#minorsextrafficking | It’s Time to Rectify the Unconscionable Burden Placed on Sex-Trafficked Girls | JD Supra Perspectives

The criminalization of child sex trafficking victim Pieper Lewis by the state of Iowa is one more reminder of the gaps in our criminal justice systems related to human trafficking. Pieper Lewis pled guilty to voluntary manslaughter and willful injury for killing a sex-buyer who repeatedly raped her when she was 15 years old. Lewis is preceded by a long line of young women and girls who faced criminal penalty for conduct that was the result of having been victimized by sex traffickers, including Cyntoia Brown,[1] Chrystul Kizer,[2] Sara Kruzan,[3] Lisa Montgomery,[4] Tiffany Simpson,[5] and others.

Our criminal justice system continues to place immense burden upon victims who, despite their own victimization, may still face criminalization. The consequences of this are felt overwhelmingly by young women and girls, who are exposed to sexual violence at disproportionate rates.[6] The negative impacts are particularly acute for young women and girls of color, who were already facing disproportionate rates of confinement and institutionalization.[7] How many more girls must be criminalized and/or institutionalized before the call for state and federal criminal justice reform is heard?

In order to prevent other trafficked women and girls from suffering further harm, the following key reforms must be adopted at the state and federal levels: (1) human trafficking specific affirmative defenses; (2) broad post-conviction expunction or vacatur relief; and (3) system-wide awareness and policy changes in the criminal justice system addressing the distinction between human trafficking-related trauma responses and manifestations of criminal intent.

Because it is recognized that a child (i.e., a person below the age of consent) does not have the legal capacity to consent to sex, even if it involves an exchange of money, most states have safe harbor laws that provide at least some legal protections for exploited children. However, these protections typically only prevent children from being prosecuted for engaging in commercial sex. They do not prevent victims from being prosecuted for other crimes that resulted from the force, coercion, and trauma that commonly accompanies sex trafficking.

Why do Victims Commit Crimes? The experience of human trafficking victims is inherently traumatic, and the correlation between child sexual abuse and subsequent vulnerability to sex-trafficking demonstrates that many trafficking victims are coping with complex trauma.[8] Traumatic experiences, such as child abuse or sexual assault, can acutely impact judgment, impulse control, and recollection of events.[9]Trauma can result in periods of anger, disassociation, depression, and substance abuse.[10]Trauma can cause “crisis reactions,” including aggression and risk-taking behavior.[11]For a trafficking survivor, this can manifest in criminal conduct including violence against other victims, sex-buyers, and human traffickers.[12]However, most trafficking victims also do not report their own victimization to law enforcement.[13]This results in young women and girls being characterized as perpetrators rather than solely victims of someone else’s crime. This tension in the legal system is referred to as “victim-defendant duality”[14]or “victim-offender intersectionality.”[15]

State Statutory Relief. Ideally, criminal justice policymakers and professionals would contemplate the complexities of trauma and respond to criminal conduct committed due to trafficking victimization with nuance and sensitivity. Concurrent with the pursuit of that ideal, we must close the gaps in our criminal records relief laws and ensure that justice is available to survivors of human trafficking.

Human trafficking victims are forced or coerced into committing all sorts of crimes. However, at present, many records relief statutes narrowly circumscribe the categories of victims and offenses worthy of post-conviction relief. Most states limit relief to nonviolent crimes, and it is not uncommon for a state’s expunction or vacatur statute to tie eligibility for relief to a defendant’s lack of other criminal convictions outside of the one for which relief is sought.[16] This, despite clear evidence demonstrating that trafficking victims are at an increased likelihood of having repeated encounters with the criminal justice system throughout their trafficking experience. Furthermore, many of the existing statutes require a higher burden of proof than other expunction statutes and have strict requirements for showing a direct nexus between the trafficking and the crime.[17]

Many survivors’ attorneys are experiencing secondary barriers to achieving full relief for their clients due to the fines and fees that the survivor was ordered to pay but unable to recover after the conviction has been vacated or expunged. The U.S. Supreme Court has held that those with vacated convictions are entitled to the return of these payments related to their vacated conviction[18] but agency obligation to restore those payments appears uncertain. This results in many instances of unjust and unconstitutional delays in getting clients’ money returned due to insufficiencies in statutes, case law, or state funding sources. Relatedly, some state statutes require satisfaction of all ordered fines, fees, and restitution before being able to petition for post-conviction relief. If a conviction was unjustly incurred, full payment of the monetary penalties ought not be a prerequisite to seeking due relief. These restrictions all pose barriers to justice for criminalized survivors.

