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*Nina N. Batista

Sex trafficking is a horrific epidemic that leaves scars on its victims that, without legislative reform, will never entirely heal. Until recently, the issue has been seemingly drowned out by every other news story on the front page of the paper. However, with the advent of women’s movements against sexual assault, more and more sex trafficking victims have become empowered to tell their story. As we learn of the horrific sexual, physical, and psychological abuse sex trafficking victims endure every day, we have also learned that all too often, victims are swept into the criminal justice system, arrested and prosecuted for crimes their trafficker forced them to commit. The burden of a criminal record creates a number of collateral consequences, leaving victims without a real chance to heal from their past and rebuild their lives.

In an attempt to solve the lingering problem sex trafficking causes for victims with criminal records, at least thirty states enacted novel expungement and vacatur legislation.[1] These laws, often referred to as second chance statutes, provide victims with post-conviction relief, allowing them to erase from their record the prostitution and prostitution-related crimes they were compelled to commit at the behest of their traffickers.[2]

Florida Statute Section 943.0583 allows for the expungement of criminal convictions for offenses committed as part of the sex trafficking scheme to which the individual was a victim or at the direction of their trafficker.[3] No regard is afforded to the disposition of the arrest or of any charges, meaning it does not matter whether or not the individual was convicted of the offense.[4] However, judicial discretion is not unlimited. The protections afforded by section 943.0583 simply do not apply to a list of fifteen offenses enumerated in section 775.084(1)(b)1.[5] Among the crimes never eligible for expungement is kidnapping.[6]

The granting of expungement is “subject to reasonable concerns for the safety of the victim, family members of the victim, or other victims of [sex] trafficking” that may be jeopardized if the court were to grant the victim’s petition for expungement.[7] In establishing this violent felony exception, the legislature likely sought to give society the opportunity to readily identify those who committed such offenses, regardless of the negative stigma that will follow the victim for the rest of their life.

One of the most tragic and heartbreaking aspects of sex trafficking is how victims are forced to recruit other vulnerable young women into the trafficking scheme. They are forced to pass their victimization along at the command of their trafficker. Although kidnapping is typically categorized as a violent crime,[8] in the context of sex-trafficking, the crime is different. It maintains substantially different circumstances that must be considered as a rationale for eliminating the statutory exemption of the expungement of a kidnapping offense from a victim’s criminal record.

Lawmakers should work to find new ways to more effectively advance victims’ interests. If the legislature is going to distinguish between serious and non-serious crimes for the purpose of sex trafficking protection laws, it needs a more sophisticated understanding of the circumstances under which a victim commits the acts which she is charged. Perhaps outside the realm of sex trafficking, the legal and societal label of kidnapping as a violent crime does not have the same harmful ramifications. However, in the context of sex trafficking, kidnapping is the term for victims being forced to pass their victimization along under no autonomy of their own. The law as it is forgets this.

Traffickers compel their victims to recruit other young and vulnerable women into the trafficking scheme. However, under the law, this vicious cycle is labeled kidnapping—a crime for which no post-conviction relief is available. Without giving victims the chance to erase this offense off their record, legislatures are perpetually reminding victims of their traumatic past.

*J.D. Candidate, 2020, FIU College of Law.

[1] Samantha M. Meiers, Removing Insult From Injury: Expunging State Criminal Records of Persons Trafficked in the Commercial Sex Trade, 47 U. Tol. L. Rev. 211, 218 (2015); See Ark. Code Ann. § 16-90-1412; Colo. Rev. Stat. Ann. § 19-1-306(5)(d); Colo. Rev. Stat. Ann. § 24-72-706(1); Conn. Gen. Stat. Ann. § 54-95c; Del. Code Ann. tit. 11, § 787(j); Fla. Stat. Ann. § 943.0583(3); Ga. Code Ann. § 15-11-32(d); Ga. Code Ann. § 15-11-701(c); Haw. Rev. Stat. § 712-1209.6(1); 725 Ill. Comp. Stat. Ann. 5/116-2.1(a); Kan. Stat. Ann. § 21-6614(b); Ky. Rev. Stat. Ann. § 529.160(1); La. Child. Code Ann. art. 923(A); Md. Code Ann., Crim. Proc. § 8-302(a); Mich. Comp. Laws Ann. § 780.621(g); Miss. Code Ann. § 97-3-54.6(5); Mont. Code Ann. § 46-18-608(1); Nev. Rev. Stat. Ann. § 176.515(5); N.H. Rev. Stat. Ann. § 633:7(VI); N.J. Stat. Ann. § 2C:44-1.1(a); N.M. Stat. Ann. § 30-52-1.2(A) ; N.Y. Crim. Proc. Law § 440.10(1)(i); N.C. Gen. Stat. Ann. § 15A-1416.1(a); Ohio Rev. Code Ann. § 2953.38(B); Okla. Stat. Ann. tit. 22, § 19c; 18 Pa. Cons. Stat. § 3019(d); R.I. Gen. Laws Ann. § 11-34.1-5(a); Vt. Stat. Ann. tit. 13, § 2658(b); Wash. Rev. Code Ann. § 9.96.060(3); W. Va. Code Ann. § 61-2-17(f) ; Wis. Stat. Ann. § 973.015(2m)(a)-(b); Wyo. Stat. Ann. § 6-2-708.

[2] Suzannah Phillips et al., Clearing The Slate: Seeking Effective Remedies for Criminalized Trafficking Victims 31 (2014), http://www.law.cuny.edu/academics/clinics/iwhr/publications/Clearing-the-Slate.pdf.

[3] Fla. Stat. § 943.0583(3) (2019).

[4] Id.

[5] Id.

[6] Fla. Stat. § 775.084(1)(b)1.

[7] § 943.0583(4).

[8] See § 775.084(1)(b)1.