HR 4323 — Trafficking Survivors Relief Act

changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

 TITLE 18, UNITED STATES CODE

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PART I--CRIMES

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 CHAPTER 1--GENERAL PROVISIONS

Sec.
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28. Human trafficking defense.

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Sec. 28. Human trafficking defense

 (a) Definitions.--In this section--
 (1) the term ``covered Federal offense'' means a 
 level A offense or level B offense, as those terms are 
 defined in section 3771A; and
 (2) the term ``victim of trafficking'' has the 
 meaning given the term in section 103 of the 
 Trafficking Victims Protection Act of 2000 (22 U.S.C. 
 7102).
 (b) Duress.--In a prosecution for a covered Federal offense, 
a defendant may establish duress by demonstrating that the 
defendant was a victim of trafficking at the time at which the 
defendant committed the offense.
 (c) Record or Proceeding Under Seal.--In any proceeding in 
which a defense under subsection (b) is raised, any record or 
part of the proceeding related to the defense shall, on motion, 
be placed under seal until such time as a conviction is entered 
for the offense.
 (d) Post-conviction Relief.--A failure to assert, or failed 
assertion of, a defense under subsection (b) by an individual 
who is convicted of a covered Federal offense may not preclude 
the individual from asserting as a mitigating factor, at 
sentencing or in a proceeding for any post-conviction relief, 
that at the time of the commission of the offense, the 
defendant was a victim of trafficking and committed the offense 
under duress.
 (e) Federal Aid.--A failure to assert, or failed assertion 
of, a defense under subsection (b) by an individual who is 
convicted of a covered Federal offense may not be used for the 
purpose of disqualifying the individual from participating in 
any federally funded program that aids victims of trafficking.

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PART II--CRIMINAL PROCEDURE

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 CHAPTER 237--CRIME VICTIMS' RIGHTS

Sec.
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3771A. Motion to vacate; expungement; mitigating factors.

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Sec. 3771A. Motion to vacate; expungement; mitigating factors

