Impact of Arrest and Conviction Histories on Trafficking Survivors

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Written by K.B. White

Human trafficking survivors are often arrested, prosecuted, and convicted for crimes that their traffickers forced them to commit. As a result, survivors are marked by criminal records that create barriers to housing, employment, education, and even participating in community events. These “collateral consequences” are the legal and predictable result of any contact with the criminal legal system.

In some cases, traffickers may use a survivor’s record as a coercive tool. They may assert that, for example, if the survivor were to leave:

  • They will not find legal employment
  • They will have no credibility in the eyes of police
  • They will be seen as an unfit parent in a future custody dispute
Unfortunately, these warnings are not always wrong. Most entities are permitted to run background checks and discriminate based on the results. Understandably, many survivors choose not to disclose their trafficking experience to that entity (e.g. an employer, landlord, or licensing board) and choose instead to walk away from the opportunity.
 

Arrest and conviction histories not only haunt individuals but also reinforce systemic racial disparities. People of color are over-criminalized, over-policed and dragged through the criminal legal system, resulting in a higher proportion of minority populations marked by criminal convictions. This response, then, is effectively transferred into the employment sphere, creating a massive barrier to the participation of job applicants of color in competitive labor markets, building wealth, and achieving racial pay parity.

Fortunately, for trafficking survivors, most states (but not all!) have statutory provisions that provide some type of path for vacatur, expungement, or sealing trafficking-related convictions. In order to hopefully move past those convictions, survivors can contact the Survivor Reentry Project (SRP). A survivor may request SRP’s assistance after an employer denied them a job, a landlord refused to rent to them, or a school administrator barred them from chaperoning their child’s fieldtrip.

Since late 2019, SRP has matched over 30 survivors with pro bono, post-conviction relief representation in 27 states. Altogether, these survivors have over 500 convictions related to their respective trafficking experiences. Of these 500 convictions, 54% are for prostitution and 46% are for drug offenses, trespass, forgery or false impersonation, and robbery, among many other crimes. These numbers reflect a small slice of the direct costs (literally and figuratively) of policing, prosecuting, and incarcerating survivors that SRP pro bono partners are committed to undoing.

Doors to safety and stability finally open when a survivor can access comprehensive post-conviction relief. The process, however, is lengthy and emotionally draining. Survivors must discuss their painful memories with legal service providers. The providers then commit those memories to paper in the form of a sworn statement and share that statement and accompanying legal brief with prosecutors. Despite the statement on paper, the prosecutors may decide to separately interview the survivor and then file that motion with the court. The assigned judge, after reading that motion and potentially after an in-court hearing, will decide the appropriate relief. Thankfully, across the nation, survivors win these cases more often than not.

However, survivors whose conviction histories do not squarely fit the statutes’ predicates for relief continue to face stigma and discrimination. Relief varies from state-to-state and depends on the type of crime that a survivor has committed. For survivors with federal convictions, no relief currently exists. A survivor may have successfully vacated their prostitution convictions in New York, cleared drug offenses in California but not their robbery conviction, and have a handful of prostitution and trespass convictions in Louisiana. This patchwork system fails to provide survivors with the swift and effective relief they desperately need. Some state laws even make arbitrary distinctions between violent and non-violent offenses, despite recognizing that survivors should not bear the consequences of forced criminalization.

It has been nearly 12 years since the first state passed a vacatur statute for survivors of trafficking in New York. In that time, thousands of trafficking-related convictions have been vacated, expunged, and sealed across the country. For some survivors, their life circumstances have dramatically changed for the better. They are now able to secure better-paying, legal employment, access affordable housing, and chaperone their child’s field trip. We celebrate those wins.

For other survivors, however, they continue to be saddled by convictions simply because the law has not yet caught up. At FNUSA, we believe each state must enact an expansive and accessible process for survivors to clear their records and finally move past their trafficking experience.