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Erasing Criminal Convictions for Survivors of Trafficking: One Step in the Right Direction

October 2, 2012

People get involved in sex work for all kinds of reasons, but most often, out of life circumstance and a need to support themselves and their families. This need to seek safety and security is universal, and it says something about how deeply felt it is, given the level of stigma sex workers endure as they do their work. Unfortunately, because so much of sex work is illegal, sex workers are constantly being arrested. This even applies to people who have engaged in sex work who were trafficked and coerced or threatened in some way.

Trafficking in persons is about people experiencing some level of force, fraud, or coercion in their work. This means they are living and working in a climate of fear. But because most people, including the police, have a very specific idea of who is a “victim” of trafficking, they often get it wrong and arrest people involved in sex work without asking or giving them a chance to say they have been forced or coerced. We have worked with people who are transgender and are survivors of trafficking, but have either been unable to report their experience to the police because they are too afraid from past experiences with police, or have faced ridicule or outright disbelief if they do report. Compare this experience to young cisgender women (the term “cisgender” refers to people whose present gender identity matches the sex/gender they were assigned at birth), who generally fit a more commonly understood idea of who is a victim of human trafficking, and are more likely to be believed if they do speak up.

The ideas that inform people’s beliefs about human trafficking, and ultimately determine whether they believe someone is a victim or not, often stem from stereotypes or misconceptions perpetuated by the media. Stereotypes include ideas about the gender of victims or what they look like, what their sexual or other histories are, and the kind of work they do. These misconceptions are compounded by people’s beliefs and fears about victimization, gender, and sexuality. But in order to craft workable solutions on trafficking, we need policies that actually prevent this terrible practice, and support victims in finding their own voice and seeking the help they want and need. Keeping people out of the criminal justice system is crucial, both because it cannot play the holistic and preventive role we need, and because it is itself a place where abuse takes place.

This issue of stereotypes and how they play out in the criminal justice system is so important because abuses of sex workers and trafficked persons often stem from these wrong stereotypes, and because current law and policy severely limit victims and survivors from getting the help they need unless police, judges, and gatekeeper service providers believe them. At the Sex Workers Project at the Urban Justice Center, we recognized that we could not necessarily address all the problems involved in the criminal justice system, but one thing we could do is ensure that people who are trafficked into sex work are not living with the consequences of these wrongful arrests. We and our allies pushed New York to become the first state in the country to enact a law that essentially erases—technically called vacating—criminal convictions for people who have been trafficked into sex work. This means that convictions will not stay on the record and hurt people’s chances of getting employment, housing, or immigration status. One of the important outcomes of having states pass these laws is that people who should not have been punished in the first place avoid the double punishment of the criminal penalty.

The main goal of the vacating convictions law is to support survivors of trafficking in moving forward with their lives. In positive developments, many other states have followed New York in passing laws on vacating convictions for survivors of trafficking into sex work. These states include Maryland, Illinois, Vermont, and Nevada. Other states, including Pennsylvania, Hawaii, Wisconsin, Colorado, and California, are working on similar efforts. While this is definitely a positive step forward, it is important to make sure that these laws are actually effective in meeting the actual needs of victims and survivors.

These laws are quite complex, so it is important that people who are drafting and advocating for them actually understand the intricacies of how criminal justice procedure works, and how criminal convictions affect people in their day-to-day lives.

In order for such a law to be truly effective, we recommend that it have the following ten elements:

  1. Inclusion of prostitution and other offenses associated with the trafficking in vacatur remedy;
  2. “Official documentation” of trafficking creates a presumption but is not required;
  3. This remedy should not require the survivor to prove s/he has left the sex industry, is “rehabilitated,” or engaged in a social services program;
  4. Offer confidentiality provisions to protect the client’s identity;
  5. Be the most complete remedy possible under the law;
  6. State that the Court must vacate the convictions and dismiss the accusatory instrument if an individual meets the elements;
  7. Allow the Court to take additional appropriate action (beyond the mandate of the statute);
  8. Be retroactive and inclusive of those with older convictions;
  9. Ensure availability of the remedy by funding legal services attorneys to bring these motions; and
  10. Those truly concerned with limiting the devastating impact of criminal convictions should consider a remedy that includes all individuals with prostitution records.

While vacating convictions laws are a step in the right direction for survivors, and we encourage other states to enact similar laws, it is critical to remember that the criminal justice system is not the optimal place to be crafting anti-trafficking solutions. Creating fair working conditions and ending abuses in low-wage industries will ultimately do far more to end trafficking in persons and protect the human rights of workers in vulnerable situations.  


Follow Juhu Thukral on Twitter, @juhuthukral

Written by Juhu Thukral and Melissa Sontag Broudo for RH Reality Check . This diary is cross-posted with the authors’ permission; commenters wishing to engage directly with the author should do so at the original post .

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