Legal Consequences and Solutions                                                                                        Updated September, 2020                               

Human trafficking takes a toll on its survivors in many ways, including creating many legal repercussions. When individuals are not in control of many of the decisions about their lives, they can experience issues within legal systems that would never have occurred had the person not been trafficked. This section will discuss first the range of legal consequences and then some of the solutions for trafficking survivors.

Legal Problems

Criminal Consequences

Ideally, criminal legal systems would treat human trafficking survivors as victims of crime and avoid punishing those who had little to no choice about their activities. However, that is not always survivors’ experience. Persons trafficked for sex or for labor may be targeted in criminal investigations that result in arrest and criminal charges against the trafficked person.[1] They could be charged with prostitution, aiding in the trafficking of others, fraud, or other criminal offenses from activities that they are required to perform for the trafficker.[2]

Trafficked persons could also be coerced by traffickers to engage in a range of other criminal offenses, such as theft, possession or sale of drugs, possession of weapons, driving while intoxicated or without a license, fraud by credit card or check, street begging, or other scams. The trafficker often makes the victim perform the activities that might draw the attention of law enforcement, while the trafficker stays in the background to avoid detection.  

Criminal offenses can be punishable by jail or prison, monetary fines, and correctional supervision such as probation. Some offenses related to sex work or sex trafficking could also result in a mandate to register as a predatory offender.

Additionally, criminal arrest and conviction can impact some more heavily than others based on race. In the United States, for example, Black girls make up almost 60% of juvenile arrests for prostitution.[3] The iniquities between racial groups in many realms of life also exacerbate the effect of criminal consequences for persons of color who are trafficked.[4] As discussed below, criminal convictions can have additional ramifications far beyond the immediate criminal sentence.

Immigration Consequences  

Although not all trafficked persons are migrants moving between countries, many are. People can experience a range of legal problems if trafficked before, during, or after their migration across national borders. Individuals who lawfully entered a new country could be deported if convicted for the offenses mentioned above. Certain criminal convictions may invalidate an immigrant’s lawful status.[5]

Further, a survivor’s irregular or undocumented entry into a country may expose them to legal consequences. The survivor might be charged with a criminal immigration offense for illegally entering or illegally working in a country. They might be charged criminally for using fraudulent identification or documents to get a job. Even if not charged with a crime, trafficked persons could be detained by immigration officials and subjected to forced deportation for their activities. As with criminal consequences, racism plays a role in the treatment of trafficked migrants as well. Immigration officials may make decisions about arrest and deportation based, in part, upon the race of the individual they have encountered.[6] Immigration laws may serve as a surrogate to discriminate in admitting migrants, and trafficked persons are no exception to that reality.

For these reasons, persons subjected to sex or labor trafficking are generally very afraid that local law enforcement authorities will inform immigration officials about them.[7]

Housing & Employment Consequences

Individuals who are trafficked may have other legal difficulties as well. A criminal conviction could make it difficult for the survivor to get housing.[8] This could occur because a landlord will not lease an apartment to a person with a criminal conviction, or because the person is ineligible for certain government housing assistance programs. A conviction could also make a survivor ineligible for other government programs such as food assistance.

A criminal conviction could also lead to difficulty obtaining employment.[9] Criminal convictions reduce an applicant’s chances of being selected over other applicants. Some professions might completely exclude individuals from employment or professional licensure if they have convictions for prostitution, drugs, fraud, driving while intoxicated, or for any felony level offense. Examples of such professions include child-care, nursing, social work, criminal justice, hotels, banks, and even some retail positions.

Child Custody or Child Protection Consequences

Trafficking for sex or labor might also impact survivors’ legal rights as parents. The trafficked person is often in a precarious position if they have children. Survivors often face difficulties in securing housing, food, health care, child-care, and education -  circumstances that might draw the attention of child-protection authorities.[10] If a survivor is investigated by police for offenses discussed above, police might contact child-protection authorities. Additionally, traffickers know their victims fear that child protection might remove their children, and they use that fear to gain compliance from the victim. Alternatively, if the trafficker is the other parent of the child, they might try to gain legal custody of the child or use the threat of doing so to gain cooperation from the survivor.[11]

Voting & Education Consequences

In about 22 states within the United States, persons with felony convictions lose the right to vote for some period of time.[12] Many of these states require a pardon from the governor in order to restore voting rights. Many other nations (although not all) ban voting by individuals while incarcerated, although voting rights are frequently restored after incarceration.[13] Lacking voting rights can also affect a person’s ability to run for office in some places.

