By: Rudy Castillo

Human trafficking is an international problem involving the transportation and sale of forced human labor. It is “modern slavery” that targets and exploits vulnerable populations. This particular form of human trafficking involves forcing people, usually women and minors, into commercial sex. While many international, federal, and state laws exist which criminalize human trafficking, there are plenty more statutes that criminalize forced actions of sex trafficking survivors.[1] Generally, this involves the prosecution of convictions of those survivors for prostitution and similar offenses. Unfortunately, most state laws have not caught up to the times to holistically care for survivors of sex trafficking.[2] The best approach at giving survivors of sex trafficking a true second chance is for all fifty states to implement or improve “vacatur” laws.

Historically, there have been some remedies available for people who have interacted with the criminal justice system, but those remedies aren’t particularly tailored to survivors of sex trafficking. First, minors can have their records sealed.[3] Under certain circumstances, however, these records may still be accessed.[4] Second, some states also have various laws and procedures for expunging criminal records.[5] While this is a helpful step, especially for the successful “re-entry” of people with criminal convictions, it does not completely erase the collateral consequences of the conviction.[6] For example, expungement cannot prevent a survivor of sex trafficking from deportation for their prostitution convictions, which can be seen as a sign of moral turpitude.[7]

On the other hand, some laws do specifically help survivors. Safe harbor laws help as affirmative defenses against prosecution of certain crimes related to sex-trafficking, such as prostitution.[8] In Alabama any survivor of sex trafficking is allowed to use a safe harbor law as an affirmative defense for prostitution or sexually explicit performance.[9] While some states have narrower statutes that generally only protect minors, other states (e.g. California) do not have any safe harbor statutes.[10]

Finally, the most helpful provisions for survivors are vacatur laws, which were first implemented in 2010 in New York.[11] These laws help to completely vacate the survivor’s record, which helps mitigate the collateral consequences of previous convictions, especially if it involves immigration issues. Vacatur laws are most effective when:

• The scope is broad enough to cover arrest and convictions for crimes beyond prostitution[12]
• They do not require official documentation to “certify” that you are a victim, but if presented, should count as presumptive evidence of trafficking[13]
• They do not require proof of “rehabilitation,” especially if survivor independently chooses to be a sex worker[14]
• Ensure confidentiality and continue to seal records[15]
• Offer strongest remedy available through “vacatur” rather than expungement to ensure [16]
• Remove the judge’s discretion to grant motion to vacate if all requirements are met[17]
• Allow courts to take additional measures to truly help survivors [18]
• Ensure retroactive application for survivors who were convicted before passing of the law[19]
• Attach funding provisions to ensure this remedy is being offered by attorneys who work with these vulnerable populations.[20]

As of today, thirty-one states have some sort of provision that help seal, expunge, or vacate arrest and/or conviction records for prostitution or related crimes.[21] States that have already passed or have pending legislation, should continue to reevaluate the law and its impact and find ways to improve it. Those that still do not have laws that address this issue should definitely start advocating for youth and adult survivors of sex trafficking by following the nine guidelines to come up with an adequate law.

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[1] See, e.g., 22 U.S.C. § 7102; 8 C.F.R. § 214.11(a) (defining sex trafficking as the Recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age).

[2] See Susan Coppedge, Stop criminalizing the victims, https://www.cnn.com/2016/03/17/opinions/coppedge-freedom-project-new-lives/index.html?eref=rss_latest (last visited Mar. 17, 2016).

[3] See, e.g., Ark. Code Ann. § 16-90-1412 (2015) (sealing records specifically for victims of human trafficking); Cal. Pen. Code § 851.7 (2016) (sealing records of juveniles arrested for misdemeanors).

[4] See, e.g., N.Y. Crim. Proc. Law § 720.15 (2016) (exempting loitering for purposes of prostitution from records that can be sealed).

