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Ohio Trafficking In Persons Study Commission

Legal and Legislative Sub-Committee

Report on Recommended Changes to Ohio’s Criminal Codes

To

Ohio Attorney General Richard Cordray

Legal and Legislative Sub-Committee Members

Judge Peter M. Sikora, Sub-Committee Chairperson, Cuyahoga County Juvenile Court


Jeffrey Barrows, Gracehaven
Representative Kathleen Chandler, Ohio House of Representatives
Michael Daly, Toledo Police Department
Kathleen Davis, Polaris Project
Kenneth Egbert, Ohio Attorney General’s Office
Senator Teresa Fedor, Ohio Senate
Michelle Hannan, Salvation Army of Central Ohio
Naomi Hokky, Diocese of Youngstown Catholic Charities Legal Immigration Services
Nadia Lucchin, Not for Sale Campaign
James Moroney, U.S. Attorney Office, Northern District of Ohio
John Murphy, Ohio Prosecuting Attorney's Association
Nancy Neylon, Ohio Domestic Violence Network
Emily Pelphrey, Ohio Attorney General's Office
Jim Slagle, Ohio Attorney General’s Office
Florentina Staigers, Ohio Latino Affairs Commission
Pete Swartz, Toledo Police Department
Craig Tame, U.S. Attorneys Office, Northern District of Ohio
Karen Walsh, Collaborative Initiative to End Human Trafficking
Matt Warren, Ohio Department of Public Safety

Attorney General’s Office


Nick Benson
Jacquelin Lewis
Robin Hurst
Table of Contents

Introduction………………………………………….......Page 3

Background …………………………………....………...Page 3

Process……………………………………………………Page 4

Discussion of Recommendations………………………..Page 5

Recommendations in Detail……………………………..Page 6

Appendix A………………………………………………Page 14

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Introduction

This report of the Legal and Legislative Sub-Committee provides to Ohio Attorney
General Richard Cordray and the members of the Trafficking In Persons Study
Commission our recommendations to ensure that Ohio’s criminal codes are best
positioned to effectively combat the human trafficking activity that is currently taking
place in our state.

Briefly stated, we recommend to:

! Create a trafficking in persons criminal offense (felony two).

! Create a criminal offense to target those who misuse identification documents to


further trafficking (felony three).

! Modify the existing kidnapping, abduction, and compelling prostitution offenses


to make them more useful in human trafficking prosecutions.

! Ensure that forced labor is covered by defining involuntary servitude, including


involuntary servitude in the human trafficking specification, and increasing the
penalty for abduction involving involuntary servitude.

! Increase the penalty for compelling a minor to engage in sexual activity for hire
(felony one if victim under 16; felony two if victim under 18).

! Simplify and expand the applicability of the human trafficking specification.

! Include trafficking in persons in the organized criminal activity and conspiracy


statutes.

! Include abduction in conspiracy statute.

Background

Five separate bills focused on human trafficking have been introduced during the past
two sessions of the General Assembly. These legislative attempts to address human
trafficking in Ohio have largely been unsuccessful. This is largely due to the inability to
reach consensus among stakeholders regarding the criminal code changes that had been
proposed.

There was one breakthrough at the end of the 127th General Assembly when language
was amended into House Bill 280. This created the Trafficking In Persons Study
Commission as well as a new human trafficking specification in the criminal code. The
specification enhances the penalties that can be imposed when multiple offenses occur

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that relate to human trafficking. When applied, the specification requires mandatory
prison terms of at least five years for a felony of the first degree, at least three years for a
felony of the second degree or third degree, 18 months for a felony of the fourth degree,
and 12 months for a felony of the fifth degree. An informal survey of county prosecutors
by the Sub-Committee found that the specification generally is not yet being applied.
This is attributed in part to the fact that the specification can only be used in the case of
offenses which occurred after April 7, 2009. The complete language of the specification
is found in Appendix A.

