File No. 781

House of Representatives, April 21, 2009

The Committee on Judiciary reported through REP. LAWLOR of the 99th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.

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

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2009) (a) The following property shall be subject to forfeiture to the state pursuant to subsection (b) of this section:

(1) All moneys used, or intended for use, in a violation of subdivision (3) of subsection (a) of section 53-21 or section 53a-86, 53a-87, 53a-90a, 53a-189a, 53a-189b, 53a-192a, 53a-196a, 53a-196b or 53a-196c of the general statutes;

(2) All property constituting the proceeds obtained, directly or indirectly, from a violation of subdivision (3) of subsection (a) of section 53-21 or section 53a-86, 53a-87, 53a-90a, 53a-189a, 53a-189b, 53a-192a, 53a-196a, 53a-196b or 53a-196c of the general statutes;

(3) All property derived from the proceeds obtained, directly or indirectly, from any sale or exchange for pecuniary gain from a violation of subdivision (3) of subsection (a) of section 53-21 or section 53a-86, 53a-87, 53a-90a, 53a-189a, 53a-189b, 53a-192a, 53a-196a, 53a-196b or 53a-196c of the general statutes;

(4) All property used or intended for use, in any manner or part, to commit or facilitate the commission of a violation for pecuniary gain of subdivision (3) of subsection (a) of section 53-21 or section 53a-86, 53a-87, 53a-90a, 53a-189a, 53a-189b, 53a-192a, 53a-196a, 53a-196b or 53a-196c of the general statutes.

(b) Not later than ninety days after the seizure of moneys or property subject to forfeiture pursuant to subsection (a) of this section, in connection with a lawful criminal arrest or a lawful search, the Chief State's Attorney or a deputy chief state's attorney, state's attorney or assistant or deputy assistant state's attorney may petition the court in the nature of a proceeding in rem to order forfeiture of such moneys or property. Such proceeding shall be deemed a civil suit in equity in which the state shall have the burden of proving all material facts by clear and convincing evidence. The court shall identify the owner of such moneys or property and any other person as appears to have an interest therein, and order the state to give notice to such owner and any interested person, including any victim of the crime with respect to which such moneys or property were seized, by certified or registered mail. The court shall promptly, but not less than two weeks after such notice, hold a hearing on the petition. No testimony offered or evidence produced by such owner or interested person at such hearing and no evidence discovered as a result of or otherwise derived from such testimony or evidence may be used against such owner or interested person in any proceeding, except that no such owner or interested person shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. At such hearing, the court shall hear evidence and make findings of fact and enter conclusions of law and shall issue a final order from which the parties shall have such right of appeal as from a decree in equity.

(c) No moneys or property shall be forfeited under this section to the extent of the interest of an owner or lienholder by reason of any act or omission committed by another person if such owner or lienholder did not know and could not have reasonably known that such moneys or property was being used or was intended to be used in, or was derived from, criminal activity.

(d) Notwithstanding the provisions of subsection (a) of this section, no moneys or property used or intended to be used by the owner thereof to pay legitimate attorney's fees in connection with his or her defense in a criminal prosecution shall be subject to forfeiture under this section.

(e) Any property ordered forfeited pursuant to subsection (b) of this section shall be sold at public auction conducted by the Commissioner of Administrative Services or the commissioner's designee.

(f) The proceeds from any sale of property under subsection (e) of this section and any moneys forfeited under this section shall be applied: (1) To payment of the balance due on any lien preserved by the court in the forfeiture proceedings; (2) to payment of any costs incurred for the storage, maintenance, security and forfeiture of any such property; and (3) to payment of court costs. The balance, if any, shall be deposited in the child sexual exploitation and human trafficking assets forfeiture revolving account established under section 2 of this act.

Sec. 2. (NEW) (Effective October 1, 2009) (a) There is established an account of the General Fund to be known as the "child sexual exploitation and human trafficking assets forfeiture revolving account" for the purpose of providing funds for sexual assault treatment and education programs and for use in the detection, investigation, apprehension and prosecution of persons for the violation of the laws pertaining to the sexual assault, sexual exploitation or sexual abuse of children, trafficking in persons and the registration of sexual offenders.

(b) The account shall consist of the proceeds from the sale of property and moneys received and deposited pursuant to section 1 of this act.

(c) Moneys in such account shall be distributed as follows: (1) Seventy per cent shall be allocated to the Department of Public Safety and local police departments pursuant to subsection (d) of this section, fifteen per cent of which shall be used for purposes of sexual assault treatment and education programs and eighty-five per cent of which shall be used for the detection, investigation, apprehension and prosecution of persons for the violation of laws pertaining to the sexual assault, sexual exploitation or sexual abuse of children, trafficking in persons and the registration of sexual offenders and for the purposes of police training on sexual assault investigation and rape crisis intervention as required by section 7-294f of the general statutes, as amended by this act, (2) twenty per cent shall be allocated to the Department of Mental Health and Addiction Services for the assessment, treatment and management of persons with problem sexual behaviors and for educational programs concerning problem sexual behaviors, and (3) ten per cent shall be allocated to the Division of Criminal Justice for use in the prosecution of persons for the violation of laws pertaining to the sexual assault, sexual exploitation or sexual abuse of children, trafficking in persons and the registration of sexual offenders.

