Therese Majeski is a recent graduate from Cornell College, Iowa with a B.A. in psychology and a minor in applied statistics. She is an aspiring forensic linguist taking a gap year before grad school to write and volunteer. Whether through academics or journalism, Therese is passionate about using the power of language to achieve a more just world and effect positive change.
The U.S. legal system does not effectively provide for the needs of human trafficking survivors and often defaults to seeing them as criminals. However, there are key ways in which our justice system can improve the identification and support of survivors.
Screenings:
One of the earliest steps that can be taken to support survivors within the justice system is screening by law enforcement for trafficking situations and influences.
However, screening procedures vary significantly based on the specific state or police department, said Jessica Emerson, Esq., Director of the Human Trafficking Prevention Project at the University of Baltimore School of Law.
“I think there are law enforcement agencies who screen effectively, I think that there are law enforcement agencies who screen ineffectively, and there are law enforcement agencies that don’t screen at all,” Emerson said.
A survey by the National Survivors Network (NSN) catalogs information from over one hundred trafficking survivors, many of whom describe their encounters with the justice system as less than supportive. The survey reveals that survivors have experienced indifference or disdain, interrogation-style interviews, and even a complete failure to inquire if they have been victims of trafficking.
According to the NSN survey, “When asked if they were able to report their trafficking experience, almost 75% reported that they did not, mostly because of fear, and many said no one ever asked them.”
Emerson, who holds a master’s degree in social work, said that trauma-informed interviews can help law enforcement and other professionals screen for survivors of trafficking.
“One of the things that I do with regard to assisting law enforcement with identifying survivors is I train law enforcement on trauma and what trauma is, how it manifests, what it looks like, what traumatic responses are, and what trauma-informed interviewing looks like,” Emerson said.
Training materials created by the National Human Trafficking Resource Center (NHTRC), make it clear that a trauma-informed approach prioritizes the needs and agency of victims. With an understanding that significant trauma may be present, this approach is designed to minimize further distress to the interviewee and “increase the likelihood of victims feeling comfortable in reporting trafficking situations.”
According to the NHTRC, trauma-informed interviews should incorporate several elements, including, but not limited to, the attendance of an advocate, opportunities for the survivor to have power and make choices within the interview, and ensuring the survivor is not too tired or hungry for the interview. The interviewer should clarify how the interview will proceed, make questions open-ended, and choose phrasings that build up the survivor’s self-image. Information should also be obtained through the minimum possible number of interviews with breaks throughout each interview to prevent overstressing the survivor.
When conducted appropriately, this approach can allow survivors to be identified and assisted.
Diversion Programs:
Even when trafficking survivors are accurately identified, they may not be given the support they need, with the NSN survey stating, “22.2% of respondents reported that they felt like they had to testify against their trafficker to get help or services.”
Emerson also said that diversion programs, which she describes as ‘offramps’ from the criminal justice system for moving survivors out of custody without criminal records, often do not address individual needs. Emerson went on to describe the problem using mandated counseling as a hypothetical program requirement for survivors who actually need job, housing, or legal assistance.
“If I’m struggling with homelessness and you tell me I need to be somewhere ten times to get counseling that I don’t necessarily want or need right now, you’re setting me up for failure, essentially,” she said.
Emerson also emphasized that diversion programs should see survivors as experts in the types of support they need.
“A strong program would not necessarily say you have to have counseling in order to be able to wipe your record clean. A strong diversion program would have a variety of different options at the hands of the individuals it serves and allow the survivor to drive those services,” Emerson stated.
Criminal Record Relief:
A crucial part of recovering from the damage of being trafficked, criminal record relief is the process by which survivors can have their records cleared of convictions and arrests for crimes they were compelled to commit by traffickers. Without relief from their criminal records, survivors face extensive challenges in reconstructing their lives; their records make simple things like finding or keeping jobs, acquiring safe living arrangements, and maintaining child custody extraordinarily difficult. Survivors may even receive poor care from medical professionals because of their records.
Criminal record relief, however, is not always available to survivors. Freedom Network USA (FNUSA) reports that opportunities vary depending on the state: Alaska, Iowa, Virginia, and Maine provide no record relief, while Louisiana, Missouri, and South Dakota only make criminal record relief possible for underage victims.
Additionally, Emerson explained that there is currently no legal recourse, short of a presidential pardon, that would allow survivors to clear their records of federal crimes.