The report to the Trafficking In Persons Study Commission by the Research and Analysis
Sub-Committee illustrated the need to look again at how Ohio’s criminal codes can be
amended to better address this issue. More is needed as it was shown that Ohio is both a
source and destination state for victims of human trafficking. Foreign born individuals
are brought into Ohio for labor or sexual purposes and Ohio born youth have become
victims of sexual exploitation across the country.

Process

The Legal and Legislative Sub-Committee was successful in developing consensus


among advocates, legislators and prosecutors by seeking to identify those outcomes that
were most important to all members. The group was unified in its desire to see that all
human trafficking conduct would be covered by state criminal statutes, that all criminal
penalties are appropriate, and that the law is clear.

It was found that existing state law currently prohibits most of the activities that are
associated with human trafficking for labor or sexual purposes, as those engaged in
human trafficking can be prosecuted under existing laws for kidnapping, abduction, and
compelling prostitution. However, some modification of the statutes is necessary to
ensure that all criminal conduct is covered and that the penalties are appropriate.

The members of the sub-committee recognized that previous proposals which added
language that would have duplicated existing law could potentially spawn the unintended
consequence of hindering rather than helping the prosecution. Duplicative or overlapping
code sections create the opportunity to challenge a prosecution on the theory that the
improper statute was being applied in a particular case. This could result in a criminal
conviction being overturned, as well as the possibility of different courts coming to
different conclusions as to which statutes could be used to prosecute a human trafficking
offense. See e.g. State v. Volpe (1988), 38 Ohio St.3d 191.

The Sub-Committee reviewed bills previously introduced by State Senator Teresa Fedor
and State Representative Kathleen Chandler. These documents served as a basis for our
review.

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Discussion of Recommendations

The recommendations that have been identified by the members of the Legal and
Legislative Sub-Committee would strengthen Ohio’s response to human trafficking
without creating unnecessary complexity or duplicating existing provisions of law.
Specific legislative language is provided in the next section of this report.

To clearly make the statement that human trafficking is taken seriously in Ohio, it is
recommended to create a new offense of trafficking in persons that would be a felony of
the second degree. This new law would be a way to seek justice for those who have been
a victim of either labor or sex trafficking.

Along with this new section of code, it is recommended that existing laws regarding
kidnapping and abduction be strengthened. This would ensure that those who commit
these offenses as a means to exploit others for their personal gain can be more severely
punished.

In the case of abduction, the trafficker would be charged with a second degree felony
instead of a third degree felony if he held another in a condition of involuntary servitude.
This increases the possible prison sentence from a sentence of between one and five years
to a possible prison sentence of between two and eight years. For kidnapping, the
recommendation would ensure that an individual is charged with a first degree felony,
even if the victim of the offense is eventually released in a safe place unharmed and
makes it easer for a prosecutor to make their case by removing the requirement to prove,
in the case of involuntary servitude, that a victim was at risk for serious physical harm.

To better fight those who seek to exploit our children, we recommend that the existing
compelling prostitution statute be amended to include increased associated penalties
where a minor victim is compelled to engage in sexual activity for hire. Under this
recommendation, an individual who seeks to exploit a minor under 16 years of age would
be subject to a first degree felony, those preying on 16 and 17 year-olds would be subject
to a second degree felony, and in cases of adult victims a third degree felony

The committee also recommends that the law be amended to recognize that traffickers
use both physical and non-physical means to manipulate a minor into performing sex
acts.

To ensure that labor trafficking is clearly covered under Ohio law, we recommend that
involuntary servitude now be defined in the Revised Code as a situation where a person is
“being compelled to perform labor or services for another against one’s will.” The
existing human trafficking specification should be amended to include involuntary
servitude, as under current law, the human trafficking specification may not be used in a
labor trafficking case.

It has been found that human traffickers confiscate identification documents as a way to
trap both their domestic and international victims. The members of the Sub-Committee

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recommend the creation of a new offense that would make those who do this guilty of a
felony of the third degree.

