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FLORIDA legislation
CS/CS/HB 99 (2012) - Sexual Exploitation
SYNOPSIS:
The bill creates the “Florida Safe Harbor Act,” which is intended to provide a more coordinated response to address the child welfare service needs of sexually exploited children who are dependent. Specifically, the bill:
Provides legislative findings and intent and establishes legislative goals relating to the status and treatment of sexually exploited children in the dependency system;
Amends the definitions of the terms “child who is found to be dependent” and “sexual abuse of a child” to reference sexual exploitation;
Requires a law enforcement officer who takes a child alleged to be dependent for whom there is also probable cause to believe that he or she has been sexually exploited into custody to deliver the child to the department;
Provides a process for the assessment and placement of sexually exploited children in a safe house, if available;
Provides for placement updates to the court during judicial review hearings;
Provides for data collection relating to these placements by the Department of Children and Family Services (DCF or department);
Provides a definition for the terms: “child advocate,” “safe house,” “secure,” “sexually exploited child” and “short-term safe house”;
Provides for services for sexually exploited children residing in a safe house;
Provides that training, for law enforcement officers who might encounter sexually exploited children, is permissive;
Increases the civil penalty for crimes related to prostitution from $500 to $5,000 and specifies that the difference in the increase, to be paid to the department, be used to fund safe houses as well as short-term safe houses; and
Provides that a victim of child sexual exploitation shall not be ineligible for victim compensation.
A Bill
Be It Enacted by the Legislature of the State of Florida:
Section 1. This act may be cited as the “Florida Safe Harbor Act.”
Section 2. Subsections (4) through (12) of section 39.001, Florida Statutes, are renumbered as subsections (5) through (13), respectively, paragraph (c) of present subsection (7) and paragraph (b) of present subsection (9) are amended, and a new subsection (4) is added to that section, to read:
39.001 Purposes and intent; personnel standards and screening. —
(4) SEXUAL EXPLOITATION SERVICES. —
(a) The Legislature recognizes that child sexual exploitation is a serious problem nationwide and in this state. The children at greatest risk of being sexually exploited are runaways and throwaways. Many of these children have a history of abuse and neglect. The vulnerability of these children starts with isolation from family and friends. Traffickers maintain control of child victims through psychological manipulation, force, drug addiction, or the exploitation of economic, physical, or emotional vulnerability. Children exploited through the sex trade often find it difficult to trust adults because of their abusive experiences. These children make up a population that is difficult to serve and even more difficult to rehabilitate.
(b) The Legislature establishes the following goals for the state related to the status and treatment of sexually exploited children in the dependency process:
1. To ensure the safety of children.
2. To provide for the treatment of such children as dependent children rather than as delinquents.
3. To sever the bond between exploited children and traffickers and to reunite these children with their families or provide them with appropriate guardians.
4. To enable such children to be willing and reliable witnesses in the prosecution of traffickers.
(c) The Legislature finds that sexually exploited children need special care and services in the dependency process, including counseling, health care, substance abuse treatment, educational opportunities, and a safe environment secure from traffickers.
(d) The Legislature further finds that sexually exploited children need the special care and services described in paragraph (c) independent of their citizenship, residency, alien, or immigrant status. It is the intent of the Legislature that this state provides such care and services to all sexually exploited children in this state who are not otherwise receiving comparable services, such as those under the federal Trafficking Victims Protection Act, 22 U.S.C. ss. 7101 et seq.
(8) OFFICE OF ADOPTION AND CHILD PROTECTION. —
(c) The office is authorized and directed to:
1. Oversee the preparation and implementation of the state plan established under subsection (9) and revise and update the state plan as necessary.
2. Provide for or make available continuing professional education and training in the prevention of child abuse and neglect.
3. Work to secure funding in the form of appropriations, gifts, and grants from the state, the Federal Government, and other public and private sources in order to ensure that sufficient funds are available for the promotion of adoption, support of adoptive families, and child abuse prevention efforts.
4. Make recommendations pertaining to agreements or contracts for the establishment and development of:
a. Programs and services for the promotion of adoption, support of adoptive families, and prevention of child abuse and neglect.
b. Training programs for the prevention of child abuse and neglect.
c. Multidisciplinary and discipline-specific training programs for professionals with responsibilities affecting children, young adults, and families.
d. Efforts to promote adoption.
e. Postadoptive services to support adoptive families.
