Nina ran away from home at 14. She met a woman who put her up in a hotel room and brought “clients” to her. For the next 13 years, Nina had 20 different pimps who advertised her for sex on the internet and abused her verbally and physically.
By the time Nina — whose real name I won’t reveal to help protect her identity — was finally referred to victim services, she had been convicted of 52 offenses, mostly prostitution, but also theft and using a false ID.
She had spent time in both juvenile hall and jail. Should Nina have a criminal record?
The ramifications of a criminal record are very real — whether for a survivor of sex trafficking who cannot get a job or rent an apartment because of prior arrests for prostitution; a domestic worker who has fled her abusive household and needs protection but instead is penalized for violating U.S. immigration laws; or those forced by organized criminal groups to produce, transport, and sell drugs.
This is a reality many local governments and law enforcement officials are grappling with because of the growing awareness about human trafficking, also known as modern slavery, and an understanding of who the victims are. We now know that some of the very people being criminalized are those that need the most protection.
Recently, I spoke at the National Association of Attorneys General winter meeting in Washington D.C. in support of vacatur laws for trafficking victims convicted of nonviolent crimes committed as a direct result of their victimization.
Some U.S. states have enacted provisions that provide survivors the ability to seek a court order vacating or expunging criminal convictions entered against them that resulted from their trafficking situation.
These laws are needed, as often, victims who are forced to commit a crime are mistaken for criminals by law enforcement and judicial officials. Many victims of both sex and labor trafficking, both here in the U.S. and around the world, remain undetected among those who have committed crimes because they fear coming forward and law enforcement lacks of proper victim screening and identification measures.
However, since the Trafficking Victims Protection Act was first enacted in 2000, we have made great progress in implementing a victim-centered approach in our law enforcement efforts.
All 50 states now have laws that criminalize human trafficking, and many have task forces dedicated to implementing effective policies and procedures to combat human trafficking through the collaboration of prosecutors, law enforcement, and service providers. The next step is for all 50 states to have vacatur laws.
Victims of modern slavery, whether children or adults, should not be held criminally responsible for their involvement in unlawful activities that are a direct consequence of their victimization.
While government efforts can never fully undo the trauma that results from human trafficking, we can start by improving our laws and policies to ensure that human trafficking victims are not prosecuted for crimes they have been forced to commit in the first place.
If prosecuted and convicted, we must have a system in place to vacate, or expunge, the criminal records of trafficking victims. In 2010, New York became the first state to pass a law allowing survivors of trafficking to vacate their convictions for prostitution offenses. In 2013, Florida’s law went even farther, providing for the expungement of “any conviction for an offense committed while . . . a victim of human trafficking.”
Vacatur laws provide trafficking victims not only with an opportunity to correct past injustices, but also help them rebuild their lives.
At least one study found an estimated 80 percent or more of employers in the United States use criminal background checks during their employment process. Vacatur increases a survivor’s ability to find work, reducing economic vulnerabilities and the risk of being re-trafficked.
In February, I called on the Attorneys General of all 50 states and the U.S. territories to use their positions as I am now using mine, to amplify the voices of human trafficking victims.
There are survivors in every state in this nation who need to be heard; who need laws that allow them to erase their nonviolent criminal convictions resulting from their prior exploitation.
Trafficking survivors deserve a fresh start and a future full of possibilities and potential, without the stigma and pain of human trafficking haunting them forever.
