REMOVING THE SCARLET “A” FROM VICTIMS OF HUMAN TRAFFICKING: STRATEGIES FOR AVOIDING AND ADDRESSING WRONGFUL CONVICTIONS

Bobbette Deborah Abraham* | 1 Regent J. Glob. Just. & Pub. Pol. 199 (2015)

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Hester Prynne by cheese5you, published on DeviantArt.com

INTRODUCTION

The vacant stare of her hollow eyes says it all, revealing a soul stripped bare of all dignity. The boundaries of her existence are determined by the abuse she has suffered and the rejection she is met with every time she tries to find a way to move forward. Her name does not matter. What does matter is that she is found nearly everywhere in our society and that she could be anyone—your childhood friend, your sister or niece, your daughter, even your wife. Her identity is defined by one thing, a figurative, yet indelible “Scarlet A”^[1] emblazoned across her entire personhood. The fact that she has potential, and if given the opportunity, could become a productive, contributing member of society, is irrelevant. Regardless of the positive changes she tries to make, every time she attempts to pull her life on track, the “Scarlet A” on her record shows up and stops the train. Trapped in a vicious cycle of despair, there seems to be nowhere else for her to go except back to the abusive and humiliating lifestyle that got her here in the first place. Although this story may sound like a script from a B-rated film, it is, in fact, an accurate description of the daily life of the countless number of individuals in our nation who are victims of human trafficking, especially those inducted into the sex industry.^[2] According to the Amara Legal Center in Washington, D.C.,

[i]n addition to prostitution, survivors of sex trafficking are often involved in a wide range of unlawful activity and incur hefty criminal records. Survivors are commonly convicted of crimes such as drug possession and theft, and minors are commonly convicted of truancy, running away, and violating state curfew laws. In many instances, the survivors only committed these crimes under duress from traffickers and pimps. In fact, those benefiting from sex trafficking often push survivors into these crimes intentionally, as a means of control. Survivors’ criminal records hinder them from moving forward with their lives in many ways. Many applications for public benefits require disclosure of criminal records and many programs are unavailable to those with criminal records. Specifically, a criminal record can prevent a survivor from getting a job, receiving medical care, furthering her education, receiving housing assistance, or applying for a loan.^[3]

Many industries in the United States receive ill-gotten gains by exploiting human trafficking victims, the most notorious being the sexual slavery industry.^[4]

Sexual exploitation has surfaced in several different forms, but the general methods of exploitation remains [sic] the same. The women are promised a better life through high-paying job offers or educational opportunities. However, once they leave their homes, they are forced into any number of commercial sex industries, including: “prostitution, pornography, stripping, live-sex shows, mail-order brides, military prostitution and sex-tourism.” The subservience of these victims is maintained by the traffickers’ use of a number of control mechanisms. Debt bondage is commonly used; many women are forced by their captors to pay off a “never-ending cycle of debt,” which includes the cost of the trip and the everyday expenses—food, medicine, toilet paper, condoms—that they incur. Additional amounts are added to the outstanding balance for insubordination or underperformance. Moreover, the women are given little (if any) money for services rendered and are forbidden from keeping track of their debt, giving their captors increased control over their freedom. In addition to financial restrictions, the women are limited by many other control mechanisms devised by their captors. They are often subjected to intense physical and sexual violence. Their physical movement is severely restricted: they are either under constant surveillance and/or they are moved around frequently to disorient them. They are kept in isolation from the rest of society, and in extreme situations, from each other . . . . Many unsuspecting girls fall into this industry in pursuit of a better life.^[5]

As reported by the American Bar Association, in support of ABA House of Delegates’ resolution 104G, which encouraged legislation allowing human trafficking victims to assert an affirmative defense when “charged with prostitution related offenses or other non-violent offenses that are a direct result of their being trafficked,”^[6]

[V]ictims of human trafficking endure terrible and inhumane treatment, which results in lasting physical, emotional, and psychological scars. These victims are beaten, sexually assaulted, starved, imprisoned, threatened, and/or psychologically controlled. It is unfortunate that the nature of human trafficking either directly or indirectly results in commercial sex acts, illegal sexually explicit performances, labor violations, or other crimes being committed by victims of human trafficking. Often, victims of human trafficking are arrested and convicted for prostitution and other related offenses.^[7]

