SB0421 94TH GENERAL ASSEMBLY

LRB094 08785 LCB 39001 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0421

Introduced 2/16/2005, by Sen. Iris Y. Martinez - Martin A. Sandoval

SYNOPSIS AS INTRODUCED:

New Act

Creates the Predator Accountability Act. Creates a cause of action against a person who: (i) coerced an individual into prostitution; (ii) coerced an individual to remain in prostitution; (iii) used coercion to collect or receive any of an individual's earnings derived from prostitution; or (iv) advertised or published advertisements for purposes of recruitment into prostitution. Provides for damages for violation of the Act. Exempts the provisions of joint and several liability to actions brought under the Act. Lists non-defenses to an action brought under the Act. Provides for award of costs to the prevailing party.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Predator Accountability Act.

Section 5. Definitions. As used in this Act:

"Prostitution" means any forms of prostitution including, but not limited to, street level, stripping, massage parlors, pornography, and escort services and involve adults and youth of all gender and sexual orientations. "Prostitution" includes attempts to prostitute an individual or to engage in "no-touching" activities.

"Coerce" means to use or threaten to use any form of domination, restraint, or inducement for the purpose or with the reasonably foreseeable effect of causing an individual to engage in or remain in prostitution or to relinquish earnings derived from prostitution. "Coercion" may include, but is not limited to, the following:

(1) physical force or actual or implied threats of physical force or restraint;

(2) physical or mental torture;

(3) implicitly or explicitly leading an individual to believe that the individual will be protected from violence or arrest;

(4) kidnapping;

(5) exploiting age difference or individual's status of minor;

(6) using lies and false promises to deceive;

(7) causing an individual to believe that failure to perform an act would result in serious harm to or physical restraint against that individual or any person;

(8) defining the terms of an individual's employment or working conditions in a manner that can foreseeably lead to the individual's use in prostitution;

(9) blackmail;

(10) extortion or claims of indebtedness;

(11) restraining speech or communication with others, such as exploiting a language difference or interfering with the use of mail, telephone, email, fax, or other forms of communication;

(12) controlling or interfering with financial transactions;

(13) isolating an individual from others;

(14) introducing or utilizing drugs or alcohol to control an individual and exploiting an individual's addiction to drugs and alcohol;

(15) exploiting a condition of developmental disability, cognitive limitation, or affective and other mental health disorder;

(16) taking advantage of lack of intervention by child protection;

(17) exploiting victimization by previous sexual abuse or battering;

(18) exploiting pornographic performance;

(19) exploiting an individual's crisis situation, such as runaway status;

(20) interfering with opportunities for education or skills training;

(21) destroying property;

(22) restraining movement;

(23) exploiting HIV status, particularly where the defendant's previous coercion led to the HIV;

(24) exploiting the need for food, shelter, safety, or affection or intimate marital relationship;

(25) taking advantage of parental, custodial, or other familial authority over an individual;

(26) taking advantage of an individual's love and need for bonding and affection from a parental, custodial, or other familial figure;

(27) exploiting immigrant status;

(28) exploiting an individual's family members' or dependents' economic needs;

(29) a threat of an act described in items (1) through (28) of this definition causing a realistic apprehension that the originator of the threat will commit the act;

(30) threat of legal complaint or report of delinquency;

(31) threat to interfere with parental rights or responsibilities, whether by judicial or administrative action or otherwise;

(32) promise of a legal benefit, such as posting bail, procuring an attorney, protecting from arrest, or promising unionization;

(33) promise of financial rewards;

(34) promise of marriage;

(35) threatening to reveal information about perceived or actual sexual orientation ("outing");

(36) threatening to harm an individual's dependents or family members; or

(37) hiring an adult or minor for the purposes of prostitution knowing that he or she has been coerced by another.

Section 10. Cause of action. An individual has a cause of action against a person or entity who:

(1) coerced an individual into prostitution;

(2) coerced an individual to remain in prostitution;

(3) used coercion to collect or receive any of an individual's earnings derived from prostitution;

(4) hired, offered, or agreed to hire an individual to engage in prostitution, knowing or having reason to believe that the individual was coerced into or coerced to remain in prostitution; or

(5) advertised or published advertisements for purposes of recruitment into prostitution.

(b) An individual has a cause of action against any person, entity, or organization for any act of solicitation, hiring, promotion of, prostitution, or receiving money from a minor's prostitution whether or not the coercive factors are present.

Section 15. Relief.

(a) A person against whom a cause of action may be maintained under Section 10 is liable for damages that resulted from the plaintiff being used in prostitution or to which the plaintiff's use in prostitution significantly contributed, as well as all relief that would make the plaintiff whole.

(b) Damages may include, without limitation, a declaratory judgment, an injunction, recovery of costs for expert testimony, and monetary relief.

(c) Monetary relief may include:

(1) punitive and compensatory damages;

(2) economic loss, including damage, destruction, or loss of use of personal property; loss of past or future income or earning capacity; and income, profits, or money owed to the plaintiff from legal or illegal contracts with the person, unless an illegal contract is current, nonexecutory, and the plaintiff is no longer a prostitute;

(3) damages for death, personal injury, physical impairment, disease, and burial expenses; and

(4) pain and suffering, including mental and emotional harm and any medical or rehabilitation expenses.

