ASSEMBLY, No. 1890

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JANUARY 25, 2010

 


 

Sponsored by:

Assemblyman  JOSEPH CRYAN

District 20 (Union)

 

 

 

 

SYNOPSIS

     Permits the issuance of restraining orders against persons charged with certain prostitution related offenses.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning the restraint of certain persons charged with prostitution offenses and supplementing Title 2C of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    This act shall be known and may be cited as the "Prostitution Offenders Restraining Order Act of 2008."

 

     2.  Findings, declarations relative to removal, restraint of certain prostitution offenders.

     The Legislature hereby finds and declares to be the public policy of this State, the following:

     a.     By the enactment of prostitution-related offenses as part of the New Jersey Code of Criminal Justice, the Legislature recognized that prostitution and related offenses pose a serious and pervasive threat to the health, safety and welfare of the citizens of this State, and that the related offense of trafficking in humans for sex is a major source of income for criminal enterprises engaged in human trafficking.

     b.    Prostitution and the promotion of prostitution can undermine the quality of life enjoyed by all persons who live or work in a neighborhood where such unlawful activity occurs.

     c.     Persons who engage in prostitution-related activity serve as negative role models for the young, enlist others to join in illicit enterprises, attract violent criminals who prey upon the innocent, and drive away law-abiding citizens, thus having an adverse impact upon legitimate businesses.

     d.    Displacing those who engage in prostitution-related offenses from the situs of their offenses will disrupt prostitution by forcing offenders to abandon familiar and comfortable surroundings and requiring them to rely on more cumbersome techniques for committing the offenses.  Restraining orders will also protect the public by separating persons engaging in or promoting prostitution from their known areas for soliciting and consummating acts of prostitution.

 

     3.    Definitions.

     As used in this act:

     a.     "Person" means any person charged with or convicted of a prostitution offense or any juvenile charged with delinquency or adjudicated delinquent for an act which, if committed by an adult, would be a prostitution offense.

     b.    "Place" includes any premises, residence, business establishment, location or specified area including all buildings and all appurtenant land, in which or at which a prostitution offense occurred or is alleged to have occurred or is affected by the prostitution offense with which the person is charged.  "Place" does not include public rail, bus or air transportation lines or limited access highways which do not allow pedestrian access.

     c.     "Prostitution offense" means:

     (1)   any of the following:  Prostitution in violation of N.J.S. 2C:34-1; promotion of prostitution in violation of N.J.S. 2C:34-1; or loitering for the purpose of engaging in prostitution in violation of section 3 of P.L. 1997, c.93 (2C:34-1.1).

 

     4.  Issuance of order by court.  a.  When a person is charged with a prostitution offense on a warrant and the person is released from custody before trial on bail or personal recognizance, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 5 of P.L.    , c.  (C.        ) (now pending before the Legislature as section  5 of this bill) and except as provided in subsection e. of this section, shall as a condition of release issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.     , c.    (C.      ) (now pending before the Legislature as section 3 of this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     b.    When a person is charged with a prostitution offense on a summons, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 5 of P.L.     , c.   (C.      ) (now pending before the Legislature as section 5 of this bill) and except as provided in subsection e. of this section, shall, at the time of the defendant's first appearance, issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.    , c.    (C.       ), (now pending before the Legislature as section 3 of this bill) including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     c.     When a person is charged with a prostitution offense on a juvenile delinquency complaint and is released from custody at a detention hearing pursuant to section 19 of P.L.1982, c.77 (C.2A:4A-38), the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 5 of P.L.    , c.  (C.        ) (now pending before the Legislature as section 5 of this bill) and except as provided in subsection e. of this section, shall issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.    , c.    (C.         ) (now pending before the Legislature as this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     d.    When a person is charged with a prostitution offense on a juvenile delinquency complaint and is released without being detained pursuant to section 15 or 16 of P.L.1982, c.77 (C.2A:4A:34 or C.2A:4A-35), the law enforcement officer or prosecuting attorney shall prepare an application pursuant to section 5 of P.L.    , c.    (C.         ) (now pending before the Legislature as section 5 of this bill) for filing on the next court day.

