How are survivors criminalized by legal systems?
Human trafficking has long existed at the margins of society, operating in the shadows. When the red flags go unrecognized, those involved are effectively invisible. When they are brought into the light, it is usually because of criminal activity discovered by law enforcement, at which point they are seen as criminals. For the perpetrators of human trafficking, this is justified. Unfortunately, too often the victims of human trafficking are not recognized as victims of unthinkable violence and coercion but are seen only as criminals in the eyes of the legal system. Arrested and charged for various crimes—crimes they were forced to commit while being trafficked—survivors are left to live the rest of their lives restricted by a criminal record.
Many of the hundreds of thousands of people trafficked in the United States alone have been involved in crimes such as money laundering, drug trafficking, conspiracy, prostitution, and other related offenses. A 2019 survey of 130 trafficking survivors found that 91 percent of the respondents reported having been arrested.
Though there is still a lack of nationwide data on how many survivors have a criminal record as a result of being trafficked, the Polaris Project notes that “people in trafficking situations are frequently arrested, detained, prosecuted, convicted, and in some cases, incarcerated or deported, without ever being identified as a victim of human trafficking by the criminal legal system.” This context changes everything. A survivor’s involvement in crime is often a direct result of the coercion they experience at the hands of their traffickers.
The unjust criminalization of trafficked individuals takes many forms: the conviction of sex trafficking victims as prostitutes, the penalization of trafficked domestic workers for violating immigration laws, the arrest of individuals threatened with violence by organized criminal groups into producing and distributing drugs. Being arrested for or convicted of one or more of these crimes makes it exponentially more difficult for the survivor to secure employment, housing, education, financial aid, child custody, or necessary government benefits. In thus restricting the survivor from accessing these basic rights, the legal system unwittingly continues the victimization begun by the trafficker.
In short, criminal record relief is necessary for survivors to rebuild their lives after trafficking. Several bills have been introduced or passed in recent years to this end. The Trafficking Survivors Relief Act (TSRA) of 2020 is a bill that would allow a survivor of human trafficking with a criminal record to petition for the erasure of arrests and convictions related to non-violent offenses. This bill has numerous bipartisan sponsors, but is still undergoing revision by committees at this time. A number of similar bills have been stalled at this stage of the process, including the Human Trafficking Survivors Relief and Empowerment Act of 2015 and the Trafficking Survivors Relief Acts of 2016, 2017 and 2019. Fewer than 10% of bills make it to the floor and receive further action. With any luck, the TSRA will be one of those. The TSRA would strengthen legal provisions for survivors that the Trafficking Victims Protection Act (TVPA) of 2000 overlooked. This bill (most recently revised in 2019) continues to direct the federal response to sex and labor trafficking, organizing assistance for victims and requiring training for law enforcement.
Individual states have responded to the growing awareness of the trafficking and criminalization crisis differently. State report cards available through the Polaris Project evaluate each state’s criminal record relief laws and proposed legislation (as well as the lack thereof, which is recorded in a “hall of shame” list).
In many states now, there are pathways to ‘seal’ or expunge non-violent criminal charges for individuals that had been victims of trafficking at that time. Unfortunately, this can require more court time and legal fees, which may be both prohibitively expensive and re-traumatizing for the individual. To avoid the complicated damage control altogether, it is imperative that identifying and assisting victims of human trafficking take priority over convicting them for crimes they were forced to commit.
To put it bluntly: victims of human trafficking are not criminals.
They are victims—and survivors. The lives they lead after trafficking should not be marred by a criminal record that drags them down but rather should be marked by compassionate action and legislation that allows them to find their footing in a world that finally sees them clearly.
About the Author
Emmy Luker is a writer and MDiv candidate at Fuller Theological Seminary. She is passionate about speaking and writing about what is true, and doing it in a way people can and want to hear. Originally from Colorado, she is a big fan of alpine views and mountain hikes, but she is learning to love the wind and the lake as a recent transplant in Chicago.