So You Want to Talk About Sentencing Reform
Those familiar with human trafficking know that traffickers commonly exert control over their victims through coercion, threats or force — often manifesting in forms such as blackmail, physical, verbal and/or sexual abuse, document confiscation and manipulation of a victim’s dependency on illegal drugs. These tactics can cause serious bodily injury and/or psychological trauma. So, what happens when a trafficking survivor is prosecuted in court for a crime they committed while being trafficked? Can they be culpable under the law? How does the legal system understand their actions?
Photo by Anna Sullivan on Unsplash
In most states, prosecution of human trafficking survivors fails to take into account the force, fraud or coercion that caused a survivor to commit a crime in the first place. Former United States Ambassador-At-Large to Monitor and Combat Trafficking in Persons, Susan Coppedge, emphasizes that while an individual is being trafficked, she or he cannot form the intent or willfulness required by most laws to commit a crime. Simply put, while being trafficked, an individual is under the control of their trafficker. Our justice system fails to recognize the trauma or abuse that causes victims to comply with their trafficker’s orders to engage in commercial sex acts, rob individuals, sell drugs or assault others, among other things.
Sentencing reform is needed, and it’s needed now.
The burden of prosecution is placed on the state which must prove crimes beyond a reasonable doubt before it can deprive any citizen of their liberty. Human trafficking survivors are no different. The state must meet its burden and establish that a human trafficking victim had the intent to commit the crime independent of their trafficker’s coercion and that the survivor acted willfully rather than from fear and self-preservation. Advocates of sentencing reform seek an affirmative defense for trafficking victims — a defense similar to that of duress but encompassing a greater number of crimes committed and without needing to prove imminent harm. By pursuing affirmative defense in court, survivors are given “an alternative that does not brand them as criminals, allowing them to focus solely on rehabilitation.”
Courts sometimes fail to take into account not only the trauma survivors experienced from their trafficker, but also the emotional strain of being imprisoned when they were victimized themselves. Both experiences can impact their credibility on the stand. The state should have the responsibility of educating law enforcement, prosecutors, public defenders and judges on the complexities of human trafficking. As it is now, much of the burden lies on the survivor who may not know they have been a victim of human trafficking or may not be able to articulate this in a justice system that provides little support.
Clearly, education needs to be a cornerstone in bringing about sentencing reform — for the state and the people handling survivors’ cases, but also for the survivors themselves. Many survivors don’t know how to seek the help that they’re entitled to. According to Hollie Daniels, a survivor herself, it isn’t unusual for a human trafficking victim to lack the background to understand what trafficking is and fail to realize that they’ve been trafficked. Without proper education, the mental burden of their situation, says Hollie, again lies on the victim rather than on the trafficker. It’s the victim who’s left to believe that their situation and the crimes they’re led to commit are their fault, and the state’s approach to survivors only reinforces this idea. It now has to fall on the state not only to educate its prosecutors but to stop the “revolving door” that leads survivors to repeatedly turn to crime — whether that means arranging better case management, providing survivors with a discharge plan after their release from prison or any other services needed for long-term recovery.
Trafficking survivors are strong enough. Now it’s the state’s turn to step up and take on the burden it should have shouldered from the beginning.
About the Author
Mckayla Yoo is a proud resident of the Jersey Shore getting her History and English degrees in Massachusetts. A lover of slow fashion, she believes in conscious consumer choices and the five R's. In her free time, you can find her researching cold case mysteries and perfecting the art of iced coffee.