§ 787 — Trafficking an individual, forced labor and sexual servitude; class D felony; class C felony; class B felony; class A felony

Delaware § 787

• Jurisdiction: Delaware
• Title: 11
• Part: Delaware Criminal Code
• Ch. 5: SPECIFIC OFFENSES
• Subch.: Offenses Against the Person

Text

(a) For the purposes of this section:

(1) “Adult” has the meaning ascribed in § 302 of Title 1;

(2) “Adult entertainment establishment” means as defined in § 1602 of Title 24.

(3) “Along a major highway” means abutting Interstate 95, Interstate 295, Interstate 495, Route 1, Route 9, Route 13, Route 40, Route 113, Route 141, or Route 202.

(4) “Bar” means “cabaret,” “taproom,” or “tavern,” as defined in § 101 of Title 4.

(5) “Casino” means “video lottery agent,” as defined in § 4803 of Title 29.

(6) “Coercion” means:

a. The use or threat of force against, abduction of, serious harm to, or physical restraint of an individual;

b. The use of a plan, pattern, or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, or physical restraint of an individual;

c. The abuse or threatened abuse of law or legal process;

d. Controlling or threatening to control an individual’s access to a controlled substance enumerated in § 4714, § 4716, § 4718, § 4720 or § 4722 of Title 16;

e. The destruction of, taking of, or the threat to destroy or take an individual’s identification document or other property;

f. Use of debt bondage;

g. The use of an individual’s physical, cognitive disability or mental impairment, where such impairment has substantial adverse effects on the individual’s cognitive or volitional functions; or

h. The commission of civil or criminal fraud;

(7) “Commercial sexual activity” means any sexual activity for which anything of value is given, promised to, or received by any person;

(8) “Debt bondage” means inducing an individual to provide:

a. Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or

b. Labor or services in payment toward or satisfaction of a real or purported debt if:

1. The reasonable value of the labor or services is not applied toward the liquidation of the debt; or

2. The length of the labor or services is not limited and the nature of the labor or services is not defined;

(9) “Department” as used in subsection (l) of this section, means the Department of Labor, unless a different Department is specified by name.

(10) “Establishment” means an individual, partnership, limited liability company, corporation, firm, trust, association, society, or other entity engaged in a business, industry, profession, trade, or other enterprise, including a nonprofit entity, with a physical premises open to employees or the public in the State of Delaware.

(11) “Forced labor or services” means labor, as defined in this section, or services, as defined in this section, that are performed or provided by another person and are obtained or maintained through coercion as enumerated in paragraph (b)(1) of this section;

(12) “Hotel” means “hotel,” “motel,” or “tourist home,” as defined in § 2301 of Title 30.

(13) “Human trafficking” means the commission of any of the offenses created in subsection (b) of this section;

(14) “Identification document” means a passport, driver’s license, immigration document, travel document, or other government-issued identification document, including a document issued by a foreign government, whether actual or purported;

(15) “Labor or services” means activity having economic or financial value, including commercial sexual activity. Nothing in this definition should be construed to legitimize or legalize prostitution;

(16) “Maintain” means in relation to labor or services, to secure continued performance thereof, regardless of any initial agreement on the part of the victim to perform such type of service;

(17) “Massage establishment” means as defined in § 5302 of Title 24.

(18) “Minor” has the meaning ascribed in § 302 of Title 1;

(19) “Obtain” means in relation to labor or services, to secure performance thereof;

(20) “Public awareness sign” as used in subsection (l) of this section, means the sign created under paragraph (k)(3)e. of this section or a sign created by an establishment that meets all of the following requirements:

a. Is at least 8 inches wide by 11 inches long.

b. Contains at least all of the information required to be in a sign under paragraph (k)(3)e. of this section.

c. Meets any other requirements established by regulation.

(21) “Residential child care facility” means as defined in the Office of Child Care Licensing regulations promulgated under Chapter 30A of Title 14.

(22) “Restaurant with a liquor license” means a “restaurant,” as defined in § 101 of Title 4, with a “license,” as defined in § 101 of Title 4.

