S1256

	SECTION 1. Chapter 263 of the General Laws is hereby amended by inserting after Section 9 the following section:
	Section 10. Massachusetts Survivors Act
	a)	Definitions.
	For the purpose of this section, the following words shall have the following meanings:-
	i.	“Survivor”, an adult or child who has experienced any of the following, as defined below: abuse, sexual assault, post-traumatic stress disorder, or human trafficking.
	ii.	“Abuse”, as defined under section 1 of chapter 209A of the General Laws
	iii.	“Sexual Assault”, causing another to engage involuntarily in sexual relations by force, threat or duress
	iv.	“Family or household members”, as defined under section 1 of chapter 209A of the General Laws
	v.	“Posttraumatic stress disorder”, a mental health condition that is developed after an experience or being witness to a traumatic event that is either life-threatening or pose a significant threat to your physical, emotional or spiritual well-being
	vi.	“Human Trafficking”, conduct prohibited under sections 50 and 51 of chapter 265 of the General Laws or defined under 22 U.S.C. 7102.
	vii.	“Documentary evidence”, any evidence corroborating that the defendant is a survivor of abuse. Documentary evidence may include, but is not limited to a court record; a presentence report; a social services record; a hospital record; a sworn statement corroborating the  abuse, sexual assault, post-traumatic stress disorder, or human trafficking from someone who is not the defendant; a law enforcement record; a domestic incident report; a protective order; a sworn statement by the defendant; local jail records or records of the Department of Correction; documentation—including written documents, photographs, text messages, emails, videos, and audio recordings—tending to support the claims of the defendant; verification of consultation with a licensed medical care provider or mental health care provider, employee of a court acting within the scope of his or her employment, member of the clergy, attorney, social worker, rape crisis counselor, or other advocate acting on behalf of an agency that assists survivors.
	viii.	“Prima facie showing”, a defendant produces facts that establish that there is a substantial likelihood that they are a survivor who is eligible for relief under this Act. For purposes of this section, a 
	ix.	“Defendant”, any adult or child charged with a crime. A child shall be considered a defendant for the purposes of this Act regardless of whether they were adjudicated as a “delinquent child” or “youthful offender” as defined under sections 52 through 84 of chapter 119 of the General Laws
	x. “substantial likelihood”, requires more than a mere possibility, but less than a standard of more likely than not.
	b)	Any adult or child charged with a crime may file a motion alleging that they are subject to relief pursuant to the Massachusetts Survivors Act because (1) they are a survivor of abuse, sexual assault, post-traumatic stress disorder, or human trafficking and (2) their alleged offenses were related to their experiences of abuse, sexual assault, post-traumatic stress-disorder, or human trafficking. 
	c)	A motion requesting relief pursuant to this Act may be filed at any time after an adult or child has been charged or adjudicated as delinquent. The motion may seek pretrial diversion, a reduced sentence, or postconviction relief. In their motion or at a hearing, the defendant may present evidence including:
	i.	documentary evidence corroborating that the defendant is a survivor of abuse,  sexual assault, post-traumatic stress disorder, or human trafficking.
	ii.	expert testimony from a psychiatrist, psychologist, or mental health professional showing that the defendant has been diagnosed with post-traumatic stress disorder as a result of the violence or abuse at issue;
	iii.	testimony from the petitioner;
	iv.	testimony from other witnesses; 
	v.	any other relevant evidence.
	d)	The court shall issue a written order including findings of fact and reasons for its determination regarding the accused’s eligibility for relief under this Act and the sentence imposed. 
	e)	An appeal may be taken as of right regarding any determination of eligibility or sentence imposed pursuant to this Act. Counsel shall be appointed upon request for those who seek to appeal.
	f)	At any point, the parties may stipulate to the terms of requested relief under this Act. 
	g)	The court shall determine the defendant’s eligibility for relief pursuant to this Act regardless of whether the defendant raised an affirmative defense at any point in the proceedings against them.
	h)	No evidence presented in a motion or hearing pursuant to this Act may be used for the purpose of prosecution.