Taken together, the Sub-Committee believes that these changes will discourage would-be
traffickers, thus decreasing the level of human trafficking activity in Ohio and better
protecting those who are most susceptible to exploitation. We also recognize that
changes to criminal law are only a part of a comprehensive solution. We offer our
endorsement of proposals that attempt to do the following:

1) Increase the level of training for those most likely to encounter human trafficking
victims so they are prepared to identify and assist these persons.
2) Improve general awareness of human trafficking and build the level of
understanding regarding how to obtain assistance for victims.
3) Enhance the availability of supportive services to aid victims in their recovery.
4) Ensure that statistical data is available so that the scope of the problem in Ohio
can continue to be monitored.

The members of the Legal and Legislative Sub-Committee look forward to working with
the other Trafficking In Persons Study Commission Sub-Committees on these key issues.

Recommendations In Detail

The following list provides greater details on the seven consensus recommendations
developed by the Legal and Legislative Sub-Committee.

1. Create a Trafficking in Persons Offense as follows:

A. Create a new offense of trafficking in persons making it a second degree felony.

B. Incorporate this new offense within the conspiracy statute (2923.01), engaging in
a pattern of corrupt activity statute (2923.32), and the human trafficking
specification statute (2941.1422).

Statutory change:

Sec. 2905.32. Trafficking in Persons.

(A) No person shall knowingly recruit, lure, entice, solicit, isolate, harbor, transport,
provide, obtain, or maintain, or knowingly attempt to recruit, lure, entice, solicit,
isolate, harbor, transport, provide, obtain, or maintain, another person knowing or
having reasonable cause to believe that the person will be subjected to involuntary
servitude or be compelled to engage in sexual activity for hire, engage in a
performance that is obscene, sexually oriented, or nudity oriented, or be a model or
participant in the production of material that is obscene, sexually oriented, or nudity
oriented.

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(B) Whoever violates this section is guilty of trafficking in persons, a felony of the
second degree.

Point for further discussion


There was raised by the Central Ohio Rescue and Restore Coalition the idea of
creating a lesser standard of proof for an offense to R.C. 2905.32 when the victim
involved is a minor. Discussion focused specifically on the degree to which coercion
must be substantiated.

2. Amend the kidnapping statute (2905.01) as follows:

A. Move the involuntary servitude provision from (B) to (A).

B. Make an exception for the involuntary servitude a first degree felony regardless of
whether the victim is released in a safe place unharmed.

Effect of change: Recommendation A has the effect of removing


the necessity to prove, in a prosecution based on involuntary
servitude, that the offense involved a risk of serious physical harm
or physical harm to the victim. Recommendation B increases the
kidnapping penalty for involuntary servitude from a felony two to
a felony one, regardless of whether the victim is released
unharmed or not.

Statutory Change

2905.01 Kidnapping.

(A) No person, by force, threat, or deception, or, in the case of a


victim under the age of thirteen or mentally incompetent, by any
means, shall remove another from the place where the other person
is found or restrain the liberty of the other person, for any of the
following purposes:

(1) To hold for ransom, or as a shield or hostage;

(2) To facilitate the commission of any felony or flight thereafter;

(3) To terrorize, or to inflict serious physical harm on the victim or


another;

(4) To engage in sexual activity, as defined in section 2907.01 of


the Revised Code, with the victim against the victim’s will;

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(5) To hinder, impede, or obstruct a function of government, or to
force any action or concession on the part of governmental
authority.

(6) To hold in a condition of involuntary servitude.

(B) No person, by force, threat, or deception, or, in the case of a


victim under the age of thirteen or mentally incompetent, by any
means, shall knowingly do any of the following, under
circumstances that create a substantial risk of serious physical
harm to the victim or, in the case of a minor victim, under
circumstances that either create a substantial risk of serious
physical harm to the victim or cause physical harm to the victim:

(1) Remove another from the place where the other person is
found;

(2) Restrain another of the other person’s liberty;

(3) Hold another in a condition of involuntary servitude.

