Changing Course: Counteracting the Criminalization of Trafficking Survivors

Young african american with his head down

Over the past decade, there has been an increased public awareness that sex trafficking survivors are being arrested and prosecuted for prostitution. Accordingly, many jurisdictions have opened specialty courts for these survivors. This is progress, but in the grand scheme of things, we have only scratched the surface of the problem.

In order to truly address the plight experienced by trafficked people in the criminal legal system, we must grapple with a larger reality that many survivors of both sex and labor trafficking are being arrested for a range of crimes related to the circumstances of their trafficking, and we are harming them in the process.

In my years as a public defender in New York, I represented thousands of people whom I met just hours after their arrest. It is impossible to summarize the experience of introducing myself to a person sitting in a cage in the courthouse, informing them that, though I was a stranger, my advocacy over the next hour could be the difference between them going home or staying in jail.

In those moments of our meeting, it was clear that almost every one of my clients was in the height of a traumatic event. Panic, tears, laughter, shaking, yelling, silence. There is no one way to respond to such a surreal and alienating event. In these moments, before we met with the judge who would decide their fate, I witnessed just a sliver of the trauma that the criminal legal system would wreak on each of them. By the time I saw them at their next court date, clients had often forgotten everything that occurred during our first meeting.

Memory loss is a common response to trauma.

For human trafficking victims and the stakeholders who wish to help them, these traumatic first interactions with the system are incredibly destructive to the hope of meaningful assistance. Regardless of the mindset or the intentions of the police officer, nothing says: “I’m not here to help you” like the slap of handcuffs and the slam of a cell door.

Many trafficking survivors have been manipulated and tricked into the circumstances of their trafficking and are rightfully distrustful of strangers. One study found that most labor trafficking victims experience threats from their traffickers like calling the police or immigration officials if they tried to escape. Accordingly, victims are led to equate law enforcement contact with incarceration or deportation, not a helping hand. When later, we, as justice system stakeholders, seek to identify and assist survivors, we do so shrouded in untrustworthiness. This distrust can easily carry over into every subsequent phase of the criminal legal process.

Last week, MOSAICS hosted a webinar about the criminalization of human trafficking survivors, looking at the tools available to criminal legal stakeholders to minimize the harm to survivors once they have been arrested and prosecuted.

Beyond the tools currently available, the systemic changes that would benefit trafficking survivors are consistent with topics that are currently being discussed in national reform conversations, including the meaning of true diversion, exercising prosecutorial discretion, and minimizing the threat and use of incarceration.

Only when we are willing to be courageously open to broad systemic overhauls will we be capable of making the change that ensures we can meaningfully help human trafficking survivors without concurrently hurting them.

To listen to a recorded version of the webinar and learn more about MOSAICS, go to https://www.american.edu/spa/jpo/mosaics/.

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