	i)	The Office of the Attorney General shall collect information regarding each motion filed pursuant to this Act. The Office of the Attorney General shall annually, not later than December 31, report to the joint committee on the judiciary. The report must include the following information: 
	(1) the number of motions filed;
	(2) the number of motions granted;
	(3) the sentence requested by the prosecuting agency at sentencing, where applicable; 
	(4) the sentence or diversion order imposed;
	(5) the county in which the petitioner was prosecuted;
	(6) the race and ethnicity of the defendant;
	(7) the gender and gender identity of the defendant; 
	SECTION 2. Chapter 263 of the General Laws is hereby amended by inserting after Section 10, the following section
	Section 10A: Diversion Pursuant to the Massachusetts Survivors Justice Act
	a)	A defendant may bring a motion seeking pretrial diversion under this Act wherein criminal or delinquency proceedings are suspended without a plea of guilty for a period of not less than 3 months and not more than 24 months. The motion shall include 1) a statement that the defendant is a survivor as defined in Section 2 of this Act and 2) the defendant’s plan for the diversion period, which may include programs, services, restorative justice activities, employment, and/or community service.  If such a motion has been filed, the court shall not proceed with pre-trial hearings until it issues a decision on the motion. Where the defendant requests a hearing and has made a prima facie showing that they meet the requirements of this Act, the court shall order a hearing. 
	b)	Within 60 days of receiving a motion pursuant to this Act or holding a hearing on such a motion, the court shall make written findings as to 1) whether the defendant has established by a preponderance of the evidence that they are a Survivor as defined in Section 2 above and that their alleged criminal offense was related to their experiences as a Survivor such that they are eligible for relief pursuant to this Act and 2) whether the conditions of diversion are feasible and will contribute to the well-being of the defendant and their community.
	c)	No consent by the defendant to the stay of proceedings or any act done or statement made in fulfillment of the terms and conditions of such stay of proceedings shall be admissible as an admission, implied or otherwise, against the defendant, should the stay of proceedings be terminated and criminal or delinquency proceedings resumed on the original charge or charges;
	d)	If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall enter a dismissal of the underlying case. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the conditions of diversion and not willfully violated any other conditions set by the court. If the defendant does not perform satisfactorily in diversion, the court may extend the period of diversion and modify the conditions; or the court may reinstate criminal or delinquency proceedings.
	e)	Motions filed under this Section are subject to the provisions set forth in Section 2 of this Act.
	SECTION 3. Chapter 263 of the General Laws is hereby amended by inserting after Section 10A, the following section
	Section 10B: Sentencing Relief Pursuant to the Massachusetts Survivors Act
	a)	During a hearing to impose a sentence or accept a plea of guilty, the court shall consider a motion for relief pursuant to Section 2 of this Act. If the court finds by a preponderance of the evidence that the defendant is a survivor of abuse, sexual assault, posttraumatic stress disorder, or human trafficking and that their criminal offense or delinquent behavior was related to their experience as a survivor, the court shall depart from the applicable sentence to the ranges provided as follows, or as provided in subsection B of this Section.
	i.	Sentences of life without the possibility of parole shall be reduced to 10 years or less;
	ii.	Sentences of life with the possibility of parole shall be reduced to 7 years or less;
	iii.	Sentences of 25 years or more shall be reduced to 5 years or less;
	iv.	Sentences between 20 and 25 years shall be reduced to 4 years or less;
	v.	Sentences between 15 and 20 years shall be reduced to 3 years or less; 
	vi.	Sentences between 8 and 15 years shall be reduced to 2 years or less; and
	vii.	Sentences between 2.5 and 8 years shall be reduced by 1 year;
	viii.	Sentences of 2.5 years or less shall be suspended or imposed as probation.
	b)	 The court may impose a sentence that does not include incarceration, or may direct that the execution of the sentence, or any part thereof, be suspended and that the defendant be placed on probation for such time and on such terms and conditions as it shall fix, as set forth in Chapter 279 of the Massachusetts General Laws, Sections 1-2. 
	c)	A child adjudicated as a youthful offender and prosecuted as an adult is subject to the sentences set forth in subsection A of this section. A child adjudicated as delinquent shall not be committed to the Department of Youth Services.
	d)	The court shall determine the defendant’s eligibility for relief pursuant to this Act regardless of whether the defendant raised an affirmative defense at the time of their pre-trial, trial, or plea proceedings.