(d) Expenditures from the account allocated to the Department of Public Safety and local police departments shall be authorized by a panel composed of: (1) The Commissioner of Public Safety or the commissioner's designee, (2) the commander of the child abuse and neglect unit within the Division of State Police within the Department of Public Safety or the commander's designee, and (3) the president of the Connecticut Police Chiefs Association or the president's designee. The panel shall adopt procedures for the orderly authorization of expenditures, subject to the approval of the Comptroller. Such expenditures may be authorized only to the Department of Public Safety and to organized local police departments within this state. Such expenditures shall be held by the Department of Public Safety and the various organized local police departments in accounts or funds established for that purpose. In no event shall the expenditures be placed in a state or town general fund and in no event shall the expenditures be used for purposes other than those provided in subdivision (1) of subsection (c) of this section. The panel shall ensure the equitable allocation of expenditures to the Department of Public Safety or any local police department which participated directly in any of the acts which led to the seizure or forfeiture of the property so as to reflect generally the contribution of said department or such local police department in such acts. The panel shall authorize expenditures from the account for the reimbursement of any organized local police department which has used its own funds in the detection, investigation, apprehension and prosecution of persons for the violation of laws pertaining to the sexual assault, sexual exploitation or sexual abuse of children, trafficking in persons and the registration of sexual offenders and which makes application to the panel for reimbursement.

(e) Moneys remaining in the child sexual exploitation and human trafficking assets forfeiture revolving account at the end of a fiscal year shall not revert to the General Fund but shall remain in the revolving account to be used for the purposes set forth in this section.

Sec. 3. Section 7-294f of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):

Each police basic training program conducted or administered by the Division of State Police within the Department of Public Safety, the Police Officer Standards and Training Council established under section 7-294b or municipal police department in the state shall include a course on sexual assault investigation and rape crisis intervention and each review training program conducted by such agencies shall make provision for such a course.

Sec. 4. Section 53a-196d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):

(a) A person is guilty of possessing child pornography in the first degree when such person knowingly possesses (1) fifty or more visual depictions of child pornography, or (2) one or more visual depictions of child pornography that depict the infliction or threatened infliction of serious physical injury.

(b) Possessing child pornography in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact:

Explanation

The bill establishes a revolving asset seizure account for crimes of child sexual exploitation, human trafficking and the possession of child pornography. This new account would function like the existing drug asset forfeiture account, which generated $2.26 million in state revenue during FY 08. The number of convictions under the statutes included in the bill is approximately 2.4% of the number of convictions under statutes related to the drug asset forfeiture account. Any state revenue gain under the bill is therefore estimated to be 2.4% of $2.26 million, or $54,400 annually.

In accordance with the bill, the funds would be distributed to state agencies in the amounts indicated in the table above and use of these funds would be restricted to those purposes enumerated in the bill. A portion of the funds provided to the Department of Public Safety under the bill would be distributed to local police departments in accordance with the bill's procedures. Any overtime or other costs to the Division of Criminal Justice to bring civil actions under the bill would be covered by the revenue gain to that agency.

The bill expands training which the Department of Public Safety and the Police Officer Standards and Training Council must provide to include sexual assault investigation. It is anticipated that each respective agency would be able to incorporate such training into current basic training curriculums at no additional cost.

The Department of Administrative Services could process property forfeited under this bill through the normal course of its duties and at no additional cost.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation.

OLR Bill Analysis

sHB 6671

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 forfeiture procedures for (1) property used or intended to be used to commit or facilitate the commission of various crimes, (2) money used or intended to be used to commit these crimes, (3) the direct and indirect proceeds of the crimes, and (4) property derived from the proceeds.

To forfeit the property, the bill requires a civil court proceeding with notice and a hearing and that the state prove all material facts by clear and convincing evidence. An owner or someone with an interest in the property can offer evidence and the court can protect their interests under certain circumstances. The court's decision can be appealed. Any forfeited money or the proceeds from forfeited property sold at auction must be deposited into a child sexual exploitation and human trafficking assets forfeiture revolving account, which the bill establishes.

The bill makes a person guilty of first-degree possession of child pornography if he or she knowingly possesses one or more visual depictions of child pornography showing the infliction or threatened infliction of serious physical injury. This crime is a class B felony punishable by five to 20 years in prison, up to a $15,000 fine, or both. The crime carries a five-year mandatory minimum sentence.

Lastly, the bill requires police basic training programs to include a course on sexual assault investigations. The requirement applies to programs conducted or administered by the State Police, the Police Officer Standards and Training Council, and municipal police departments.