5. Monitor, evaluate, and review the development and quality of local and statewide services and programs for the promotion of adoption, support of adoptive families, and prevention of child abuse and neglect and shall publish and distribute an annual report of its findings on or before January 1 of each year to the Governor, the Speaker of the House of Representatives, the President of the Senate, the head of each state agency affected by the report, and the appropriate substantive committees of the Legislature. The report shall include:
a. A summary of the activities of the office.
b. A summary of the adoption data collected and reported to the federal Adoption and Foster Care Analysis and Reporting System (AFCARS) and the federal Administration for Children and Families.
c. A summary of the child abuse prevention data collected and reported to the National Child Abuse and Neglect Data System (NCANDS) and the federal Administration for Children and Families.
d. A summary detailing the timeliness of the adoption process for children adopted from within the child welfare system.
e. Recommendations, by state agency, for the further development and improvement of services and programs for the promotion of adoption, support of adoptive families, and prevention of child abuse and neglect.
f. Budget requests, adoption promotion and support needs, and child abuse prevention program needs by state agency.
6. Work with the direct-support organization established under s. 39.0011 to receive financial assistance.
(10) FUNDING AND SUBSEQUENT PLANS. —
(b) The office and the other agencies and organizations listed in paragraph (9)(a) shall readdress the state plan and make necessary revisions every 5 years, at a minimum. Such revisions shall be submitted to the Speaker of the House of Representatives and the President of the Senate no later than June 30 of each year divisible by 5. At least biennially, the office shall review the state plan and make any necessary revisions based on changing needs and program evaluation results. An annual progress report shall be submitted to update the state plan in the years between the 5-year intervals. In order to avoid duplication of effort, these required plans may be made a part of or merged with other plans required by either the state or Federal Government, so long as the portions of the other state or Federal Government plan that constitute the state plan for the promotion of adoption, support of adoptive families, and prevention of child abuse, abandonment, and neglect are clearly identified as such and are provided to the Speaker of the House of Representatives and the President of the Senate as required above.
Section 3. Subsections (2), (15), and (67) of section 39.01, Florida Statutes, are amended to read:
39.01 Definitions. — When used in this chapter, unless the context otherwise requires:
(2) “Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
(15) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(b) To have been surrendered to the department, the former Department of Health and Rehabilitative Services, or a licensed child-placing agency for purpose of adoption;
(c) To have been voluntarily placed with a licensed child-caring agency, a licensed child-placing agency, an adult relative, the department, or the former Department of Health and Rehabilitative Services, after which placement, under the requirements of this chapter, a case plan has expired and the parent or parents or legal custodians have failed to substantially comply with the requirements of the plan;
(d) To have been voluntarily placed with a licensed child-placing agency for the purposes of subsequent adoption, and a parent or parents have signed a consent pursuant to the Florida Rules of Juvenile Procedure;
(e) To have no parent or legal custodians capable of providing supervision and care; or
(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians;
(g) To have been sexually exploited and to have no parent, legal custodian, or responsible adult relative currently known and capable of providing the necessary and appropriate supervision and care.
(67) “Sexual abuse of a child” for purposes of finding a child to be dependent means one or more of the following acts:
(a) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
(b) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
(c) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that this does not include any act intended for a valid medical purpose.
(d) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, except that this does not include:
1. Any act which may reasonably be construed to be a normal caregiver responsibility, any interaction with, or affection for a child; or
2. Any act intended for a valid medical purpose.
(e) The intentional masturbation of the perpetrator’s genitals in the presence of a child.
(f) The intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.
(g) The sexual exploitation of a child, which includes the act of a child offering to engage in or engaging in prostitution, provided that the child is not under arrest or is not being prosecuted in a delinquency or criminal proceeding for a violation of any offense in chapter 796 based on such behavior; or allowing, encouraging, or forcing a child to:
1. Solicit for or engage in prostitution;
2. Engage in a sexual performance, as defined by chapter 827; or
3. Participate in the trade of sex trafficking as provided in s. 796.035.
Section 4. Paragraph (b) of subsection (2) and paragraph (b) of subsection (3) of section 39.401, Florida Statutes, are amended to read:
39.401 Taking a child alleged to be dependent into custody; law enforcement officers and authorized agents of the department.—
(2) If the law enforcement officer takes the child into custody, that officer shall:
(b) Deliver the child to an authorized agent of the department, stating the facts by reason of which the child was taken into custody and sufficient information to establish probable cause that the child is abandoned, abused, or neglected, or otherwise dependent. For such a child for whom there is also probable cause to believe he or she has been sexually exploited, the law enforcement officer shall deliver the child to the department. The department may place the child in an appropriate short-term safe house as provided for in s. 409.1678 if a short-term safe house is available.