(C)(1) Whoever violates this section is guilty of kidnapping.


Except as otherwise provided in this division or division (C)(2) or
(3) of this section, kidnapping is a felony of the first degree.
Except as otherwise provided in this division or division (C)(2),
(3), or (4) of this section, if the offender releases the victim in a
safe place unharmed, kidnapping is a felony of the second degree.

(2) If the offender also is convicted of or pleads guilty to a


specification as described in section 2941.1422 of the Revised
Code that was included in the indictment, count in the indictment,
or information charging the offense, the court shall order the
offender to make restitution as provided in division (B)(8) of
section 2929.18 of the Revised Code and, except as otherwise
provided in division (C)(3) of this section, shall sentence the
offender to a mandatory prison term as provided in division (D)(7)
of section 2929.14 of the Revised Code.

(3) If the victim of the offense is less than thirteen years of age and
if the offender also is convicted of or pleads guilty to a sexual
motivation specification that was included in the indictment, count
in the indictment, or information charging the offense, kidnapping
is a felony of the first degree, and, notwithstanding the definite
sentence provided for a felony of the first degree in section
2929.14 of the Revised Code, the offender shall be sentenced
pursuant to section 2971.03 of the Revised Code as follows:

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(a) Except as otherwise provided in division (C)(3)(b) of this
section, the offender shall be sentenced pursuant to that section to
an indefinite prison term consisting of a minimum term of fifteen
years and a maximum term of life imprisonment.

(b) If the offender releases the victim in a safe place unharmed, the
offender shall be sentenced pursuant to that section to an indefinite
term consisting of a minimum term of ten years and a maximum
term of life imprisonment.

(4) Violation of division (A)(6) of this section is a felony of the


first degree regardless of whether the offender releases the victim
in a safe place unharmed.

(D) As used in this section, “sexual motivation specification” has


the same meaning as in section 2971.01 of the Revised Code.

3. Amend the abduction statute (2905.02) as follows:

A. Increase the penalty from a third degree felony to a second degree felony in cases
involving involuntary servitude.

B. Include abduction within the conspiracy statute (2923.01) making this a third
degree felony for involuntary servitude and a fourth degree felony otherwise.

Statutory Change:

2905.02 Abduction.

(A) No person, without privilege to do so, shall knowingly do any


of the following:

(1) By force or threat, remove another from the place where the
other person is found;

(2) By force or threat, restrain the liberty of another person under


circumstances that create a risk of physical harm to the victim or
place the other person in fear;

(3) Hold another in a condition of involuntary servitude.

(B) No person, with a sexual motivation, shall violate division (A)


of this section.

(C) Whoever violates this section is guilty of abduction. A


violation of divisions (A)(1) or (2) of this section is a felony of the

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third degree. A violation of division (A)(3) of this section is a
felony of the second degree. If the offender also is convicted of or
pleads guilty to a specification as described in section 2941.1422
of the Revised Code that was included in the indictment, count in
the indictment, or information charging the offense, the court shall
sentence the offender to a mandatory prison term as provided in
division (D)(7) of section 2929.14 of the Revised Code and shall
order the offender to make restitution as provided in division
(B)(8) of section 2929.18 of the Revised Code.

(D) As used in this section, “sexual motivation” has the same


meaning as in section 2971.01 of the Revised Code.

4. Amend the compelling prostitution statute (2907.21) as follows:

A. Modify the definition of compulsion to include both physical and non-physical


aspects of compulsion.

B. Increase the penalty for compelling a minor to engage in sexual activity for hire to
a felony two when the minor is 16 or 17 (current law is a felony three) and to a
felony one when the minor is under 16 (current law is a felony two).

