(CN) – Her feet hurt; her trafficker required her to wear high heels every day. But she had no money to buy personal grooming items like nail clippers and a pumice stone, so she stole them.
The trafficking survivor had a record. Prostitution, theft and drug convictions continued to follow her even after she turned her life around and got her GED, and potential employers rescinded job offers once background checks were performed.
But a new California law which vacates and erases nonviolent offenses committed by victims of human trafficking offered her and others a fresh start.
In 2016, California joined 36 other states with vacatur or expungement laws for trafficking survivors, though it took some coordination among victims’ advocates, prosecutors, public defenders, law enforcement and the courts before petitions could be successfully filed in California courts.
California’s law among the best
San Diego County has so far seen three vacatur petitions granted, among the first in the state whose law is touted as a “model” for others looking to enact or amend vacatur laws for human trafficking survivors. California is one of a few states which not only vacates trafficking survivors’ prostitution charges, but also clears drug, theft and other nonviolent convictions if the person is found to have been victim of human trafficking when the crime occurred.
Jamie Quient, attorney and founder of San Diego nonprofit Free to Thrive which offers free legal services to human trafficking survivors, said it makes sense to vacate nonviolent crimes that are committed as a direct result of the trafficked person’s victimization.
Quient said because trafficking survivors “very rarely” see any of the money they make, they often steal basic necessities just to get by. A client stole foot products, for instance, because her feet hurt from wearing high heels. In another one of her cases, Quient said a client had a list of items her pimp wanted her to steal for him. Most trafficking victims also become addicted to drugs, Quient said, because their traffickers use it as a means of coercion and control. Survivors might later abuse drugs as a means to cope with their circumstances, Quient said.
“This law is the criminal justice system’s way of saying you’re not a criminal and should not have been treated as one,” Quient said.
San Diego Deputy District Attorney Mary-Ellen Barrett worked on the case for Quient’s client. She compared California’s new vacatur law to a “big eraser” which goes “back to erase criminal liability.”
She said she was initially skeptical of allowing petty theft convictions to be erased, thinking it “might be a problem.” She later saw why it’s necessary after the petitions started rolling in.
“I got a petition where someone wasn’t allowed to purchase personal items on her own. They steal things like alcohol to escape or personal items because they need body wash and toothpaste to keep going,” Barrett said.
“There’s a difference between petty theft and putting a gun to someone’s head.”
Laws across the nation
Like many states with vacatur laws for human trafficking survivors, Michigan only allows survivors to vacate prostitution charges.
Bridgette Carr, a professor and attorney with the University of Michigan Human Trafficking Clinic, said when the state passed its vacatur law workers at the clinic were shocked at who was making initial calls to get their prostitution charges vacated: older women in their 60s who wanted their records expunged.
“They weren’t applying for jobs or housing but wanted their records cleared up based on principle. We can never underestimate the symbolic principle these laws represent,” Carr said.
She said there is not support in Michigan to expand its law to include nonviolent offenses, something she said perpetuates a “perfect victim” narrative similar to the plot of the movie “Taken.” Carr said her clients are complex, many have drug and theft convictions in addition to prostitution, and those criminal records also need to be cleared for survivors to truly move forward.
“Cleaning up part of their record can be helpful, but if they have seven drug charges, it can also block them from housing and jobs. From a practical matter, I think they’re grateful they don’t have to answer questions about prostitution, but from a pragmatic approach I don’t think it opens a ton of doors for them,” Carr said.
Kate Mogulescu, a professor at Brooklyn Law School, runs the American Bar Association’s Survivor Reentry Project which tracks vacatur laws across the country and gives attorneys tools to help trafficking survivors with pro bono legal services.
She said New York became the first state to enact a vacatur law for human trafficking survivors in 2010, though like Michigan, New York only vacates prostitution charges. Advocates in New York are now pushing for their law to be amended to include nonviolent offenses like California’s law.
Mogulescu said she’s had some clients with over 100 arrests for prostitution get their records cleared. Monica Charleston is one of them.
In a phone interview, Charleston said she had a difficult childhood in Philadelphia, where she was raised by her grandmother. At 12 she found out the person she believed was her sister was actually her mother. She later went to live with her grandmother and other family in upstate New York. Her uncle raped her and she got pregnant.
By the time Charleston was 15 she had met her pimp who had promised to make her a star.
“I wanted to be like Madonna. I didn’t have any talent but I had been through that whole Catholic rebellion thing,” Charleston said.
Her pimp pretended to take her on casting calls where he was actually showing her off to other pimps. He later told Charleston he’d spent money on her and she needed to pay him back, and she “wound up on a corner in New York.”
Charleston wasn’t able to escape until 1992, at the age of 23. By that time, she’d had two children by her pimp. She also had a criminal record with 170 prostitution arrests.
More than 20 years later, Charleston was able to get her record sealed in New York. The process took less than a year, though she still has some outstanding charges in Virginia and New Jersey she has not been able to remove.
“I was worried I’d be treated differently because of the background checks for housing and employment. Before this stuff was sealed I was ashamed and embarrassed and felt guilty about everything, but now I hold my head high because that’s not who I am today, it’s what I was forced to do in the past,” Charleston said.
Charleston is now an advocate for human trafficking survivors, speaking before Virginia lawmakers earlier this year in favor of a state bill to allow sex trafficking victims to wipe their records.
The bill failed, though legislators hope to bring it back after some fine-tuning.