HB2553 - 521R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 13, chapter 38, article 19, Arizona Revised Statutes, is amended by adding section 13-4052, to read:

START_STATUTE13-4052. Vacating the conviction of a human trafficking victim; requirements; clerk of court; definitions

A. A person who is convicted of prostitution or any other nondangerous offense that was committed as a direct result of the person being a victim of human trafficking may apply to the judge, justice of the peace or magistrate who pronounced sentence or the judge, justice of the peace or magistrate's successor in office to vacate the person's conviction. The court shall grant the application and vacate the conviction if the court finds that the person's participation in the offense was a direct result of being a victim of human trafficking.

B. Except as provided in subsection C of this section, the application must identify the applicant, the applicant's offense of conviction and the court in which the conviction occurred. The applicant shall include in the application all of the available grounds and evidence in support of vacating the conviction.

C. To maintain the confidentiality of the applicant's status as a crime victim, the application may be filed identifying the applicant by initials in any publicly available filing or supporting documentation relating to the application. The applicant shall submit to the court under seal a statement under penalty of perjury confirming the applicant's identity and any other documentation or evidence supporting the application that contains the applicant's personal identifying information.

D. The application and all supporting documents and evidence, including the identity statement and documentation or evidence submitted under seal, shall be served on the prosecutorial agency that prosecuted the offense. The prosecutorial agency has thirty days to respond to the application.

E. If the prosecutor does not oppose the application, the court may grant the application and vacate the conviction without a hearing. If the application is opposed, the court shall hold a hearing on the application.

F. The court may consider any evidence that has sufficient credibility and probative value, including the sworn statement of the applicant. The applicant's statement alone is sufficient evidence to support vacating the conviction if the court finds that the statement is credible and no other evidence is readily available. Other evidence includes:

1. Certified records of a federal, state, tribal or local court or governmental agency that documents the applicant's status as a victim of human trafficking at the time of the offense, including certified records of approval notices or enforcement certifications generated from federal immigration proceedings.

2. For convictions for commercial sexual activities or other offenses that are based on sexual intercourse or oral sexual contact, evidence that the applicant was under eighteen years of age at the time of the offense.

3. A sworn statement from a trained professional staff member of a victim services organization, an attorney, a member of the clergy or a medical or other professional from whom the defendant has sought assistance in addressing the trauma associated with being trafficked.

G. Any evidence submitted to the court that is listed in subsection F, paragraphs 1 and 2 of this section creates a rebuttable presumption that the applicant's participation in the offense of conviction was a result of being a victim of human trafficking.

H. If the court finds that the applicant's participation in the offense of conviction was a direct result of being a victim of human trafficking, the court shall grant the application and vacate the conviction, strike the adjudication of guilt, expunge the record of the criminal proceedings relating to that conviction and order the applicant's name to be removed from all records and files related to the criminal proceedings resulting in the conviction, including those related to the arrest, citation, investigation, charge, probation and incarceration. The court may also take any additional action and grant any additional relief it deems appropriate under the circumstances.

I. On vacating the conviction:

1. The clerk of the court shall:

(a) Take all steps necessary or appropriate to expunge, redact, remove and eliminate all records of the criminal proceeding that gave rise to the vacated conviction so that those records are rendered permanently irretrievable.

(b) Transmit the order vacating the conviction to each public office or agency that the court has reason to believe may have an official record pertaining to the case, including applicable state and local law enforcement agencies that may hold criminal history information relating to the person who is the subject of the conviction. The public offices and state and local agencies shall immediately update their records to reflect the vacating of the conviction and shall transmit the order vacating the conviction to the federal bureau of investigation.

(c) With respect to the vacated conviction, respond to any inquiry concerning the applicant that no record of conviction exists.

2. The applicant is released from all penalties and disabilities resulting from the conviction.

J. If the court denies the application, the denial is without prejudice. The court shall state the reasons for its denial in writing and, if those reasons are based on curable deficiencies in the application, allow the applicant a reasonable time period to cure the deficiencies on which the court has based the denial.

K. All actions and proceedings by law enforcement personnel, courts or other government employees that led to the conviction shall be deemed not to have occurred. The fact that the applicant has been convicted of the offense may not be included in the applicant's criminal history for purposes of determining a sentence in any subsequent criminal proceeding.

L. A conviction that is vacated under this section may not be disseminated or disclosed by any public office or state or local law enforcement agency to any person, except other criminal justice enforcement agencies.

M. Except in an application for employment that requires a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1, a person whose conviction is vacated under this section or under any law of another jurisdiction permitting the vacatur or expungement of convictions resulting from being a victim of human trafficking:

1. May in all circumstances state that the person has never been arrested for, charged with or convicted of the crime that is the subject of the conviction, including in response to questions on employment, housing, financial aid or loan applications. The denial of rights or benefits to the person, including employment, housing, financial aid, welfare or a loan or other financial accommodation, must not be based on either the vacated conviction or the person's failure or refusal to disclose the existence of or information concerning it.

2. May not be charged with or convicted of perjury or otherwise giving a false statement for failing to disclose or acknowledge the existence of any vacated conviction or any arrest, charge, indictment, trial or other proceedings related to the vacated conviction.

N. For the purposes of this section:

1. "Coercion" has the same meaning prescribed in section 13‑1307.

2. "Commercial sexual activity" means sexual activity for which anything of value is given, promised or received.

3. "Debt bondage" means inducing an individual to provide either:

(a) Commercial sexual activity in payment toward or satisfaction of a real or purported debt.

(b) Labor or services in payment toward or satisfaction of a real or purported debt if either:

(i) The reasonable value of the labor or services is not applied toward the liquidation of the debt.

(ii) The length of the labor or services is not limited and the nature of the labor or services is not defined.

4. "Force" includes causing or threatening to cause serious harm to another person or physically restraining or threatening to physically restrain another person.

5. "Forced labor" means labor that is secured through coercion.

6. "Involuntary servitude" means a condition of servitude induced by means of either:

(a) Any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint.

(b) The abuse or threatened abuse of the legal process.

7. "Sexually explicit performance" means a live or public act or show intended to arouse or satisfy the sexual desires or appeal to the prurient interest of patrons.

8. "Victim of human trafficking" means a person who is enticed, recruited, transported, harbored, or obtained by way of deception, force or coercion for the purpose of causing the person to engage in prostitution, sexually explicit performance or other commercial sexual activities, forced labor, involuntary servitude or debt bondage. END_STATUTE

Sec. 2. Applicability

This act applies to a victim of human trafficking who was convicted either before or after the effective date of this act.