Statutory change:

2907.21 Compelling prostitution.

(A) No person shall knowingly do any of the following:

(1) Compel another to engage in sexual activity for hire;

(2) Induce, procure, encourage, solicit, request, or otherwise


facilitate either of the following:

(a) A minor to engage in sexual activity for hire, whether or not the
offender knows the age of the minor;

(b) A person the offender believes to be a minor to engage in


sexual activity for hire, whether or not the person is a minor.

(3)(a) Pay or agree to pay a minor, either directly or through the


minor’s agent, so that the minor will engage in sexual activity,
whether or not the offender knows the age of the minor;

(b) Pay or agree to pay a person the offender believes to be a


minor, either directly or through the person’s agent, so that the
person will engage in sexual activity, whether or not the person is a

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minor.

(4)(a) Pay a minor, either directly or through the minor’s agent, for
the minor having engaged in sexual activity pursuant to a prior
agreement, whether or not the offender knows the age of the
minor;

(b) Pay a person the offender believes to be a minor, either directly


or through the person’s agent, for the person having engaged in
sexual activity pursuant to a prior agreement, whether or not the
person is a minor.

(5)(a) Allow a minor to engage in sexual activity for hire if the


person allowing the child to engage in sexual activity for hire is the
parent, guardian, custodian, person having custody or control, or
person in loco parentis of the minor;

(b) Allow a person the offender believes to be a minor to engage in


sexual activity for hire if the person allowing the person to engage
in sexual activity for hire is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of the person
the offender believes to be a minor, whether or not the person is a
minor.

(B) For a prosecution under (A)(1) of this section, the element


"compel" does not require that the compulsion be openly displayed
or physically exerted, but may be accomplished by subtle or
psychological means. The element "compel" has been established
if the state proves that the victim's will was overcome by fear,
duress, or intimidation.

(C)(B) Whoever violates this section is guilty of compelling


prostitution. Except as otherwise provided in this division,
compelling prostitution is a felony of the third degree. If the
offender commits a violation of division (A)(1) of this section and
the person compelled to engage in sexual activity for hire in
violation of that division is less than sixteen eighteen years of age,
but not less than sixteen years of age, compelling prostitution is a
felony of the second degree. If the offender commits a violation of
division (A)(1) of this section and the person compelled to engage
in sexual activity for hire in violation of that division is less than
sixteen years of age, compelling prostitution is a felony of the first
degree. If the offender in any case also is convicted of or pleads
guilty to a specification as described in section 2941.1422 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense, the court shall

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sentence the offender to a mandatory prison term as provided in
division (D)(7) of section 2929.14 of the Revised Code and shall
order the offender to make restitution as provided in division
(B)(8) of section 2929.18 of the Revised Code.

Points for further discussion


There was a suggestion offered by the Central Ohio Rescue and Restore Coalition to
include language in R.C. 2907.21 that addresses instances of trafficking where the victim
is an adult having a diminished capacity to make sound decisions.

A second issue regarding the legal status of a minor who is soliciting in Ohio was raised
by the Founder and Executive Director of Gracehaven. A suggestion was made to
exclude minors from prosecution by amending statutes 2907.24 and 2907.241. However,
some were concerned that this would also exempt minors who are not victims of human
trafficking being prosecuted in juvenile court for engaging in prostitution.

5. Create definition of “involuntary servitude” to read as follows:

“Involuntary servitude” means being compelled to perform labor or services for another
against one’s will.

6. Address unlawful conduct with respect to documents (New Offense) as follows:

A. Create a new offense of “unlawful conduct with respect to documents” to target


individuals who misuse or confiscate identification documents as a means to
control, facilitate, and/or compel victims into involuntary servitude and/or
commercial sex; and make this new offense a third degree felony.

