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February 4, 2013

Guest post: "Victims of Human Trafficking Can Vacate Convictions in NY"

As regular readers know, I welcome guest posts from all quarters, and I was pleased when prominent New York criminal practitioner Arkady Bukh (firm website here) sent me this extended discussion of an important legal issue:

It has long been a fact that the victims of human trafficking, especially sexual trafficking, suffer not just from their abusers, but also from a criminal record that they carry with them the rest of their lives. This record can keep them from turning their lives around by keeping them from regular employment, good credit and in general ruining their overall reputation in the community. How sad is it that someone coerced or sold into sexual slavery at the age of 13 cannot obtain a normal life even when their abuser has been caught or they have escaped from them. At the present time there are seven states that have enacted legislation to clear the criminal records of the victims of human trafficking and they are: New York, Illinois, Maryland, Nevada, Vermont, Washington and Hawaii. This is a brief overview of the law as it presently stands in New York State.

a) The New York Vacating Convictions law at this time can only be applied to persons that have been convicted of two crimes: 1) New York Penal Law §230.00 – Prostitution; 2) New York Penal Law §240.37 Loitering for the Purpose of Engaging in a Prostitution Offense.

b) This statute states that there is not official documentation of trafficking required for a victim to qualify, however, if they do have official documentation such as a letter from the Dept. of Health stating that they were a victim of human trafficking then there is a presumption created that their convictions were from trafficking. There is no evidence such as this required in the New York Law and personal affidavit is accepted.

c) Importantly the New York law does NOT MANDATE that victims bringing their motions for vacatur to have to prove that they have exited prostitution or have entered some sort of "rehab" type of program in order to gain this remedy. However, in order to insure that victims can come forward even years after their victimization has ended to clear their conviction history, the legislation has included the following paragraph for their benefit, not as a mandate:

A motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such a motion, or for other reasons consistent with the purpose of this paragraph. N.Y. CRIM. PROC. LAW §440.10(1)(i)

d) A major aspect of the victimization of these people is that they have often been threatened with death or injury to themselves or family members by their abusers. For this reason, the NY law allows a victim's motion to be made with privacy allowed to the petitioner. Legal Services and other advocacy groups have made these petitions using only the victim's initials, much the way a minor is often protected in the family courts.

e) The New York creates actual vacatur for the victim which is stronger than an expungement which may be offered by other states. A vacatur is actually the closest thing to erasing the convictions of the victim where in some states that after an expungement the petitioner must then ask the records to be sealed. New York State does not have an expungement remedy for any crime which is why this is done as a vacatur actually vacating the convictions and creating a clean record.

f) If the victim has met all the requirements of this law and is a victim of human trafficking, the Judge has no discretion not to vacate the convictions and dismiss the accusatory instruments. The elements needed to be met are: 1) was a victim of human trafficking, 2) was charged with the crimes and 3) these crimes that they have been charged with were due to the fact of human trafficking.

g) However, a Judge may have discretion to take any additional action they deem reasonable such as possibly vacating other offenses that they consider part of the whole trafficking life of the victim.

h) This law is retroactive and can cover any convictions the victim incurred prior to the law being enacted.

It is a positive thing that New York passed this legislation in 2010 and a good thing that six other states have similar laws on their books. However, it is very sad that 43 states have yet to take this action to protect the victims of human trafficking, especially at a time when this crime has become more and more prevalent. Many victims of trafficking are brought to this country illegally by their abusers and this law makes it possible for them to obtain legal status. "The Board of Immigration Appeals has rules that when a state court vacates a judgment of conviction based on a procedural or legal deficit,..…the conviction is eliminated for immigration purposes".

New Jersey along with other states such as Florida are looking at legislation strengthening their laws against human trafficking, it can just be hoped that at the same they will add legislation that will vacate the convictions of those victims of this crime.

February 4, 2013 at 10:51 AM | Permalink

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Comments

You mean that the VICTIMS of sex trade trafficing also incur a criminal felony record just like their abductors? That's outrageous, as the victims did not break any law! Since when is it a crime to be a VICTIM of sexual slavery or of a sexual offense? I never heard of such a thing. Only the persons who COMMIT these trafficing offenses should be punished.

I work for a local community college as a reader/writer.

Posted by: william r. delzell | Feb 5, 2013 9:58:18 AM

Happy to have found this article. I am a survivor of human trafficking and I am right now in the process of vacating the dozens of arrests I got while I was trafficked from the age of 13, sold from one trafficker to another and taken to New York and for 9 years trafficked on the streets of New York.I am also working with legislators in as many states as I can, right now Virginia and Maryland, to ensure that states have statutes in place that benefit surviors of human trafficking, such as safe harbor laws and vacating laws
Vacating statutes and Safe Harbor statues are just some of the important laws we need in place, and allowing survivors to vacate their convictions helps them to lead productive lives, I myself lost a federal government job due to my criminal record and I am grateful to now be able to vacate those records, that I never should have gotten in the first place, thanks Barbara Amaya

Posted by: Barbara Amaya | Feb 7, 2013 6:55:41 PM

Florida legislation providing trafficking victims the opportunity to petition the court to vacate convictions for offenses committed under the coercion of a trafficker was passed and signed by Governor Scott this year. It becomes law in January 2014, and we have already begun preparing petitions to vacate for trafficking survivors.

Brent Woody
lead counsel/executive director
West Florida Center for Trafficking Advocacy

Posted by: Brent Woody | Aug 17, 2013 1:57:51 PM

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