GCA Title 9, Chapter 26
9 GCA CRIMES AND CORRECTIONS CH. 26 HUMAN TRAFFICKING AND CRIMINAL EXPLOITATION
CHAPTER 26 HUMAN TRAFFICKING AND CRIMINAL EXPLOITATION ACT OF 2009
SOURCE: Entire chapter added by P.L. 30-026:2 (June 16, 2009). Article 1. Prosecution. Article 2. Prevention of Trafficking.
- Article 3. Protection of Victims.
ARTICLE 1
PROSECUTION
- § 26.01. Definition.
- § 26.02. Criminal Provisions.
- § 26.03. Victim Immunity from Prosecution.
- § 26.04. Non-Defense to Trafficking in Persons.
- § 26.05. Criminal Liability of Business Entities.
- § 26.06. Restitution.
- § 26.07. Asset Forfeiture.
- § 26.08. Statute of Limitations.
- § 26.09. Sentencing Enhancements.
§ 26.01. Definitions.
(a) Commercial sex acts means any sex act on account of which anything of value is given, promised to, or received, or exchanged, directly or indirectly, by any person. (b) Debt coercion means exploitation of the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or those of a person under his or her control as a security or payment 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 or if the principal amount of the debt does not reasonably reflect the value of the items or services for which the debt was incurred. (c) Extortion is to be given its ordinary meaning as defined by existing Guam law.
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(d) Financial harm includes credit extortion as defined by existing Guam laws and/or relevant Federal legislation, criminal violation of the usury laws as defined by existing Guam and/or Federal legislation or legal precedents, or employment contracts that violate relevant Statutes of Frauds as defined by Guam and Federal regulations. (e) Labor means work of economic or financial value. (f) Minor refers to any natural person under 18 years of age. (g) Person includes an individual, corporation, partnership, association, a government body, a municipal corporation, or any other legal entity. (h) Services means any act committed at the behest of, under the supervision of, or for the benefit of another. (i) Sex act refers to criminal sexual conduct, including sexual penetration and sexual contact, as defined in Title 9 GCA Chapter 25, and any other crime as defined in Title 9 GCA Chapter 25A, Chapter 28, and Chapter 89. (j) Sexually-explicit performance means an act or show, intended to arouse, satisfy the sexual desires of, or appeal to the prurient interests of patrons or viewers, whether public or private, live, photographed, recorded, or videotaped. (k) Victim of trafficking in persons means any person, whether a U.S. citizen or foreign national, who has been subjected to the crime of trafficking in persons, involuntary servitude, sexual servitude of a minor, or transported in violation of trafficking of persons for forced labor or service as set forth herein. 2015 NOTE : Reference in subsection (i) to 9 GCA, Ch. 25.01 was altered to reflect the renumbering to 9 GCA, Ch. 25A.
§ 26.02. Criminal Provisions.
(a) Trafficking in Persons. Any person who knowingly: (1) recruits, entices, solicits, isolates, harbors, transports, provides, or obtains by any means or attempts to recruit, entice, solicit, isolate, harbor, transport, provide, or obtain by any means, another person, knowing that the
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person will be subjected to sexual servitude of a minor or involuntary servitude, or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in paragraph 1(a), commits a second degree felony. (b) Sexual Servitude of a Minor. Any person who knowingly: (1) recruits, entices, solicits, isolates, harbors, transports, provides, or obtains, by any means, or attempts to recruit, entice, solicit, isolate, harbor, transport, provide, or obtain by any means, any minor for the purpose of commercial sex acts or sexually explicit performance, or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in paragraph 2(a), commits a first degree felony. (c) Involuntary Servitude. Any person who knowingly subjects, or attempts to subject, another person to: (1) commercial sex acts or sexually explicit performance, or (2) labor or services through the use of any of the following means: (A) causing or threatening to cause serious harm to any person; (B) physically restraining or threatening to physically restrain another person; (C) abusing or threatening to abuse the law or legal process; (D) knowingly destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person;
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(E) extortion or blackmail; (F) deception or fraud; (G) debt coercion; (H) causing or threatening to cause financial harm to any person; (I) facilitating or controlling a victim’s access to an addictive controlled substance; or (J) using any scheme, plan, or pattern, whether overt or subtle, intended to cause any person to believe that, if the person did not perform such labor, services, acts or performances, that person or another person would suffer serious harm or physical restraint, commits a first degree felony. (d) Accomplice Liability. Any person who knowingly aids, abets, or conspires with one or more persons to violate the criminal provisions of this subsection shall be punishable in the same manner as for a completed violation of that section.
§ 26.03. Victim Immunity from Prosecution.
(a) In any prosecution of a person who is a victim of trafficking in persons, it shall be an affirmative defense that he or she was under duress or coerced into committing the offenses for which he or she is being subject to prosecution. (b) A victim of trafficking in persons is not criminally liable for any commercial sex act or illegal sexually-explicit performance committed as a direct result of, or incident or related to, being trafficked. (c) The victims of human trafficking shall be eligible, without regard to their immigration status, for benefits available through Title 8 GCA, Chapter 161. (d) Within fifteen (15) days, weekends and Government of Guam holidays excepted, of the first encounter with a victim of human trafficking, law enforcement agents shall provide the victim with a completed Form 1-914 Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons
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(LEA Declaration) in accordance with 8 C.F.R. 10 52 14.1 l(Q(1). Where Guam law enforcement agencies find the grant of an LEA Declaration is inappropriate for a trafficking victim, the agency shall within fifteen (15) days, weekends and Government of Guam holidays excepted, provide the victim with a letter explaining the grounds of the denial of the LEA Declaration. The victim may submit additional evidence to the law enforcement agency, which must reconsider the denial of the LEA Declaration within seven (7) days of the receipt of additional evidence. (e) Law enforcement officers and agencies, for purposes of enforcement of this Act, shall be those designated by the Attorney General and by Guam law.
