TRAFFICKING SURVIVORS RELIEF ACT

TRAFFICKING SURVIVORS RELIEF ACT

Overcoming Systemic Barriers to Reintegration & Autonomy

With the passing of the Trafficking Victims Protection Act (TVPA) in 2000, human trafficking became a federal offense for the first time. It was a milestone achievement that established protections for victims, strategies for preventing future trafficking, and penalties for traffickers that have become the foundation for the anti-trafficking field throughout the United States and many parts of the world.

However, the implementation of the TVPA’s protections for survivors falls far short in current practice. Although the law states that trafficking victims should not be arrested, incarcerated, or otherwise penalized for their participation in crimes resulting from their victimization, this is not a reality for most survivors today.

Trafficking victims are regularly arrested and prosecuted for the illegal activity they were forced into by their trafficker, which often includes prostitution, solicitation, and drug possession charges. Over 90% of trafficking survivors have been arrested at least once while being victimized, with 40% reporting being arrested more than nine times. The vast majority of these arrests are inseparable from their exploitation, as over half of survivors say that every arrest on their record is a direct result of being trafficked.

Leaving Trafficking With A Criminal Record

Forced criminal activity has massive effects on survivors while being trafficked. Many traffickers use their victims’ records as a means of control, threatening to call the police or turn them in if they try to leave. For survivors with children, this method is particularly effective, since custodial rights are commonly revoked or limited for individuals with federal criminal records. In addition, securing housing, employment, or social benefits like food stamps can be nearly impossible in some parts of the country. 

Substance abuse provides another means of control, as 24% of sex trafficking survivors are pressured or forced to use drugs or alcohol by their trafficker and 40% have been arrested on drug possession charges. Most survivors experience a combination of these manipulation tactics, as well as physical abuse, sexual violence, and financial abuse, which compounds the barriers they face to reporting their trafficker or seeking help from the authorities.

Unfortunately, criminal activity during trafficking continues to impact the way survivors are treated by law enforcement, social services, and the justice system. This is true for adult and minor survivors, who are equally likely to both be arrested for trafficking-related crimes and prosecuted for them, despite their status as victims of crime themselves. 50% of survivors report being convicted of at least one crime as trafficked minors, most often for prostitution, solicitation, truancy, or drug possession, despite these activities being some of the most significant indicators of sex trafficking or childhood sexual abuse.

Despite the high likelihood that a trafficking victim will be arrested for forced criminal activity, 75% of survivors say they never had an opportunity to report that they were being trafficked to the police. While more than 90% of trafficking victims are arrested for trafficking-related crimes, fewer than 35% report that their trafficker had been arrested for any crime, even those not connected to their trafficking activities at all. 

This immense disparity between the experiences of trafficking victims and those of their exploiters with the criminal justice system points to a failure to train law enforcement to identify trafficking victims and to establish policies and procedures in investigations designed to protect them from the effects of forced criminal activity. On a fundamental level, the number of traffickers who are never prosecuted for their crimes and the number of survivors who are punished for their victimization proves that the current strategies for combating trafficking are far more effective at protecting traffickers and buyers than they are at protecting survivors.

Being a trafficking survivor involved in a criminal investigation can even affect the likelihood of receiving aftercare. 22% of survivors in a 2016 survey reported that they had to agree to testify against their trafficker in order to receive services, which is a monumental task for any survivor. Many feel entirely unequipped or unable to relive their most traumatic experiences in preparation for a trial, where they likely must face their traffickers head-on. Others are fearful of the consequences of testifying, such as threats made by their trafficker, the fallout of testifying against a family member, or continued treatment as a criminal by law enforcement or prosecutors. Requiring testimony in exchange for aftercare services is not only a highly unethical practice, but it is also extremely likely to inflict additional trauma and psychological stress on the survivor.

Rebuilding After Experiencing Trafficking

The long-term effects of a criminal record for trafficking-related crimes on survivors are extensive and can affect their opportunities for employment, housing, custody of children, federal benefits, and education, severely impacting their overall well-being and ability to maintain their freedom from trafficking.

• BARRIERS TO EMPLOYMENT

One of the greatest challenges that trafficking survivors with a criminal record face after leaving exploitation is finding and keeping a job. Nearly three out of four survivors report facing significant barriers to employment as a direct result of their criminal record. Many employers conduct background checks as a standard practice in hiring, which can instantly disqualify a survivor from that opportunity. This often bars survivors from working in the education, security, transportation, medical, and financial industries. Similarly, survivors commonly report a lack of competitive educational backgrounds or resumes due to their trafficking experience contributes to their difficulty in securing employment. In addition, a survivor’s need for workplace accommodations to support a disability or psychiatric condition and minimize triggers can make it extremely difficult to find a job that does not hinder their ability to heal. Such limited options for employment regularly leave survivors without a means to support themselves and any children they have, greatly increasing their risk of being revictimized through trafficking.

