Criminal Record Relief is Pertinent for Survivors of Human Trafficking and This is Why
When engaging critically with the criminal legal system, it is important to keep a manifold perspective with particular attention to who is criminalized, who is not criminalized and the circumstances and/or social identities that resulted in incarceration. In this article, we will look at a synthesis of empirical evidence and viral anecdotal stories to understand why criminal record relief is particularly pertinent for survivors of human trafficking.
By its very nature, human trafficking involves the participation of victims in illicit activities (such as prostitution, selling drugs, or shoplifting) using force, fraud, or coercion. When the criminal legal system intercedes human trafficking, it is not uncommon for trafficking victims and survivors to become implicated in crimes committed by their perpetrator. In a study conducted by the National Survivor Network, 90.8% of 130 participants indicated that they were arrested. 75.4% have not been able to clear their records. Having a criminal record has major impacts on employment, housing, education, immigration, driving privileges, child custody and healthcare, all of which can greatly affect an individual’s reintegration into society after being trafficked.
In 2000, when the Trafficking Victims Protection Act became law, it explicitly provided a clause expressing that “[v]ictims of severe forms of trafficking should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked.” This however, is not the reality. In 2019, with the endorsement of the U.S. Department of Justice, the American Bar Association launched the Survivor Reentry Project and published a report highlighting recommendations for prosecutors supporting survivors of trafficking, with particular attention to criminal record relief. The following excerpts are not exhaustive, but rather highlight important information from the full report which can be found at this link. This information resulted from roundtable discussions with prosecutors experienced in criminal record relief and prosecuting trafficking cases.
Criminal record relief is key to reducing vulnerability and isolation for survivors.
Trafficking victim-survivors already face shame, stigma, and trauma from their unsolicited experiences. Having a criminal record continues to marginalize them by pushing them further into the outskirts of society and denying them basic needs such as employment, housing, and education.
The risk of trafficking is increased with layers of vulnerability. To prevent individuals from reentering the trafficking cycle, it is our responsibility to be able to meet their basic needs.
Criminal record relief advocacy must be collaborative and interdisciplinary.
Triangulation and an interdisciplinary framework must be used to meet the holistic needs of survivors. By increasing understanding across multiple disciplines, we can better support survivors.
This report by Polaris offers a comprehensive grading for states to consider when creating legislation and policy around criminal record relief.
Policy can be constraining when it limits prosecutorial and judicial discretion to act in favor of trafficking victim-survivors, such as clearing additional offenses or granting full vacatur of convictions. See the Polaris report or full ABA report for more information regarding specific policy recommendations.
When it comes to criminal record relief, there are three statuses a person can be granted.
Vacatur: the previous conviction is nullified and no record remains linking the survivor to the crime
Expungement: the conviction is nullified but still remains visible to certain government agencies. Prosecutors can use the conviction against the survivor in later legal proceedings
Record sealing: the record is hidden only from public view, but remains in full existence
To personalize this issue, we can look at the stories of Cyntoia Brown and Zephaniah Trevino, who were both criminalized by their victimization and have suffered the collateral implications of the criminal justice system. Brown was recently granted clemency in January 2019 after serving 15 years in prison for the first-degree murder of her trafficker. After an incident in which Brown feared a sex-buyer was reaching for a gun to kill her, she shot him in his sleep and fled. At 16 years old, Brown was tried as an adult and convicted of first-degree murder. Through Brown’s story, we can see the complexities of how the criminal legal system intercedes with human trafficking. Brown did not intend to commit murder when she was a homeless youth, picked up by a trafficker, but the volatile circumstances she was forced into threatened her safety to the extent that she felt the need to take her life into her own hands. In a different context, Zephaniah Trevino was sixteen when her trafficker shot and killed a man. She is now a co-defendant with her trafficker who claims she orchestrated the murder. Because of her proximity to her trafficker, Trevino now faces trial as an adult and life in prison for a crime she did not commit.
When we see the personal stories of injustice embedded the complexity of human trafficking, we have to acknowledge the imperfections of the criminal justice system and its propensity to criminalize victim-survivors of trafficking unfairly. Only when we problematize and critically dissect these systems can we reform them to enforce equitable justice, rather than malinformed retribution.
About the Author
Becca Wong is a junior at the University of Michigan studying Sociology and Social Work with a minor in data science. She aspires to reform trauma-informed legal systems and is passionate about mental health, survivor advocacy, and social justice. In her free time, she loves curating playlists, taking care of her plants and spending time with her friends.