| |

Arizona creates a new financial crime offence with a life sentence.

There's a caveat to this article: it's not a financial crime Bill but it has a serious financial crime impact.

The Bill in question is AZ HB2889 . the Bill in question has passed the Arizona House of Repres with a majority of 51-1 with a handful of abstentions. It originated in the state House of Representatives on 15th February 2021.

With surprising haste, it passed its Committee stages and and was passed 51-1 with 8 abstentions out of the House and onto the Senate. That was on 1 March. On 4th March, it had passed its senate committee stages and read for the second time. Both houses are held by a Republican Majority and the Governor is also Republican. So is the Attorney General. The Bill in question was proposed by a group of Republican state Representatives, only one of which is a woman. For the avoidance of doubt, state senators are not US Senators. It is therefore unlikely that the Bill will not be brought into law in substantially similar form to that which passed through the state Senate.

It is a very poorly drafted piece of legislation and clearly the various judicial committees have not had time, or the inclination, to resolve the various muddles it creates. Also, the English is imprecise. This is problematic because it makes proving offences more difficult and it opens the door to successful appeals under the Rule of Lenity which says that, in the event of an ambiguity, it shall be resolved in favour of the defendant.

Thankfully, those parts are not those with which this article is concerned.

The Act, when it is passed, relates to sentencing of those who are engaged in one or more of a range of sexual offences against children.

It says "a person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving commercial exploitation of a minor or child sex or trafficking or involving molestation of a child and the person has been previously been convicted of a dangerous crime against children in the first degree including molestation of a child shall be sentenced to imprisonment in the custody of the state department of corrections for natural life.

A person who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis for the remainder of the person's natural life."

This, thankfully, is not as muddled as much of the remainder of the Bill. But, to make it even clearer

we can simplify it as saying "on a second offence, where there is a commercial element, the defendant will be sentenced to life imprisonment of the strictest terms without any possibility of early release or relaxation of incarceration."

It is that "commercial element" that draws our attention.

It is not necessary to prove the complicated requirements of counter-money laundering laws, only that there was an element of commercial exploitation. That is an extremely wide classification that obviously goes far beyond the relationship between a pimp and a prostitute.

The term "dangerous crime" is defined as:

"Dangerous crime against children" means any of the following that is committed against a minor who is under fifteen years of age:

(a) Second degree murder.

(b) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.

(c) Sexual assault.

(d) Molestation of a child.

(e) Sexual conduct with a minor.

(f) Commercial sexual exploitation of a minor.

(g) Sexual exploitation of a minor.

(h) Child abuse as prescribed in section 13-3623, subsection A, paragraph 1.

(i) Kidnapping.

(j) Sexual abuse.

(k) Taking a child for the purpose of prostitution as prescribed in section 13-3206.

(l) Child sex trafficking as prescribed in section 13-3212.

(m) Involving or using minors in drug offenses.

(n) Continuous sexual abuse of a child.

(o) Attempted first degree murder.

(p) Sex trafficking.

(q) Manufacturing methamphetamine under circumstances that cause physical injury to a minor.

(r) Bestiality as prescribed in section 13-1411, subsection A, paragraph 2.

(s) Luring a minor for sexual exploitation.

(t) Aggravated luring a minor for sexual exploitation.

(u) Unlawful age misrepresentation.

(v) Unlawful mutilation.

(w) Sexual extortion as prescribed in section 13-1428. (of the Arizona Criminal Code).

One of the reasons that we say that this Bill is very badly drafted is that there are multiple subsections which limit the conduct in relation to sentencing other than that we are primarily concerned with i.e. that with a commercial element.

For those interested in child protection, human trafficking at all ages and the like the Bill is interesting for the range of offences for which relatively small sentences are defined. Some have lauded the Bill but the fact is that it takes it relatively easy on the commercial trafficking of non-minors. Indeed, most of the offences that cause concern in trafficking are only a class 2 felony. However, on a second conviction, regardless of any commercial element, there is provision for a whole-life sentence for child sex trafficking.

So what is "commercial sexual exploitation." When you read this, think of the silly things young people do on social media or messaging apps just as much as you think about heinous offences and cruelty.

A person commits commercial sexual exploitation of a minor by knowingly:

1. Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

2. Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.

3. Permitting a minor under the person's custody or control to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

4. Transporting or financing the transportation of any minor through or across this state with the intent that the minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual depiction or live act depicting such conduct.

5. Using an advertisement for prostitution as defined in section 13-3211 that contains a visual depiction of a minor.

Website owners are excused all liability
B. Subsection A, paragraph 5 of this section does not apply to an act that is prohibited by section 13-3555 or to websites or internet service providers that host advertisements created and published by third parties and do not participate in creating or publishing the advertisements."

A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

3. Possessing any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

While the Bill does not expressly mention money laundering and does not include any provision for confiscation of any gains, that is not necessary because Arizona has its own counter-money laundering law and asset confiscation provisions.

However, a finding of commercial exploitation will be strong evidence in a money laundering case and, potentially, all that is needed to bring confiscation proceedings.

The Bill, as it went to the Senate, is here: https://legiscan.com/AZ/text/H... .

---------------- Advertising ---------------- --------------------------------- Like this content? --------------------------------------

Author: 
Nigel Morris-Co...

hahagotcha