(23) “Serious harm” means harm, whether physical or nonphysical, including psychological, economic, or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm;

(24) “Sexual activity” means any of the sex-related acts enumerated in § 761 of this title, or in § 1342, § 1351, § 1352(1), § 1353(1), § 1354 or § 1355 of this title or sexually-explicit performances;

(25) “Sexually explicit performance” means a live public act or show, production of pornography, or the digital transfer of any of such, intended to arouse or satisfy the sexual desires or appeal to the prurient interest of viewers;

(26) “Shopping mall” means an enclosed indoor retail complex containing a variety of shops and restaurants, whether contained in a series of connected or adjacent buildings or in a single large building, and usually anchored by department stores.

(27) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by state; and

(28) “Victim” means a person who is subjected to the practices set forth in subsection (b) of this section or to conduct that would have constituted a violation of subsection (b) of this section had 79 Del. Laws, c. 276 been in effect when the conduct occurred, regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted.

(29) “Wellness center” means an urgent care clinic, walk-in health clinic, “school-based health center,” as defined in § 3571G of Title 18, substance abuse treatment clinic, psychiatric treatment facility, family planning clinic, or community health clinic.

(b)Prohibited activities. —(1)Trafficking an individual. —A person is guilty of trafficking an individual if the person knowingly recruits, transports, harbors, receives, provides, obtains, isolates, maintains, advertises, solicits, or entices an individual in furtherance of forced labor in violation of paragraph (b)(2) of this section or sexual servitude in violation of paragraph (b)(3) of this section. Trafficking an individual is a class C felony unless the individual is a minor, in which case it is a class B felony.

(2)Forced labor. —A person is guilty of forced labor if the person knowingly uses coercion to compel an individual to provide labor or services, except where such conduct is permissible under federal law or law of this State other than 79 Del. Laws, c. 276. Forced labor is a class C felony unless the individual is a minor, in which case it is a class B felony.

(3)Sexual servitude. —a. A person commits the offense of sexual servitude if the person knowingly:

1. Maintains or makes available a minor for the purpose of engaging the minor in commercial sexual activity; or

2. Uses coercion or deception to compel an adult to engage in commercial sexual activity.

b. Sexual servitude is a class C felony unless the individual is a minor, in which case it is a class B felony.

c. It is not a defense in a prosecution under paragraph (b)(3)a.1. of this section that the minor consented to engage in commercial sexual activity or that the defendant believed the minor was an adult.

(4)Patronizing a victim of sexual servitude. —A person is guilty of patronizing a victim of sexual servitude if the person knowingly gives, agrees to give, or offers to give anything of value so that the person may engage in commercial sexual activity with another person and the person knows that the other person is a victim of sexual servitude. Patronizing a victim of sexual servitude is a class D felony unless the victim of sexual servitude is a minor, in which case it is a class C felony. It is not a defense in a prosecution when the victim of sexual servitude is a minor that the minor consented to engage in commercial sexual activity or that the defendant believed the minor was an adult.

(5)Trafficking of persons for use of body parts. —A person is guilty of trafficking of persons for use of body parts when a person knowingly:

a. Recruits, entices, harbors, provides or obtains by any means, another person, intending or knowing that the person will have body parts removed for sale; or

b. Benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of this section. Such person shall be guilty of a class A felony. Nothing contained herein shall be construed as prohibiting the donation of an organ by an individual at a licensed medical facility after giving an informed voluntary consent.

(6)Aggravating circumstance. —An aggravating circumstance during the commission of an offense under paragraphs (b)(1)-(3) of this section occurs when:

a. The person recruited, enticed, or obtained the victim from a shelter designed to serve victims of human trafficking, victims of domestic violence, victims of sexual assault, runaway youth, foster children, or the homeless; or

b. The person used or threatened use of force against, abduction of, serious harm to, or physical restraint of the victim.

If an aggravating circumstance occurred, the classification of the offense under paragraphs (b)(1)-(3) of this section is elevated by 1 felony grade higher than the underlying offense.

(c)Organizational liability. —(1) An organization may be prosecuted for an offense under this section pursuant to § 281 of this title (Criminal liability of organizations).

(2) The court may consider the severity of an organization’s offense under this section and order penalties in addition to those otherwise provided for the offense, including:

a. A fine of not more than $25,000 per offense;

b. Disgorgement of profit from illegal activity in violation of this section; and

c. Debarment from state and local government contracts.

