Protecting Trafficking Survivors from Unjust Criminalization
Due to the power and control exercised by their traffickers, victims are often compelled or forced to commit crimes they otherwise would not. These crimes can range from prostitution and related charges to drug possession, or even more serious crimes such as trafficking itself. These “victim–offenders,” or survivors who find themselves in the intersection of victimization and criminal offender, are retraumatized by their detention and prosecution. They are also left with a criminal record that hinders their ability to secure safe housing, employment, education, and other services. The inability to develop their lives may leave survivors feeling stuck, financially restricted, and with no way to move forward except by returning to their trafficker. Although some states have taken action to address this by allowing trafficking victims to expunge or vacate unjust convictions, Congress has yet to take similar action on this issue, leaving victims with no Federal protection from unjust criminalization.
To address this issue and provide enduring support for trafficking victims, Shared Hope International supports a Federal affirmative defense and comprehensive vacatur legislation. An affirmative defense allows survivors to raise, during their prosecution, that they were forced by their trafficker to commit the crimes with which they are being charged. Vacatur allows judges to set aside, or “vacate” convictions that were directly related to their trafficking. Both an affirmative defense and vacatur are necessary to ensure protection from unjust criminalization. This is because few survivors self-identify to assert an affirmative defense, inevitably resulting in their conviction. By introducing and passing this critical legislation, Congress can alleviate some of the long-lasting legal effects traffickers have on survivors and give them hope for a brighter future.
Congress can accomplish these goals by:
- Enacting comprehensive vacatur legislation that permits survivors of human trafficking to vacate and expunge convictions and arrests directly related to their trafficking.
- Enacting legislation to allow a rebuttable presumption that offenses committed by survivors of human trafficking were induced by coercion, establishing an affirmative defense to prevent unjust criminalization at the outset of a prosecution.
- Allowing rebuttable presumption that a movant is a survivor of human trafficking where they can provide official record, certification, or eligibility record from local, state, federal, or tribal proceeding, or affidavit or sworn testimony of professional staff member of a victim services organization, an attorney, or medical professional that movant sought assistance for being victim.
- Sealing any identifying record or part of the proceeding related to such motion from the public record.
- Ensuring that any Order for vacatur requires the repayment of any fines, fees, or costs pursuant to Nelson v. Colorado.
- Contact your Congressperson and urge them to support the Trafficking Survivors Relief Act (H.R. 8672, S.9) to bring vital relief to trafficking survivors facing unjust criminalization as a result of their trafficking victimization.
- Responding to Sex Trafficking Victim-Offender Intersectionality: A Guide for Criminal Justice Stakeholders: sharedhope.org/wp-content/uploads/2020/01/SH_Responding-to-Sex-Trafficking-Victim-Offender-Intersectionality2020_FINAL.pdf
- Access To Justice For Trafficking Survivors Issue Brief https://reportcards.sharedhope.org/wp-content/uploads/2021/11/IssueBrief_4.3.pdf
- Visit sharedhope.org/what-we-do/bring-justice/ to access Shared Hope’s research and advocacy resources.
- For technical assistance, contact Christine Raino at firstname.lastname@example.org.
- National Survivor Network Member’s Survey: Impact of Criminal Arrest and Detention on Survivors of Human Trafficking: nationalsurvivornetwork.org/wp-content/uploads/2017/12/VacateSurveyFinal.pdf
- Left Behind: How the Absence of a Federal Vacatur Law Disadvantages Survivors of Human Trafficking: scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2054&context=all_fac
- State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking (March 1, 2019) polarisproject.org/resources/state-report-cards-grading-criminal-record-relief-laws-for-survivors-of-human-trafficking