     The law enforcement officer releasing the juvenile shall serve the juvenile and his parent or guardian with written notice that an order shall be issued by the Family Part of the Superior Court on the next court day prohibiting the juvenile from entering any place defined by subsection b. of section 3 of P.L.    , c.    (C.         ) (now pending before the Legislature as section 3 of this bill), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     The court shall issue such order on the first court day following the release of the juvenile.  If the restraints contained in the court order differ from the restraints contained in the notice, the order shall not be effective until the third court day following the issuance of the order.  The juvenile may apply to the court to stay or modify the order on the grounds set forth in subsection e. of this section.

     e.     The court may forego issuing a restraining order for which application has been made pursuant to section 5 of P.L.    , c.    (C.      ) (now pending before the Legislature as section 5 of this bill) only if the defendant establishes by clear and convincing evidence that:

     (1)   the defendant lawfully resides at or has legitimate business on or near the place, or otherwise legitimately needs to enter the place. In such an event, the court shall not issue an order pursuant to this section unless the court is clearly convinced that the need to bar the person from the place in order to protect the public safety and the rights, safety and health of the residents and persons working in the place outweighs the person's interest in returning to the place.  If the balance of the interests of the person and the public so warrants, the court may issue an order imposing conditions upon the person's entry at, upon or near the place; or

     (2)   the issuance of an order would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of persons residing in or having business in the place.

     f.     A restraining order issued pursuant to subsection a., b., c., d. or h. of this section shall describe the place from which the person has been barred and any conditions upon the person's entry into the place, with sufficient specificity to enable the person to guide his conduct accordingly and to enable a law enforcement officer to enforce the order.  The order shall also prohibit the person from entering an area of up to 500 feet surrounding the place, unless the court rules that a different buffer zone would better effectuate the purposes of this act.  In the discretion of the court, the order may contain modifications to permit the person to enter the area during specified times for specified purposes, such as attending school during regular school hours.  When appropriate, the court may append to the order a map depicting the place.  The person shall be given a copy of the restraining order and any appended map and shall acknowledge in writing the receipt thereof.

     g.  (1)  The court shall provide notice of the restraining order to the local law enforcement agency where the arrest occurred and to the county prosecutor.

     (2)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a prostitution offense, the local law enforcement agency may post a copy of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, upon one or more of the principal entrances of the place or in any other conspicuous location.  Such posting shall be for the purpose of informing the public, and the failure to post a copy of the order shall in no way excuse any violation of the order.

     (3)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a prostitution offense, any law enforcement agency may publish a copy of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, in a newspaper circulating in the area of the restraining order.  Such publication shall be for the purpose of informing the public, and the failure to publish a copy of the order shall in no way excuse any violation of the order.

     (4)   Notwithstanding the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60), prior to the person's conviction or adjudication of delinquency for a prostitution offense, any law enforcement agency may distribute copies of any orders issued pursuant to this section, or an equivalent notice containing the terms of the order, to residents or businesses located within the area delineated in the order or, in the case of a school or any government-owned property, to the appropriate administrator, or to any tenant association representing the residents of the affected area.  Such distribution shall be for the purpose of informing the public, and the failure to publish a copy of the order shall in no way excuse any violation of the order.

     h.     When a person is convicted of or adjudicated delinquent for any prostitution offense, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 5 of P.L.    , c.    (C.         ) (now pending as section 5 of this bill) and except as provided in subsection e. of this section, shall, by separate order or within the judgment of conviction, issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.    , c.    (C.         ), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.

     Upon the person's conviction or adjudication of delinquency for a prostitution offense, a law enforcement agency, in addition to posting, publishing, and distributing the order or an equivalent notice pursuant to paragraphs (2), (3) and (4) of subsection g. of this section, may also post, publish and distribute a photograph of the person.

     i.      When a juvenile has been adjudicated delinquent for an act which, if committed by an adult, would be a prostitution offense, in addition to an order required by subsection h. of this section or any other disposition authorized by law, the court may order the juvenile and any parent, guardian or any family member over whom the court has jurisdiction to take such actions or obey such restraints as may be necessary to facilitate the rehabilitation of the juvenile or to protect public safety or to safeguard or enforce the rights of residents of the place.  The court may commit the juvenile to the care and responsibility of the Department of Human Services until such time as the juvenile reaches the age of 18 or until the order of removal and restraint expires, whichever first occurs, or to such alternative residential placement as is practicable.

     j.     An order issued pursuant to subsection a., b., c. or d. of this section shall remain in effect until the case has been adjudicated or dismissed, or for not less than two years, whichever is less.  An order issued pursuant to subsection h. of this section shall remain in effect for such period of time as shall be fixed by the court but not longer than the maximum term of imprisonment or incarceration allowed by law for the underlying offense or offenses.  When the court issues a restraining order pursuant to subsection h. of this section and the person is also sentenced to any form of probationary supervision or participation in the Intensive Supervision Program, the court shall make continuing compliance with the order an express condition of probation or the Intensive Supervision Program.  When the person has been sentenced to a term of incarceration, continuing compliance with the terms and conditions of the order shall be made an express condition of the person's release from confinement or incarceration on parole.  At the time of sentencing or, in the case of a juvenile, at the time of disposition of the juvenile case, the court shall advise the defendant that the restraining order shall include a fixed time period in accordance with this subsection and shall include that provision in the judgment of conviction, dispositional order, separate order or order vacating an existing restraining order, to the law enforcement agency that made the arrest and to the county prosecutor.