(d)Restitution is mandatory under this section. —(1) In addition to any other amount of loss identified, the court shall order restitution, including the greater of:

a. The gross income or value to the defendant of the victim’s labor or services; or

b. The value of the victim’s labor as guaranteed under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) or of Title 19, whichever is greater.

(2) The court shall order restitution under this subsection (d) even if the victim is unavailable to accept payment of restitution.

(3) If the victim is unavailable for 5 years from the date of the restitution order, the restitution ordered under this subsection (d) must be paid to the Victim Compensation Fund established under § 9016 of this title.

(e)Forfeiture. —(1) On motion, the court shall order a person convicted of an offense under paragraphs (b)(1) through (b)(5) of this section to forfeit any interest in real or personal property that was used or intended to be used to commit or facilitate the commission of the offense or that constitutes or derives from proceeds that the person obtained, directly or indirectly, as a result of the offense.

(2) In any proceeding against real or personal property under this section, the owner may assert a defense, and has the burden of establishing, by a preponderance of the evidence, that the forfeiture is manifestly disproportional to the seriousness of the offense.

(3) Proceeds from the public sale or auction of property forfeited under this subsection must be distributed in the manner otherwise provided for the distribution of proceeds of judicial sales.

(f)Admissibility of certain evidence. —In a prosecution or civil action for damages under this section, evidence of a specific instance of the alleged victim’s past sexual behavior, or reputation or opinion evidence of past sexual behavior of the alleged victim, is not admissible unless the evidence is:

(1) Admitted in accordance with §§ 3508 and 3509 of this title; or

(2) Offered by the prosecution in a criminal case to prove a pattern of trafficking by the defendant.

(g)Special provisions regarding a minor. —(1) A minor who has engaged in commercial sexual activity is presumed to be a neglected or abused child under § 901 et seq. of Title 10. Whenever a police officer has probable cause to believe that a minor has engaged in commercial sexual activity, the police officer shall make an immediate report to the Department of Services for Children, Youth and Their Families pursuant to § 901 et seq. of Title 16.

(2) A party to a juvenile delinquency proceeding in which a minor is charged with loitering, or an attorney guardian ad litem or court-appointed special advocate appointed in a proceeding under § 901 et seq. of Title 10, may file a motion on behalf of a minor in a juvenile delinquency proceeding seeking to stay the juvenile delinquency proceedings. Such motion may be opposed by the Attorney General. The Family Court may consider such a motion and, in its discretion, may stay the juvenile delinquency proceeding indefinitely. Upon such motion, the Department of Services for Children, Youth and Their Families and/or the Family Court may identify and order available specialized services for the minor that, in the opinion of the Department of Services for Children, Youth and Their Families or Family Court, are best suited to the needs of the juvenile. So long as the minor substantially complies with the requirement of services identified by the Department of Services for Children, Youth and Their Families and/or ordered by the Family Court, the Attorney General shall, upon motion, nolle prosequi the stayed charges no earlier than 1 year after the stay was imposed. Upon motion of the Attorney General that the minor has not substantially complied with the requirement of services identified by the Department of Services for Children, Youth and Their Families and/or ordered by the Family Court, the Family Court shall lift the stay for further proceedings in accordance with the regular course of such proceedings.

(h)Defense to charge of prostitution or loitering. —An individual charged with prostitution or loitering committed as a direct result of being a victim of human trafficking may assert as an affirmative defense that the individual is a victim of human trafficking.

(i)Civil action. —(1) A victim may bring a civil action against a person that commits an offense under subsection (b) of this section for compensatory damages, punitive damages, injunctive relief, and any other appropriate relief.

(2) In an action under this subsection, the court shall award a prevailing victim reasonable attorneys’ fees and costs, including reasonable fees for expert witnesses.

(3) An action under this subsection must be commenced not later than 5 years after the later of the date on which the victim:

a. Was freed from the human trafficking situation; or

b. Attained 18 years of age.

(4) Damages awarded to the victim under this subsection for an item must be offset by any restitution paid to the victim pursuant to subsection (d) of this section for the same item.

(5) This subsection does not preclude any other remedy available to the victim under federal law or law of this State other than this section.

