OLR Bill Analysis

HB 5030

AN ACT CONCERNING THE FORFEITURE OF MONEY AND PROPERTY RELATED TO CHILD SEXUAL EXPLOITATION AND HUMAN TRAFFICKING AND THE POSSESSION OF CHILD PORNOGRAPHY.

SUMMARY:

This bill 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 bill also requires police basic training and review training programs to include a course on sexual assault investigations. They must already teach courses on rape crisis intervention.

EFFECTIVE DATE: October 1, 2010

FORFEITURE

Under the bill, the crimes that trigger the taking 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 statutory violations; and

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

Procedure

Under the bill, 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 bill, 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.

Inadmissibility of Evidence

The bill 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 bill, 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 possessing child pornography by knowingly possessing 50 or more visual depictions of child pornography. The bill also makes it 1st degree possession of child pornography to knowingly possess one or more visual depictions of child pornography that depict the infliction or threatened infliction of serious physical injury.

First-degree possessing child pornography is a class B felony, punishable by imprisonment for up to 20 years, a fine of up to $ 15,000, or both. The crime carries a five-year mandatory minimum sentence.

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.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable

Yea

40

Nay

0

(03/29/2010)