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Myth: By expunging victims’ records, traffickers can convince their victims that if they are caught they need not worry because records can be expunged later and/or that they do not need to cooperate with law enforcement and prosecutors for the same reason.
FACT: Criminal records make it easier for traffickers to control their victims by isolating victims from seeking and/or being able to obtain help.
FACT: Many victims have reported traffickers purposefully setting them up to receive a record to keep them in a vulnerable place to the trafficker1 .
FACT: The myth assumes that victims willingly participate in criminal activity; however, victims do not have a choice2 in their participation being subject to severe trauma or threats to their loved ones for any refusal.
FACT: Victims would not purposefully participate in something that harms them, even if it can be expunged.
FACT: The Vacatur and Expungement process is not easy3, and victims will be required to relive their traumatization multiple times to prove that they were actually a victim in order to receive criminal record relief.
Myth: Victims of domestic violence are manipulated and controlled by their abuser, but “prostitutes” willingly choose to stay with their pimps.
FACT: Human Trafficking victims share many of the same attributes as domestic violence victims and traffickers use many of the same power and control tactics as abusers in domestic violence situations do to keep the trafficking victim under their control4. Traffickers look for wand exploit vulnerabilities5.
FACT: Social factors that make an individual vulnerable to trafficking can also make them vulnerable to being coerced into committing trafficking and other criminal offenses which is why traffickers often prey on those that are at-risk6 (i.e. runaways, the homeless, sexual abuse victims, those in the child welfare system).
FACT: Charging sex trafficking victims with prostitution can be harmful and re-traumatization, giving rise to the need for specialized human trafficking courts, diversion programs, and vacatur laws which seek to mitigate the harm caused by criminalizing sex trafficking victims, none of which are available to survivors in Virginia.
Myth: People that are trafficked are not victims because they are in it for the money and attention.
FACT: During the grooming period of a victim, traffickers will lure victims in by giving them gifts, clothing, and acts of kindness, eventually asking the victim to do favors in return and saying that the individual owes them for all the gifts and support provided7.
- “Favors” and paying back the “debt” may include sex acts, theft, fraud, and drug-related crimes.
- Victims are told they have to “pay down debt” through prostitution and/or other criminal activity.
- Victims have no financial freedom and often never see any money; in many cases, they must ask their traffickers for basic provisions as the trafficker controls every aspect of their lives8.
FACT: Traffickers’ verbal, financial, psychological, and emotional abuse are often precursors to more intense physical and sexual violence; these abuse tactics are used to control victims making it difficult and dangerous for them to leave the “relationship”9.
Myth: Real victims of trafficking should just bring up their victimization in court when they are charged with a crime.
FACT: Virginia does not currently have an affirmative defense – a way for the defendant to defeat/minimize consequences for unlawful conduct – for victims of trafficking. Even if there was an affirmative defense, victims still may not use it in court for the following reasons:
- Victims might not always have documentation to support their victimization claims, and without this information, it is not always certain that victims will be believed and exonerated because of the myths noted above10.
- Sometimes, victims are not aware of laws and the criminal relief available to human trafficking victims, so they may not feel that it is necessary to communicate details of their trafficking victimization to the prosecutor and/or their defense attorney.
- Unfortunately, defense attorneys may not be aware of the signs of human trafficking and accordingly fail to raise this issue with the survivor and/or the prosecution.
- The defense of duress is sometimes available, but survivors do not assert a duress defense because they could risk their safety by testifying against their trafficker11. Moreover, due to the nature of the victimization of a trafficking victim, they are almost never able to satisfy the elements of the duress defense12.
- Some survivors may not be emotionally ready to disclose the trauma that they endured and/or are still too afraid of their traffickers to raise the issue; other survivors frequently do not realize that their experience is legally defined as trafficking.
Myth: Survivors of trafficking don’t need expungement because a multitude of other people will criminal records get jobs and become productive members of society.