[5] See, e.g., N.C. Gen. Stat. § 7B-3200 (2016) (expunging records of juveniles alleged or adjudicated delinquent and undisciplined).

[6] See Advocating Opportunity, Fifty-State Survey: Safe Harbor Laws and Expungement, Sealing, and Vacatur Provisions, with Related Statutes, Pertaining to Trafficked Persons, https://advocatingopportunity.com/wp-content/uploads/2015/03/Fifty-State-Survey-Safe-Harbor-Laws-and-Expungement-Sealing-and-Vacatur-Provisions-with-Related-Statutes-for-Trafficked-Persons.pdf (June 2015).

[7] See, e.g., 8 U.S.C.S. § 1182 (a)(2) (prohibiting admission of immigrants on criminal and related grounds); 8 U.S.C.S. § 1227(a)(2) (allowing immigrants to be removed from the U.S. due to criminal offenses).

[8] See Brendan M. Conner, In Loco Aequatatis: The Dangers of “Safe Harbor Laws” for Youth in the Sex Trades, 12 Stan. J.C.R.  & C.L. 43, 47 (2016) (defining a “safe harbor” law as those that utilize custodial arrests or temporary protective custody for the purpose of adjudicating youth under state child welfare, foster care, or dependency statutes).

[9] See Ala. Code. § 13A-6-159 (2016). Cf. Tex. Fam. Code § 54.0326 (2015) (applying only to minors and juvenile court system).

[10] See Conner, supra note 8 at 92 (describing the defeat of safe harbor legislation in California).

[11] See Jessica Emerson et al., Obtaining Post-Conviction Relief for Survivors of Human Trafficking, Clearly Gottlieb Steen & Hamilton LLP,  https://www.americanbar.org/content/dam/aba/directories/pro_bono_clearinghouse/ejc_2014_182.pdf. (last visit May 2, 2014).

[12] Compare N.Y. Crim. Proc. Law § 440.10 (2016) (applying to prostitution and related offenses such as loitering and soliciting) with N.C. Gen. Stat. § 15A-1416.1 (2016) (applying specifically to prostitution) and Fla. Stat. § 943.0583 (2016) (applying to arrests and convictions for any crime committed while being a victim of human trafficking).

[13] See, e.g., 8 U.S.C. 1101(a)(15)(T) (2016) (requiring DHHS letter but not an official police report).

[14] But see, e.g., 12 R.I. Gen. Laws § 1.3-3 (2016) (requiring that the petitioner’s rehabilitation be attained to the court’s satisfaction and the expungement of the records of his or her conviction is consistent with the public interest).

[15] See, e.g., Tenn. Code Ann. § 37-1-153 (2015) (limiting inspection of sealed records except for certain violent offenders).

[16] See, e.g., 725 Ill. Comp. Stat. Ann. 5/116-2.1 (2016) (offering vacatur provisions specifically for sex trafficking survivors).

[17] Compare Del.Code Ann. tit. 11, § 4373 (2016) (providing for mandatory expungement) with id. § 4374 (providing for discretionary expungement)

[18] See, e.g., Ind. Code Ann. § 5-2-6-3 (2016) (allowing Criminal Justice Institute to provide services for human trafficking survivors); id. § 35-42-3.5-2 (2016) (allowing restitution to survivor); id. § 35-42-3.5-3 (2016) (allowing civil cause of action against person convicted of offense); id. § 35-42-3.5-4 (2016) (allowing for additional rights for survivor).

[19] See, e.g., Ga. Code Ann. § 15-11-32(g) (2015) (applying retroactively to any minor in the court’s jurisdiction, regardless of the date on the delinquency order).

[20] See, e.g., Kan. Stat. Ann. § 75-758 (2016) (establishing fund for assistance of human trafficking survivors).

[21] See generally The Human Trafficking Pro Bono Legal Center, Vacatur & Expungement Database, https://sites.google.com/a/htprobono.org/vsdatabase/ (last visited May 16, 2016).