§ 26.04. Non-Defenses to Trafficking In Persons.
Evidence of the following facts or conditions shall not constitute a defense in a prosecution for violations of this article, nor shall such evidence preclude a finding of a violation: (a) a trafficking victim’s sexual history or history of commercial sexual activity, including any acts that may be covered by the rape shield law; (b) a trafficking victim’s connection by blood or marriage to a defendant in the case or to anyone involved in the victim’s trafficking; (c) consent of or permission by a trafficking victim or anyone else on the trafficking victim’s behalf to any commercial sex act or sexually explicit performance; (d) age of consent to sex, legal age of marriage, or other discretionary age; (e) mistake as to the victim’s age, even if the mistake is reasonable.
§ 26.05. Criminal Liability of Business Entities.
(a) Any business entity, including a corporation, partnership, association, government body, municipal corporation or any other legal entity, that aids or participates in any crime defined in section 26.02 of this article shall be
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criminally liable for the offense and shall be subject to a fine or loss of business license, or both. (b) If a business entity is convicted of violating any section of this article, the court may, when appropriate, order, but is not limited to the following: (1) order its dissolution or reorganization; (2) order the suspension or revocation of any license, permit, or prior approval granted to it by local government agencies; or (3) order the surrender of its charter if it is organized under Guam law or the revocation of its certificate to conduct business on Guam if it is not organized under Guam law. (c) Any business, or criminally culpable employee, officer, director, owner, co-owner or shareholder of such business, convicted of a violation of this Chapter, or a conviction of a human trafficking crime in another jurisdiction or country, is ineligible for any type of Alcoholic Beverage License. Any business composed of, or employing in any capacity, an employee, officer, director, owner, co-owner or shareholder, who has been convicted of a violation of this Chapter, or a conviction of a human trafficking crime in another jurisdiction or country, is ineligible for any type of Alcoholic Beverage License. 2015 NOTE : Pursuant to the authority of 1 GCA § 1606 to correct manifest errors, subsection (c) has been included in this section, as it was erroneously omitted in past publications of the GCA.
§ 26.06. Restitution.
(a) A person convicted of violations of this article shall be ordered to pay mandatory restitution to the victim as provided in paragraph (c) of this section. (b) Restitution under this section shall include items covered by existing Guam statutes governing victim restitution and any of the following if not already included in Guam’s restitution statute: (1) costs of medical and psychological treatment,
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including physical and occupational therapy and rehabilitation, at the court’s discretion; (2) costs of necessary transportation, temporary housing, and child care, at the court’s discretion; (3) the greater of: (A) the gross income or value to the defendant of the trafficking victim’s commercial sex acts or sexually-explicit performances, or labor or services; (B) the value of the trafficking victim’s labor as guaranteed under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA); or (C) the value of the trafficking victim’s labor as guaranteed under the minimum wage and overtime provisions of Guam labor laws. (4) return of property, cost of damage to property, or full value of property if destroyed or damaged beyond repair; (5) expenses incurred by a victim and any household members or other family members in relocating away from the defendant or his associates, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or household or family members, or by a mental health treatment provider to be necessary for the emotional well-being of the victim; and (6) any and all other losses suffered by the victim as a result of violations of this article. (c) Restitution shall be paid to the victim promptly upon the conviction of the defendant, with the proceeds from property forfeited under this subsection applied first to payment of restitution. The return of the victim to her or his home country or other absence of the victim from the jurisdiction shall not
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prevent the victim from receiving restitution. (d) Nonpayment or delay in payment of restitution shall be governed by Guam restitution statute(s) governing non-payment or delay in restitution payments. 2023 NOTE : Past print publications inadvertently misnumbered subsections (c) and (d); the Compiler corrected this manifest error pursuant to the authority of 1 GCA § 1606.
§ 26.07. Asset Forfeiture.
(a) All offenses under this section shall qualify as offenses for forfeiture and thereby subject to the provisions of statute(s) governing forfeiture according to existing Guam law. (b) Overseas assets of persons convicted of trafficking in persons shall also be subject to forfeiture to the extent they can be retrieved by the government. (c) Any assets seized shall first be used to pay restitution to trafficking victims and subsequently to pay any damages awarded to victims in a civil action. Any remaining assets shall go toward funding services for victims of trafficking, or Guam crime victims’ fund.
§ 26.08. Statute of Limitations.
(a) An action for trafficking in persons where the victim is not a minor shall be brought within applicable Guam territorial statutes of limitations for sex offenses or kidnapping from the date the victim escaped or was freed or arrested by authorities from the trafficking situation. (b) Any statute of limitations that would otherwise preclude prosecution for an offense involving the trafficking of a minor, or the physical or sexual abuse of a minor, shall be tolled until such time as the victim has reached the age of 18 years. (c) The running of the statute of limitations may be suspended where a person entitled to bring a claim of trafficking in persons could not have reasonably