FACT: Besides being factually and statistically incorrect regarding the barrier that criminal records create to societal reintegration, this myth overlooks survivor’s status as victims who should not have been prosecuted in the first place13.
FACT: The impact of trauma must be considered at all stages. Survivors should not have to live with a record, as it acts as a constant reminder of their victimization and a continual source for re-traumatization14.
FACT: Survivors of trafficking, especially sex trafficking, have a hard time moving on with criminal records for a few different reasons, for example:
- Public housing agencies may consider convictions and arrests in determining eligibility for housing, and employers often ask about criminal records during the hiring process.
- Employers may sexually harass or assault a survivor on the job if they discover a prostitution conviction in their records.
- Getting employment, housing, access to education, and more can be made increasingly more difficult for those with a criminal record15.
FACT: Again, the myth misses the point that victims of crime shouldn’t be punished for being victimized.
References:
1. See “Trick Roll Study: Forced Criminality in Sex Trafficking Situations”, conducted by the ASU Office of Sex Trafficking Intervention Research, “Sex trafficking survivors regularly describe their traffickers using forced criminality…as [a]…form of control to create fear in the victim that if they leave, they will be exposed as having broken the law…” (pg. 22 [2020]). 2. Id. “justified] advocacy for supporting sex trafficking victims…due to the elements of coercion and force at the time of committing the crime under the control of the trafficker….” ( pg. 21). Additionally, “Responding to Sex Trafficking Victim-Offender Intersectionality: A Guide for Criminal Justice Stakeholders” states that the “self-preservation” of victims is likely influenced by the violence and harm that victims are exposed to as a threat to do what the trafficker wishes (pg. 17 [2020]). 3. “Trick Roll” notes that trafficking victims’ charges often “impacted their reliability as victims” meaning that their status as victims was brought into question since they had criminal records, making it difficult to even begin the vacatur/expungement process (pg. 5). See also: “Responding” stated that vacatur was only available in 12 states, as of the time that the report was published (pg. 31). 4. The Family & Youth Services Bureau has a brief article on this phenomenon along with links to additional informational material. https://www.acf.hhs.gov/fysb/news/domestic-violence-and-human-trafficking-advocacy-at-the-intersections. 5. “Responding” quotes that “individuals who have had past experiences of trauma, abuse, or neglect…may view the trafficker as the only person who has cared for them and loved them….”, referred to as “trauma bonds” (pg. 10). Additionally, the National Center for Missing and Exploiting Children [NCMEC] notes that while traffickers can target anyone, they more often exploit children with “increased vulnerabilities”, which also include those vulnerabilities listed above (https://www.missingkids.org/theissues/trafficking: “The Issues: Child Sex Trafficking”).. 6. The Family & Youth Services Bureau refers to some of the listed factors as “trafficking ‘red flags’”, noting some of the factors that law enforcement should be aware of. Additionally, NCMEC reports on their website that 23,500…runaways reported to them in 2019, and 1 in 6 of those runaways were likely victims of child sex trafficking (pg. 23). See also: the Office of Sex Trafficking Intervention and Research at Arizona State University reported in their 2017 study, “A Six-Year Analysis of Sex Traffickers of Minors”, that 23.2% of the victims within their data were runaways and nearly 10% were homeless or in the foster care system (pg. 24). 7. “Responding” notes that it is “critical to understand the level of loyalty, obligation, or indebtedness a [trafficking victim] may feel toward the trafficker….they believe that doing so will please or strengthen their relationship with their trafficker….” (pg. 19). Additionally, while the “Six Year Analysis” only had 1% of the victims in their study listed under “debt bondage”, they note elsewhere–like other studies– that it is a common recruitment method among traffickers (pg. 1, 24). 