Guide for Attorneys

On this site are two types of documents: full templates and sample language. The full templates are intended to provide a picture of a complete client affidavit. There are separate templates available for a U.S. adult citizen, a foreign national adult, and a minor of any nationality. On the other hand, the sample language excerpts take a closer look at some specific facts that are common in trafficking criminal record relief cases.

As you can see from the sample documents, affidavits in these cases are extremely fact-specific. As such, it is critical for the affidavit to reflect your client’s unique experience. For a more in-depth discussion of developing a client narrative, please see page 26 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

Generally, it is a good idea for the last part of your client’s affidavit to describe or summarize life after trafficking. This can include any educational or professional accomplishments and should also describe any specific barriers your client faces due to their conviction or arrest history. Barriers can be concrete, such as the denial of housing or education, or more emotional in nature, such as a reluctance to apply for certain forms of employment due to concerns over the impact a criminal record will have on this process.

For a more in-depth discussion of this topic, please see page 20 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

No state criminal record relief statute requires that a trafficking victim have achieved any specific goal or outcome in order to merit criminal record relief. Given that, it is absolutely acceptable and, in many cases, accurate, for your client to express something like: “I am still struggling with instability.” However, where your client has taken steps to attain stability, it is best to include those details.

For a more in-depth discussion of developing a client narrative, please see page 20 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

Do not worry at all if your client’s experience does not match any of the samples posted. The samples are meant to serve as examples of what a case could look like. However, they are by no means exhaustive, so please do not be deterred if your client’s experience is different.

For a more in-depth discussion of developing a client narrative, please see page 26 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

In most states, proving that a minor was a victim of sex trafficking is simpler than proving the same for an adult. While adults must prove that they were involved in commercial sex by virtue of fraud, force, or coercion, minors need only demonstrate that they were engaging in prostitution and were under the age of 18 at the time of the arrest or resulting conviction.

For a more in-depth discussion of this topic, please see page 24 and page 41 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

Boys and men can be victims of sex trafficking just like girls and women, and all criminal record relief statutes are gender-neutral.

For a more in-depth discussion of the different populations that can be vulnerable to trafficking, please see page 3 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

State statutes vary as to what specific crimes are covered by their criminal record relief statutes. Some allow for criminal record relief of a prostitution conviction only, some allow for criminal record relief of any prostitution-related offense, and some limit criminal record relief to only non-violent crimes. Even in states that have narrowly defined what crimes are eligible for criminal record relief for victims of human trafficking, attorneys have successfully convinced courts to clear convictions not directly contemplated under the law.

Additionally, many state criminal record relief statutes contain catch-all provisions for courts to take additional action as justice would provide. This language can provide the mechanism that courts need to vacate convictions not specifically contemplated by the legislature.

For a more in-depth discussion of this topic, please see page 39 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”
Find your state law here.

Trafficking victims are impacted by their status as a trafficking victim long after they have escaped from their trafficker. As such, there is a strong argument to vacate arrests and convictions that occur after victims have gotten away from their traffickers but while they are still suffering from their immediate resulting instability. Be sure to check your state statute for any specific requirement of a temporal nexus between the convictions and the trafficking.

Additionally, as stated above, many state criminal record relief statutes contain catch-all provisions for courts to take additional action as justice would provide. This language can provide the mechanism that courts need to vacate convictions not specifically contemplated by the legislature.

For a more in-depth discussion of this topic, please see page 40 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”
Find your state law here.

In some jurisdictions, you may simply put notice on the initial pleadings that are being filed under seal. In other jurisdictions, you may have to file a preliminary motion requesting leave for the case to be filed under seal. Check the local rules in your jurisdiction for how cases are generally filed under seal.

For a more in-depth discussion of confidentiality and privacy, please see page 1 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

If it is the first time that the court in your jurisdiction is hearing a motion under your state’s human trafficking criminal record relief statute, it may be a good idea to include a legal brief to help judges familiarize themselves with the new law. Once judges have this familiarity, it may no longer be essential to include this background information for each filing. However, any time there is a complex legal issue or you are asking the court to vacate a crime outside the statute, it may be helpful to include a brief on those issues.

For a more in-depth discussion of issues which may require legal briefing, please see page 39 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”
Find your state law here.

The most important evidentiary piece of your motion will be your client’s affidavit. However, if you are able to provide corroboration of your client’s experience, that may strengthen the claim. Some examples of corroborating evidence include immigration documentation, such as a notice of a T-visa approval; demonstrating that your client is a trafficking victim; photographs of injuries; records of communications between your client and their trafficker; medical records; and arrest or police reports involving the trafficker.

For a more in-depth discussion of this topic, please see page 21 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”
Find your state law here.

It is important to have as much information as possible about your client’s case before approaching the prosecutor. Often, prosecutors will consent to your criminal record relief motion if they are given a full picture of the circumstances surrounding your client’s arrest or conviction. As with any other case, courts are much more likely to grant your criminal record relief motion when all parties consent.

For a more in-depth discussion of this topic, please see page 37 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

It is still possible to move forward on a contested criminal record relief motion in almost all jurisdictions, and attorneys have vacated trafficking victims’ convictions over prosecutors’ objections.

For a more in-depth discussion of this topic, please see page 38 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”

If the prosecutor consents to the criminal record relief order, your client will most likely not have to testify. Even if the prosecutor opposes the motion, courts will sometimes make a decision based on the written pleadings. However, some courts have required a full hearing before reaching a decision. It is important to prepare your client for the possibility that they may have to testify and then to explore safeguards that protect your client’s identity and privacy.

For a more in-depth discussion of this topic, please see page 38 of “Post-Conviction Advocacy for Survivors of Human Trafficking: A Guide for Attorneys.”