With that said, those who understand the procedural challenges involved in petitioning state courts to expunge or vacate criminal records would much rather see pre-conviction relief in the form of a human trafficking-specific affirmative defense. This would provide victims accused of crimes related to their victimization and their attorneys with a means of defending against prosecution and, if successful, avoid conviction entirely.

Federal Statutory Relief. Many observers would be surprised to learn that, currently, there is no statutory relief for federal criminal records incurred as a result of human trafficking, either in the form of post-conviction relief or a human trafficking-specific affirmative defense. This means that human trafficking survivors who were forced or coerced into engaging in federal crimes, and arrested, indicted, or convicted, have no way to “clear their record.” Federal bills have been introduced in Congress but unless they are well drafted, supported and passed, human trafficking survivors will continue to carry the weight of federal records for conduct that was the result of their trafficking. [19]

Expansion of state and federal statutory relief is critical to mitigate the harm associated with trafficking-related criminalization, which only adds to that caused by enduring sexual exploitation. Criminal records prevent survivors from obtaining employment, securing housing, receiving certain government benefits, enrolling in educational programs, and even coaching their children’s sports teams. Many are permanently labeled as sex offenders and subject to residential and other limitations.

Criminal Justice System Awareness. It is also important to note that statutory reform alone will not be sufficient to address the issues highlighted herein. Regrettably, enhanced criminal recordsrelief statutes and statutory affirmative defenses would still require victims to bear the burden of demonstrating a nexus between the crime they are accused or convicted of and their victimization. For this reason, it is also necessary to increase awareness throughout the criminal justice system about the relationship between sex trafficking, trauma, and coercion (by educating law enforcement, prosecutors, public defenders, victim witness advocates, judges, and juries). Beyond training for those who make arrest and charge decisions, criminal proceedings ought to include trauma expert consultants and witnesses and jury instructions about proper/improper assumptions that jurors could draw from any evidence of victimization. Enhanced system-wide awareness could even involve state bars amending Rules of Professional Conduct to require trauma-training as part of continuing legal education requirements, and law school curricula could mandate the same so that future prosecutors, defense attorneys, and pro bono victim-witness attorneys understand how trauma and coercion can prompt criminal conduct and disguise victimization. Hopefully, in time, all this will curb the systemic criminalization of young women and girls.

How Law Firms Can Help. The National Survivor Law Collective’s 2021 “Legal Deserts” Report[20]highlights the vast legal needs of human trafficking survivors, common misunderstandings surrounding the victim experience, and obstacles to accessing justice. Naturally, law firms can, and should, commit to providing free legal representation to survivors in a trauma-informed way. Filing criminal records relief petitions for survivors is an ideal fit for attorneys in private practice. Even law firms that do not have family law or criminal defense practices can leverage their pro bono funding sources, bar associations and community and corporate relationships to meet the comprehensive legal needs of survivors through collaborative partnerships. Law firms can also join the efforts to raise awareness, particularly within the legal system, about the needs of survivors and can engage in legislative advocacy to fill the statutory gaps identified. Moore & Van Allen PLLC has taken these steps over the last decade and hopes that other firms will join the cause to help alleviate the unconscionable burden carried by sex-trafficked youth.

Sarah Byrne, Senior Counsel at Moore & Van Allen PLLC, advises, writes and speaks on human trafficking prevention and compliance, and represents survivors of sex-trafficking and forced labor in their legal and financial inclusion needs.

Jules Carter’s practice is focused on financial regulation, helping institutional clients navigate complex regulatory issues to pursue business strategies that balance innovation with risk-awareness.