• BARRIERS TO HOUSING

58% of trafficking survivors have difficulty finding housing after leaving exploitation due to their criminal record. Like employers, most landlords and property management companies run background checks on potential renters and discriminate against or simply exclude individuals with criminal histories. Housing programs that receive federal funding are often subject to regulations that prohibit renting to individuals with certain convictions, which commonly include drug charges. The combination of background checks, legal restrictions, and stigma leaves many survivors with very few opportunities for housing, even those who currently have a good credit history and stable finances. Since homelessness and housing insecurity are some of the most influential risk factors for trafficking, this is a significant barrier to a survivor’s ability to maintain their freedom and work on their healing.

• BARRIERS TO EDUCATION

Trafficking survivors who pursue higher education often face barriers to admission because of their criminal record or previous educational history. Background checks are common practice for universities and colleges, and criminal records are regularly cause for automatic rejection. Some states have laws that prevent individuals with certain convictions, usually felonies, from enrolling or receiving financial aid, which many survivors depend on to complete their education. These barriers disproportionately affect marginalized communities, which are overrepresented in the survivor population. Without opportunities for further education, many survivors are unable to secure employment, convince a landlord to rent to them, and rebuild their lives after trafficking.

• BARRIERS TO FEDERAL OR STATE BENEFITS

Past involvement with the criminal justice system can also present significant challenges in accessing federal benefits like food stamps and other welfare programs. 14% of trafficking survivors with criminal records report that they had difficulty accessing federal benefits, which is a substantial barrier for survivors in not only exiting a trafficking situation but also preventing revictimization. Apart from safe house programs and other low-cost or free support services, many survivors have no way to secure housing, employment, and basic necessities for themselves.

The combination of these barriers regularly leaves trafficking survivors with very few avenues for supporting themselves and building the protective factors needed to minimize their risk of revictimization. Housing instability, unemployment, and social isolation are among the most common vulnerabilities of trafficking victims in their initial exploitation and any continued victimization. The addition of a criminal record only exacerbates this vulnerability and lack of access to basic support means survivors struggle too often to meet their basic needs and break free from the cycle of revictimization alone. Holding forced criminal activity against survivors only reinforces the barriers they already face to employment, housing, education, and social safety nets.

Changing The Landscape

According to the groundbreaking work, Eradicating Human Trafficking: A Transformative Approach through Collective Impact, alternative strategies to justice offer a paradigm shift from conventional approaches and increase focus on more holistic and person-centered approaches. These strategies recognize the complex dynamics of victim-offender intersectionality with the need to balance justice with rehabilitation and support for survivors. While the criminal justice system works to test and adopt these alternative strategies, there are other strategies focused on addressing challenges post-conviction. Eliminating the barriers that trafficking victims face in finding an opportunity to leave trafficking, successfully exiting exploitation, and rebuilding their lives afterward must include criminal record relief. Whether their records are the result of forced criminal activity or the criminalization of their exploitation, no survivor deserves to be punished for being victimized through human trafficking.

However, less than a quarter of survivors have been able to vacate trafficking-related convictions. Many do not have the money to hire a lawyer and begin the lengthy process themselves. A significant number of survivors are not aware that criminal record relief may be available in their state. The burden of criminal record relief should not be given to survivors, as it inevitably leaves many without the means or knowledge to pursue it; rather, proactive policies should seek to reduce the effects of forced criminal activity on survivors as much as possible.

Legislation like the Trafficking Survivors Relief Act (TSRA) promises to support the accomplishment of that goal. The TSRA provides survivors with an opportunity to vacate convictions and expunge arrests for non-violent criminal activity connected to their trafficking victimization. By recognizing the coercive and dangerous circumstances under which these crimes were committed, the TSRA helps to remove a considerable barrier to exiting exploitation and building independence.

With bipartisan support, the Trafficking Survivors Relief Act reflects the acknowledgment of the need to create opportunities for survivors to leave trafficking, minimize barriers to rebuilding their lives, and protect them from revictimization. The TSRA establishes an affirmative defense that helps survivors defend against charges brought as a result of their victimization and provides conviction relief through vacatur, expungement, and sentencing mitigation. By facilitating a legal pathway to erase the impact of trafficking on their criminal history, the TSRA restores the dignity of survivors and empowers them to move forward into a future not overshadowed by their criminal record.

If you would like to join our efforts to ensure critical legislation like the Trafficking Survivors Relief Act is passed, please consider joining the Trafficking Survivors Equity Coalition.