 (a) Definitions.--In this section--
 (1) the term ``child'' means an individual who has 
 not attained 18 years of age;
 (2) the term ``covered prisoner'' means an individual 
 who--
 (A) was convicted of a level A offense or 
 level B offense;
 (B) was sentenced to a term of imprisonment 
 for the offense described in subparagraph (A); 
 and
 (C) is, or was previously, imprisoned or 
 incarcerated under such sentence for a term of 
 imprisonment;
 (3) the terms ``employee'' and ``officer'' have the 
 meanings given the terms in section 2105 of title 5;
 (4) the term ``Federal offense'' means an offense 
 that is punishable under Federal law;
 (5) the term ``level A offense'' means a Federal 
 offense that is not a violent crime;
 (6) the term ``level B offense''--
 (A) means a Federal offense that is a violent 
 crime; and
 (B) does not include a Federal offense that 
 is a violent crime of which a child was a 
 victim;
 (7) the term ``victim of trafficking'' has the 
 meaning given that term in section 103 of the 
 Trafficking Victims Protection Act of 2000 (22 U.S.C. 
 7102); and
 (8) the term ``violent crime'' has the meaning given 
 the term ``crime of violence'' in section 16(a) of this 
 title.
 (b) Motions to Vacate Convictions or Expunge Arrests.--
 (1) In general.--
 (A) Convictions of level a offenses.--A 
 person convicted of any level A offense (or an 
 attorney representing such a person) may move 
 the court that imposed the sentence for the 
 level A offense to vacate the judgment of 
 conviction if the level A offense was committed 
 as a direct result of the person having been a 
 victim of trafficking.
 (B) Arrests for level a offenses.--A person 
 arrested for any level A offense (or an 
 attorney representing such a person) may move 
 the district court of the United States for the 
 district and division embracing the place where 
 the person was arrested to expunge all records 
 of the arrest if the conduct or alleged conduct 
 of the person that resulted in the arrest was 
 directly related to the person having been a 
 victim of trafficking.
 (C) Arrests for level b offenses.--A person 
 arrested for any level B offense (or an 
 attorney representing such a person) may move 
 the district court of the United States for the 
 district and division embracing the place where 
 the person was arrested to expunge all records 
 of the arrest if--
 (i) the conduct or alleged conduct of 
 the movant that resulted in the arrest 
 was directly related to the movant 
 having been a victim of trafficking; 
 and
 (ii)(I) the movant was acquitted of 
 the level B offense;
 (II) the Government did not pursue, 
 or the Government moved to dismiss, 
 criminal charges against the movant for 
 the level B offense; or
 (III)(aa) the charges against the 
 movant for the level B offense were 
 reduced to an offense that is a level A 
 offense; and
 (bb) the movant was acquitted of the 
 level A offense, the Government did not 
 pursue, or the Government moved to 
 dismiss, criminal charges against the 
 movant for the level A offense, or any 
 subsequent conviction of the level A 
 offense was vacated.
 (2) Contents of motion.--A motion described in 
 paragraph (1) shall--
 (A) be in writing;
 (B) describe any supporting evidence;
 (C) state the offense; and
 (D) include copies of any documents showing 
 that the movant is entitled to relief under 
 this section.
 (3) Hearing.--
 (A) Mandatory hearing.--
 (i) Motion in opposition.--Not later 
 than 30 days after the date on which a 
 motion is filed under paragraph (1), 
 the Government may file a motion in 
 opposition of the motion filed under 
 paragraph (1).
 (ii) Mandatory hearing.--If the 
 Government files a motion described in 
 clause (i), not later than 15 days 
 after the date on which the motion is 
 filed, the court shall hold a hearing 
 on the motion.
 (B) Discretionary hearing.--If the Government 
 does not file a motion described in 
 subparagraph (A)(i), the court may hold a 
 hearing on the motion not later than 45 days 
 after the date on which a motion is filed under 
 paragraph (1).
 (4) Factors.--
 (A) Vacating convictions of level a 
 offenses.--The court may grant a motion under 
 paragraph (1)(A) if, after notice to the 
 Government and an opportunity to be heard, the 
 court finds, by a preponderance of the 
 evidence, that--
 (i) the movant was convicted of a 
 level A offense; and
 (ii) the participation in the level A 
 offense by the movant was a direct 
 result of the movant having been a 
 victim of trafficking.
 (B) Expunging arrests for level a offenses.--
 The court may grant a motion under paragraph 
 (1)(B) if, after notice to the Government and 
 an opportunity to be heard, the court finds, by 
 a preponderance of the evidence, that--
 (i) the movant was arrested for a 
 level A offense; and
 (ii) the conduct or alleged conduct 
 that resulted in the arrest was 
 directly related to the movant having 
 been a victim of trafficking.
 (C) Expunging arrests for level b offenses.--
 The court may grant a motion under paragraph 
 (1)(C) if, after notice to the Government and 
 an opportunity to be heard, the court finds, by 
 a preponderance of the evidence, that--
 (i) the movant was arrested for a 
 level B offense and the conduct or 
 alleged conduct that resulted in the 
 arrest was directly related to the 
 movant having been a victim of 
 trafficking; and
 (ii)(I) the movant was acquitted of 
 the level B offense;
 (II) the Government did not pursue, 
 or the Government moved to dismiss, 
 criminal charges against the movant for 
 the level B offense; or
 (III)(aa) the charges against the 
 movant for the level B offense were 
 reduced to a level A offense; and
 (bb) the movant was acquitted of the 
 level A offense, the Government did not 
 pursue, or the Government moved to 
 dismiss, criminal charges against the 
 movant for the level A offense, or any 
 subsequent conviction of that level A 
 offense was vacated.