EFFECTIVE DATE: October 1, 2009

CRIMES FOR WHICH PROPERTY MAY BE FORFEITED

The crimes are:

1. risk of injury to children involving the permanent transfer or receipt of the legal or physical custody of a child under age 16 for payment,

2. first- and second-degree promoting prostitution,

3. enticing a minor,

4. voyeurism or disseminating voyeuristic material,

5. trafficking in persons,

6. employing or promoting a minor in an obscene performance, or

7. importing child pornography.

FORFEITURE PROCEEDING

The bill allows a prosecutor to petition the court to order forfeiture within 90 days of seizing money or property that is subject to forfeiture in connection with a lawful criminal arrest or search. The suit is an in rem proceeding (a proceeding against the property) that is a civil suit in equity. The bill establishes the following procedures:

1. the court must identify crime victims, property owners, and others that appear to have an interest in the property and the state must notify them by certified or registered mail;

2. the court must hold a hearing within two weeks after the notice unless it delays the hearing for good cause;

3. the state must prove all material facts by clear and convincing evidence;

4. the court must hear evidence, make factual findings, reach legal conclusions, and issue a final order; and

5. the parties can appeal the order as with a decree in equity.

The bill prohibits testimony or evidence offered by an owner or interested person at the hearing from being used against them in any other proceeding. This also applies to evidence discovered as a result of or derived from their testimony or evidence. However, these individuals may be prosecuted for perjury or contempt based on their testimony or production of evidence.

The bill prohibits an owner's or lienholder's interest from being forfeited due to someone else's act or omission if the owner or lienholder did not know and could not have reasonably known that the money or property was (1) being used in, (2) intended to be used in, or (3) derived from, criminal activity. It also protects from forfeiture money or property an owner used or intended to be used to pay the legitimate fees of a criminal defense attorney.

DISPOSITION OF FORFEITED PROPERTY

The bill requires the Department of Administrative Services commissioner or her designee to sell forfeited property at public auction. Forfeited money and the proceeds from any auction must be used to pay (1) the balance due on any lien the court preserved (although the bill also provides that certain lienholder interests cannot forfeit); (2) storage, maintenance, security, and forfeiture costs; and (3) court costs. Any balance must be deposited in the child sexual exploitation and human trafficking assets forfeiture revolving account which the bill creates as a separate, non-lapsing General Fund account.

CHILD SEXUAL EXPLOITATION AND HUMAN TRAFFICKING ASSETS FORFEITURE ACCOUNT

Account funds must be used to (1) pay for sexual assault treatment end education programs; (2) detect, investigate, catch, and prosecute violators of child sexual assault, sexual exploitation, or sexual abuse and trafficking in persons crimes; and (3) register sexual offenders.

The money in the account must be distributed as follows:

1. 70% to the Department of Public Safety and local police departments (15% of this amount must be used for sexual assault treatment and education programs and 85% to enforce sexual assault and exploitation and trafficking crimes, register sex offenders, and police training on sexual assault investigation and rape crisis intervention);

2. 20% to the Department of Mental Health and Addiction Services for assessing, treating, managing, and educating people with problem sexual behaviors; and

3. 10% to the Division of Criminal Justice for prosecuting people charged with child sexual assault, abuse, and exploitation crimes; trafficking in persons; and sex offender registration violations.

PANEL RESPONSIBLE FOR ALLOCATING FUNDS TO LAW ENFORCEMENT AGENCIES

The bill requires a panel to authorize expenditures from the fund allocated to the Department of Public Safety and local police departments. The panel is composed of the public safety commissioner, commander of the State Police's Child Abuse and Neglect Unit, and the president of the Connecticut Police Chiefs Association, or their designees.

The panel must adopt a procedure for distributing the funds, subject to the comptroller's approval. Recipients must place the funds in specially established accounts used only for the above-stated purposes. The bill explicitly prohibits the funds from being placed in the state's or a municipality's general fund.

The panel must ensure that the funds are equitably distributed to reflect the contributions each police department, including the Department of Public Safety, made in the property's seizure of forfeiture. It must authorize the reimbursement of local police departments that used their own funds to meet costs that are payable from the assets forfeiture revolving account when reimbursement is requested.

BACKGROUND

Related Law—Seizure of Property as Nuisance

The law provides similar procedures to those in the bill to allow the state to seize property believed to be possessed, controlled, designed, or intended for use or which is, has been, or may be used as a means of committing a crime. The property must have been seized as a result of a lawful search or arrest and the state must claim it as a nuisance. Under these forfeiture provisions, money or property is destroyed or given to a charitable or education institution or government agency or institution. Money or proceeds from auctioning property goes to the General Fund (CGS § 54-36a).

Related Bill

sHB 6339, also favorably reported by the Judiciary Committee, establishes forfeiture procedures for money and property illegally obtained by (1) someone in connection with the offer, sale, or purchase of securities or (2) investment advisors and people who solicit business on their behalf.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute