This committee is charged with reviewing Michigan’s human trafficking laws and policies to determine whether new legislation or policy changes are required.
In late 2019, the Commission voted to recommend a package of 30 bills addressing issues related to human trafficking including mandatory training, criminal justice issues and prostitution. The recommendations resulted from a Legislative Workgroup comprised of bi-cameral and bipartisan legislators, legislative staff as well as stakeholders such as law-enforcement and victim service providers. The group worked through the second half of 2019 on a number of legislative proposals across three categories: criminal justice, training, and funding. While the resulting package was comprised primarily of criminal justice and training proposals the workgroup identified a number of proposals that are worthy of additional consideration.
By early 2020, all but one of the Commission recommendations had been introduced as bills in the Michigan Legislature. Unfortunately, shortly thereafter, the Covid-19 pandemic took hold and consumed the legislative focus. During 2021, the majority of the 30 bills had been reintroduced. There was some legislative action on the introduced bills this year. In March, several bill sponsors, Attorney General Dana Nessel and Commission Chair, Kelly Carter testified before the House Judiciary Committee in support of the package. In May, Chair Carter testified again before the House Judiciary Committee in support of several of the bills individually. However, movement on the package seemed to end there. The Committee continues to back the proposals and will work for their reintroduction next year. The package is detailed below.
The workgroup developed a number of criminal justice proposals either directly benefitting trafficking victims or strengthening prosecutor tools to hold traffickers accountable.
Expanded Minor Rebuttable Presumption: Recognizing the many challenges that minor sex trafficking victims face, the workgroup developed a proposal to expand the rebuttable presumption afforded to minors found in commercial sexual activity situation. Previously, a minor who was presumed to be a victim of sex trafficking was required to substantially comply with court-ordered services in order to preserve that presumption. Now, rather than failure to comply with court-ordered services being a complete bar to a minor benefitting from the presumption, a court can consider the minor’s compliance a factor to consider in continuing the presumption.
Expansion of adult and juvenile HT victim expungement: Expanding the special human trafficking expungement to apply to all crimes will allow survivors to clear their record of convictions for crimes committed as a result of trafficking.
As the Commission works with those who assist survivors of trafficking, we are enlightened in the ways that victims continue to suffer. Previously, the Commission had proposed bills allowing victims to clear their trafficking-related convictions for minor state prostitution offenses. That was expanded to include previously overlooked minor prostitution ordinance violations, only to again realize we have victims who are prevented relief because they were, instead, charged with loitering or disorderly person as a “common prostitute.”
Rather than continuing to incrementally expand the commercial sex-related crime list, the Commission is recommending a more comprehensive expansion of the Safe Harbor expungement beyond the current commercial sex-related crimes. Through repeated and continuous interaction with victims in both a service provision scenario as well as victims cooperating in criminal prosecution, we repeatedly see victims who are forced by their traffickers to engage in other types of criminal activity commonly including drug offenses, theft offenses, gun offenses and other various offenses. In recognition of the realities of human trafficking victims, there are two bills that seek to expand expungement opportunities for human trafficking victims under an adult approach as well as expansion of expungement for juvenile offenses.
Affirmative Defense for Victims of Human Trafficking: Along the same lines as expungement, the Commission has recommended creation of an affirmative defense for victims of human trafficking to prevent future convictions for crimes committed as a result of trafficking. The proposal would create an affirmative defense to any crime for a victim of human trafficking who can establish that the commission of the crime was a direct result of their being a victim of human trafficking.
Amend Expert Testimony for Human Trafficking cases:
For years, case-law in Michigan (as across the country) has been developing to allow expert testimony at trial to explain victim behavior where it would seem to deviate from what the general public would expect. The development has come in the areas of domestic violence and sexual assaults, but there have been no cases in Michigan extending the same to human trafficking cases. The same challenges exist in human trafficking cases as domestic violence and sexual assault cases, indeed even more so in human trafficking cases.
Although a law was enacted in 2017 that sought to permit the introduction of expert witness testimony, that new provision only goes so far as allowing the expert testimony if it “is otherwise admissible under the rules of evidence as laws of this state.” MCL 750.762g(2). Unfortunately, the amendment as enacted fails to be specific enough to address the problem. The proposed amendment would specifically codify case law which sets forth the appropriate standard a court should apply in determining who meets the qualifications to provide expert testimony under these circumstances.
Expand Statutory Immunity for Compelled Testimony to Human Trafficking Chapter: The prostitution chapter includes statutory immunity for any person compelled to give testimony in a case involving charges from the prostitution chapter. No doubt, this is in recognition that those who have committed criminal acts such as prostitution, would be unwilling to provide testimony about those controlling the prostitution for fear of exposing themselves to criminal liability. This is equally true – if not more so – in human trafficking cases. Accordingly, we are recommending that the prostitution immunity provision be added to the human trafficking chapter.
Include Human Trafficking in propensity evidence expansion: Last year’s sexual assault package saw the expansion of the introduction of propensity evidence in domestic violence and sexual assault cases to now include sexual assault crimes committed against adults. Again, given the incredible similarities between domestic violence, sexual assault and trafficking cases – particularly sex trafficking, the Commission is recommending adding human trafficking to the class of crimes in which propensity evidence is admissible.
Finally, in recognition of the inescapable overlap between sex trafficking and “prostitution” there are over a dozen proposals that fundamentally alter the landscape with regard to what should formally be known as prostitution. Starting from realization that nowhere previously in Michigan state statute was the crime of “prostitution” ever defined, but more importantly, recognizing the stigma and judgment that is so often inflicted with the use of the term “prostitution” the Commission embraced the recommendation that we replace the term “prostitution” throughout Michigan law with the defined term: commercial sexual activity. The package contains over a dozen recommendations that seek to strike the term prostitution and all references to it throughout the Michigan code. Instead that term would be replaced with the term commercial sexual activity that is defined in the human trafficking chapter as generally, a sex act provided in exchange for something of value.
In addition to the change of terminology, the package includes recommendations for additional changes to the former prostitution - now commercial sexual activity statute – chapter. Those proposals would clearly and unambiguously define the crimes of providing commercial sexual activity and obtaining commercial sexual activity. The crime of providing commercial sexual activity would not only specifically include an exemption for commercial sexual activity provided through force fraud or coercion [sex trafficking], but would also create an exemption for a victim of pandering - a 20 yearr felony - wherein the panderer through inducement, persuasion or encouragement, by promise, threat or scheme, causes the “provider” to engage in the commercial sexual act.
What’s more, this recommendation seeks to recognize the increased level of vulnerability of those providing commercial sexual acts as opposed to those from a position of power obtaining commercial sexual acts. To that end the recommendation would decrease penalties for providers of commercial sexual activity to misdemeanors while conversely increasing penalties for obtainers of commercial sexual activity to all felonies. Additional changes to the former prostitution -now commercial sexual activity statute would replace archaic language with more applicable and appropriate descriptions of the realities of commercial sexual activity today. Thus, terminology such as “house of ill fame,” or “bawdy house” would be replaced with terminology accurately reflecting the current state of commercial sexual activity.
As identified above, the 2019 legislative Recommendations by the Commission included a number of legislative proposals aimed at addressing human trafficking training. These recommendations were not reintroduced this year. The Committee will continue to work for reintroduction and passage of these proposals.
Training:
The work regarding human trafficking training legislation focused on developing mandates for additional professionals to receive training in human trafficking. Included in the 2014 human trafficking legislative package was a mandate that licensed health professionals receive training on human trafficking prior to licensure or re-licensure. This original mandate directed the Department of Licensing and Regulatory Affairs (LARA) to work with each board responsible for licensing the various health professional to develop rules and procedures regarding the human trafficking training. The various boards developed consistent, if non-specific, rules for what would satisfy the training mandate.
Yet, the effectiveness of the training mandate has been evident. Requests for training and presentations have increased dramatically. Moreover, reports to the National Human Trafficking tip-line by health professionals has increased noticeably.
Given the demonstrated success in mandating training for healthcare licensees, the workgroup identified additional professions that were amenable to mandated training on human trafficking. While the list was longer, several professions were not as amenable to a mandate as they are not regulated or licensed by a centralized entity. While there was consideration of implementing training for hotel and hospitality professionals, continued work will be necessary to develop an approach that effectively targets that group. Regarding other identified professions, who are licensed or regulated, the workgroup developed a working template for implementing human trafficking training in this package and going forward. The approach is two-pronged: the mandate on the licensing side and the added Commission requirement to develop minimum standards for training.
On the licensing side, each new mandate requires the licensing entity to develop training which references recommendations for minimum standards for training. Those professions that will now be required to receive human trafficking training for licensure include commercial driver’s, educators and educational-based counselors, and cosmetologists.
On the training standards side, the companion bill now amends the Human Trafficking Commission Act to develop those minimum standards for training. Thus, going forward, as other licensed and regulated professions are identified as being appropriate for mandated human trafficking training, each mandate will reference the minimum standards for training developed by the Commission.
In addition to the package already introduced, the Commission’s Policy and Legislative Committee will continue to work on the area of identifying reliable sustained funding for the Human Trafficking Commission, victim services and training on human trafficking, as well as evaluating emerging trends in nation-wide human trafficking legislative efforts.