Some legislation has been passed with the intent to protect victims of human trafficking, the most notable being the Trafficking Victims Protection Act (TVPA) of 2000^[8] and its subsequent reauthorizations.^[9] “Through the TVPA, human trafficking victims qualify for government protections and services if they are adults who are forced, tricked, or coerced into labor or commercial sexual trafficking or they are minors who are induced to perform commercial sex acts.”^[10] Although the TVPA affords the right of protection to both foreign victims and victims who are American citizens, serious disparities exist between the protective provisions extended to foreign victims as compared to American victims.^[11] Specifically,

[i]f an international trafficking victim qualifies to receive services as a result of having been trafficked, the United States will provide refugee-like protections through the TVPA. These protections include housing, food, cash assistance, job training, counseling, medical care, legal assistance, and other services that are available for a period of several years. Victims who are Americans, on the other hand, must find protection elsewhere. The United States government specifically excludes its own trafficked citizens from receiving federally-funded TVPA protections. Though the United States government recognizes that there is a disparity in the services and protections offered to Americans, it has yet to provide a remedy.^[12]

In the interest of protecting child victims of sex trafficking, some states have passed safe harbor laws, which require that “children be placed in a safe house and assessed through physical and mental examinations,” and be provided with “‘food, clothing, medical care,’ and other resources,” with the goal being the “rehabilitation and reintegration of [child victims] into society.”^[13] Although safe harbor laws are “very beneficial to minor victims, [they] completely ignore[] victims over the age of eighteen. While a majority of sex trafficking victims appear to be minors, there are still a substantial number of sex trafficking victims who are eighteen or over.”^[14]

Compelled by the plight of those victims who are least protected, and therefore, most vulnerable under American law—adult American citizens—the purpose of this article is to examine current practices and legislation as applicable to the wrongful convictions of those individuals, and to provide recommendations for improved legal strategies that will not merely address existing wrongful convictions, but avoid future wrongful convictions as well. While trafficking in persons occurs in many forms, this paper will specifically focus on developing improved strategies to assist victims of sex trafficking, providing: (1) recommendations for increasing awareness of local law enforcement officers, prosecutors, defense attorneys and judges; (2) an examination of current state anti-trafficking laws regarding provisions for human trafficking as an affirmative defense, vacatur and expungement, and the need for improved state legislation that aligns with federal laws and protections for victims; and (3) recommendations for practical strategies to connect victims with the assistance that is needed to allow them to move out of their current circumstances and on to a better way of life.

HISTORICAL FRAMEWORK AND EXAMINATION OF ANTI-TRAFFICKING LAWS

Human trafficking has been around for a long time, spanning many centuries, taking many forms, and hiding in the shadows of many cultures around the globe.^[15] However, it was not until the 1990s that it gained “widespread public attention in the United States,” where the “discussion centered on international human trafficking.”^[16] Interest in addressing the problem gained traction, with a breakthrough occurring, as if on cue, at the turn of the century on both the national and international level.^[17]

In 2000, the United States passed what is commonly known as the Trafficking Victims Protection Act (TVPA), while the United Nations adopted a treaty known as the Palermo Protocol.^[18] Both documents were enacted to combat human trafficking by encouraging countries to enact anti-trafficking laws and to prosecute traffickers.^[19] Domestically, “state-level criminal justice systems treated United States citizens qualifying under the federal definition of ‘human trafficking victim’ as criminals by prosecuting them for prostitution.”^[20] The irony that the United States was more “concerned about trafficking in other countries, but was neglecting trafficking of its own citizens” was noted by activists for sexually exploited females.^[21] Laws and practices that were condemned in other nations, by the United States, were occurring domestically.^[22] As an example, “federal law requires other countries to ensure that victims of trafficking are not inappropriately incarcerated for unlawful acts as a direct result of being trafficked. Yet many states lack laws ensuring that sex trafficking victims are not prosecuted for prostitution.”^[23]

A. International Level

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, an international treaty passed by the United Nations in 2000, better known as the Palermo Protocol, defined human trafficking as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, or deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.^[24]

The Palermo Protocol defined exploitation to include “prostitution . . . or other forms of sexual exploitation” and “focused on prevention, prosecution, and protection” as it relates not only to victims of sex trafficking, but victims of labor trafficking as well.^[25] The Protocol called “on nations to pass laws against trafficking, to prosecute traffickers, to enhance border control, and to provide services to victims of human trafficking.”^[26]

