Trafficking survivors shed an unjust label: ‘criminal’

Why We Wrote This

“Transformation should be accompanied by hope,” said Tennessee Gov. Bill Haslam when granting clemency to Cyntoia Brown. As attitudes about justice in sex trafficking cases change, more states are giving survivors a chance to clear convictions.

Lacy Atkins/The Tennessean/AP
Trafficking survivor Cyntoia Brown appeared in court during a clemency hearing at the Tennessee Prison for Women in Nashville in May. State Democratic lawmakers were among those urging Republican Gov. Bill Haslam to grant her clemency for killing the man who bought her for sex when she was 16; he did so on Monday.

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Most survivors of sex trafficking who live under the shadow of criminal convictions have paid fines or done time for much more minor charges than the murder conviction that put Cyntoia Brown behind bars. Gov. Bill Haslam of Tennessee commuted that sentence Monday, recognizing the injustice of a life sentence for a teen trafficking victim who feared for her life. But any criminal record can hold survivors back from future education and job prospects. The past decade has seen the majority of states passing laws to allow courts to clear prostitution offenses (and in some places, other nonviolent offenses), if survivors can show they were compelled because of trafficking. More than 150 survivors have had more than 3,000 records cleared in New York State since a law there took effect in 2010, estimates Brooklyn Law School professor Kate Mogulescu. More legislation and funding are needed, advocates say, to help lift the stigma. For survivor Barbara Amaya, that moment of recognizing her own innocence, after carrying around the criminal label for years, produced “a mental metamorphosis.”

Barbara Amaya was a few months into a new job when her boss called her over and showed her a stack of papers, asking, “What’s this?”

It was her criminal record – but she didn’t know how to explain that all those prostitution arrests happened because she had been forced by a trafficker. The single mother of a 3-year-old at that time, she had to start the job hunt all over again.

Those criminal records “followed me in every way, shape, and form throughout my life,” Ms. Amaya says. “Even if they didn’t affect every application I filled out, they affected me mentally – carrying the stigma of being called a criminal.”

It would take Amaya many years to fully understand her own innocence. She had been labeled a prostitute and a criminal by a system that hadn’t recognized how young she was and how she was being manipulated. While she had been enduring years of rape, her trafficker had been profiting, and had convinced her everything was her fault.

Many people who have escaped trafficking have struggled to put their lives back on track while constantly running up against the barrier of criminal background checks. They get an education, but then can’t get work or promotions. They apply for housing and get solicited for sex by an unscrupulous landlord. They aren’t allowed to chaperone their child’s class trip.

“To have that record on the books, it’s like a lifetime of stigma,” says Meredith Dank, director of the Exploitation and Resiliency Project at John Jay College of Criminal Justice in New York. Survivors can’t get a license for nursing or social work, for instance, unless they “go in front of a committee and explain,… which is incredibly traumatizing.”

The past decade has seen a paradigm shift in the understanding of human trafficking. As survivors have spoken out about the abuse and coercion that traffickers employ, the majority of states have passed laws that give minors “safe harbor” from criminal prosecution for prostitution.

Advocates saw signs of progress in Monday’s decision by outgoing Tennessee Gov. Bill Haslam to commute the life sentence of Cyntoia Brown, who was being trafficked as a teen and was convicted in 2006 of murdering a man who had paid to use her for sex. Ms. Brown will be released in August and have supervised parole. In a public statement, Brown, now 30, thanked the governor and said, “My hope is to help other young girls avoid ending up where I have been.”

Brown’s case is an extreme, but the pardon is part of a slow-moving shift toward a more victim-centered approach. Yet some minors are still prosecuted, and many trafficking survivors have been living in the shadow of such records for decades. 

That’s where “criminal-records relief” laws come in – offering a chance to erase those unjust convictions. 

New York State’s pioneering law has been in place since 2010. And 42 states plus the District of Columbia have followed. The laws vary greatly, with some only offering the sealing or expungement of records. But some go so far as to provide for vacatur, which is basically an acknowledgment by the court that the person should not have been convicted.

A handful of states, such as California, Florida, and Nebraska, allow for many offenses other than prostitution to be cleared as well, as long as they stemmed directly from being trafficked.

Having the laws on the books is just one step. Awareness of the laws – by court clerks, advocates, lawyers, and even survivors themselves – is still ramping up.

‘It was like returning from Mars’

As a 12-year-old on the run from abuse at home in northern Virginia, Amaya was befriended by a girl on the street, but she quickly found herself in the grips of that girl’s trafficker. 

Lynn Savarese/Courtesy of Barbara Amaya
For trafficking survivor Barbara Amaya, that moment of recognizing her own innocence, after carrying around the criminal label for years, produced “a mental metamorphosis.”

He sold her to another man, who took her to New York City. “I remember the money exchanging hands,” she says. 

She accrued a dozen convictions during a decade under his total control. He didn’t allow her to read or write, and he constantly moved her around the city.