For cases involving allegations of abandonment, abuse, or neglect, or other dependency cases, within 3 days after such release or within 3 days after delivering the child to an authorized agent of the department, the law enforcement officer who took the child into custody shall make a full written report to the department. (3) If the child is taken into custody by, or is delivered to, an authorized agent of the department, the agent shall review the facts supporting the removal with an attorney representing the department. The purpose of the review is to determine whether there is probable cause for the filing of a shelter petition. (b) If the facts are sufficient and the child has not been returned to the custody of the parent or legal custodian, the department shall file the petition and schedule a hearing, and the attorney representing the department shall request that a shelter hearing be held within 24 hours after the removal of the child. While awaiting the shelter hearing, the authorized agent of the department may place the child in licensed shelter care, or in a short-term safe house if the child is a sexually exploited child, or may release the child to a parent or legal custodian or responsible adult relative or the adoptive parent of the child’s sibling who shall be given priority consideration over a licensed placement, or a responsible adult approved by the department if this is in the best interests of the child. Placement of a child which is not in a licensed shelter must be preceded by a criminal history records check as required under s. 39.0138. In addition, the department may authorize placement of a housekeeper/homemaker in the home of a child alleged to be dependent until the parent or legal custodian assumes care of the child.
Section 5. Section 39.524, Florida Statutes, is created to read:
39.524 Safe-harbor placement.—
(1) Except as provided in s. 39.407 or s. 985.801, a dependent child 6 years of age or older who has been found to be a victim of sexual exploitation as defined in s. 39.01(67)(g) must be assessed for placement in a safe house as provided in s. 409.1678. The assessment shall be conducted by the department or its agent and shall incorporate and address current and historical information from any law enforcement reports; psychological testing or evaluation that has occurred; current and historical information from the guardian ad litem, if one has been assigned; current and historical information from any current therapist, teacher, or other professional who has knowledge of the child and has worked with the child; and any other information concerning the availability and suitability of safe-house placement. If such placement is determined to be appropriate as a result of this assessment, the child may be placed in a safe house, if one is available. As used in this section, the term “available” as it relates to a placement means a placement that is located within the circuit or otherwise reasonably accessible.
(2) The results of the assessment described in subsection (1) and the actions taken as a result of the assessment must be included in the next judicial review of the child. At each subsequent judicial review, the court must be advised in writing of the status of the child’s placement, with special reference regarding the stability of the placement and the permanency planning for the child.
(3)(a) By December 1 of each year, the department shall report to the Legislature on the placement of children in safe houses during the year, including the criteria used to determine the placement of children, the number of children who were evaluated for placement, the number of children who were placed based upon the evaluation, and the number of children who were not placed.
(b) The department shall maintain data specifying the number of children who were referred to a safe house for whom placement was unavailable and the counties in which such placement was unavailable. The department shall include this data in its report under this subsection so that the Legislature may consider this information in developing the General Appropriations Act.
Section 6. Section 409.1678, Florida Statutes, is created to read:
409.1678 Safe harbor for children who are victims of sexual exploitation.
(1) As used in this section, the term:
(a) “Child advocate” means an employee of a short-term safe house who has been trained to work with and advocate for the needs of sexually exploited children. The advocate shall accompany the child to all court appearances, meetings with law enforcement officials, and the state attorney’s office and shall serve as a liaison between the short-term safe house and the court.
(b) “Safe house” means a living environment that has set aside genderspecific, separate, and distinct living quarters for sexually exploited children who have been adjudicated dependent or delinquent and need to reside in a secure residential facility with staff members who are awake 24 hours a day. A safe house shall be operated by a licensed family foster home or residential child-caring agency as defined in s. 409.175, including a runaway youth center as defined in s. 409.441. Each facility must be appropriately licensed in this state as a residential child-caring agency as defined in s. 409.175 and must have applied for accreditation within 1 year after being licensed. A safe house serving children who have been sexually exploited must have available staff or contract personnel who have the clinical expertise, credentials, and training to provide services identified in paragraph (2)(b).
