by Jenni Hankel, HTC associate
A new bill in the Colorado legislation would allow for the sealing of criminal records for individuals who may have been forced or coerced to commit a crime as a result of being trafficked. Colorado House Bill 14-1273 allows the criminal records of adult survivors of sex trafficking to be sealed, building upon Colorado HB 1151 (2012), which extended this option to children. The ability to seal or expunge criminal records of victims who have either been forced to engage in illegal activity or have been arrested for lack of documentation empowers survivors to seek safe and legal employment without facing stigmatization and discrimination. Unfortunately, discrimination often makes it difficult for survivors to obtain interviews for even the most menial of jobs – let alone employment that would pay livable wages. Because of this categorical discrimination, it is vital that trafficking survivors are able to seek employment without fearing that their records will be made public.
Labor and sex trafficking victims are habitually coerced and forced to engage in criminal activity for the benefit of their traffickers. Often, these activities include prostitution, theft, drug crime and exploitative practices aimed to recruit new victims. Individuals who migrate to work in agricultural settings, for example, face exploitative labor practices such as isolation and manipulation, lack of basic needs and seizure of their H-2A immigration and identification documents by their employers. This confiscation places migrant workers in situations in which they might be criminally prosecuted for being in the U.S. without proper documentation.
If their records are not expunged, survivors of labor trafficking may be held liable in the future, possibly resulting in increased difficulty securing social and legal services, employment, and housing. Inaccessibility to these crucial aspects of the healing process places survivors in positions of vulnerability to re-victimization and re-trafficking.
Two crucial elements of Colorado HB 14-1273, however, are lacking. Foremost, while child survivors of sex trafficking can have their records expunged, this new bill only allows for the sealing of adult records. Expungement prohibits government and public entities from accessing record information and allows the survivor to legally deny the existence of the expunged event, allowing a survivor to start anew. Sealing records means crimes committed remain on criminal records and can be accessed for public interest. This discrepancy is inconsistent with a victim-centered approach, given that children and adults are equally recognized by law as victims of trafficking. Why then are adults denied the extra legal protection expungement provides?
Secondly, this bill provides no legislative acknowledgment of child or adult labor trafficking. Survivors of labor trafficking face the same social and moral stigma as sex trafficking survivors. If a child may apply to have his record expunged of sex trafficking or sex work offenses, why can it not also be wiped clean of forced begging, drug peddling, theft or an undocumented migration status? Likewise, if an adult victim of sex trafficking can apply for some sort of record sealing, why does this bill fail to provide the same protection for adult survivors of labor trafficking? One possible answer lies in the sensationalism of sex trafficking. Sensationalism has played an undeniable role in securing public sympathy and social services for sex trafficking survivors — who are less likely to be perceived as having had an active role in their offenses. On the other hand, the public is less inclined to act sympathetically toward labor trafficking victims who are often assumed to be undocumented migrants, homeless or in some way “social delinquents.”
The fact that adult and child victims of labor trafficking remain isolated from rehabilitative legal options is inconsistent with a victim-centered approach as well as with the ways other victims of crimes are treated. Colorado House Bill 14-1273 needs to be revised to reflect theoretical consistency and to support all victim/survivors of trafficking in seeking legal options that help empower them to recover and live free of systematic stigmatization.
*The views and opinions expressed in this blog do not necessarily reflect the position of the HTC