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Clearing the Slate for Trafficking Survivors

We would like to warmly welcome a post by Suzannah Phillips, International Women’s Human Rights Clinic Fellow at CUNY School of Law.  Suzannah supervises students in the anti-trafficking project at CUNY School of Law’s International Women’s Human Rights Clinic (IWHR Clinic) to assist trafficking survivors to clear criminal convictions from their record. She is also a primary author of a new report published by the IWHR Clinic entitled Clearing the Slate: Seeking Effective Remedies for Criminalized Trafficking Victims.

All too often, individuals who are trafficked into or within the sex trade come into contact with the criminal justice system following arrest for offenses that they are compelled to engage in as a result of the trafficking situation. Rather than being recognized as victims, many are prosecuted and convicted and are then haunted by these criminal records long after they have escaped from the trafficking situation.

Because sex work is a crime throughout the majority of the U.S., individuals trafficked into or within the sex trade are at risk of arrest for prostitution and loitering for prostitution. Trafficking victims also may be compelled to engage in—or may be arrested for or convicted of—other illicit behavior as a result of the trafficking, particularly where an arresting officer is unable to document sufficient facts for a prostitution charge. Trafficking victims involved in the sex trade are vulnerable to arrest for vagrancy, trespass, disorderly conduct, crimes against nature, larceny, and drug and immigration offenses.

Following arrest, a number of factors impede victim identification, which makes it more likely that victims will be treated as criminals. These factors include:

  • Victims may be reluctant to discuss their exploitation when they come into contact with law enforcement because traffickers often will instill a fear of law enforcement in their victims, as well as a fear of retaliation should they report anything to the authorities.
  • The circumstances of arrest—which are frequently humiliating, confusing, and traumatic—can reinforce fears of authorities, undermining trust in law enforcement.
  • Law enforcement, criminal defense attorneys, prosecutors, and criminal court judges often know very little about trafficking, and may not be able to ask the right questions to identify whether an individual arrested for prostitution is in fact a trafficking victim. Given that misdemeanor arrests are often quickly disposed of with plea bargains (an agreement between the prosecuting attorney and criminal defendant whereby the defendant pleads guilty, often to a lesser charge or in exchange for a reduced sentence, to avoid a lengthy trial), there is seldom an opportunity to gain enough trust for victims to share their experiences.
  • Language barriers can inhibit communication between authorities and victims.
  • Common misconceptions about trafficking can mean that, even if a victim does share his or her experiences, it can be difficult for untrained authorities to recognize him or her as a victim.

As the International Women’s Human Rights Clinic (IWHR) at CUNY School of Law documents in its recent report, Clearing the Slate: Seeking Effective Remedies for Criminalized Trafficking Victims, criminal records carry serious collateral consequences. Criminal convictions can act as a barrier to employment, housing, and legal immigration status and can also have an impact on custody of children. Access to viable employment opportunities and safe housing are essential to enabling trafficking survivors to rebuild their lives and escape the circumstances that made them vulnerable to the trafficking in the first place. When a criminal record forecloses such opportunities, it creates a serious impediment to survivors to put their past behind them and move on after having been trafficked. Living with the stigma of being labeled a “criminal” can also contribute to self-stigmatization. As one trafficking survivor explained in the State Department’s 2012 Trafficking in Persons report, “I always felt like a criminal. I never felt like a victim at all. Victims don’t do time in jail, they work on the healing process. I was a criminal because I spent time in jail.”

Recognizing the grave injustice of criminalizing trafficking victims for acts that they are compelled to engage in, New York State became the first state in the U.S to allow trafficking survivors to vacate these convictions from their record where the arresting charge was for prostitution-related offenses and their involvement in the offense was a direct result of the trafficking. Since 2010, when New York revised Criminal Procedure Law § 440.10 to allow vacatur of prostitution-related convictions, at least 15 other states—Connecticut, Florida, Hawaii, Illinois, Maryland, Mississippi, Montana, Nevada, North Carolina, New Jersey, Ohio, Oklahoma, Vermont, Washington, and Wyoming—have passed similar laws, and several other states are considering adopting such legislation.