(j)Application for pardon and petition to expunge; motion to vacate adjudication of delinquency or conviction and expungement record. —(1) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, a person arrested or convicted of any crime, except those deemed to be violent felonies pursuant to § 4201 of this title committed as a direct result of being a victim of human trafficking may file an application for a pardon pursuant to article VII of the Delaware Constitution and § 4361 et seq. of this title and may file a petition requesting expungement of such criminal record pursuant to § 4371 et seq. of this title.

(2) A person convicted or adjudicated delinquent of any crime, except those deemed to be violent felonies pursuant to § 4201 of this title, committed as a direct result of being a victim of human trafficking may file a motion in the court in which the adjudication of delinquency or conviction was obtained to vacate the adjudication or judgment of conviction. A motion filed under this paragraph must:

a. Be in writing;

b. Be sent to the Delaware Department of Justice;

c. [Repealed.]

d. Describe the evidence and provide copies of any official documents showing that the person is entitled to relief under this paragraph.

If the motion satisfies the foregoing requirements, the court shall hold a hearing on a motion, provided that the court may dismiss a motion without a hearing if the court finds that the motion fails to assert grounds on which relief may be granted. Official documentation of the person’s status as a victim of this section, “trafficking in persons”, or “a severe form of trafficking” from a federal, state, or local government agency shall create a presumption that the person’s participation in any crime, except those deemed to be violent felonies pursuant to § 4201 of this title, committed was a direct result of having been a victim of human trafficking but shall not be required for the court to grant a petition under this paragraph. If the petitioner can show to the satisfaction of the court that such petitioner is entitled to relief in a proceeding under this paragraph, the court shall grant the motion and, pursuant to this paragraph, enter an order vacating the adjudication of delinquency or judgment of conviction and dismissing the accusatory pleading, and may take such additional action as is appropriate in the circumstances or as justice requires.

(3) Notwithstanding any provisions of Chapter 43 of this title, Chapter 9 of Title 10, or any other law to the contrary, any person filing a motion under paragraph (j)(2) of this section in Superior Court or Family Court may also seek in that motion expungement of the criminal or juvenile record related to such conviction. If the court grants the motion to vacate the adjudication of delinquency or conviction under paragraph (j)(2) of this section and the movant also requested expungement, the court’s order shall require expungement of the police and court records relating to the charge and conviction or adjudication of delinquency. This order must contain a statement that the expungement is ordered under this paragraph (j)(3) and, notwithstanding any limitations to the contrary, that the provisions of §§ 4372(e), 4376, and 4377 of this title and § 1019 of Title 10 apply to the order.

(4) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, upon granting the motion, the Court of Common Pleas shall provide Superior Court with the certified order granting the motion to vacate. Upon finding that the Court of Common Pleas entered an order under paragraph (j)(2) of this section, the Superior Court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. This order must contain a statement that the expungement is ordered under this paragraph (j)(4) and, notwithstanding any limitations to the contrary, that the provisions of §§ 4372(e), 4376, and 4377 of this title apply to the order.

(k) (1) The Human Trafficking Interagency Coordinating Council is renamed as the Delaware Anti-Trafficking Action Council (Council). The Council shall administer and implement this subsection, and perform such other responsibilities as may be entrusted to it by law.

(2) The Council consists of the following 25 members:

a. Three representatives of the Judicial Branch, as appointed by the Chief Justice.

b. A representative of the Department of Justice to be appointed by the Attorney General.

c. A representative of the Office of Defense Services to be appointed by the Chief Defender.

d. A representative of the law-enforcement community to be appointed by the Speaker of the Delaware House of Representatives.

e. A representative of the health-care community to be appointed by the President Pro Tempore of the Delaware State Senate.

f. A representative of the Department of Health and Social Services to be appointed by the Secretary of the Department of Health and Social Services.

g. A representative of the Department of Labor to be appointed by the Secretary of Labor.

h. A representative of the Department of Services for the Children, Youth and Their Families to be appointed by the Secretary of the Department of Services for the Children, Youth and Their Families.

i. Four members who are advocates or persons who work with victims of human trafficking to be appointed by the Governor for a 3-year term and shall be eligible for reappointment. Members shall include representation from all 3 counties of the State.

