Public Interest

The Complicated Legal Landscape Of Child Trafficking

Legislators, lawyers, social workers, law enforcement, and courts all have roles to play.

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Children all over the world are the victims of human trafficking. Shocking to some, many of those children are being trafficked right here in the United States. More shocking is that in many states they are arrested and charged with crimes that arise from their own status as crime victims. Tragic and complicated, lawyers can help these children and help solve a very tough problem.

A young girl, or maybe a young boy, kidnapped into the United States, or maybe homegrown in Los Angeles or New York, is coerced, defrauded, persuaded or forced into the sex trade. A trafficker, a pimp, a “boyfriend” promises love or promises harm for refusal to go along. A scared, alone, abused teenager collects money for sex, turns over that money, and is back on the streets. It is a tragedy played out on a seemingly never-ending loop.

Eventually the child is arrested. In most states, the terrified minor is charged with prostitution or some other related crime. Her status as a victim is often ignored. Many states do not recognize that she, herself, is the victim of statutory rape, regardless of all other criminal circumstances. The child does not consider himself a victim, he’s making money, satisfying his coercer, trying to build a little family of security, seeking escape from being alone. Many states fail to treat a teenage trafficking victim as just that. Instead, looking only at the acts that directly resulted in arrest and not that those acts never would have occurred but for the child having been illegally and viciously treated, the end result often is a conviction. If not a conviction, at least an arrest record and a night in jail. And the result of that is not being able to get a job, rent an apartment, seek help, and feeling that no one cares… which apparently they do not.

Played out in the shadows of major cities, kids in these spirals of horror are forgotten. Departments of children services, social workers, frantic family members are overwhelmed and lost. Victimized children are victimized first by those who exploit them for money and then again by a system that arrests them, treats them as criminals, and does not identify these children as victims themselves. Victimized once, victimized twice, resulting in a life annihilated. All this is happening right in front of us.

Not many lawyers know they can help or how they can make a difference. In some jurisdictions those children who are found to have been trafficked can have their arrest and conviction records vacated or expunged. New York was the first state to legislatively give trafficking survivors the chance to vacate convictions for prostitution. Florida went a step further, allowing expungement for any crime committed while “a victim of human trafficking.” A vacatur proceeding can result in a finding of factual innocence, offering the opportunity to rebuild lives, increasing the chances of finding work, decreasing the chances of being trafficked again. And it is empowering. Standing up, fighting back, declaring “I am not a criminal, instead I, myself, was a victim of a vicious crime.” Without vacatur, children will forever be branded as criminals, they will never have the chance to assert the truth of their circumstances, they cannot find a new beginning for themselves. Lawyers, are you listening? All of these children need you.

Legislators can help prevent the problem at its root. California passed an anti-trafficking law that specifically identifies as victims those who fall prey to traffickers. Other laws have been passed to provide an array of services to young victims. Some states have proposed that victims under an identified age be permitted to testify against their traffickers via video, removing an intimidation factor that can terrify children away from helping to put the real criminals in prison.

However, the situation is complex. By not arresting child victims, the chance of directing them to needed services often is lost. By helping them testify in safe ways, the civil rights of defendants to confront their accusers are usurped. But offering only vacatur as a remedy can be an opportunity lost. Many children will never be able to access the attorney they need to navigate the court system on their behalf. Without counsel, this powerful remedy remains unavailable. By sealing records, some prosecutors won’t be able to get children to testify, perhaps a small price to pay, but one that generates controversy nonetheless. And the justice system has to realize that young, vulnerable victims often are tied, deeply and psychologically, to their traffickers. Without a means to separate them from one another, law enforcement officials and social workers say they may lose a valuable opportunity to provide the kinds of services that will result in a breaking of that bond, services that victims often resist at first, resulting in more convictions and getting more abusers off the streets.

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The problems may be difficult, the conflicting forces may be complicated, but legislators, lawyers, social workers, law enforcement, and courts need to find the best possible solutions. Pro bono attorneys can represent victims, law-makers can continue to promote legislation, social workers can work the streets, police officers can watch for tell-tale signs, prosecutors can use the tools that lawyers and legislatures give them, but in the end the only concern that all must keep at top-of-mind is that these are children. We have to leave our politics at the door. We have to come together and do what we together believe is right. Far too many young lives are depending on us.

David LashDavid A. Lash serves as Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. He can be reached at dlash@omm.com. The opinions expressed are his alone.

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