Too often, trafficking victims are arrested and convicted for criminal offenses directly related to their victimization. A 2016 National Survivor Network survey found that 91% of survivor respondents reported being arrested over the course of their trafficking. Many of these arrests were for prostitution, but not all. A survivor’s criminal record may also include drug possession, retail theft, criminal trespass, and more serious crimes like robbery or aggravated assault. Recognizing the coercion and duress that causes trafficking victims to engage in this criminal conduct, more than 40 states have adopted some sort of remedy to allow survivors to clear their records. In Pennsylvania, the remedy is called vacatur—and it allows for a complete erasure of any information associated with the arrest. Vacatur is limited in Pennsylvania, and in many other states, to certain enumerated offenses, generally low-level misdemeanors. The remedy is also limited to offenses prosecuted at the state level; there is currently no federal vacatur. There are, however, a pair of companion bills aimed at fixing this gap in federal law. On August 5, 2022, Representative Burgess Owens (R-UT) H.R.8672 in the House of Representatives while on November 17, 2022, Senator Kirsten Gillibrand (D-NY) introduced S.9. These identical bills, known as the Trafficking Survivors Relief Act, would create a federal vacatur remedy. The Trafficking Survivors Relief Act proposes several avenues of post-conviction relief, including:
Vacatur would be available for those convicted of certain non-violent crimes
Expungements would be available for those charged with, and not convicted of a federal offense
Incarcerated survivors who have been convicted of certain violent offenses directly related to their victimization may move to have the court consider the same factors in mitigation of their sentence and, if successful, have their sentence reduced.
For vacatur eligible offenses, the bill proposes a similar procedure as many states: survivors submit a petition, in writing, describing supporting evidence and including any documents that show they were a victim of trafficking at the time of the offense. There then may be a hearing for the judge to review the evidence and consider several factors including whether the offense “was a direct result of the movant having been a victim of trafficking.” The entire process would take place under seal, meaning that it is confidential and not available to the public. While pending is unclear whether the Trafficking Survivors Relief Act will become law, it is important to see our federal legislature recognizing the injustice survivors face. Having a pnding federal legislation may encourage states without a vacatur remedy to create one, and states with limited remedies to expand the protections. Shea M. Rhodes, Esquire Dawn's Place Board Member Director and Co-Founder of Villanova Law Institute to Address Commercial and Sexual Exploitation