j. [Repealed.]

k. A representative of the Delaware Department of Education to be appointed by the Secretary of the Department of Education.

l. A representative of the Division of Professional Regulation to be appointed by the Director of the Division of Professional Regulation.

m. Two members of the House of Representatives to be appointed by the Speaker of the House, 1 of which must be a member of the minority caucus.

n. Two members of the Senate to be appointed by the President Pro Tempore of the Senate, 1 of which must be a member of the minority caucus.

o. A representative of the Department of Transportation to be appointed by the Secretary of the Department of Transportation.

p. A representative from the Criminal Justice Council to be appointed by the Executive Director of the Criminal Justice Council.

q. A person who has been a victim of human trafficking to be appointed by the Governor for a 3-year term and shall be eligible for reappointment.

r. A resident of any county who has prior experience in working with victims of human trafficking in a legal or advocacy capacity to be appointed by the Chair of the Council with approval of a quorum of all members of the Council.

s. A retired judicial officer with knowledge of human trafficking to be appointed by the Speaker of the Delaware House of Representatives.

(3) The Council shall do all of the following:

a. Develop a comprehensive plan to provide victims of human trafficking with services.

b. Effectuate coordination between agencies, departments, and the courts with victims of human trafficking.

c. Collect and evaluate data on human trafficking in this State.

d. Promote public awareness about human trafficking, victim remedies and services, and trafficking prevention.

e. Create a public-awareness sign that contains centralized human trafficking hotline information.

f. Coordinate training on human trafficking prevention and victim services for individuals who may have recurring contact with victims or perpetrators, including government employees, health-care workers, business owners, potential victims of human trafficking, and private sector employees.

g. Pursue funding opportunities, including federal grants, through the Criminal Justice Council.

h. Conduct other appropriate activities.

i. Receive quarterly updates and annual reports from the Child Protection Accountability Commission on the Commission’s efforts regarding suspected human trafficking of a child.

(4)Meetings; quorum; officers; committees; procedure. —

a. The Council shall meet at least 4 times per year. Ten members constitute a quorum. Except as set forth under paragraph (k)(5) of this section, the Council may take action upon the affirmative vote of a majority of Council members present at a meeting.

b. A Chair and Vice Chair must be elected annually from among the members of the Council.

c. The Chair shall convene and preside over meetings of the Council and prepare an agenda for meetings.

d. The Vice Chair shall act as Chair in the absence of the Chair.

e. The Council shall establish committees composed of Council members and other knowledgeable individuals, as it deems advisable, to assist in planning, policy, goal and priority recommendations, and developing implementation plans to carry out the statutory duties of the Council.

f. 1. The Council shall submit an annual written report of its activities and recommendations to the Governor, General Assembly, the Chief Justice of the Supreme Court, and the Executive Director of the Criminal Justice Council on or before September 15.

2. For purposes of submitting the report to the General Assembly, the Council shall submit the report to the Secretary of the Senate, Chief Clerk of the House, the Chair of the Joint Finance Committee, and the Vice Chair of the Joint Finance Committee, who shall distribute the report to the General Assembly and the Joint Finance Committee.

3. The Council shall include in the annual report an explanation of the spending of any state, federal, or other funds received. For purposes of this paragraph (k)(4)f.3., “state funds” means any state money allocated to the Council other than funding for staff positions.

4. [Repealed.]

g. The Council may hold a virtual meeting in compliance with § 10006A of Title 29, except that the Council is permitted to have a staff member present at an anchor location in lieu of or in addition to having a member of the council present.

(5) a. The Council shall employ an Executive Director to be appointed by the Chair with approval of a majority of the full membership of the Council. The Executive Director will serve at the pleasure of a majority of the full membership of the Council. A vacant position is not counted for purposes of calculating full membership of the Council under this paragraph (k)(5).

b. The Executive Director of the Council shall support the Council in carrying out its duties under this subsection.

c. Within the limits of any appropriation made by the General Assembly or available funding from another funding source, the Executive Director of the Council shall employ staff and contract for services as necessary to carry out the functions of the Council.

d. The Executive Director of the Council shall report to the Council. For matters involving anything that may affect the Criminal Justice Council’s budget, the Executive Director of the Council shall also report to the Executive Director of the Criminal Justice Council. The Executive Director of the Criminal Justice Council has final approval over matters involving anything that may affect the Criminal Justice Council’s budget.