	SECTION 4. Chapter 263 of the General Laws is hereby amended by inserting after Section 10B the following section:
	Section 10C. Postconviction Relief Pursuant to the Massachusetts Survivors Justice Act
	a)	Any person who is (1) confined in an institution under the custody and control of the Department of Correction or the Department of Youth Services and (2) eligible for a reduced sentence pursuant to the provisions of this Act may file a petition for relief pursuant to this Act.
	b)	The administrative justices of the superior court, district court, juvenile court and the Boston municipal court departments shall jointly promulgate a motion form for use under this section that allows petitioners to provide:
	i.	A declaration by the petitioner that they are eligible for relief under this Act;
	ii.	The petitioner’s case number and year of conviction or adjudication of delinquency; and 
	iii.	Whether the petitioner requests appointment of counsel.
	c)	The Department of Correction, Department of Youth Services, and courts with criminal or delinquency jurisdiction will make the petition form available to all incarcerated people free of cost. The petition form will be available for download on a publicly available court website and the Department of Correction website. The petition form will be available by phone or in-person request to a designated clerk at each state trial and appellate court with criminal or delinquency jurisdiction.
	d)	Petitioners shall file their petitions in the county court where the petitioner was convicted or adjudicated as delinquent and sentenced. Petitions shall be randomly assigned by the administrative judge designated by the office of court administration with jurisdiction over the county where the application is filed to any trial court judge with criminal or delinquency jurisdiction other than the judge who first sentenced the applicant unless the judge who first sentenced the applicant is the only judge in that county.
	e)	If the court finds that the petitioner has alleged the factors listed in subsection B of this section, the court shall (1) notify the petitioner that they may submit a motion to be resentenced; (2) send the petition to the district attorney where the petitioner was convicted, and (3) appoint counsel, if petitioner requested appointment of counsel. If the court finds that the petitioner has not alleged the factors listed in subsection B of this section, the court shall notify the petitioner and deny their request without prejudice.
	f)	A motion for resentencing pursuant to this Act shall be filed and adjudicated subject to the procedures set forth in Sections 2 and 4 of this Act. 
	g)	If the court determines that the petitioner should be resentenced, the court shall notify the applicant that, unless they withdraw their application for resentencing or appeal the order of the court, the court shall enter an order vacating the sentence originally imposed and shall impose a new sentence as set forth in Section 4 of this Act. 
	h)	This Section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.
	i)	A person who is resentenced pursuant to this section shall be given credit for time served toward the sentence originally imposed. A person whose time served exceeds the period of incarceration required by their reduced sentence shall be released.
	j)	All granted motions will provide notification to all interested parties under M.G.L. Ch. 258B. 
	SECTION 5. Section 100E of chapter 276 of the General Laws is hereby amended by adding the definition “survivors of abuse, sexual assault, post-traumatic stress disorder, or human trafficking” as follows “a survivor of (i) abuse as defined in section 1 of chapter 209A (ii) sexual assault, defined as causing another to engage involuntarily in sexual relations by force, threat or duress (iii) Posttraumatic stress disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5, 2013); and/or (iv) human trafficking as defined by section 20M of chapter 233 or a victim of trafficking in persons under 22 U.S.C. 7102.”
	SECTION 6.  Section 100K of chapter 276 of the General Laws, as so appearing, is hereby amended by striking the word “or” at the end of paragraph (a)(5).
	SECTION 7.  Section 100K of chapter 276 of the General Laws, as so appearing, is hereby amended by inserting after the sixth paragraph of subsection (a), the following paragraph:-
	(7) an offense that was related to the petitioner being a victim of abuse, sexual assault, post-traumatic stress disorder, or human trafficking.