However, not all vacatur laws are created equally. In order to adequately redress the harms from unjust criminalization, it is essential that vacatur laws allow for the broadest relief possible. Analyzing the experiences of trafficking victims who have been criminalized and the implementation of New York’s law, which was the only vacatur law in force long enough to amass sufficient jurisprudence for analysis, IWHR’s Report Clearing the Slate identifies several best practices to ensure that vacatur laws actually achieve what they set out to do:

  • Define who constitutes a victim of trafficking broadly. Federal and state legal definitions often vary—for instance, the federal Trafficking Victims Protection Act defines as a victim of trafficking anyone engaged in commercial sex as a result of force, fraud, or coercion or under the age of 18 (regardless of whether force, fraud or coercion is present), while New York does not automatically recognize minors as victims. New York’s Sex Trafficking Law spells out some specific scenarios of what force, fraud, or coercion might look like. By allowing vacatur for anyone who meets either the New York or federal definition of “victim,” New York’s vacatur law broadens the scope of who is eligible for relief.
  • Allow for vacatur of a range of crimes. As mentioned, trafficking victims are vulnerable to arrest for a variety of offenses as a direct result of the trafficking. While the New York vacatur law only explicitly provides for relief where the arresting charge is prostitution or loitering for prostitution, one New York court recognized that to allow vacatur only of these offenses “would certainly neither address the coercive forces confronting trafficking victims nor comport with the ameliorative legislative purposes of providing ‘relief and justice … to sex trafficking victims,’” and accordingly granted vacatur where the arrest, while a direct result of trafficking, was not for prostitution or loitering.
  • Do not impose unnecessary limitations on relief for victims, such as time limitations or evidentiary requirements. Statutes should not require any specific types of documentation or evidence to prove that an individual seeking relief is a trafficking victim, nor should they require that survivors cooperate with law enforcement in prosecutions or prove that they have left the sex industry in order to be eligible for relief. Time limits on filing for vacatur ignore the fact that trauma, fear of retaliation, or other situations may prevent survivors from seeking services or pursuing available relief in a “timely” manner.
  • Ensure the confidentiality of survivors who are filing for vacatur by providing that any motions to vacate can be filed under seal, thereby ensuring that the records do not become part of the public record. While the New York vacatur law does not automatically seal motions to vacate, victims of sexual violence—which often includes victims of trafficking in the sex trade—have a right of privacy under New York law and advocates have been able to use this to protect the identity of clients filing for vacatur.
  • Ensure that the relief offered effectively erases the convictions. Different methods of removing convictions from an individual’s criminal record vary in terms of how effectively they work. Vacatur will completely remove an arrest and conviction from the criminal record, while expunction seals the record, but does not erase the arrest and conviction. Thus, where a statute only allows for expunction, potential employers would not be able to see the convictions, but law enforcement and immigration officials  could continue to see the prior charges, which could unfairly prejudice a survivor in immigration cases or in the event of a subsequent arrest.
  • Allow judicial discretion to expand relief. Allowing judges to take additional action beyond the strict text of the vacatur law can provide for flexibility to better serve the interests of justice, as in the above-referenced case concerning non-prostitution offenses.
  • Ensure adequate funding to implement the statute.

New York’s statute is a model law in many ways, and several potential limitations of the statute have been remedied through some progressivecourt decisions. The statute has not been a panacea to the unjust criminalization of trafficking victims—one glaring limitation that cannot be remedied by judicial interpretation is that the statute is limited solely to victims of sex trafficking and is not available to victims of trafficking into other labor sectors—but it is certainly a start. Between 2011, when the first orders for vacatur were issued, and March 2014, 38 survivors of trafficking collectively had more than 350 convictions cleared from their records. When we consider that New York City averages roughly 2,700 prostitution or loitering for prostitution arrests annually, and a number of these individuals may meet the legal definition of trafficking victim at the time of their arrest (even if they do not self-identify as a victim), it is apparent that this law has the potential to help many more survivors in New York State.

Perhaps one of the most crucial effects of this trend of vacatur laws is a heightened awareness that criminalization of trafficking victims occurs and is fundamentally unjust. New York has seen several recent legislative and policy changes that seek to provide alternatives to incarceration for individuals arrested for prostitution-related offenses and to improve victim identification. Yet these new efforts still operate within the confines of the criminal justice system, after victims have already suffered the trauma of arrest, and the threat of conviction still permeates these legal proceedings. More needs to be done to ensure that trafficking victims are not arrested in the first place, including re-examining policing strategies that emphasize a high volume of arrests for misdemeanors like prostitution.

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