(l)Display of public awareness sign; civil penalty for failure to display.—

(1) a.Display of a public awareness sign in State of Delaware facilities.—

The Department of Transportation shall display a public awareness sign in every State-of-Delaware-operated transportation station, rest area, and welcome center which is open to the public.

b. The Department of Health and Social Services shall display a public awareness sign in every State of Delaware service center and wellness center that is operated by the Department of Health and Social Services.

c. The Department of Services for Children, Youth and Their Families shall display a public awareness sign in every residential child care facility that is operated by the Department of Services for Children, Youth and Their Families.

(2) a. A public awareness sign must be displayed in an establishment within a category designated by the Delaware Anti-Trafficking Action Council (Council) and within all of the following categories:

1. Adult entertainment establishment.

2. Entity found to be maintaining a criminal nuisance involving prostitution under § 7104 of Title 10.

3. Job recruitment center.

4. Hospital.

5. [Repealed.]

6. Wellness center other than those covered in paragraph (l)(1)b. of this section.

7. Shelter or residential service designed to serve victims of domestic violence or sexual assault, or individuals experiencing homelessness or food insecurity.

8. Residential child care facility other than those covered in paragraph (l)(1)c. of this section.

9. Independent and transitional living service provider for youth aging out of foster care.

10. Hotel.

11. Convenience store along a major highway.

12. Gas station along a major highway.

13. Casino.

14. Restaurant with a liquor license.

15. Poultry processing plant.

16. Bus or train station other than those covered in paragraph (l)(1)a. of this section.

17. Bar.

18. Massage establishment.

19. Shopping mall.

b. 1. The Council may promulgate regulations to designate a category of establishments that must display a public awareness sign in addition to those categories identified in paragraph (l)(2)a. of this section.

2. The Council may promulgate regulations to designate a specific location on the premises for a category of establishments where a public awareness sign must be displayed. If the Council designates a specific location, the Council shall include the specific location requirement within the list under paragraph (l)(2)d. of this section.

c. The Council may promulgate regulations to change the requirements as to what constitutes a public awareness sign so long as the regulations are consistent with paragraph (k)(3)e. of this section and subsection (a) of this section. If the Council promulgates regulations under this paragraph (l)(2)c., the Executive Director of the Council, or their designee, shall inform the Director of the Department’s Division of Industrial Affairs, Office of Labor Law Enforcement of the changes.

d. The Council shall publish a list of categories of establishments that must display a public awareness sign on an annual basis for notification and outreach purposes. The publication must occur in all of the following:

1. A newspaper with statewide circulation.

2. The Register of Regulations.

3. Department website.

e. 1. Except as otherwise provided in paragraphs (l)(2)e.2. through (l)(2)e.8. of this section, an establishment shall display a public awareness sign in a place that is clearly conspicuous and visible to employees and the public. To comply with the requirement that a public awareness sign be clearly conspicuous and visible to employees and the public, an establishment may need to display a public awareness sign at more than 1 location on its premises.

2. An establishment with a location on its premises designated by the Council through promulgation of regulations under paragraph (l)(2)b.2. of this section shall comply with the specific location requirement. If the establishment does not have that specific location on its premises, then the establishment shall display the public awareness sign as described in paragraph (l)(2)e.1. of this section unless the regulations state otherwise.

3. An establishment that is a hotel may not be required to display a public awareness sign in guest bedrooms. However, a public awareness sign must be displayed in a manner that is clearly conspicuous and visible in all public restrooms, all staff breakrooms, and at least 1 of the following publicly accessible locations that is present on the premises:

A. All lobbies.

B. All elevators.

C. All stairwells.

D. All vending machine or ice machine areas.

4. An establishment that is a restaurant with a liquor license must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees.

5. An establishment that is a poultry processing plant must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees.

6. An establishment that is a casino must display a public awareness sign in a manner that is clearly conspicuous and visible in all public restrooms, all staff breakrooms, and all lobbies.

