HF 2144 (LSB 5941YH (2) 91)

HOUSE FILE 2144

BY  THOMPSON

A BILL FOR

An Act relating to the expungement of certain criminal history records of victims of human trafficking, and including penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  710A.8  Expungement of criminal history records —— human trafficking victims.
   1.  As used in this section, unless the context otherwise requires, “official documentation” means documentation issued by a federal, state, or local office, agency, or department that provides evidence of a person’s status as a victim.
   2.  a.  (1)  Except as otherwise provided in subsection 9, a person may petition the court for expungement of the person’s criminal history record resulting from the arrest or filing of a charge, without regard to the disposition of the arrest or of the charge, for one or more offenses committed or reported to have been committed while the person was a victim.
   (2)  A petition for expungement may be filed by a person at any time after the date on which the person is no longer a victim or the date on which the person has accessed services for victims. The petition is not required to be filed in the court in which the person’s criminal proceedings originally took place.
   b.  A petition filed under this section shall be considered complete only if accompanied by all of the following:
   (1)  The petitioner’s sworn statement attesting that the petitioner is eligible for such expungement to the best of the petitioner’s knowledge or belief. A petitioner who knowingly provides false information on the sworn statement commits a class “D” felony, punishable as provided in section 720.2.
   (2)  Official documentation, if available.
   c.  A clerk of court shall not charge a filing fee, service charge, copy fee, or any other charge for a petition filed under this section.
   3.  A copy of a petition filed under this section shall be served upon the appropriate county attorney or the attorney general, and the arresting law enforcement agency. The county attorney, the attorney general, and the arresting law enforcement agency may respond to the court regarding the petition.
   4.  a.  The petitioner and the petitioner’s attorney may appear at any court proceeding related to the petition telephonically or via remote video conference.
   b.  The court shall allow a victim counselor from a county attorney’s office or from a law enforcement agency to be present with the petitioner during any court proceeding related to the petition if requested by the petitioner and if a victim counselor is available.
   5.  a.  If a petitioner submits official documentation pursuant to subsection 2, paragraph “b”, subparagraph (2), it shall create a presumption that the petitioner’s participation in the offense or offenses for which expungement is sought was due to the petitioner’s status as a victim, and the court’s final determination of the petition shall be by a preponderance of the evidence.
   b.  Official documentation shall not be required for a court to grant a petition under this section; however, a court’s final determination without official documentation shall be based on clear and convincing evidence.
   6.  a.  Notwithstanding any law to the contrary, a court may order the expungement of the criminal history record of a victim if the victim complies with the requirements of this section.
   b.  If relief is ordered by a court, the clerk of court shall certify a copy of the court order to the appropriate county attorney or attorney general, the arresting law enforcement agency, and any other agency that court records reflect has received the victim’s criminal history record from the court. The arresting law enforcement agency shall forward the court order to each agency to which the arresting law enforcement agency disseminated the criminal history record to which the court order pertains. The department of public safety shall forward the court order to the federal bureau of investigation.
   7.  a.  A criminal history record that is expunged under this section shall be a confidential record and exempt from public access under section 22.7, except that the criminal history record shall be made available by a clerk of district court upon court order.
   b.  A criminal history record that is expunged under this section that is retained by the department of public safety shall be a confidential record and exempt from public access under section 22.7, except that the criminal history record shall be made available to all of the following:
   (1)  A criminal justice agency, upon request.
   (2)  A government agency that is authorized by state or federal law to determine eligibility to purchase or possess a firearm or to carry a concealed firearm for use in the course of the government agency’s official duties, upon request.
   (3)  Any other agency, upon court order.
   c.  Any information that reveals, or that may reveal, the identity of a person whose criminal history record has been expunged under this section shall be a confidential record and exempt from public access under section 22.7.
   d.  Criminal investigative data and criminal intelligence data that is confidential and exempt under paragraphs “a” through “c” may be disclosed by a law enforcement agency for any of the following reasons:
   (1)  In furtherance of the law enforcement agency’s official duties and responsibilities.
   (2)  For print, publication, or broadcast if the law enforcement agency determines that such release will assist in locating or identifying a person whom the agency believes is missing or endangered. The information provided shall be limited to only the information necessary to identify or locate the missing or endangered person.
   (3)  To another government agency in the furtherance of the government agency’s official duties and responsibilities.
   8.  a.  A person who is the subject of a criminal history record that is expunged under this section may lawfully deny or fail to acknowledge an arrest or conviction covered by the expunged criminal history record, except if the person is a candidate for employment with a criminal justice agency or is a defendant in a criminal prosecution.
   b.  Subject to the exceptions in paragraph “a”, a person who has been granted an expungement of a criminal history record under this section shall not be held under any law of this state to have committed perjury or to be otherwise liable for providing a false statement by reason of the failure to recite or acknowledge the criminal history record.
   9.  This section shall not apply to any of the following offenses:
   a.  Homicide or a related crime in violation of chapter 707.
   b.  Intimidation with a dangerous weapon in violation of section 708.6.
   c.  Going armed with intent in violation of section 708.8.
   d.  Stalking in violation of section 708.11, subsection 3.
   e.  Sexual abuse in violation of chapter 709.