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1. Hester Prynne, CHEESE5YOU, http://cheese5you.deviantart.com/art/Hester-Prynne-97780680 (last visited Jan. 21, 2015) (featuring an artistic rendition referencing Nathaniel Hawthorne’s Scarlet Letter about a young woman named Hester Prynne who was found guilty of adultery and forced to wear a conspicuous scarlet “A” on her dress as a public symbol of her private shame). ↩︎
2. See Human Trafficking, POLARIS PROJECT, http://www.polarisproject.org/human-trafficking/overview (last visited Feb. 28, 2015). The official number of victims of human trafficking in the U.S. is unknown, but when statistics for sex trafficking victims and labor trafficking victims are combined for adults and minors, it is estimated to be in the “hundreds of thousands.” Id. ↩︎
3. Lauren Ulrich, Vacatur Statutes for Survivors of Sex Trafficking, AMARA LEGAL CENTER, http://media.wix.com/ugd/da6af9_930bba47e2da4fc28e0a2385e48696e3.pdf (footnotes omitted). ↩︎
4. Stephanie L. Mariconda, Note, Breaking the Chains: Combating Human
   Trafficking at the State Level, 29 B.C. THIRD WORLD L.J. 151, 155–56 (2009). ↩︎
5. Id. at 156–58 (footnotes omitted). ↩︎
6. A.B.A. Res. 104G, at 4 (2013), available at http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions/2013_hod_midyear_meeting_104g.docx (last visited Feb. 28, 2015). ↩︎
7. Id. at 1–2 (footnote omitted). ↩︎
8. Pub. L. No 106-38622, div. A, 114 Stat. 1466 (codified at 22 U.S.C. §§ 7101–13 (2000)). ↩︎
9. POLARIS PROJECT, Current Federal Laws, POLARIS (2015), http://www.polarisproject.org/what-we-do/policy-advocacy/national-policy/current-federal-laws (last visited March 1, 2015) [hereinafter Current Federal Laws]. ↩︎
10. Amanda Peters, Disparate Protections for American Human Trafficking Victims, 61 CLEV. ST. L. REV. 1, 2 (2013). ↩︎
11. Id. at 3–4. ↩︎
12. Id. ↩︎
13. See POLARIS PROJECT, Human Trafficking Issue Brief: Safe Harbor (Fall 2014), http://www.polarisproject.org/storage/documents/policy_documents/Issue_Briefs/2014/2014_Safe_Harbor_Issue_Brief_Final_1.pdf; see also Aaron Ball, Note and Comment, The Battle Against Human Trafficking: Florida’s New Expungement Law is a Step in the Right Direction, 38 NOVA L. REV . 121, 134 (2013). ↩︎
14. Ball, supra note 13, at 134. ↩︎
15. See Timeline of Human Trafficking, RUTGERS U. CAMPUS COALITION AGAINST TRAFFICKING (2011), http://www.eden.rutgers.edu/~yongpatr/425/final/timeline.htm (last visited Mar. 17, 2015); see also Kristiina Kangaspunta, A Short History of Trafficking in Persons, FREEDOM FROM FEAR MAG., Oct. 2008, at 38, available at http://f3magazine.unicri.it/wp-content/uploads/F3_UNICRI_MAX-PLANCK_01.pdf. ↩︎
16. Carrie N. Baker, Symposium: Crime & Punishment: The Modern Development of Homegrown Creative Justice: The Influence of International Human Trafficking on United States Prostitution Laws: The Case of Expungement Laws, 62 SYRACUSE L. REV. 171, 171 (2012). ↩︎
17. Id. at 171–72. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. Id. ↩︎
24. Convention on Transnational Organized Crime, Annex II Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Crime, G.A. Res. 55/25, art. 3(a), U.N. Doc. A/Res/55/25 (adopted Nov. 15, 2000; signed Jan. 8, 2001; entered into force Dec. 25, 2003), 200, T.I.A.S. 13127, 2237 U.N.T.S. 343, available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf [hereinafter Palermo Protocol]. ↩︎
25. Baker, supra note 16, at 172–73; Palermo Protocol, supra note 24, art. 3(a). ↩︎
26. Baker, supra note 16, at 173. ↩︎

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* LL.M. candidate at Regent University School of Law; J.D. Regent University School of Law, 2008. The author formerly served as Editor of Counsel to the Regent Journal of International Law and currently practices law in the Commonwealth of Virginia. The author wishes to honor Professor Kathleen A. McKee for opening the eyes of her students to the stark reality of suffering experienced by trafficking victims and for challenging us to strategically take our place on the frontlines of the war against human trafficking.