West Virginia Foundation for Rape Information and Services

West Virginia Human Trafficking Laws

 

The West Virginia laws that address human trafficking build upon and compliment federal human trafficking laws.

 

 

Human Trafficking—Criminal Laws

§61-14-1. Definitions.

When used in this article, the following words and terms shall have meaning specified unless the context clearly indicates a different meaning:

 

1. (1) “Adult” means an individual 18 years of age or older.
2. (2) “Coercion” means:
   1. (A) The use or threat of force against, abduction of, serious harm to or physical restraint of an individual;
   2. (B) The use of a plan, pattern or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, physical restraint of or deportation of an individual;
   3. (C) The abuse or threatened abuse of law or legal process;
   4. (D) The destruction or taking of, or the threatened destruction or taking of, an individual’s identification document or other property; or
   5. (E) The use of an individual’s physical or mental impairment when the impairment has a substantial adverse effect on the individual’s cognitive or volitional function.
   6. As used in this article, “coercion” does not include statements or actions made by a duly authorized state or federal law-enforcement officer as part of a lawful law enforcement investigation or undercover action.
3. (3) “Commercial sexual activity” means sexual activity for which anything of value is given to, promised to or received by a person.<
4. (4) “Debt bondage” means inducing an individual to provide:
   1. (A) Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or
   2. (B) Labor or services in payment toward or satisfaction of a real or purported debt if: (i) The reasonable value of the labor or services is not applied toward the liquidation of the debt; or (ii) The length of the labor or services is not limited, and the nature of the labor or services is not defined.
5. (5) “Forced labor” means labor or services that are performed or provided by another person and are obtained or maintained through the following:
   1. (A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern or other action intended to cause a person to believe that, if the person did not perform or provide the labor or services, that person or another person would suffer serious bodily harm, physical restraint or deportation;
   2. (B) Physically restraining or threatening to physically restrain a person;
   3. (C) Abuse or threatened abuse of the legal process; or
   4. (D) Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person: Provided, that “forced labor” does not mean labor or services required to be performed by a person in compliance with a court order or as a required condition of probation, parole, or imprisonment.
   5. As applied in this article, forced labor shall not include labor, work or services provided by a minor to the minor’s parent, legal custodian or legal guardian, so long as the legal guardianship or custody of the minor was not obtained for the purpose of compelling the minor to participate in commercial sex acts or sexually explicit performance, or perform forced labor or services; nor shall it include physical restraint of a minor, or the threat of physical restraint to a minor, by his or her parents, legal custodian or legal guardian if conducted in an otherwise lawful manner and for the purpose of discipline, supervision or teaching.
6. (6) “Human trafficking”, “trafficking”, or “traffics” means knowingly recruiting, transporting, transferring, harboring, receiving, providing, obtaining, isolating, maintaining or enticing an individual to engage in debt bondage, forced labor or sexual servitude.
7. (7) “Identification document” means a passport, driver’s license, immigration document, travel document or other government-issued identification document, including a document issued by a foreign government.
8. (8) “Labor or services” means activity having economic value.
9. (9) “Minor” means an individual less than 18 years of age.
10. (10) “Patronize” means giving, agreeing to give or offering to give anything of value to another person in exchange for commercial sexual activity.
11. (11) “Person” means an individual, estate, business or nonprofit entity, or other legal entity. The term does not include a public corporation or government or governmental subdivision, agency or instrumentality.
12. (12) “Serious harm” means harm, whether physical or nonphysical, including psychological, economic or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm.
13. (13) “Sexual activity” means sexual contact, sexual intercourse or sexual intrusion, as defined in section one, article 8-b of this chapter, or sexually explicit conduct, as defined in section 1, article 8-c of this chapter.
14. (14) “Sexual servitude” means:
    1. (A) Maintaining or making available a minor for the purpose of engaging the minor in commercial sexual activity; or
    2. (B) Using coercion to compel an adult to engage in commercial sexual activity.
15. (15) “Victim” means an individual who is subjected to human trafficking, regardless of whether a perpetrator is prosecuted or convicted.

 

 

§61-14-2. Human trafficking of an individual; penalties.

1. (a) Any person who knowingly and willfully traffics an adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, fined not more than $200,000, or both imprisoned and fined.
2. (b) Any person who knowingly and willfully traffics a minor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 5nor more than 20 years, fined not more than $300,000, or both imprisoned and fined.

 

 

 

§61-14-3. Use of forced labor; penalties.

1. (a) Any person who knowingly uses an adult in forced labor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 1nor more than 5 years, fined not more than $100,000, or both imprisoned and fined.
2. (b) Any person who knowingly uses a minor in forced labor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, fined not more than $300,000, or both imprisoned and fined.

 

§61-14-4. Use of persons in debt bondage; penalties.

