission on Human Trafficking established pursuant to section 1 of P.L.2013, c.51 (C.52:17B-237); and

(3) take reasonable measures to ensure the effective implementation of the policy required pursuant to paragraph (1) of this subsection, and continuing compliance therewith, across the entirety of the gaming platform or video game marketplace.

b. The owner, operator, employee, or agent of any gaming platform or video game marketplace that does business in, is based in, or operates from this State, or is otherwise accessible to residents in this State, shall report suspected human trafficking activity to law enforcement within 24 hours of discovery of the suspected activity.

c. Any gaming platform or video game marketplace, or the owner, operator, employee, or agent thereof, who, in compliance with the requirements of subsection a. of this section, acts reasonably and in good faith to report human trafficking activity to law enforcement pursuant to subsection b. of this section, shall be immune from civil or criminal liability for so acting.

d. (1) Any gaming platform or video game marketplace which violates the provisions of this section shall be liable to a civil penalty of not more than $20,000 for each violation. The civil penalty shall be collected pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.), in a summary proceeding by the Division of Consumer Affairs in the Department of Law and Public Safety before the Superior Court.

(2) A gaming platform or video game marketplace found to have committed more than two violations of this section within any two-year period shall be deemed a public nuisance, and shall be subject to any applicable civil or criminal action under State law to abate a nuisance.

(3) An action under paragraph (1) of this subsection to enforce the provisions of this section shall be in addition to, and shall not preclude, any civil action which may be brought pursuant to section 4 of P.L.2013, c.51 (C.2C:13-8.1) or any enforcement action by a State agency that has issued a license, permit, certificate, or registration to the gaming platform or video game marketplace.

5. This act shall take effect on the first day of the third month next following enactment, except that the Attorney General may take such anticipatory action as may be necessary for the timely implementation of this act.

STATEMENT

This bill addresses the use of video game marketplaces to commit human trafficking and commercial sex abuse of children.

The bill establishes that knowingly using a video game marketplace to conduct or facilitate human trafficking is a crime of the first degree with a mandatory minimum. Similarly, knowingly using a video game marketplace to conduct or facilitate child abuse crimes is a crime of the first degree with the same sentencing structure. A crime of the first degree is ordinarily punishable by ten to 20 years of imprisonment, a fine of up to $200,000, or both. However, the bill imposes a fine of between $100,000 and $500,000.

The bill defines “video game marketplace” broadly to include posting listings, using communication systems, using transaction mechanisms, employing coded language, and any other use of the marketplace to facilitate these crimes. The definitions ensure that criminals cannot evade prosecution by disguising trafficking or abuse as legitimate video game commerce.

A second-degree offense is created for persons who own or operate video game marketplaces and knowingly permit or recklessly fail to prevent these crimes after receiving notice that the platform is being misused. This provision includes an affirmative defense for operators who take prompt action to address reported problems. A crime of the second degree is punishable by five to ten years of imprisonment, a fine of up to $150,000, or both.

The bill also requires video game companies to report suspected violations within 24 hours and preserve evidence, with civil penalties for non-compliance and immunity for good faith reporting. Continual non-compliance would result in the banning of said video game company’s e-commerce from being allowed within this State.

In response to emerging evidence that criminals are exploiting these platforms to victimize children and adults, this legislation provides law enforcement with powerful new tools to combat an emerging form of criminal exploitation while protecting victims and holding both individual criminals and negligent platform operators accountable. The enhanced penalties reflect the severity of exploiting platforms frequented by children and the difficulty of detecting and prosecuting these technologically facilitated crimes.