Section 20. Joint and several liability. The provisions of joint and several liability do not apply to actions brought under this Act.

Section 25. Non-defenses. It is not a defense to an action brought under this Act that:

(1) the plaintiff consented to engage in acts of prostitution;

(2) the plaintiff and defendant had a marital or consenting sexual relationship;

(3) the defendant is related to plaintiff by blood or marriage or has lived in any formal or informal household arrangement;

(4) the plaintiff was paid or otherwise compensated for the acts of prostitution;

(5) the plaintiff engaged in acts of prostitution prior to any involvement with the defendant;

(6) the defendant had not engaged in prior acts of prostitution with the plaintiff;

(7) the plaintiff was owed a debt, monetary or otherwise;

(8) the defendant signed a legal or illegal contract with the plaintiff;

(9) the plaintiff apparently initiated involvement with the defendant;

(10) the plaintiff made no attempt to escape, flee, or otherwise terminate contact with the defendant;

(11) as a condition of employment, the defendant required the plaintiff to agree not to engage in prostitution;

(12) the defendant's place of business was posted with signs prohibiting prostitution or prostitution related activities; or

(13) one or more acts of coercion as defined in this Act were committed, at least in part, to induce someone into prostitution whether or not those acts have resulted in criminal charges, prosecution, or conviction.

Section 30. Evidence. In the course of litigation under this Act, any transaction about which a plaintiff testifies or produces evidence does not subject the plaintiff to criminal prosecution or any penalty or forfeiture. Any testimony or evidence, documentary or otherwise, or information directly or indirectly derived from that testimony or evidence that is given or produced by a plaintiff or a witness for a plaintiff may not be used against that person in any other investigation or proceeding other than a criminal investigation or proceeding for perjury committed while giving the testimony or producing the evidence.

Evidence of any convictions, particularly for prostitution or prostitution related offenses, is inadmissible in a proceeding brought under this Act for purposes of attacking the plaintiff's credibility. If the court admits evidence of prior convictions for purposes permitted under the rules of evidence with respect to motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, the fact finder may consider the evidence solely for those purposes and shall disregard details offered to prove any fact that is not relevant.

Section 35. Statute of limitations.

(a) An action for damages must be commenced within 10 years of the age of majority, if coercion of the plaintiff occurred as a minor. If coercion of an adult occurred, then an action for damages must be commenced within 10 years after the last act of coercion.

(b) An action for damages under this Act must be commenced within 10 years of the time the plaintiff knew and full understood that the plaintiff had been injured and that the injury was caused by the conduct of the defendant as described in Section 10.

(c) The court shall grant an extension of the limitations period upon a showing that the plaintiff was or is unable, due to a prostitution-related injury, to commence the action within the limitations period. The injury may be psychological and need not be traceable to any action by the defendant. A plaintiff may not be compelled to personally appear to attest to these facts. Affidavits from the plaintiff and the plaintiff's doctor stating the required facts are sufficient to constitute a showing as required by this Section.

(d) The court shall grant an extension of the limitations period upon a showing that despite the reasonable efforts, the plaintiff was unable to ascertain the identity, true name, or location of the of the defendant during the limitations period. In determining whether the plaintiffs efforts were reasonable, the court shall consider the totality of the plaintiff's circumstances during the limitations period, including the plaintiff's emotional condition, financial resources, freedom of movement and communication, and reasonable fear of the defendant for himself or herself or for others.

(e) The court shall grant an extension of the limitations period upon showing that the defendant in any way inhibited the plaintiff's understanding of the right to pursue the cause of action or the plaintiff's ability to pursue the cause of action. Behavior constituting inhibition includes, but is not limited to, the following:

(l) minimizing by words or deeds the harm inflicted upon the plaintiff;

(2) isolating the plaintiff from access to legal representation;

(3) threatening the plaintiff with retaliation for pursuing the claim; or

(4) misrepresenting the injury as the plaintiff's fault rather than the fault of the abuser.

(f) There is no limitation of time on actions for declaratory or injunctive relief under this Act.

Section 40. Remedies preserved. This Act does not affect the right of any person to bring an action or use any remedy available under other law, including common law, to recover damages arising out of the use of the individual in prostitution or the coercion incident to the individual being used in prostitution nor does this Act limit or restrict the liability of any person under other law. This Act does not reflect a determination of a policy regarding the applicability of strict liability to activities relating to prostitution.

Section 45. Double recovery prohibited. Any person who recovers damages under this Act may not recover the same costs or damages under any other Act. A person who recovers damages under any other Act may not recover for the same costs or damages under this Act.

Section 50. Award of costs. Upon the motion of a party prevailing in an action under this Act, the court may award costs, disbursements, reasonable attorneys' fees, and expert testimony and witness fees to that party.

Section 55. Avoidance of liability. No person may avoid liability under this Act by means of any conveyance of any right, title, or interest in real property, or by any indemnification, hold harmless agreement, or similar agreement that purports to show consent of the plaintiff.