1. (a) Any person who knowingly uses an adult in debt bondage is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $100,000, or both imprisoned and fined.
2. (b) Any person who knowingly uses a minor in debt bondage is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $300,000, or both imprisoned and fined.

 

 

§61-14-5. Sexual servitude; penalties.

1. (a) Any person who knowingly uses coercion to compel an adult to engage in commercial sexual activity is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, fined not more than $200,000, or both imprisoned and fined.
2. (b) Any person who knowingly maintains or makes available a minor for the purpose of engaging the minor in commercial sexual activity is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 10 nor more than 20 years, fined not more than $300,000, or both imprisoned and fined.
3. (c) It is not a defense in a prosecution under subsection b of this section that the minor consented to engage in commercial sexual activity, or that the defendant believed the minor was an adult.

 

 

§61-14-6. Patronizing a victim of sexual servitude; penalties.

1. (a) Any person who knowingly patronizes another in commercial sexual activity and who knows that such person patronized is a victim of sexual servitude, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $100,000, or both imprisoned and fined.
2. (b) Notwithstanding the provisions of subsection (a) of this section, any person who knowingly patronizes a minor to engage in commercial sexual activity and who knows or has reason to know that said minor is a victim of sexual servitude, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, fined not more than $300,000, or both imprisoned and fined.

 

 

§61-14-7. General provisions and other penalties.

1. (a) Separate violations. — For purposes of this article, each adult or minor victim constitutes a separate offense.
2. (b) Aggravating circumstance. —
   1. (1) Notwithstanding any provision of this code to the contrary, if an individual is convicted of an offense under this article and the trier of fact makes a finding that the offense involved an aggravating circumstance, the individual shall not be eligible for parole before serving 3 years in a state correctional facility.
   2. (2) For purposes of this subsection, “aggravating circumstance” means the individual recruited, enticed or obtained the victim of the offense from a shelter or facility that serves runaway youths, children in foster care, the homeless or victims of human trafficking, domestic violence or sexual assault.
3. (c) Restitution. —
   1. (1) The court shall order a person convicted of an offense under this article to pay restitution to the victim of the offense.
   2. (2) A judgment order for restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action in accordance with section four, article eleven-a of this chapter, including filing a lien against the person, firm or corporation against whom restitution is ordered.
   3. (3) The court shall order restitution under subdivision (1) of this subsection even if the victim is unavailable to accept payment of restitution.
   4. (4) If the victim does not claim restitution ordered under subdivision (1) of this subsection within five years of the entry of the order, the restitution shall be paid to the Crime Victims Compensation Fund created under section four, article two-a, chapter fourteen of this code.
4. (d) Eligibility for Compensation Fund.
   1. Notwithstanding the definition of victim in section three, article 2-a, chapter 14 of this code, a victim of any offense under this article is a victim for all purposes of article 2-a, chapter 14 of this code: Provided, that for purposes of subsection b, section 14, article 2-a, chapter 14 of this code, if otherwise qualified, a victim of any offense under this article may not be denied eligibility solely for the failure to report to law enforcement within the designated time frame.
5. (e) Law Enforcement Notification.
   1. Should a law-enforcement officer encounter a child who reasonably appears to be a victim of an offense under this article, the officer shall notify the Department of Health and Human Resources. If available, the Department of Health and Human Resources may notify the Domestic Violence Program serving the area where the child is found.
6. (f) Forfeiture; Debarment. –
   1. (1) The following are declared to be contraband and no person shall have a property interest in them:
      1. (A) All property which is directly or indirectly used or intended for use in any manner to facilitate a violation of this article; and
      2. (B) Any property constituting or derived from gross profits or other proceeds obtained from a violation of this article.
   2. (2) In any action under this section, the court may enter such restraining orders or take other appropriate action, including acceptance of performance bonds, in connection with any interest that is subject to forfeiture.
   3. (3) Forfeiture actions under this section shall use the procedure set forth in article 7, chapter 60-a of this code.
   4. (4) Any person or business entity convicted of a violation of this article shall be debarred from state or local government contracts.

 

 

§61-14-8. Immunity for minor victims of sex trafficking.

1. (a) In a prosecution or a juvenile prosecution for an offense of prostitution in violation of subsection b, section 5, article 8 of this chapter, a minor shall not be held criminally liable if the Court determines that the minor is a victim of an offense under this article: Provided, that subject to proof, a minor so charged shall be rebuttably presumed to be a victim under the provisions of this article.
2. (b) This section does not apply in a prosecution or a juvenile proceeding for any of the other offenses under subsection b, section 5, article 8 of this chapter, including specifically soliciting, inducing, enticing or procuring another to commit an act or offense of prostitution, unless it is determined by the court that the minor was coerced into the criminal behavior.
3. (c) A minor who, under subsection a or b of this section, is not subject to criminal liability or adjudication as a juvenile delinquent is presumed to be an abused child, as defined in section 201, article 1, chapter 49 of this code, and may be eligible for services under chapter 49 of this code including, but not limited to, appropriate child welfare services.