 (5) Supporting evidence.--
 (A) In general.--For purposes of this 
 section, in determining whether the movant is a 
 victim of trafficking, the court--
 (i) shall consider an affidavit or 
 sworn testimony of an anti-human 
 trafficking service provider or 
 clinician; and
 (ii) may consider any supporting 
 evidence the court determines is of 
 sufficient credibility and probative 
 value, including sworn testimony from a 
 law enforcement officer detailing the 
 role of the movant in coercing other 
 victims of trafficking into committing 
 criminal offenses.
 (B) Affidavit or sworn testimony sufficient 
 evidence.--The affidavit or sworn testimony 
 described in subparagraph (A)(i) shall be 
 sufficient evidence to vacate a conviction or 
 expunge an arrest under this section if the 
 court determines that--
 (i) the affidavit or sworn testimony 
 is credible; and
 (ii) no other evidence is readily 
 available.
 (6) Conviction or arrest of other persons not 
 required.--It shall not be necessary that any person 
 other than the movant be convicted of or arrested for 
 an offense before the movant may file a motion under 
 paragraph (1).
 (7) Denial of motion.--
 (A) Finality.--If the court denies a motion 
 filed under paragraph (1), the denial shall be 
 final, except as provided under subparagraph 
 (C) of this paragraph and subject to the 
 discovery of any new and compelling evidence or 
 information.
 (B) Reasons for denial.--If the court denies 
 a motion filed under paragraph (1), the court 
 shall state the reasons for the denial in 
 writing.
 (C) Reasonable time to cure deficiencies in 
 motion.--If the court denies a motion filed 
 under paragraph (1) due to a curable deficiency 
 in the motion, the court shall allow the movant 
 sufficient time to cure the deficiency.
 (8) Appeal.--An order granting or denying a motion 
 under this section may be appealed in accordance with 
 section 1291 of title 28.
 (c) Vacatur of Convictions.--
 (1) In general.--If the court grants a motion to 
 vacate a conviction of a level A offense under 
 subsection (b), the court shall immediately--
 (A) vacate the conviction for cause;
 (B) set aside the verdict and enter a 
 judgment of acquittal; and
 (C) enter an expungement order that directs 
 that there be expunged from all official 
 records all references to--
 (i) the arrest of the movant for the 
 level A offense;
 (ii) the institution of criminal 
 proceedings against the movant relating 
 to the level A offense; and
 (iii) the results of the proceedings.
 (2) Limitation.--Nothing in this subsection requires 
 a court to amend or remove any fine or restitution 
 order in a criminal or civil proceeding.
 (3) Effect.--If a conviction is vacated under an 
 order entered under paragraph (1), the conviction shall 
 not be regarded as a conviction under Federal law and 
 the movant for whom the conviction was vacated shall be 
 considered to have the status occupied by the movant 
 before the arrest or the institution of the criminal 
 proceedings related to such conviction.
 (d) Expungement of Arrests.--
 (1) In general.--If the court grants a motion to 
 expunge all records of an arrest for an offense under 
 subsection (b), the court shall immediately enter an 
 expungement order that directs that there be expunged 
 from all official records all references to--
 (A) the arrest of the movant for the offense;
 (B) the institution of any criminal 
 proceedings against the movant relating to the 
 offense; and
 (C) the results of the proceedings, if any.
 (2) Effect.--If an arrest is expunged under an order 
 entered under paragraph (1) the arrest shall not be 
 regarded as an arrest under Federal law and the movant 
 for whom the arrest is expunged shall be considered to 
 have the status occupied by the movant before the 
 arrest or the institution of the criminal proceedings 
 related to such arrest, if any.
 (e) Mitigating Factors.--
 (1) In general.--The court that imposed sentence for 
 a level A offense or level B offense upon a covered 
 prisoner may reduce the term of imprisonment for the 
 offense--
 (A) upon--
 (i) motion by the covered prisoner; 
 or
 (ii) the court's own motion;
 (B) after notice to the Government;
 (C) after considering--
 (i) the factors set forth in section 
 3553(a);
 (ii) the nature and seriousness of 
 the danger to any person, if 
 applicable; and
 (iii) the community, or any crime 
 victims; and
 (D) if the court finds, by a preponderance of 
 the evidence, that the covered prisoner 
 committed the offense as a direct result of the 
 covered prisoner having been a victim of 
 trafficking.
 (2) Requirement.--Any proceeding under this 
 subsection shall be subject to section 3771.
 (3) Particularized inquiry.--For any motion under 
 paragraph (1), the Government shall conduct a 
 particularized inquiry of the facts and circumstances 
 of the original sentencing of the covered prisoner in 
 order to assess whether a reduction in sentence would 
 be consistent with this section.
 (f) Additional Actions by Court.--The court shall, upon 
granting a motion under this section, take any additional 
action necessary to grant the movant full relief.
 (g) No Fees.--A person may not be required to pay a filing 
fee, service charge, copay fee, processing fee, or any other 
charge for filing a motion under this section.
 (h) Confidentiality of Movant.--
 (1) In general.--A motion under this section and any 
 documents, pleadings, or orders relating to the motion 
 shall be filed under seal.
 (2) Information not available for public 
 inspection.--An officer or employee may not make 
 available for public inspection any report, paper, 
 picture, photograph, court file, or other document, in 
 the custody or possession of the officer or employee, 
 that identifies the movant.
 (i) Applicability.--This section shall apply to any 
conviction or arrest occurring before, on, or after the date of 
enactment of this section.

