Law & Policy
Clearing criminal records of human trafficking survivors
Survivors forced to commit crimes while trafficked need legal help and compassion.
Imagine sitting down for a job interview knowing that something somebody forced you to do 20 years ago could immediately disqualify you from consideration. Survivors of human trafficking face this situation regularly.
Despite being forced or coerced into committing illegal acts, human trafficking survivors can be convicted of these crimes. Depending on the severity of the crimes, a criminal record can prevent survivors from finding housing, getting a job, receiving government benefits, voting, or becoming a U.S. citizen. In some cases, having a criminal record can lead to deportation.
To address this problem, 36 states have passed vacatur laws, according to the State Department’s 2017 Trafficking in Persons Report. These laws allow survivors to obtain a court order vacating or expunging criminal convictions for offenses they were forced to commit while in their trafficking situations.
Legal relief for survivors varies by state, creating a labyrinthine process to navigate. Charges eligible for vacatur in one state aren’t necessarily eligible in others. Some vacatur laws limit the type of offenses that qualify or leave partial records on the books that can plague survivors years after they were trafficked.
The Trafficking Survivors Relief Act, a bipartisan bill introduced in the Senate in September 2016 and then reintroduced in January 2017, proposes a federal standard for vacatur laws. It would provide survivors of human trafficking with post-conviction relief of nonviolent crimes directly related to their trafficking. Some states already meet this standard. But others are significantly more restrictive, says Kate Mogulescu, director of the Exploitation Intervention Project at The Legal Aid Society, which vacated more than 600 convictions for 43 survivors between 2011 and 2015.
“We hope that vacatur laws for trafficking survivors are broader and offer more relief,” says Mogulescu.
Advocates for human trafficking survivors have identified some of the elements of vacatur laws necessary to help survivors rebuild their lives.
Cover all charges related to trafficking
In many states, vacatur laws do not cover charges beyond prostitution. These laws often do not cover survivors of labor trafficking, drug trafficking, or survivors who plead to lesser crimes because they feel pressured by law enforcement.
“For many victims, a lot of vacatur laws don’t even apply,” Mogulescu says. “It’s not even a question of showing coercion.”
Coercion of survivors into other elements of a criminal enterprise is common. In a 2016 survey of 45 human trafficking victims by the Coalition to Abolish Slavery & Trafficking, almost 55 percent of victims reported nine or more arrests. Almost 10 percent reported being arrested more than 30 times. Often, their charges were not directly related to prostitution—they included drug possession, drug sales, and truancy. While still a result of coercion, these may not be covered by vacatur laws.
Florida takes the broadest approach to vacatur laws, allowing for expungement of any nonviolent offense committed while a victim of human trafficking, according to a 2014 report from the International Women’s Human Rights Clinic (IWHRC) at the City University of New York School of Law. States like Washington are more restrictive, excluding any victims who have pending criminal charges or convictions in another state.
Standardization efforts are underway. In 2013, the American Bar Association adopted a resolution urging all states to adopt vacatur laws that cover trafficking victims from “non-violent offenses that are a direct result of their trafficking victimization.” The Justice for Victims of Trafficking Act, passed by Congress in 2015, reinforced that recommendation to states.
Clear criminal records completely
Because they remove arrests and convictions from the record, vacatur laws enable victims to seek employment and other services without needing to disclose these crimes. But many states stop short of true vacatur, according to IWHRC.
The American Bar Association’s Survivor Reentry Project tracks vacatur laws nationwide and provides national training and technical assistance for attorneys working with survivors of human trafficking who have been convicted of a crime as a result of their victimization. Some states seal criminal records from public view but keep them visible for law enforcement and immigration purposes. Others give judges the option to modify a sentence or grant a new trial instead of vacating the charges. Some states have a statute of limitations for eligible charges and others require a prosecutor’s consent to seek vacatur, leaving many survivors feeling obligated to cooperate with law enforcement against their traffickers.
Advocates say that these provisions significantly limit a survivor’s ability to attain freedom from unjust charges. They also force a survivor to put their past under the microscope for scrutiny.
Pair vacatur laws with funding for legal services
Survivors need sufficient legal support to take advantage of vacatur laws. This support can be costly and hard to find.
Vacatur laws are relatively new, and many attorneys are not familiar with them or trained to identify human trafficking victims.
Pro bono services are crucial since most survivors cannot afford private representation, and public legal services are limited. In New York, for instance, pro bono partnerships have helped survivors take advantage of vacatur laws. However, many states lack the grant funding to support the significant research and capacity-building needed to educate pro bono lawyers on the laws, advocates say.
Educating survivors about their rights is also a major challenge, according to Bridgette Carr, founding director of the University of Michigan Law School’s Human Trafficking Clinic. Carr notes that many vacatur cases rely on trafficking victims to bring their case to lawyers and, in turn, re-experience their trauma.
Because of the limited legal services offered to survivors, few are even aware that vacatur laws exist.
“We need people eligible for relief to realize it,” says Carr. “Because these cases won’t enter the system independently without the survivor.”