Eventually, she entered a drug treatment center to try to get off heroin. An alert intake worker helped her leave New York. She was the first person “to treat me like a human being” in a long time, Amaya recalls.

Too ashamed to tell anyone what had happened, she bounced around the country and then cobbled a life together back in Virginia.

“It was like returning from Mars. I had been surviving – I won’t say living – in a criminal underworld,” she says. “Opening a bank account was like learning Japanese.”

Once she had to tell a traffic court her story after a cop pulled her over and got confused by records showing various aliases the trafficker had given her.

Then, in 2012, something on the local TV news caught Amaya’s eye. It was about human traffickers, a term she hadn’t heard before. “They started talking about the recruitment techniques that they used, and that’s when it hit me all of a sudden.… I realized, that’s exactly what happened to me.”

She quickly transformed from someone who avoided even talking on the phone to someone who shared her story publicly, connected with other survivors, and began advocating for change.

By early 2013, she discovered that her trafficker had been extradited to Ohio around the time she left New York. He had gone to prison and later died.

Soon after she connected with the Legal Aid Society in New York, which she had heard could help her vacate her criminal records. For nearly a year, lawyers from Cleary Gottlieb worked pro bono to document how she had been trafficked.

When she went to the courthouse with her request, she says, “I saw the same walls for sure that I’d seen when I was a drug-addicted child in New York City and arrested. The same marble floors … it was a very surreal feeling.”

This time, though, the judge commended her for her volunteer work and declared her records cleared.

“It took a while to sink in that I wasn’t a criminal,” Amaya says, but when it did, the change was profound – “a mental metamorphosis.” 

‘It can be incredibly healing’

Survivors sometimes hesitate to get involved with the courts again, but when the collaboration works well, they often say that “they feel heard, listened to,” says Kate Mogulescu, who helped Amaya when she ran the project at Legal Aid. Now Ms. Mogulescu operates a similar legal clinic at Brooklyn Law School, where she’s an assistant professor. 

When they are successful and a judge says, “ ‘I’m clearing this from your record’ … it [can be] incredibly healing,” Mogulescu says.

More than 150 survivors have had more than 3,000 records cleared in New York State since the law took effect in 2010, she estimates.

The nonprofit group Polaris investigates hotline cases involving 10,000 trafficking victims in the United States each year, and that’s likely just the tip of the iceberg. There are no national statistics on how many have criminal records, but some advocates estimate it’s at least 75 percent.

Manhattan Assistant District Attorney Carolina Holderness says that when trafficking survivors want to vacate a conviction, it’s an opportunity to collaborate to right a wrong. Her office invites them to share their stories, and typically supports the motions before they even get before a judge.

In the 1970s and ’80s, police and courts saw prostitution arrests as a way of cleaning up “vice” that brought down the quality of life in the city. They typically didn’t explore “what was causing this individual to be on that street corner,” says Ms. Holderness, chief of the Human Trafficking Response Unit. “That’s a failure of the criminal justice system that we can remedy in some way by making sure the convictions that they got in that time period don’t follow them in the future.”

This is especially important, advocates say, for a wide array of people who encounter bias and are less likely to be identified as victims – including men, people of color, immigrants, and transgender individuals.

By building trust among vulnerable populations, Holderness says it has also at times helped her put traffickers behind bars.

In the few states that don’t offer criminal-records relief laws, some attempts have run up against resistance from police or prosecutors, some of whom argue that survivors can approach the governor for a pardon.

Resources now scarce

Having laws on the books is one thing, but resources to implement criminal-records relief can be hard to come by.

In previous years, the US Department of Justice supported it through grants as part of its multimillion-dollar support for combating trafficking and aiding survivors. Under the Obama administration, its Office for Victims of Crime (OVC) funded a project through the American Bar Association to train people around the country to give legal aid for such efforts.

But last spring, the Justice Department surprised grantees with a sudden policy shift, saying money from OVC cannot be used for direct legal services to vacate or expunge criminal records.

OVC has prioritized more immediate needs “such as shelter, medical care, mental health counseling, and basic legal assistance,” a Justice spokeswoman noted in an email to the Monitor.

Survivors and advocates say the restriction is shortsighted. “A little bit of investment in a lawyer’s time now means the person can have complete freedom and autonomy and achieve professional success,” says Jean Bruggeman, executive director of Freedom Network USA.

Meanwhile, advocates like Amaya continue to push for state and federal legislation. In 2016, a bipartisan group in Congress, including Sen. Kirsten Gillibrand (D) of New York, introduced the Trafficking Survivors Relief Act, which applied to both sex and labor trafficking. The bill did not get far, but a member of Senator Gillibrand's staff told the Monitor in an email that she is considering reintroducing it with some changes.

The National Human Trafficking Hotline can be reached at 1 (888) 373-7888 or by texting HELP to 233733 (BEFREE).

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