The NSN survey also makes it clear that record relief can be difficult: “75.4% of respondents reported that they have not been able to vacate their convictions. Many indicated that it is too expensive or they do not know how. Others tried but were not able to or were only able to clear some of their records. The 24.6% of respondents who reported they had cleared, or have begun to clear their records all reported it was a long and painful process.”
A joint report from representatives of Polaris, the American Bar Association (ABA), the Brooklyn Law School, and the University of Baltimore School of Law provides criteria for what effective criminal record relief laws should include and graded each state’s record relief laws as of 2019, at which point only thirteen states had even remotely passable grades.
Efforts to increase the accessibility of record relief are ongoing. Emerson, also a coauthor of the joint report, explained that her current home state of Maryland, which originally scored at the very bottom in 2019, has made improvements in the availability of criminal record relief. Just this past year, Maryland passed the True Freedom Act 2020, which made the criminal record relief process slightly less difficult for survivors and also significantly increased the types of convictions that are covered by record relief. Georgia, another previously low-scoring state, also made significant improvements to criminal record relief in 2020, with survivors no longer being required to pay for the elimination of their records and being recompensed for past fines that resulted from relevant convictions. Adult victims, rather than just minors, are now also eligible for criminal record relief in Georgia.
Still, criminal record relief remains insufficient. The joint report makes it clear that, for criminal record relief to be truly effective, many states must instate a wide variety of improvements. Among these, the report recommends that almost any trafficking-caused crime should be eligible for relief, survivors’ confidential information should be highly protected, and survivors should not be subjected to the stress of court hearings as part of the process. Vacatur of criminal records, rather than just sealing or expungement, should also become widespread; as vacatur absolves survivors of legal wrongdoing, it offers them significantly more protection than other measures. Survivors should also be eligible for relief from arrest records, which can be almost as much of an impediment as convictions.
A report by the ABA’s Survivor Reentry Project describes a prosecutorial roundtable and its consensus on issues of criminal record relief. This report supports the need for prosecutors to play an active role in promoting the availability of criminal record relief, recommending they strike a balance between the need for evidence of trafficking and the distress evidence collection can cause survivors. The report further pointed out the need to increase awareness of criminal record relief as an option for survivors. Also affirmed was the importance of trauma-informed procedures and open communication between prosecutors and survivor advocates.
Addressing Bias:
To give survivors the help they need, individuals in positions of legal, law enforcement, and social power need to understand that survivors are deserving of support.
Emerson observed that individual human biases contribute to the problems survivors face in the criminal legal system.
“I think that in addition to those concrete challenges that we have in terms of law enforcement rules and regulations, there’s also the undercurrent of the systems that put individuals at higher risk because of the discrimination they face at the hands of a range of service providers, including law enforcement. So, I don’t think we can talk about training, training, training without thinking through what are the undercurrents of biases that particular law enforcement officials may have towards women, particularly women of color, may have towards trans people, may have towards individuals who trade sex generally,” Emerson said.
Emerson also suggested how the problems within the justice system can be ameliorated.
“It’s incumbent upon those of us who want to do this work, or work to assist survivors, or to prevent trafficking going forward, that the most important thing that folks can do is get involved in anti-poverty work, get involved in anti-racism work, get involved in work around ending homelessness, around addressing these systems that put people at higher risk for being trafficked and that perpetuate these systems of discrimination that can, unfortunately, culminate in an incredibly horrific experience with the criminal legal system,” Emerson said.
Ultimately, while the justice system has made some progress in understanding and addressing the needs of trafficking survivors, significant failings remain. Without a better integration of trauma-informed procedures, diversion programs that respect survivor autonomy, nationally available criminal record relief, and an understanding of the damage created by bias, survivors of human trafficking will remain at an unfair disadvantage within the American criminal legal system.
Sources:
Emerson, Jessica. Phone Interview. February 9, 2021.
Trauma-Informed Human Trafficking Screenings
The Importance of Criminal Record Relief for Human Trafficking Survivors
Guide for Case Managers and Other Advocates
State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking
Freedom Network USA & Survivor Reentry Project Record Relief Map
The True Freedom Act of 2020 and Updates on Filing for Criminal Record Relief in Maryland
New Georgia Law Helps Trafficking Survivors Clear Their Records
