Massachusetts State House.
Boston Bar Journal

Blaming the Victim: The Need for Legal Relief for Human Trafficking Survivors

August 31, 2023
| Special Edition 2023: Community Justice Reimagined

By Alyssa C. Scruggs 

For most crime victims, the law is a tool that can be used to seek justice and recourse for the wrongs they have suffered. In most cases, a victim’s role is that of accuser, relying on law enforcement to arrest and charge their assailants. Survivors of human trafficking, however, despite having been victims, often find themselves in the role of accused instead of accuser.  Because of that role reversal, many trafficking survivors not only suffer the lasting emotional and physical effects of their victimization, but also face futures marred by criminal records that close doors to opportunities and new beginnings. Meanwhile, their traffickers very often go free, undetected by or simply beyond the concern of law enforcement.

Prostituted persons, many of whom are victims of human trafficking and exploitation, are often arrested, charged, and plead guilty multiple times to crimes including, but by no means limited to, sex for a fee, common nightwalking, common streetwalking, and solicitation. As a result, many prostituted persons accrue extensive criminal records that have far-reaching implications.  Survivors of human trafficking face, among other things: sexual harassment and discrimination in the workplace and housing; profiling and harassment by law enforcement; and deprivation of opportunities to work or volunteer with children. Meanwhile, the buyers and traffickers who exploit prostituted persons often face no criminal charges, despite illegally buying and selling the bodies of others.

To begin to address these injustices, the Massachusetts legislature passed a law in 2018 that allows survivors of human trafficking to seek vacatur of certain prostitution and drug-related criminal convictions, giving them an avenue to break free from the barriers imposed by such convictions. That law, codified at G.L. c. 265, § 59, recognized that it is unjust to penalize victims of human trafficking for certain crimes they were forced to commit while being trafficked.

While G.L. c. 265, § 59 was an important legal development, its scope and effect are limited in a few important ways. First, it is a form of “post-conviction” relief. However, it is and always has been unjust to arrest, charge, and convict victims of human trafficking for crimes committed as a result of their victimization in the first place. Second, the process for seeking post-conviction relief under G.L. c. 265, § 59 is time-consuming and typically requires the assistance of an attorney. Victims of human trafficking may move to vacate criminal convictions for prostitution-related offenses and then undertake to expunge or seal their criminal records. But the decision to seal or expunge a record is typically discretionary, and vesting such discretion in the court leads to additional barriers to justice for survivors of human trafficking. The first is the cost of paying an attorney to advocate for the survivor and convince the court to exercise its discretion (or expending the effort of finding one to appear pro bono). The second barrier is time: time needed to work with an attorney and appear in court is time the survivor likely needs to call out of work and perhaps obtain childcare. For many survivors, especially soon after exiting prostitution, holding a job is of paramount importance, and they may not have the luxury of taking time off or a flexible work schedule. Moreover, as our courts are generally overburdened, the process is long and can be slow moving, and the need to first vacate and then seal or expunge requires multiple trips to court. Finally, convincing courts that vacatur and sealing or expungement should be granted requires a survivor to openly identify as a victim of exploitation, to share personal details and experiences, and to try to persuade a judge of their own victimization, all of which can be extremely traumatic, especially for members of a population who have already invariably suffered great trauma.  Because of these hurdles, too few survivors of human trafficking can truly clear their criminal records and start fresh using G.L. c. 265, § 59.

In an effort to address these issues, a group of advocates drafted An Act to Strengthen Justice and Support for Sex Trade Survivors (H.1597 and S.983), also known as the Sex Trade Survivors Act (the “STSA”), which is currently pending before the Massachusetts Legislature. If passed, the STSA would extend the existing vacatur law, but it goes a few steps further. In particular, if passed, it would accomplish the following: i) decriminalization of prostitution for prostituted persons only, while maintaining existing penalties for buyers and exploiters; ii) automatic expungement of prostitution-related convictions currently on criminal records; and iii) creation of an interagency special commission to develop recommendations concerning prostitution, its underlying causes, and related issues. The STSA would not decriminalize or expunge any offenses that are not already eligible for vacatur under G.L. c. 265, § 59, but seeks to bridge the gap by preventing arrests, charges, and convictions for those offenses in the first place, thus removing barriers to justice for prostituted people and minimizing re-traumatization for human trafficking survivors.

The vacatur law was an incredible step towards justice for survivors of human trafficking in the Commonwealth of Massachusetts, but there is more work to be done. Survivors still face stigma and trauma because of their criminal records — records they would not have had they never been exploited. The STSA is a necessary step in creating a true path forward for survivors of human trafficking so they can start over, unburdened by unfair stigma and unjust legal impediments. In short, the STSA would finally acknowledge that survivors of human trafficking are not criminals to be prosecuted but are instead victims to be supported by the legal system.

Alyssa C. Scruggs is an associate at Mintz Levin Cohn Ferris Glovsky & Popeo P.C., where she maintains an active pro bono practice providing legal representation to survivors of human trafficking in criminal matters and post-conviction relief proceedings, victims of domestic abuse and asylum seekers.