7. An establishment that is a massage establishment must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees.

8. An establishment that is a shopping mall must display a public awareness sign in a manner that is clearly conspicuous and visible in all food courts and all public restrooms provided by the management of the shopping mall.

f. The Executive Director of the Council, or their designee, shall oversee the distribution of public awareness signs to State of Delaware facilities and establishments. The public awareness signs must be provided free of cost to all State of Delaware facilities and establishments that request them.

(3) The Department may enforce the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section, as well as determine whether a sign not distributed by the Council satisfies the definition of “public awareness sign” under subsection (a) of this section, using the rules and procedures of the Administrative Procedures Act, Chapter 101 of Title 29.

(4) a. The Department may conduct an inspection of an establishment following receipt of a complaint alleging that the establishment is noncompliant with public awareness sign requirements. If the Department conducts an inspection and confirms that the establishment has failed to comply with 1 or more public awareness sign requirements, the Department shall provide the establishment with public awareness signs, if needed, and written notice of all the following:

1. What noncompliance has occurred, including a citation to the specific law or regulation with which the establishment has not complied.

2. The date the Department inspected and determined there was noncompliance.

3. The possible civil penalties for noncompliance.

4. A prominently displayed statement that this notice serves as a warning.

b. If, within 3 years from the postmark date or date of hand delivery of the warning notice under paragraph (l)(4)a. of this section, the Department determines the establishment is exhibiting the same, or a substantially similar, noncompliance that was identified in the warning notice under paragraph (l)(4)a. of this section, then the Department shall assess a civil penalty against the noncompliant establishment. The Department shall provide the noncompliant establishment with public awareness signs, if needed, and written notice of all the following:

1. What noncompliance has occurred, including a citation to the specific law or regulation with which the establishment has not complied.

2. The dates the Department inspected and determined there was noncompliance.

3. The postmark or hand delivery date of the warning notice under paragraph (l)(4)a. of this section.

4. Whether this is a first or subsequent violation.

5. The civil penalty assessed.

6. That the owner of the establishment may file an appeal, including instructions on how to request a hearing.

c. 1. A request for a hearing must be made in writing, addressed to the Secretary of the Department (Secretary), and made within 10 business days from the postmark date or the date of hand delivery of the notice under paragraph (l)(4)b. of this section.

2. If a hearing is not requested under paragraph (l)(4)c.1. of this section, the determination made by the Department under paragraph (l)(4)b. of this section is final.

3. The Department shall review a request for a hearing under paragraph (l)(4)c.1. of this section to determine if the dispute can be resolved at an informal settlement conference. If the Department determines a dispute cannot be resolved at an informal settlement conference or if the Department holds an informal settlement conference and a settlement is not reached, the Department shall forward the hearing request to the Secretary to schedule a hearing.

4. The Secretary shall issue a final case decision at the conclusion of a hearing held under paragraph (l)(4)c. of this section as required under Chapter 101 of Title 29.

5. An establishment owner may seek judicial review of the Secretary’s final case decision by commencing an action in Superior Court within 30 days of the date of the final decision under paragraph (l)(4)c.4. of this section.

d. The notices required under paragraphs (l)(4)a. and (l)(4)b. of this section may be hand delivered or mailed to the noncomplying establishment.

e. The notice under paragraph (l)(4)a. of this section is not a case decision for purposes of the Administrative Procedures Act, Chapter 101 of Title 29.

f. All civil penalties collected under this subsection must be paid to the State of Delaware General Fund.

g. If the Council becomes aware of potential noncompliance with the public awareness sign requirements, the Executive Director of the Council, or their designee, shall report the potential noncompliance to the Director of the Department’s Division of Industrial Affairs, Office of Labor Law Enforcement and the Department may conduct an inspection.

h. The Department has the same authority under this subsection as in § 107 of Title 19.

i. Nothing in this subsection may be interpreted to prevent the Department from initiating its own inspections into an establishment’s compliance with the public awareness sign requirements independent of a report from the Council or a complaint.