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 TRAFFICKING VICTIMS PROTECTION ACT OF 2000

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DIVISION A--TRAFFICKING VICTIMS PROTECTION ACT OF 2000

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SEC. 103. DEFINITIONS.

 In this division:
 (1) Abuse or threatened abuse of law or legal 
 process.--The term ``abuse or threatened abuse of the 
 legal process'' means the use or threatened use of a 
 law or legal process, whether administrative, civil, or 
 criminal, in any manner or for any purpose for which 
 the law was not designed, in order to exert pressure on 
 another person to cause that person to take some action 
 or refrain from taking some action.
 (2) Appropriate congressional committees.--The term 
 ``appropriate congressional committees'' means the 
 Committee on Foreign Relations and the Committee on the 
 Judiciary of the Senate and the Committee on Foreign 
 Affairs and the Committee on the Judiciary of the House 
 of Representatives.
 (3) Coercion.--The term ``coercion'' means--
 (A) threats of serious harm to or physical 
 restraint against any person;
 (B) any scheme, plan, or pattern intended to 
 cause a person to believe that failure to 
 perform an act would result in serious harm to 
 or physical restraint against any person; or
 (C) the abuse or threatened abuse of the 
 legal process.
 (4) Commercial sex act.--The term ``commercial sex 
 act'' means any sex act on account of which anything of 
 value is given to or received by any person.
 (5) Concrete actions.--The term ``concrete actions'' 
 means actions that demonstrate increased efforts by the 
 government of a country to meet the minimum standards 
 for the elimination of trafficking, including any of 
 the following:
 (A) Enforcement actions taken.
 (B) Investigations actively underway.
 (C) Prosecutions conducted.
 (D) Convictions attained.
 (E) Training provided.
 (F) Programs and partnerships actively 
 underway.
 (G) Efforts to prevent severe forms of 
 trafficking, including programs to reduce the 
 vulnerability of particularly vulnerable 
 populations, involving survivors of trafficking 
 in community engagement and policy making, 
 engagement with foreign migrants, ending 
 recruitment fees, and other such measures.
 (H) Victim services offered, including 
 immigration services and restitution.
 (I) The amount of money the government has 
 committed to the actions described in 
 subparagraphs (A) through (H).
 (6) Credible information.--The term ``credible 
 information'' includes all of the following:
 (A) Reports by the Department of State.
 (B) Reports of other Federal agencies, 
 including the Department of Labor's List of 
 Goods Produced by Child Labor or Forced Labor 
 and List of Products Produced by Forced Labor 
 or Indentured Child Labor.
 (C) Documentation provided by a foreign 
 country, including--
 (i) copies of relevant laws, 
 regulations, and policies adopted or 
 modified; and
 (ii) an official record of 
 enforcement actions taken, judicial 
 proceedings, training conducted, 
 consultations conducted, programs and 
 partnerships launched, and services 
 provided.
 (D) Materials developed by civil society 
 organizations.
 (E) Information from survivors of human 
 trafficking, vulnerable persons, and 
 whistleblowers.
 (F) All relevant media and academic reports 
 that, in light of reason and common sense, are 
 worthy of belief.
 (G) Information developed by multilateral 
 institutions.
 (H) An assessment of the impact of the 
 actions described in subparagraphs (A) through 
 (I) of paragraph (5) on the prevalence of human 
 trafficking in the country.
 (7) Debt bondage.--The term ``debt bondage'' means 
 the status or condition of a debtor arising from a 
 pledge by the debtor of his or her personal services or 
 of those of a person under his or her control as a 
 security for debt, if the value of those services as 
 reasonably assessed is not applied toward the 
 liquidation of the debt or the length and nature of 
 those services are not respectively limited and 
 defined.
 (8) Involuntary servitude.--The term ``involuntary 
 servitude'' includes a condition of servitude induced 
 by means of--
