PA 10-112—HB 5030

Judiciary Committee

Public Safety and Security Committee

AN ACT CONCERNING THE FORFEITURE OF MONEY AND PROPERTY RELATED TO CHILD SEXUAL EXPLOITATION AND HUMAN TRAFFICKING, THE POSSESSION OF CHILD PORNOGRAPHY AND THE SITING OF RESIDENTIAL SEXUAL OFFENDER TREATMENT FACILITIES

SUMMARY: This act establishes a civil forfeiture procedure to seize tainted funds and property (i. e. , money and property used or obtained from crimes involving sexual offenses). It also expands what constitutes 1st degree possessing child pornography. The act also requires police basic training and review training programs to include a course on sexual assault investigations. They already must teach courses on rape crisis intervention.

The law requires both the Department of Correction (DOC) and Judicial Branch's Court Support Services Division (CSSD) to each contract for 12 staff-secure beds for sex offenders returning to the community. The act requires (1) people and entities responding to requests for proposals to identify and provide descriptions of at least five proposed sites and (2) DOC and CSSD to establish proposal evaluation criteria.

EFFECTIVE DATE: October 1, 2010, except the siting provision is effective on passage

CIVIL FORFEITURE

Under the act, the crimes that trigger forfeiture of tainted funds and property are:

1. that portion of the risk of injury to a minor statute involving sale of a child under age 16;

2. 1st or 2nd degree promoting prostitution;

3. enticing a minor using an interactive computer;

4. voyeurism, disseminating voyeuristic material, and employing or promoting a minor in an obscene performance;

5. human trafficking; and

6. importing child pornography.

The funds and property subject to forfeiture are:

1. all money used or intended for use in violation of the laws listed above;

2. all property constituting the proceeds obtained, directly or indirectly, from a violation of those laws;

3. all property derived from the proceeds obtained, directly or indirectly, from any sale or exchange for pecuniary gain from those criminal violations; and

4. all property used or intended for use, in any manner or part, to commit or facilitate the violation of those laws for pecuniary gain.

Procedure

Under the act, the chief or deputy chief state's attorney, state's attorney, or assistant or deputy state's attorney can file a petition for forfeiture. This must occur no later than 90 days after the money or property was seized.

The court must identify the money or property owner and anyone else who appears to have an interest in it and must order the state to give them notice by certified or registered mail. The crime victim is also entitled to receive notice in the same manner. Under the act, the court must promptly hold a hearing at least two weeks after sending notice, and the state must prove its case by clear and convincing evidence. (If it were prosecuting a defendant for one of the listed sex offenses, the state would have to prove its case under the tougher “beyond a reasonable doubt” standard. )

Inadmissibility of Evidence

The act specifies that testimony and evidence the owner or other interested party produces or that is discovered at the hearing cannot be used against them in any proceeding, but that they are subject to prosecution for perjury or contempt committed while testifying or producing evidence. The court must hear evidence at the hearing and make findings of fact and conclusions of law. It must issue a final decree.

Under the act, no money or property can be forfeited:

1. to the extent of the interest of an owner or lien holder if he or she did not know and could not have reasonably known that such money or property was being used or was intended to be used in, or was derived from, another person's criminal activity or

2. if the owner used or intends to use the property or money to pay legitimate attorney's fees for his or her defense in a criminal prosecution.

The commissioner of administrative services, or a designee, must sell forfeited property at public auction. The sale proceeds and any forfeited money must be applied to pay (1) the balance due on any lien the court preserved; (2) any costs incurred for the storage, maintenance, security, and forfeiture of the property; or (3) court costs. Any remainder goes into the General Fund.

FIRST-DEGREE POSSESSING CHILD PORNOGRAPHY

Currently, a person commits the crime of 1st degree possessing child pornography by knowingly possessing 50 or more visual depictions of child pornography. The act also makes it 1st degree possession to knowingly possess one or more visual depictions of child pornography that depicts the infliction or threatened infliction of serious physical injury to that child.

First-degree possessing child pornography is a class B felony (see Table on Penalties). The crime carries a five-year mandatory minimum sentence.

SITING RESIDENTIAL SEX OFFENDER FACILITIES

Under the act, before DOC or CSSD can consider responses to its requests for proposals for housing sex offenders in the community, the respondents must have identified at least five proposed sites from around the state and described their physical locations, including:

1. local and state roads;

2. the nature, function, and number of properties within one mile of the proposed site, including the number of properties serving commercial, industrial, agricultural, recreational, religious, or residential uses;

3. the number of schools;

4. day care facilities;

5. properties with liquor licenses;

6. senior centers;

7. casinos; and

8. the facility's proximity to transportation facilities and employment, educational, housing, and counseling opportunities.

DOC and CSSD must establish site evaluation criteria, including the proposed site's distance from:

1. town parks;

2. recreational facilities;

3. public or private K-12 schools;

4. commercial, industrial, or residential property;

5. establishments licensed to sell liquor;

6. property used for religious purposes,

7. licensed child care family and group homes and facilities;

8. youth service facilities and senior centers;

9. casinos; and

10. local and state roads.

BACKGROUND

Child Pornography

Child pornography means any visual depiction, including any photograph, film, videotape, picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a person under age 16 engaging in sexually explicit conduct, provided whether the subject of a visual depiction was a person under age 16 is a question to be decided by the trier of fact.

OLR Tracking: SP: JR: PF: DF