[1] Cyntoia Brown Long (née Brown) served 15 years of a life sentence for killing a man when she was 16 after being forced into prostitution by her abusive partner. In 2019, she was released from prison after being granted clemency by former Tennessee Gov. Bill Haslam. Bobby Allyn, Cyntoia Brown Released After 15 Years In Prison For Murder, NPR, Aug. 7, 2019, available at https://www.npr.org/2019/08/07/749025458/cyntoia-brown-released-after-15-years-in-prison-for-murder.
[2] Chrystul Kizer is facing life in prison on charges of murdering her alleged sex trafficker at the age of 17. Jessica Contrera, He was sexually abusing underage girls. Then, police said, one of them killed him., The Washington Post, Dec. 17, 2019, available at https://www.washingtonpost.com/graphics/2019/local/child-sex-trafficking-murder/?itid=lk_interstitial_manual_7&itid=lk_interstitial_manual_6.
[3] Sara Kruzan was sentenced in 1995 to life in prison after she was tried as an adult for the murder of her trafficker when she was 16. Her prison term was later commuted by then-California Gov. Arnold Schwarzenegger, and she was released two years later, in 2013. Libor Jany, Newsom pardons Sara Kruzan, imprisoned as a teen for killing man who trafficked her, Los Angeles Times, July 2, 2022, available at https://www.latimes.com/california/story/2022-07-02/newsom-pardons-sara-kruzan-woman-sent-to-prison-for-killing-man-who-sex-trafficked-her.
[4] Lisa Montgomery was sentenced to death and executed for the 2004 murder of Bobbie Jo Stinnett, a pregnant 24-year-old, whom she strangled before cutting her baby out of her stomach and leaving her to bleed to death. After Montgomery’s sentencing, a new legal team investigating her background discovered that she was a victim of sex trafficking and brutal sexual abuse at the hands of her family members. She also suffered from bipolar disorder, temporal lobe epilepsy, complex post-traumatic stress disorder, dissociative disorder, psychosis, and a traumatic brain injury resulting from physical abuse. Hannah Murphy Winter, Lisa Montgomery Suffered Years of Abuse and Trauma. The United States Killed Her Anyway, Rolling Stone, Jan. 22, 2021, available at https://www.rollingstone.com/culture/culture-features/lisa-montgomery-kelley-henry-death-penalty-capital-punishment-1117592/.
[5] Tiffany Simpson was sentenced by the State of Georgia to 30 years, 20 to be served, after pleading guilty to charges including sex trafficking of another when she was 17 years old. However, Tiffany was being trafficked which led to the charged conduct. She was six when her father was incarcerated and her mother suffered from addiction causing her to lose custody of Tiffany when she was thirteen. Tiffany was first sex-trafficked at the age of 14. https://www.law.com/dailyreportonline/2021/02/18/justice-is-a-part-of-healing-for-victims-of-human-trafficking/. Represented by pro bono counsel, Tiffany filed a habeas petition arguing ineffective assistance of counsel at trial.
[6] Human Rights Project for Girls, Georgetown Law Center on Poverty and Inequality, and Ms. Foundation for Women, The Sexual Abuse to Prison Pipeline: The Girls’ Story 7 (2020).
[11] See id.; see also Jeffrey H. Zeeman & Karen Strauss, Criminal Conduct of Victims: Policy Considerations, 65 U.S. Att’ys’ Bull. (Exec. Off. of U.S. Att’ys, Columbia, SC, Nov. 2017), 142 (behaviors including belligerence or noncooperation “may be the result of fear or trauma and, in some cases, of the victim’s “traumatic bonding” or “trauma-coerced attachment” to the trafficker”).
[12] Victim-Offender Intersectionality, supra note 8, at 8–10.
[13] Zeeman & Strauss, supra note 11, at 140 (explaining that “trafficking victims do not usually self-identify as such due to the effect of complex trauma”).
[14] See generally Ctr. for Ct. Innovation, Identifying and Responding to Sex Trafficking: A Guide for Courts (2014), https://www.courtinnovation.org/sites/default/files/documents/DV_SJI_Risk%20Need_.pdf.
[15] Victim-Offender Intersectionality, supra note 8, at 7 (defining “victim-offender intersectionality” (VOI), and confining definition to when victim is criminalized for human-trafficking-related offense).
[16] See HAW. REV. STAT. § 712-1209.6(1) (2021) (“A person convicted of committing the offense of prostitution . . . may file a motion to vacate the conviction if the defendant is not subsequently convicted of any offense under the Hawaii Penal Code within three years after the date of the original conviction.”).
[17] Christian Coward, Breaking Secondary Trauma: Developing Conviction Relief Legislation in the United States of Sex-Trafficking Victims, 50 U. of Balt. L. Rev. 465, 468 (2021) (explaining that, in many states, the forms of conviction relief that are available to survivors of human trafficking are inadequate because they fail to cover a realistic range of offenses).
[18] Nelson v. Colorado 137 S. Ct. 1249 (2017).
[20] See generally Hannah Sweeney, The Avery Ctr., Legal Deserts Report (2021), https://theaverycenter.org/wp-content/uploads/2021/07/The-Avery-Center-Legal-Deserts.pdf.

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