   f.  Kidnapping or related offenses in violation of chapter 710.
   g.  Robbery, aggravated theft, or extortion in violation of chapter 711.
   h.  Arson in violation of chapter 712.
   i.  Burglary in the first degree in violation of section 713.3.
   j.  Burglary in the second degree in violation of section 713.5.
   k.  Neglect or abandonment of a dependent person in violation of section 726.3.
   l.  Child endangerment in violation of section 726.6.
   10.  If a person has been adjudicated not guilty by reason of insanity or was found to be incompetent to stand trial, the expungement of the person’s criminal history record shall not prevent the entry of the judgment in state and national databases for use in determining the person’s eligibility to purchase or possess a firearm or to carry a concealed firearm pursuant to sections 724.8 and 724.26 and 18 U.S.C. §922(t), and shall not prevent any government agency that is authorized by state or federal law to determine the person’s eligibility to purchase or possess a firearm or to carry a concealed firearm from accessing or using the person’s criminal history record during the course of such agency’s official duties.
   11.  a.  This section shall not be construed to confer any right to any person to the expungement of the person’s criminal history record.
   b.  Any petition for expungement of a criminal history record under this section may be denied at the discretion of the court.
   12.  The supreme court may prescribe rules governing the procedures applicable to the expungement of a criminal history record under this section.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill is related to the expungement of certain criminal history records (criminal record) of victims of human trafficking. “Human trafficking” is defined as participating in a venture to recruit, harbor, transport, supply provisions, or obtain a person for forced labor or service that results in involuntary servitude, peonage, debt bondage, or slavery; or for commercial sexual activity through the use of force, fraud, or coercion, except that if the trafficked person is under the age of 18, the commercial sexual activity need not involve force, fraud, or coercion; and knowingly purchasing or attempting to purchase services involving commercial sexual activity from a victim or another person engaged in trafficking, or from a law enforcement officer or agent posing as a person engaged in human trafficking. “Victim” is defined as a person subjected to or identified as being subjected to or targeted for human trafficking, including a law enforcement officer or agent posing as a person subjected to or a target for human trafficking.
   The bill permits a person to petition the court for expungement of the person’s criminal record resulting from the arrest or filing of a charge, without regard to the disposition of the arrest or of the charge, for an offense committed or reported to have been committed while the person was a victim. A petition for expungement (petition) may be filed any time after the date on which the person is no longer a victim or the person has accessed services for victims.
   A petition must include the petitioner’s sworn statement attesting that the petitioner is eligible for expungement and official documentation, if available. “Official documentation” is defined as documentation issued by a federal, state, or local office, agency, or department that provides evidence of a person’s status as a victim. A petitioner who knowingly provides false information on the sworn statement commits a class “D” felony, punishable as provided in Code section 720.2. A copy of the petition shall be served upon the appropriate county attorney or the attorney general, and the arresting law enforcement agency.
   A court’s final determination of a petition shall be based on a preponderance of the evidence. If the petitioner submits official documentation to the court, the submission of such documentation creates a presumption that the petitioner’s participation in the offense or offenses for which expungement is sought was due to the petitioner’s status as a victim. Official documentation shall not be required for a court to grant a petition; however, a final determination made by the court without official documentation shall be based on a showing of clear and convincing evidence.
   Notwithstanding any law to the contrary, a court may order the expungement of the criminal record of a victim if the victim complies with the requirements of the bill. If relief is ordered by a court, the requirements for certification and distribution of copies of the court order shall be as provided in the bill.
   Under the bill, a criminal record that is expunged shall be a confidential record and exempt from public access under Code section 22.7, except as detailed in the bill. Any information that reveals, or that may reveal, the identity of a person whose criminal record has been expunged shall be a confidential record and exempt from public access under Code section 22.7. Criminal investigative data and criminal intelligence data that is confidential and exempt under the bill may be disclosed by a law enforcement agency for the reasons detailed in the bill.
   A person who is the subject of a criminal record that is expunged may lawfully deny or fail to acknowledge an arrest or conviction covered by the expunged criminal record, except if the person is a candidate for employment with a criminal justice agency or is a defendant in a criminal prosecution. Subject to those exceptions, a person who has been granted an expungement shall not be held under any law of this state to have committed perjury or to be otherwise liable for providing a false statement by reason of the person’s failure to recite or acknowledge the criminal record.
   The bill does not apply to certain criminal offenses as detailed in the bill. If a person was adjudicated not guilty by reason of insanity or was found to be incompetent to stand trial, expungement of the person’s criminal record shall not prevent the entry of the judgment in state and national databases for use in determining the person’s eligibility to purchase or possess a firearm or to carry a concealed firearm pursuant to Code sections 724.8 and 724.26 and 18 U.S.C. §922(t), and shall not prevent any government agency that is authorized by state or federal law to determine the person’s eligibility to purchase or possess a firearm or to carry a concealed firearm from accessing or using the person’s criminal record during the course of the agency’s official duties.
   The bill shall not be construed to confer any right to a person to the expungement of the person’s criminal record. Any petition for expungement of a person’s criminal record under the bill may be denied at the discretion of the court.
   The bill provides that the supreme court may prescribe rules governing the procedures applicable to the expungement of a criminal record under the bill.