8. This is a coercion technique that traffickers use on their victims; ASU’s “Six-Year Analysis” notes that a little over 20% of the victims in their study were promised money and/or had shelter provided for them in exchange for their services, along with many other methods of persuasion (pg. 24). 9. “Responding” quotes that one victim in her response noted that her trafficker told her that she would “never be good at anything else” outside of trafficking, and another victim was hospitalized for injuries after her trafficker grew violent with her upon learning that she wanted to leave (pg. 42). See Also: the “Trick Roll Study” states how traffickers might often hold a victim’s criminal record over them by potentially exposing them if they leave (pg. 3). 10. See “Workable Solutions for Criminal Record Relief: Recommendations for Prosecutors Serving Victims of Human Trafficking”, A Report by the Survivor Reentry Project American Bar Association Commission on Domestic & Sexual Violence (2019) and how it lists a number of ways that victims can be hindered within the justice system and how law enforcement can help or hinder them through unbelief or exoneration. ”Criminal record relief is the righting of a historical wrong and the law should prioritize the fullest remedies possible”.(pg.3) 11. “Considerations and Recommendations on Trauma-Informed Advocacy for Trafficking Survivors” by the Asian Pacific Institute on Gender-Based Violence’s “Endangerment and Confidentiality” section lists a number of ways that victims face danger from their traffickers and ways in which to combat it (pgs. 5-7). 12. See Sam v. Com., 411 S.E.2d 832, 13 Va.App. 312 (Va. App., 1991) and Pancoast v. Commonwealth, 2 Va.App. 28, 33, 340 S.E.2d 833, 836 (1986), To support a defense of duress, a defendant must demonstrate that his criminal conduct was the product of an unlawful threat that caused him reasonably to believe that performing the criminal conduct was his only reasonable opportunity to avoid imminent death or serious bodily harm, either to himself or to another. See Pancoast, 2 Va.App. at 33, 340 S.E.2d at 836; United States v. Bailey, 444 U.S. 394, 410-11, 100 S.Ct. 624, 634-35, 62 L.Ed.2d 575 (1980); LaFave & Scott, supra at 614. However, a defendant may not rely on the defense if he had a reasonable opportunity ” ‘both to refuse to do the criminal act and also to avoid the threatened harm.’ ” Bailey, 444 U.S. at 410, 100 S.Ct. at 634 (quoting W. LaFave & A. Scott, Handbook on Criminal Law 379 (1972)); accord Pancoast, 2 Va.App. at 33, 340 S.E.2d at 836. In the latter case in Panacoast, the defendant’s duress defense was denied because “[h]er husband did not stay with her at all times while in the pharmacy, nor was he then presently threatening her. Had she so desired, she could have informed the pharmacist, in some manner, that the prescription was fraudulent.” Id. at 34, 340 S.E.2d at 836. While accepting that the appellant was subject to a threat of imminent harm, we held that the defense of duress did not excuse her since she failed to take advantage of an opportunity to avoid the criminal conduct when she wrote the second prescription. 13. Shared Hope’s “Responding” report is centered around this fact and expresses some of the ways in which this mentality can be educated about and shifted (pg. 21). 14. Id. “Re-enactments of trauma are ‘mirrored [in] . . . acting out behaviours [sic], such as harm to others and criminal activity’ [,] and that phenomenon is known as ‘compulsion to the trauma.’”; some of these findings also note how without criminal-record relief, especially trauma-informed, revictimization rates are higher (pg. 10, pg. 2). 15. “Workable Solutions” quotes that survivors can “remain marginalized and vulnerable to further exploitation” if victims are prevented from gaining employment, education, etc (pg. 1). Additionally, the “National Survivor Network Members Survey: Impact of Criminal Arrest and Detention on Survivors of Human Trafficking” has also noted similar/same findings. (pg. 2 [2017]). See also Agan, Amanda, co-author. “The Effect of Criminal Records on Access to Employment.” Starr, Sonja B., co-author. Am. Econ. Rev.: Papers & Proc. 107, no. 5 (2017): 560-64. Although magnitudes vary somewhat, in every subsample the conviction effect is large, significant, and negative. See also https://www.theatlantic.com/politics/archive/2015/12/how-families-pay-the-never-ending-price-of-a-criminal-record/433641/ highlighting effect for not only those convicted and/or charged but upon their families as well.