 (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; or
 (B) the abuse or threatened abuse of the 
 legal process.
 (9) Minimum standards for the elimination of 
 trafficking.--The term ``minimum standards for the 
 elimination of trafficking'' means the standards set 
 forth in section 108.
 (10) Nonhumanitarian, nontrade-related foreign 
 assistance.--The term ``nonhumanitarian, nontrade-
 related foreign assistance'' means--
 (A) any assistance under the Foreign 
 Assistance Act of 1961, other than--
 (i) assistance under chapter 4 of 
 part II of that Act in support of 
 programs of nongovernmental 
 organizations that is made available 
 for any program, project, or activity 
 eligible for assistance under chapter 1 
 of part I of that Act;
 (ii) assistance under chapter 8 of 
 part I of that Act;
 (iii) any other narcotics-related 
 assistance under part I of that Act or 
 under chapter 4 or 5 part II of that 
 Act, but any such assistance provided 
 under this clause shall be subject to 
 the prior notification procedures 
 applicable to reprogrammings pursuant 
 to section 634A of that Act;
 (iv) disaster relief assistance, 
 including any assistance under chapter 
 9 of part I of that Act;
 (v) antiterrorism assistance under 
 chapter 8 of part II of that Act;
 (vi) assistance for refugees;
 (vii) humanitarian and other 
 development assistance in support of 
 programs of nongovernmental 
 organizations under chapters 1 and 10 
 of that Act;
 (viii) programs under title IV of 
 chapter 2 of part I of that Act, 
 relating to the Overseas Private 
 Investment Corporation; and
 (ix) other programs involving trade-
 related or humanitarian assistance; and
 (B) sales, or financing on any terms, under 
 the Arms Export Control Act, other than sales 
 or financing provided for narcotics-related 
 purposes following notification in accordance 
 with the prior notification procedures 
 applicable to reprogrammings pursuant to 
 section 634A of the Foreign Assistance Act of 
 1961.
 (11) Severe forms of trafficking in persons.--The 
 term ``severe forms of trafficking in persons'' means--
 (A) sex trafficking in which a commercial sex 
 act is induced by force, fraud, or coercion, or 
 in which the person induced to perform such act 
 has not attained 18 years of age; or
 (B) the recruitment, harboring, 
 transportation, provision, or obtaining of a 
 person for labor or services, through the use 
 of force, fraud, or coercion for the purpose of 
 subjection to involuntary servitude, peonage, 
 debt bondage, or slavery.
 (12) Sex trafficking.--The term ``sex trafficking'' 
 means the recruitment, harboring, transportation, 
 provision, obtaining, patronizing, or soliciting of a 
 person for the purpose of a commercial sex act.
 (13) State.--The term ``State'' means each of the 
 several States of the United States, the District of 
 Columbia, the Commonwealth of Puerto Rico, the United 
 States Virgin Islands, Guam, American Samoa, the 
 Commonwealth of the Northern Mariana Islands, and 
 territories and possessions of the United States.
 (14) Task force.--The term ``Task Force'' means the 
 Interagency Task Force to Monitor and Combat 
 Trafficking established under section 105.
 (15) United states.--The term ``United States'' means 
 the fifty States of the United States, the District of 
 Columbia, the Commonwealth of Puerto Rico, the Virgin 
 Islands, American Samoa, Guam, the Commonwealth of the 
 Northern Mariana Islands, and the territories and 
 possessions of the United States.
 (16) Victim of a severe form of trafficking.--The 
 term ``victim of a severe form of trafficking'' means a 
 person subject to an act or practice described in 
 paragraph [(9)] (11).
 (17) Victim of trafficking.--The term ``victim of 
 trafficking'' means a person subjected to an act or 
 practice described in paragraph [(9) or (10)] (11) or 
 (12).
 (18) Grounds related to human trafficking.--The term 
 ``grounds related to human trafficking'' means grounds 
 related to the criteria for inadmissibility to the 
 United States described in subsection (a)(2)(H) of 
 section 212 of the Immigration and Nationality Act (8 
 U.S.C. 1182).

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