 

 

§61-14-9. Petition to vacate and expunge conviction of sex trafficking victims.

1. (a) Notwithstanding the age and criminal history limitations set forth in section 26, article 11 of this chapter, an individual convicted of prostitution in violation of subsection b, section 5, article 8 of this chapter as a direct result of being a victim of trafficking, may apply by petition to the circuit court in the county of conviction to vacate the conviction and expunge the record of conviction. The court may grant the petition upon a finding that the individual’s participation in the offense was a direct result of being a victim of trafficking.
2. (b) A victim of trafficking seeking relief under this section is not required to complete any type of rehabilitation in order to obtain expungement.
3. (c) A petition filed under subsection a of this section, any hearing conducted on the petition, and any relief granted are subject to the procedural requirements of section twenty-six, article eleven of this chapter: Provided, that the age or criminal history limitations in that section are inapplicable to victims of human trafficking.

 

 

Human Trafficking—Related Legislation

Note this legislation was passed during the 2018 Legislative Session.

§15-9A-4. Human Trafficking Assistance Notices.

1. (a) For the purpose of assisting victims of human trafficking to obtain help and services, the following businesses and establishments shall post a notice meeting the requirements of this section:
   1. (1) All locations licensed by the Alcohol Beverage Control Commission to allow consumption of alcoholic beverages, pursuant to chapter 60 of this code;
   2. (2) Exotic entertainment facilities, as defined by §60-4-23 of this code;
   3. (3) Primary airports;
   4. (4) Passenger rail stations;
   5. (5) Bus stations;
   6. (6) Locations where gasoline and diesel fuel are sold;
   7. (7) Emergency departments within hospitals;
   8. (8) Urgent care centers;
   9. (9) Locations at which farm labor contractors and day haulers work, if a physical facility is available at those locations upon or in which notice can be posted;
   10. (10) Privately operated job recruitment centers;
   11. (11) Rest areas located along interstate highways in this state, operated by the Division of Highways;
   12. (12) Hotels; and
   13. (13) Any other business or establishment that the director determines, by legislative rule, is an effective location to provide notice to victims of human trafficking.
2. (b) Requirements for posting of notice. - The notice required by this section must be posted in English, Spanish, and any other language determined by legislative rule by the director. The notice must be posted in each public restroom for the business or establishment, and either in a conspicuous place near the public entrance of the business or establishment or in another location in clear view of the public and employees, where similar notices are customarily posted.
3. (c) The director shall provide hyperlinks on the division’s website to downloadable posters that are eight and one-half inches by 11 inches in size that provide information regarding the National Human Trafficking Resource Center and display the telephone number for the National Human Trafficking Resource Center hotline. These downloadable posters must be available in English, Spanish, and any other language determined by legislative rule by the director. These downloadable posters, if printed and posted, will satisfy the posting requirements of this section.
4. (d) Any law-enforcement officer, representative of the state health department or of a county health department, representative of the State Alcoholic Beverage Control Commission, representative of the Division of Labor, or other state representative inspecting a business or establishment or otherwise lawfully acting under his or her state authority, may notify, in writing, any business or establishment that it has failed to comply with the requirements of this section. If the business or establishment does not correct the violation within 30 days from the date of receipt of such written notice, the owner shall be charged with a violation of this section and upon conviction, is guilty of a misdemeanor offense and may be punished by a fine of not more than $250. Upon a second or subsequent conviction, the owner is guilty of a misdemeanor and shall be punished by a fine of not more than $500. The notice required by this subsection must be delivered to the noncomplying business or establishment by certified mail, with return receipt requested.
5. (e) For the purposes of this section, and unless a different meaning is plainly required:
   1. (1) “Day hauler” means any person who is employed by a farm labor contractor to transport, or who, for a fee, transports, by motor vehicle, workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person; Provided, that such term shall not include a person engaged in the production of agricultural products;
   2. (2) “Farm labor contractor” means any person who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person, or who recruits, solicits, supplies, or hires workers on behalf of an employer engaged in the growing or producing of farm products, and who, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for those workers; supervises, times, checks, counts, weighs, or otherwise directs or measures their work; or disburses wage payments to such persons: Provided, that such term shall not include a person engaged in the production of agricultural products;
   3. (3) “Hospital” shall have the same meaning as set forth in §16-2D-2(21) of this code.
   4. (4) “Hotel” means any establishment which offers overnight accommodations to the public in exchange for a monetary payment;
   5. (5) “Primary airport” shall have the same meaning as set forth in 49 USC. §47102(16); and
   6. (6) “Production of agricultural products” means raising, growing, harvesting, or storing of crops; feeding, breeding, or managing livestock, equine, or poultry; producing or storing feed for use in the production of livestock.