(c) “Secure” means that a facility providing services is supervised 24 hours a day by staff members who are awake while on duty.
(d) “Sexually exploited child” means a dependent child who has suffered sexual exploitation as defined in s. 39.01(67)(g) and is ineligible for relief and benefits under the federal Trafficking Victims Protection Act, 22 U.S.C. ss. 7101 et seq.
(e) “Short-term safe house” means a shelter operated by a licensed residential child-caring agency as defined in s. 409.175, including a runaway youth center as defined in s. 409.441, that has set aside gender-specific, separate, and distinct living quarters for sexually exploited children. In addition to shelter, the house shall provide services and care to sexually exploited children, including food, clothing, medical care, counseling, and appropriate crisis-intervention services at the time they are taken into custody by law enforcement officials or department personnel.
(2)(a) Notwithstanding any other provision of law, pursuant to rules of the department, each circuit of the department shall address the child welfare service needs of sexually exploited children as a component of the circuit’s master plan. This determination shall be made in consultation with local law enforcement officials, runaway and homeless youth program providers, local probation departments, local community-based care and social services, local guardians ad litem, public defenders, state attorney’s offices, and child advocates and services providers who work directly with sexually exploited youth.
(b) The lead agency, not-for-profit agency, or local governmental entity providing safe-house services is responsible for security, crisis-intervention services, general counseling and victim-witness counseling, a comprehensive assessment, residential care, transportation, access to behavioral health services, recreational activities, food, clothing, supplies, infant care, and miscellaneous expenses associated with caring for these children; for necessary arrangement for or provision of educational services, including life skills services and planning services for the successful transition of residents back to the community; and for ensuring necessary and appropriate health care and dental care.
(c) This section does not prohibit any provider of these services from appropriately billing Medicaid for services rendered, from contracting with a local school district for educational services, or from obtaining federal or local funding for services provided, as long as two or more funding sources do not pay for the same specific service that has been provided to a child.
(d) The lead agency, not-for-profit agency, or local governmental entity providing safe-house services has the legal authority for children served in a safe-house program, as provided in chapter 39 or this chapter, as appropriate, to enroll the child in school, to sign for a driver license for the child, to cosign loans and insurance for the child, to sign for medical treatment of the child, and to authorize other such activities.
(e) All of the services specified in this section may, to the extent possible provided by law and with funding authorized, be available to all sexually exploited children whether they are accessed voluntarily, as a condition of probation, through a diversion program, through a proceeding under chapter 39, or through a referral from a local community-based care or social service agency.
(3) The local circuit administrator may, to the extent that funds are available, in conjunction with local law enforcement officials, contract with an appropriate not-for-profit agency having experience working with sexually exploited children to train law enforcement officials who are likely to encounter sexually exploited children in the course of their law enforcement duties on the provisions of this section and how to identify and obtain appropriate services for sexually exploited children. Circuits may work cooperatively to provide such training, and such training may be provided on a regional basis. The department shall assist circuits in obtaining any available funds for the purposes of conducting law enforcement training from the Office of Juvenile Justice and Delinquency Prevention of the United States Department of Justice.
(4) The department may adopt rules necessary to administer this section.
Section 7. Section 796.07, Florida Statutes, is amended to read:
796.07 Prohibiting prostitution and related acts,—
(1) As used in this section:
(a) “Prostitution” means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.
(b) “Lewdness” means any indecent or obscene act.
(c) “Assignation” means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.
(d) “Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.
(2) It is unlawful:
(a) To own, establish, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.
(b) To offer, or to offer or agree to secure, another for the purpose of prostitution or for any other lewd or indecent act.
(c) To receive, or to offer or agree to receive, any person into any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there for such purpose.
(d) To direct, take, or transport, or to offer or agree to direct, take, or transport, any person to any place, structure, or building, or to any other person, with knowledge or reasonable cause to believe that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation.
(e) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
(f) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation.
(g) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
(h) To aid, abet, or participate in any of the acts or things enumerated in this subsection.
(i) To purchase the services of any person engaged in prostitution.