(5) The civil penalties for noncompliance with the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section or for failure to use a sign that satisfies the definition of “public awareness sign” under subsection (a) of this section are as follows:

a. If an establishment does not correct the same, or a substantially similar, noncompliance identified in the warning notice under paragraph (l)(4)a. of this section, the establishment owner is subject to a civil penalty of not more than $500.

b. On a second or subsequent failure by an establishment to correct the same, or a substantially similar, noncompliance identified in the warning notice under paragraph (l)(4)a. of this section, the establishment owner is subject to a civil penalty of not more than $2,500.

(6) a. The Department shall submit to the General Assembly and the Council an annual written report that contains all of the following information:

1. Number of inspections conducted by the Department to check compliance with the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section, as well as determine whether a sign not distributed by the Council satisfies the definition of “public awareness sign” under subsection (a) of this section.

2. Number of warning notices under paragraph (l)(4)a. of this section issued by the Department, disaggregated by category of establishments.

3. Number of noncompliance notices under paragraph (l)(4)b. of this section issued by the Department, disaggregated by first, second, and subsequent violations and further disaggregated by category of establishments.

4. Total amount of civil penalties collected by the Department from enforcement of this subsection.

b. For purposes of submitting the report to the General Assembly, the Department shall submit the report to the Secretary of the Senate, Chief Clerk of the House, the Director and the Librarian of the Division of Legislative Services, and the Controller General of the Office of the Controller General.

c. The Department shall submit its report by December 1 of each year, beginning December 1, 2023. If the deadline falls on a weekend or Delaware state holiday, then the report is due by the State of Delaware’s next following business day.

(m) Eligibility for services. (1) A victim of human trafficking is eligible for a benefit or service, which is available through the State and identified in the plan developed under paragraph (k)(3)a. of this section, including compensation under § 9009 of this title, regardless of immigration status.

(2) A minor engaged in commercial sexual activity is eligible for a benefit or service, which is available through the State and identified in the plan developed under paragraph (k)(3)a. of this section, regardless of immigration status.

(3) As soon as practicable after a first encounter with an individual who reasonably appears to a police officer to be a victim or a minor engaged in commercial sexual activity, the police officer shall notify the appropriate state or local agency, as identified in the plan developed under paragraph (k)(3)a. of this section, that the individual may be eligible for a benefit or service under this section.

(n)Law-enforcement agency protocol. —(1) On request from an individual who a police officer or prosecutor reasonably believes is a victim who is or has been subjected to a severe form of trafficking or criminal offense required for the individual to qualify for a nonimmigrant T or U visa under 8 U.S.C. § 1101(a)(15)(T), as amended from time to time, or 8 U.S.C. § 1101(a)(15)(U), as amended from time to time, or for continued presence, under 22 U.S.C. § 7105(c)(3), as amended from time to time, the police officer or prosecutor, as soon as practicable after receiving the request, shall request that a certifying official in that police officer’s or prosecutor’s law-enforcement agency complete, sign, and give to the individual the Form I-914B or Form I-918B provided by the United States Citizenship and Immigration Services on its Internet website, and ask a federal law-enforcement officer to request continued presence.

(2) If the law-enforcement agency having responsibility under paragraph (n)(1) of this section determines that an individual does not meet the requirements for such agency to comply with paragraph (n)(1) of this section, that agency shall inform the individual of the reason and that the individual may make another request under paragraph (n)(1) of this section and submit additional evidence satisfying the requirements.

(o) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

Legislative History

76 Del. Laws, c. 125, § 1 ; 70 Del. Laws, c. 186, § 1 ; 79 Del. Laws, c. 276, § 1 ; 80 Del. Laws, c. 26, § 3 ; 81 Del. Laws, c. 110, § 1 ; 81 Del. Laws, c. 174, § 1 ; 81 Del. Laws, c. 211, § 1 ; 82 Del. Laws, c. 60, § 1 ; 82 Del. Laws, c. 83, § 8 ; 83 Del. Laws, c. 44, § 1 ; 83 Del. Laws, c. 45, § 1 ; 83 Del. Laws, c. 283, § 8 ; 83 Del. Laws, c. 389, § 1 ; 84 Del. Laws, c. 42, § 1 ; 84 Del. Laws, c. 211, § 1 ; 84 Del. Laws, c. 255, § 6 ; 85 Del. Laws, c. 13, § 1 ; 85 Del. Laws, c. 15, § 1 ; 85 Del. Laws, c. 128, § 1