Criminal convictions can also affect a person’s ability to get an education. Many secondary-education institutions inquire about the criminal-history of their applicants.[14] Student loan providers in the United States may also decline loans to applicants with a felony record or withhold further loans if drug convictions occur during the educational period.[15]

Legal Solutions

Avoid or Expunge Criminal Convictions

The most important way to prevent many of these legal issues is to treat persons trafficked for sex or labor as the true crime victims that they are and avoid meting out criminal consequences to them. According to the U.N. Special Rapporteur on trafficking, especially women and girls [hereinafter, Special Rapporteur on trafficking], public officials should adopt a “non-punishment principal.”[16] This means that trafficked persons should not be subjected to detention, charges, or prosecution for their involvement in any criminal activities while trafficked. The Council of Europe Trafficking Convention also contains a non-punishment provision.[17] This principal precludes detention or restrictive measures for trafficking survivors even for their own protection.[18] As the Special Rapporteur on trafficking points out, systems do not detain victims of any other type of crime.[19]

The non-punishment principal has been applied in a variety of ways regarding sex trafficking. The “decriminalization” of commercial sex is handled differently in different places. There are philosophical differences as to what, if any, participation in commercialized sexual activity should be de-criminalized. Advocates differ as to the best practices.[20]

Some individuals choose to earn money by selling sexual activity, and some states have decriminalized certain offenses for those who are selling sex acts. For example, minor children cannot be charged with prostitution in some places.[21] Some countries have legalized the sale of sex acts for both the seller and the buyer.[22] Some governments regulate the lawful activity in hopes of making it safer for buyer and seller. The legalization of some forms of commercial sex is controversial because advocates and survivors do not always agree on the best way to address the continuum of agency involved in selling sex.[23] Nevertheless, whether it is handled within the criminal statutes directly, or through the discretion available to police and prosecutors, it is important to avoid giving criminal consequences to people who are trafficked for sexual exploitation.[24]

Police can be trained to provide resources and safety to trafficked persons without arrest. Prosecutors can decline to bring charges. They can also create pre-trial diversion programs that provide some guidance and support to survivors charged with criminal offenses. Those programs allow the survivor to avoid a conviction so long as they remain committed to the requirements of the program. Courts can also create supervision or diversion programs that intervene with resources and support before any criminal conviction is finalized.[25]

If a criminal conviction occurs, some systems provide an expungement process that permits the court or the state to erase or seal the records showing the criminal conviction.[26] This process allows survivors to return to the legal status before they were convicted of prostitution or a similar offense, and that can make an enormous difference in the ability of survivors to move forward to safer work and housing.[27]

Protect Survivors from Deportation

Migration authorities must create policies as to how human trafficking survivors will be identified, and how they will be treated once identified. As the Special Rapporteur on trafficking notes, restrictive or over-zealous migration policies can interfere with the identification of trafficking victims.[28] Migrants who are trafficked may choose to remain silent – staying in their exploitive circumstances rather than return to their country of origin and face sigma and their original circumstances that led to trafficking.[29] The Special Rapporteur on trafficking  recommends that, “[t]rafficked persons should not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit or destination...”[30] She also recommends the enactment of asylum procedures for trafficked persons.[31]

The Council of Europe anti-trafficking convention includes a “recovery and reflection period” of at least 30 days for survivors of trafficking.[32] The purpose of granting this time is to allow for separation from the trafficker and for a decision as to whether to cooperate with authorities.[33] During this reflection period, the convention prohibits the country from removing the survivor and requires the administration of support and assistance measures.

Some countries have created legal protections for migrants who have been trafficked. The United States, for example, has a T-visa program specific to survivors of trafficking.[34] Survivors who qualify for a T-visa can remain lawfully in the United States, obtain employment, and apply for permanent resident status.[35] The T-visa is available only to survivors who assist with the investigation or prosecution of their traffickers.

The Council of Europe’s anti-trafficking convention provides for nations to grant a residence permit to trafficking survivors.[36] These permits can be, but are not required to be, conditioned upon the person’s cooperation with legal authorities. The requirement of cooperation can create difficulties for survivors because of their fear of the trafficker and other complications. Some advocates urge the provision of resident status absent the condition of cooperation with criminal authorities.[37]

Financial Compensation

The Palermo Protocol requires that each State Party, or nation that has ratified the protocol, include a system for recovery of damages by trafficking victims.[38] The Council of Europe’s anti-trafficking convention  includes a similar system.[39] Some legal systems build compensation by the trafficker to the victim into criminal sanctions.[40] Some systems have state-funded compensation funds for crime victims.[41] Financial compensation should be available as a separate matter from the support and assistance for survivors that is mandated by human rights law.[42]

Non-governmental legal organizations and pro bono lawyers are essential to assisting persons surviving trafficking with a wide range of legal issues.[43] If civil society and states can improve access to legal representation, they can aid survivors of trafficking immeasurably in moving forward with their lives after exiting the trafficking experience.[44]