Stop criminalizing victims of sex trafficking
She was only a teenager when she was trafficked by her mother’s drug dealer. Trafficked for sex over the course of almost 20 years, Jessica, as we’ll call her, suffered from regular physical and mental abuse, including being shot in the leg by her trafficker. After she eventually summoned the courage to call the police, Jessica was the one who was arrested and charged with prostitution — not her trafficker.
Stories like Jessica’s are common, and those of us who work on combating sex trafficking encounter them regularly. Because selling sex is illegal almost everywhere in America, and because law enforcement agencies cannot easily differentiate between consenting sex workers and trafficking victims, many victims are wrongly criminalized. By the time that sex trafficking victims are correctly identified, they have often been arrested on multiple occasions for offenses related to their victimization, primarily prostitution, but also nonviolent drug offenses, loitering and vagrancy.
Punishing trafficking survivors is immoral and deeply counterproductive. A criminal record can in many cases be the difference between recovery and revictimization. Criminal records often mean that trafficking survivors cannot secure housing, apply for a loan, obtain immigration relief, further their education or find employment. A lack of choice may force them back into an exploitative situation just so that they can meet their basic needs.
Policymakers must do more to address the outrageous criminalization of trafficking victims. First, they must address the pernicious consequences caused by the arrests. Congress should pass the Trafficking Survivors Relief Act of 2016. Introduced last September, it would allow survivors of trafficking to vacate, or erase from their records, certain offenses committed as a result of trafficking.
However, the pending legislation focuses only on federal offenses; states need to act on their own, too.
An increasing number of states have enacted so-called vacatur statutes, which similarly provide human trafficking survivors with post-conviction relief. By one recent count, 18 states had passed vacatur statutes and another 10 states had enacted partial vacatur laws that would benefit from improvements. Texas was not among them. Given the state’s large trafficking hubs, particularly Houston, the Texas Legislature should make it a priority to pass legislation that makes it easy for survivors to vacate their trafficking-related arrest records and convictions.
Passing vacatur statutes is critical, but how the laws are designed also matters. Effective vacatur laws should, for instance, cover survivors regardless of whether they were trafficked as children or adults. In addition, the laws should not require official documentation of trafficking or rehabilitation. Setting too strict criteria makes it hard for survivors to qualify for vacatur, especially as victims’ stories already are met with skepticism by parts of the legal system.
Second, in addition to providing postconviction relief, policymakers should reduce the likelihood that trafficking victims are arrested in the first place. This matters not only because charging victims like criminals is inherently wrong, but also because many trafficking survivors will never be identified by the legal system as such, and will therefore not obtain relief through vacatur statutes. One significant step would be to decriminalize the act of selling sex so that sex workers and trafficking victims cannot be charged with prostitution.
While the issue of whether or not to permit the act of buying sex is a highly contentious one, there should be broad support for the decriminalization of sellers. This would provide necessary protection to extremely vulnerable individuals. And it might even potentially aid our fight against trafficking, as some European countries have experienced, according to data one of us, Simon Hedlin, has found.
Today, Jessica is safe and in recovery. She is currently fulfilling her dream of training to become a hairstylist. But she still has nonviolent criminal convictions on the books, which make it more difficult for her to lead a normal life. Sex workers are among society’s most marginalized groups, and trafficking survivors have been victims of one of the most egregious crimes.
There is no good reason to keep punishing them.