	SECTION 8. Section 100K of chapter 276 of the General Laws, as so appearing, is hereby amended by inserting after the first sentence of subsection (b), the following sentences:-
	In determining eligibility for relief, a judge shall consider any credible evidence of the defendant’s status as a survivor of abuse, sexual assault, post-traumatic stress disorder, or human trafficking. Credible evidence shall include the testimony of the petitioner as well as documentary evidence including, but not limited to: a court record; a presentence report; a social services record; a hospital record; a sworn statement corroborating the  abuse, sexual assault, post-traumatic stress disorder, or human trafficking from someone who is not the defendant; a law enforcement record; a domestic incident report; a protective order; a sworn statement by the defendant; local jail records or records of the Department of Correction; documentation—including written documents, photographs, text messages, emails, videos, and audio recordings—tending to support the claims of the defendant; verification of consultation with a licensed medical care provider or mental health care provider, employee of a court acting within the scope of his or her employment, member of the clergy, attorney, social worker, rape crisis counselor, or other advocate acting on behalf of an agency that assists survivors.
	SECTION 9.  Chapter 276 of the General Laws is hereby amended by striking out section 
	100Q, as inserted by section 195 of said chapter 69, and inserting in place thereof the following section:-
	Section 100Q. Unless otherwise provided by law, no person shall make records sealed pursuant to section 100A, 100B, or 100C or expunged pursuant to section 100F, 100G, section 100H, or section 100K available for inspection in any form by any person.
	SECTION 10. Section 100C   of chapter 276 of the General Laws, as so appearing, is hereby amended by inserting after the second paragraph, the following paragraphs:-
	Notwithstanding other provisions in section 100A—100C, a judge may without a waiting period seal any court appearance or disposition where the offense occurred as a result of the petitioner being a victim of abuse, sexual assault, post-traumatic stress disorder, or human trafficking.
	A judge shall consider any credible evidence including testimony of the petitioner in determining eligibility for relief under this section. 
	SECTION 11. Sections 100A, 100B, and 100C of chapter 276 of the General Laws, as so appearing, are hereby amended by inserting the following language at the end of each section: “The clerk’s office of any division of the trial court, the commissioner of probation, or any other criminal justice agency, upon request of a person whose offense or offenses are sealed, or the person’s legal representative, shall provide access to the information contained in the sealed records to the individual or the individual’s legal representative without first obtaining a court order.”
	Chapter 279 of the General Laws is hereby amended by inserting after Section 6B, the following section:
	“Section 6C: Special Sentence of Imprisonment for Survivors. A person who is eligible for a reduced or alternative sentence pursuant to the Massachusetts Survivors Act shall be sentenced in accordance with the procedure set forth in in M.G.L. Ch. 263 §§ 10-10A.”
	SECTION 12. Chapter 279 of the General Laws is hereby amended by inserting after Section 6B, the following paragraphs
	The right to file a motion and obtain relief under this Act shall not be waivable and is not barred by any plea agreement. 
	The right to file a motion and obtain relief under this Act shall not be waivable and is not barred by any plea agreement. 
	Notwithstanding any other provision of law concerning postconviction relief, a district attorney in the jurisdiction in which a person was convicted of an offense may file a motion in the district court to vacate or set aside a judgment of conviction at any time if clear and convincing evidence exists establishing that the defendant was convicted of an offense that the defendant did not commit. The district court shall have jurisdiction and authority to consider, hear, and decide the motion.
	A conviction, adjudication as of delinquent or youthful offender, or continuance without a finding vacated under this section shall be deemed to have been vacated on the merits.
	SECTION 13. Sections 57 and 59 of Chapter 265 of the Mass. General. Laws is repealed and replaced with the following language: 
	Survivor of abuse, sexual assault, post-traumatic stress disorder, or human trafficking as affirmative defense to criminal or delinquency charges.
	In any prosecution or juvenile delinquency proceeding of a person who is a survivor of (i) abuse as defined in section 1 of chapter 209A (ii) sexual assault, defined as causing another to engage involuntarily in sexual relations by force, threat or duress (iii) Posttraumatic stress disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5, 2013); and/or (iv) human trafficking as defined by section 20M of chapter 233 or a victim of trafficking in persons under 22 U.S.C. 7102, it shall be an affirmative defense to the charge that such person was under duress or coerced into committing the offenses for which such person is being prosecuted or against whom juvenile delinquency proceedings have commenced.