     k.    All applications to stay or modify an order issued pursuant to this act, including an order originally issued in municipal court, shall be made in the Superior Court. The court shall immediately notify the county prosecutor in writing whenever an application is made to stay or modify an order issued pursuant to this act.  If the court does not issue a restraining order, the sentence imposed by the court for a prostitution offense as defined in subsection b. of section 3 of P.L.   c.  (C         ) (now pending before the Legislature as this bill) this section shall not become final for ten days in order to permit the appeal of the court's findings by the prosecution.

     l.      Nothing in this section shall be construed in any way to limit the authority of the court to take such other actions or to issue such orders as may be necessary to protect the public safety or to safeguard or enforce the rights of others with respect to the place.

     m.  Notwithstanding any other provision of this section, the court may permit the person to return to the place to obtain personal belongings and effects and, by court order, may restrict the time and duration and provide for police supervision of such a visit.

 

     5.    Certification of Offense Location.  The court shall issue a restraining order pursuant to this act only upon request by a law enforcement officer or prosecuting attorney and submission of a certification describing the location of the offense.

 

     6. Violations, penalties.  Violation of any order issued pursuant to this act shall subject the person to civil contempt, criminal contempt, revocation of bail, probation or parole, or any combination of these sanctions and any other sanctions authorized by law.  A law enforcement officer may arrest an adult or take into custody a juvenile when an officer has probable cause to believe that the person has violated the terms of any removal and restraining order issued pursuant to section 5 of P.L.    , c.    (C.     ) (now pending before the Legislature as section 5 of this bill).

 

     7.  This act shall take effect immediately.

 

STATEMENT

 

     This bill would require a court to issue a restraining order (a "stay-away" order) prohibiting any person, including a juvenile, charged with or convicted of any offense involving prostitution from entering at, upon or near the place where the offense occurred or is alleged to have occurred.

     Any stay-away order issued must be drafted with sufficient specificity to enable the defendant to comply with, and a law enforcement agency to enforce, the order.  Stay-away orders would remain in effect for a period up to a maximum term of imprisonment or detention which the court could have imposed at the time of sentencing.  Pretrial restraining orders must remain in effect until the case is adjudicated or dismissed or for a minimum of two years, whichever is less.  If the order extends beyond any actual term of imprisonment, the effect would be to establish as a required condition of probation or parole that the person stay away from the place where the offense was committed.  The bill also expressly authorizes the prosecuting agency to appeal any determination by a court not to issue a "stay-away" order.

     The prostitution offenses which subject the offender to the act are: Prostitution in violation of N.J.S. 2C:34-1; Promotion of prostitution in violation of N.J.S. 2C:34-1; or Loitering for the purpose of engaging in prostitution in violation of P.L. 1997, C.93 (2C:34-1.1).

     Section 4 of the bill establishes separate court procedures for the restraining orders for various defendants, depending whether the defendant is charged with a prostitution offense on a warrant, charged with a prostitution offense on a summons, is a juvenile charged with a prostitution offense on a juvenile delinquency complaint and released from custody or is a juvenile charged with a prostitution offense on a juvenile delinquency complaint and is released without being detained.  Under this section, if the court determines that the person lawfully resides at the place or otherwise has legitimate business at the place, the court may not issue a stay-away order unless it is clearly convinced evidence that the need to bar the person outweighs the person's interest in returning to the place where the offense or conduct is alleged to have occurred.  The court is also authorized to forego issuance of the stay-away order when the defendant establishes by clear and convincing that the issuance of a stay-away order would cause undue hardship to innocent persons and would constitute a serious injustice which overrides the need to protect the rights, safety and health of the other residents of the place.

     Section 4 of the bill also provides that the order shall be drafted with sufficient specificity to enable the person to guide hs conduct accordingly and to enable a law enforcement officer to enforce the order.  This section further prohibits the defendant from entering an area of up to 500 feet surrounding the place, unless the court rules that a different buffer zone would better effectuate the purposes of the statute.  The court has discretion to modify its order to permit the defendant to enter the area during specified times for specified purposes, such as attending school during regular school hours. Finally, section 4 provides that a law enforcement agency may publish copies of any restraining orders in various locations including to businesses and residents within the defined area.

     Section 5 of the bill provides that the court shall issue a restraining order only upon request of a law enforcement officer or prosecuting attorney and submission of a certification describing the location of the offense.

     Section 6 provides that a violation of an order shall subject the person to civil contempt, criminal contempt, revocation of bail, probation or parole, or any combination of these sanctions and any other sanctions authorized by law.

     The bill authorizes law enforcement to distribute and publish photographs of the offender after his conviction.

     This bill is modeled after P.L.1999, c.334, the “Drug Offender Restraining Order Act of 1999.”