Zephaniah “Zephi” Trevino has pleaded guilty and has been sentenced to 12 years for murder and five years for aggravated robbery. The Dallas County District Attorney alleged Zephi —along with two men— had taken part in a robbery that left one man dead from a gunshot wound and another injured. Although Zephi was not responsible for pulling the trigger, she was charged as an accomplice. What has been left out of the DA’s narrative, however, is that Zephi is a victim of sex trafficking. The two men who were “lured” by Zephi to the apartment where they were ultimately robbed, were there to purchase sex from 16-year-old Zephi. Zephi was charged as an adult and was facing a capital murder conviction. She took a plea deal, citing the risk of a life sentence was “too grave.”

While discouraging, this result is unsurprising as Texas has refused to see those who have been trafficked as victims, rather than criminals. Indeed, Texas remains one of the few¹ states that still criminalizes minors for prostitution—the very crime that is synonymous with their exploitation. In 2019, Governor Greg Abbot vetoed a bill that would protect minors from criminalization for prostitution and would instead direct them to receive assessment and services through child welfare and community-based services. That same year, after passing unanimously through the House and Senate, Governor Abbot vetoed a bill that would establish a clemency review panel for certain offenses committed by victims of domestic violence and human trafficking.

As it stands in Texas, a human trafficking survivor who has been unjustly charged with a crime has just one remedy: a “nondisclosure petition²,” a form of post-conviction relief that is limited to prostitution, marijuana, and certain theft offenses if the offense was committed “solely” as a trafficking victim.³ The relief is further limited because survivors are ineligible for the relief if they have additional convictions, and it requires survivors to provide assistance to law enforcement and prosecutors.⁴

Legal protections for victims of human trafficking are imperative given deeply pervasive forced criminality that exists in trafficking situations. In a 2016 survey, the National Survivor Network found that 90% of trafficking survivors reported being arrested and 60% reported being arrested for crimes other than prostitution or drug possession.⁵ Perhaps most significantly, the survey demonstrated that over half of all respondents believed that 100% of their criminal-legal involvement was directly related to their trafficking experience.⁶ These victim-offenders⁷ 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. Contrary to the TVPA’s decree those trafficking victims not be criminalized as a result of their victimization,⁸ survivors continue to be charged with crimes related to their trafficking and states such as Texas fail to provide adequate legal protections to prevent criminalization.

What’s worse, the criminal-legal system itself can often mimic the power and control dynamics that exist in a trafficking situation. Justin Moore, one of Zephi’s defense attorneys, alluded to this in his comments to the press, stressing an “urgent need for a legal system that is trauma-informed . . . and that also calls into question the unchecked power that [prosecutors] have in this country and how they can bully defendants who are victims into taking plea deals.”⁹ This “bullying,” the pressure and coercion that is often applied on victims who are charged alongside their traffickers and co-conspirators, is a tactic used all too often. Indeed, the same youth who are charged as defendants alongside their trafficker may also be called to testify against their trafficker, and that testimony could be central to their successful prosecution.¹⁰ Although it does not appear that the Dallas District Attorney is pursuing trafficking charges against Zephi’s co-defendants, studies have shown that conditions of the juvenile/criminal justice process, secure confinement, and the stigma of criminal records alone further harm and traumatize child sex trafficking victims.¹¹ Prosecutors must weigh considerations of the harm to victim-offenders and the injustice of coercive charging tactics, and further, should be trained on victim-centered investigations and prosecutions to ensure positive identification of survivors and prevent unjust criminalization. Texas does not currently mandate such training.

Sex trafficking victimization and forced criminality are intrinsically linked. Arresting and prosecuting sex trafficking victims for criminal offenses, even violent ones, is in direct conflict with a victim-centered criminal justice approach and reflects a limited understanding of the complex nature of victim-offender intersectionality. Prohibiting the criminalization of sex trafficking victims for offenses related to victimization accounts for the nature and extent of control exerted by sex traffickers, and the influence of trauma on the decision-making process and behavior of survivors. Accordingly, states must enact non-criminalization laws, including an affirmative defense law, that don’t draw a “hard line” on the qualifying offenses and should extend to accomplice and co-conspirator liability.

Successful implementation of this change in law and practice will require training as well as active participation from criminal justice stakeholders, including law enforcement, victim advocates, prosecutors, and judges. To improve identification of sex trafficking victim-offenders, criminal justice stakeholders should take proactive steps throughout the criminal justice process to assess whether a person that is suspected of trafficking had also experienced trafficking victimization.

Finally, non-criminalization and post-conviction relief laws are two sides of the same coin. It is inevitable that survivors will “slip through the cracks” or go unidentified, resulting in unjust convictions. These survivors must be afforded an opportunity to vacate convictions they’ve received as a result of their victimization. States must not limit the types of crimes or charges for which a sex trafficking survivor can seek post-conviction relief to prostitution offenses. States limiting post-conviction relief to trafficking survivors who are convicted of prostitution or other sex offenses leave many sex trafficking survivors without any avenue for relief.