Human Trafficking Blindspot

By: James Trusty

For many years now, state and federal prosecutors have become increasingly aware of the insidious nature of sexual and labor trafficking. Victimization is cultivated by strong, threatening, and cunning traffickers. Gangs have increasingly turned to sex trafficking as a source of illicit income with low visibility—a trade that does not “bring the heat” to the criminal enterprise in the same way that drug trafficking and gang-on-gang violence tends to do. Abusers become skillful at manipulation, intimidation, and coercion–rendering their victims full of despair and self-doubt. In short, the business has blossomed and spread beyond the southwest border and Interstate 95 truck stops into largely unsuspecting communities throughout the country.

As sex trafficking has been on the rise, so has the law enforcement response. Mandatory penalties, prosecutors and agencies specifically devoted to combatting human trafficking, and an increasing general awareness by law enforcement and the media, have contributed to unprecedented success in going after the bad guys and putting them away for a long time. One lagging component of the law enforcement response seems to be slowly self-correcting. That is, it appears that many prosecutors and experts in human trafficking had preconceived notions, largely built from experience, that sex trafficking was only preying upon the most vulnerable young women and girls in American society. Central American teenagers, poverty-stricken Chinese women, and some African women fleeing harsh conditions in their home countries were the “typical” victims worthy of protection and assistance. In recent years, however, high profile prosecutions such as the Hollywood-connected NXIVM sex cult have allowed prosecutors to recognize that even well-known actresses with promising careers and family support, in the NXIVM case, can be lured into and trapped within sex trafficking conspiracies. To the extent there was a paradigm—vulnerable foreign young women without the moral and financial resources of a strong family in the U.S.—that has begun to shatter with the recognition that male and female trafficking victims are to be found anywhere and everywhere.

The second aspect of better familiarity with human trafficking has somehow only resulted in success on a state level, with the feds markedly missing the issue. When a human trafficking victim is under the control of his/her abusers, there are both immediate and long-term consequences. Employment, family involvement, and financial control are intentionally replaced by abuser control. The traffickers will force the victims to violate various laws, frequently including prostitution and theft. When law enforcement succeeds in prosecuting the traffickers, control over important aspects of life is returned to the victim. But the victim is often ill-equipped to simply return to the job market, line up suitable housing, and easily manage their finances.

Almost every state in the United States—by my count 46 of 50—has passed legislation designed to either vacate, seal or expunge the criminal records of human trafficking victims. The reason is simple – these victims broke laws under duress, and the collateral consequences of their convictions (the elimination of many job opportunities and the harmful effect on applying for housing and residential loans, to name a couple) are a form of revictimization. While the states have addressed the issue head on, the U.S. Congress has been a bit behind.

Enter Senate Bill 9 of the 117th Congress, entitled the Trafficking Survivors Relief Act of 2022. The well-crafted Bill, sponsored by Senator Gillibrand (d. NY) and now-retired Senator Portman (r. OH) has numerous procedural guardrails to ensure that the relief from revictimization is only doled out to legitimate victims. The Bill ensures that the U.S. Attorney’s Office is intimately involved in the process, that the victim was truly a victim at the time of the criminal conduct at issue, and that the conduct was “directly related” to the trafficking. The petitioner (the victim) bears the burden of persuading the District Court of the validity of the claim. The Bill also requires several important reporting requirements, including the U.S. Attorney reporting to the Attorney General about the specific motions for relief filed in their district, the Attorney General notifying Congress on all human trafficking training conducted each year, and the Government Accounting Office providing Congress with a full scoreboard of filings and results, three years after the Bill becomes law.

SB 9 needs to become law. The desire to help legitimate trafficking victims avoid unfair consequences beyond the trafficking itself marks an evolution, not a revolution, in thinking. The Bill inherently recognizes that prosecuting the bad guys is important, but so is supporting the victims’ return to a lawful–and appropriately forgiving—community.