(3)(a) In the trial of a person charged with a violation of this section, testimony concerning the reputation of any place, structure, building, or conveyance involved in the charge, testimony concerning the reputation of any person residing in, operating, or frequenting such place, structure, building, or conveyance, and testimony concerning the reputation of the defendant is admissible in evidence in support of the charge.
(b) Notwithstanding any other provision of law, a police officer may testify as an offended party in an action regarding charges filed pursuant to this section.
(4) A person who violates any provision of this section commits:
(a) A misdemeanor of the second degree for a first violation, punishable as provided in s. 775.082 or s. 775.083.
(b) A misdemeanor of the first degree for a second violation, punishable as provided in s. 775.082 or s. 775.083.
(c) A felony of the third degree for a third or subsequent violation, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) A person who is charged with a third or subsequent violation of this section shall be offered admission to a pretrial intervention program or a substance-abuse treatment program as provided in s. 948.08.
(6) A person who violates paragraph (2)(f) shall be assessed a civil penalty of $5,000 if the violation results in any judicial disposition other than acquittal or dismissal. Of the proceeds from each penalty assessed under this subsection, the first $500 shall be paid to the circuit court administrator for the sole purpose of paying the administrative costs of treatment-based drug court programs provided under s. 397.334. The remainder of the penalty assessed shall be deposited in the Operations and Maintenance Trust Fund of the Department of Children and Family Services for the sole purpose of funding safe houses and short-term safe houses as provided in s. 409.1678.
Section 8. Section 960.065, Florida Statutes, is amended to read:
960.065 Eligibility for awards.—
(1) Except as provided in subsection (2), the following persons shall be eligible for awards pursuant to this chapter:
(a) A victim.
(b) An intervenor.
(c) A surviving spouse, parent or guardian, sibling, or child of a deceased victim or intervenor.
(d) Any other person who is dependent for his or her principal support upon a deceased victim or intervenor.
(2) Any claim filed by or on behalf of a person who:
(a) Committed or aided in the commission of the crime upon which the claim for compensation was based;
(b) Was engaged in an unlawful activity at the time of the crime upon which the claim for compensation is based;
(c) Was in custody or confined, regardless of conviction, in a county or municipal detention facility, a state or federal correctional facility, or a juvenile detention or commitment facility at the time of the crime upon which the claim for compensation is based;
(d) Has been adjudicated as a habitual felony offender, habitual violent offender, or violent career criminal under s. 775.084; or
(e) Has been adjudicated guilty of a forcible felony offense as described in s. 776.08, is ineligible.
(3) Any claim filed by or on behalf of a person who was in custody or confined, regardless of adjudication, in a county or municipal facility, a state or federal correctional facility, or a juvenile detention, commitment, or assessment facility at the time of the crime upon which the claim is based, who has been adjudicated as a habitual felony offender under s. 775.084, or who has been adjudicated guilty of a forcible felony offense as described in s. 776.08 renders the person ineligible. Notwithstanding the foregoing, upon a finding by the Crime Victims’ Services Office of the existence of mitigating or special circumstances that would render such a disqualification unjust, an award may be approved. A decision that mitigating or special circumstances do not exist in a case subject to this section does not constitute final agency action subject to review pursuant to ss. 120.569 and 120.57.
(4) Payment may not be made under this chapter if the person who committed the crime upon which the claim is based will receive any direct or indirect financial benefit from such payment, unless such benefit is minimal or inconsequential. Payment may not be denied based on the victim’s familial relationship to the offender or based upon the sharing of a residence by the victim and offender, except to prevent unjust enrichment of the offender.
(5) A person is not ineligible for an award pursuant to paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) if that person is a victim of sexual exploitation of a child as defined in s. 39.01(67)(g).
Section 9. Paragraph (b) of subsection (2) of section 985.115, Florida Statutes, is amended to read:
985.115 Release or delivery from custody.—
(2) Unless otherwise ordered by the court under s. 985.255 or s. 985.26, and unless there is a need to hold the child, a person taking a child into custody shall attempt to release the child as follows:
(b) Contingent upon specific appropriation, to a shelter approved by the department or to an authorized agent or short-term safe house under s. 39.401(2)(b).
Section 10. This act shall take effect January 1, 2013.
Approved by the Governor April 13, 2012.
Filed in Office Secretary of State April 13, 2012.