Statutory change:

2905.YY (A) No person, without privilege to do so, shall knowingly destroy,


conceal, remove, confiscate, or possess any actual or purported government
identification document or passport of another in the course of a violation of
or with intent to violate or to facilitate a violation of section 2905.01,
2905.02, 2905.32, trafficking in persons, or 2907.21, 2907.22, 2907.32, 2907.321,
2907.322, or 2907.323 of the Revised Code;

(B) Whoever violates this section is guilty of unlawful conduct with respect to
documents, a felony of the third degree.

7. Human Trafficking Specification – expand its applicability


A. Include involuntary servitude in the specification.
B. Include proposed trafficking in persons offense (2905.32) as an offense to
which the specification could be added.

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C. Eliminate the requirement that the two felony offenses necessary for the
specification not be related closely together and connected in time and
place to constitute a single event or transaction.

Statutory change:

(AAA) "Human trafficking" means a scheme or plan to which all of the following
apply:

(1) Its object is to subject a victim or victims to involuntary servitude, to


compel a victim or victims to engage in sexual activity for hire, to engage in a
performance that is obscene, sexually oriented, or nudity oriented, or to be a
model or participant in the production of material that is obscene, sexually
oriented, or nudity oriented.

(2) It involves at least two felony offenses, whether or not there has been a
prior conviction for any of the felony offenses, to which all of the following
apply:

(a) Each of the felony offenses is a violation of section 2905.01, 2905.02,


2905.32, 2907.21, 2907.22, or 2923.32, division (A)(1) or (2) of section 2907.323
[2907.32.3], or division (B)(1), (2), (3), (4), or (5) of section 2919.22 of the
Revised Code or is a violation of a law of any state other than this state that is
substantially similar to any of the sections or divisions of the Revised Code
identified in this division.

(b) At least one of the felony offenses was committed in this state.

(c) The felony offenses are related to the same scheme or plan, and are not
isolated instances, and are not so closely related to each other and connected in
time and place that they constitute a single event or transaction.

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Appendix A: Ohio’s Human Trafficking Specification (current law)

R.C. 2941.1422. Human trafficking specification

(A) Imposition of a mandatory prison term under division (D)(7) of section 2929.14 of
the Revised Code is precluded unless the offender is convicted of or pleads guilty to a
felony violation of section 2905.01, 2905.02, 2907.21, 2907.22, or 2923.32, division
(A)(1) or (2) of section 2907.323, or division (B)(1), (2), (3), (4), or (5) of section
2919.22 of the Revised Code and unless the indictment, count in the indictment, or
information charging the offense specifies that the offender knowingly committed the
offense in furtherance of human trafficking. The specification shall be stated at the end of
the body of the indictment, count, or information and shall be stated in substantially the
following form:

"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors


(or insert the person's or the prosecuting attorney's name when appropriate) further find
and specify that (set forth that the defendant knowingly committed the offense in
furtherance of human trafficking)."

(B) As used in this section, "human trafficking" has the same meaning as in section
2929.01 of the Revised Code.

(152 v H 280, § 1, eff. 4-7-09)

R.C. 2929.01(AAA) “Human trafficking” means a scheme or plan to which all of the
following apply:

(1) Its object is to compel a victim or victims to engage in sexual activity for hire, to
engage in a performance that is obscene, sexually oriented, or nudity oriented, or to be a
model or participant in the production of material that is obscene, sexually oriented, or
nudity oriented.

(2) It involves at least two felony offenses, whether or not there has been a prior
conviction for any of the felony offenses, to which all of the following apply:
(a) Each of the felony offenses is a violation of section 2905.01, 2905.02, 2907.21,
2907.22, or 2923.32, division (A)(1) or (2) of section 2907.323, or division (B)(1), (2),
(3), (4), or (5) of section 2919.22 of the Revised Code or is a violation of a law of any
state other than this state that is substantially similar to any of the sections or divisions of
the Revised Code identified in this division.

(b) At least one of the felony offenses was committed in this state.

(c) The felony offenses are related to the same scheme or plan, are not isolated instances,
and are not so closely related to each other and connected in time and place that they
constitute a single event or transaction.

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