Clearing Criminal Records for Survivors of Human Trafficking
January 22, 2025
Authored by: Victoria Carvajal
This article is made possible by the generous support from Taylor Tufano at 9Sail.
Victoria Carvajal
In January, we take time to recognize National Slavery and Human Trafficking Prevention Month. The crime of human trafficking thrives on silence and obscurity, and this month seeks to raise awareness about human trafficking, acknowledge the resilience of survivors, and recognize the efforts of anti-trafficking service providers throughout the country.
While there is still much to do in abolishing modern-day slavery, there are resources to help survivors heal from their trauma and thrive. No one remedy can undo the harm that was done, but New Jersey has made progress through the Human Trafficking Prevention, Protection, and Treatment Act. The Act makes it possible for survivors of human trafficking to clear their criminal record related to their trafficking, improving their opportunities, quality of life, and acknowledging they should have never been prosecuted in the first place.
The Burden of Criminal Records For Human Trafficking Survivors
Trafficking survivors are victims of crimes, yet that is often not how they are treated. Because of this, it is not uncommon for survivors to have a criminal record. At the command of their traffickers, victims are frequently forced to commit crimes such as prostitution and loitering, but also drug offenses and theft crimes. Additionally, victims are repeatedly made to take the blame during interactions with law enforcement, creating yet another way that they can become laden with arrests and convictions through behavior they did not even take part in. Due to fear of their traffickers and negative law enforcement interactions in the past, trafficking survivors may be reluctant to tell police or the courts they are being trafficked. If the courts and law enforcement do not screen or detect the issue on their own, it creates a situation when trafficking survivors become burdened by long criminal histories in which they were actually the victim.
There is more to this issue than just the shame and injustice of carrying a criminal record from a period of victimization. Criminal records carry consequences that reach far beyond the trafficking experience: survivors may find themselves cut out of jobs, education, housing, public entitlements, and immigration relief due to their criminal record. Although the trafficking event could have taken place years or even decades in the past, a criminal record lingers, serving as both barrier and reminder long after the trafficking experience has ended.
Understanding Criminal Record Expungement vs. Vacatur
The term “vacatur” in this context refers specifically to criminal record clearing for trafficking survivors. While it bears similarities to other forms of record-clearing relief like expungement, it is distinct in a few important ways.
First, the eligibility rules are different between the two forms of relief. In an expungement, there are restrictions to the number, type, and time since the convictions occurred before someone can become eligible for this form of relief. Barring a few exceptions, vacatur relief can be granted for any amount of convictions and nearly any offense as long as the offenses can be linked to the trafficking experience. Importantly, vacatur relief can be requested at any time, whether or not the trafficking experience was recent. It can also apply to convictions after the trafficking experience, as long as they were also the result of trafficking.
Second, expungement relief can be thought of as “clearing” an offense, whereas vacatur “undoes” the offense. While they can seem similar, in practice, they function differently. In an expungement, all fines paid in connection with the offenses are forfeit. Conversely, because a vacatur treats a conviction like it never happened, fines incurred are returned to the survivor. Vacatur is also generally the better option for survivors seeking immigration relief for similar reasons. Importantly, by undoing the conviction, vacatur acknowledges the survivor should have never been criminalized in the first place.
What is the Process For Clearing a Criminal Record?
The first step to seek vacatur relief is to be mentally and emotionally prepared for the process. Vacatur relief requires the survivor tell their story, and while that can be empowering, it can also be an uncomfortable and triggering experience. A survivor should always enter the process on their own terms, and should never be pressured into seeking relief.
Next, it is important to capture the most accurate criminal history possible to make sure nothing is missed in the vacatur petition. This is particularly important because survivors may not remember all their arrests or the details surrounding the arrests. Additionally, if the survivor has open criminal matters, those need to be addressed before the petition can proceed.
The law recognizes that the covert nature of human trafficking means survivors will rarely have corroborating evidence of their trafficking. That said, documentation like a T-Visa, law enforcement corroboration, newspaper articles, photographs, and medical records can be helpful. Additionally, evidence that gives context, like child welfare records, letters from service providers, and proof of employment hardship can create a more rounded understanding of a survivor’s past and present.
A full vacatur petition includes the survivor’s story, the legal argument demonstrating why they qualify, exhibits like the documents mentioned above, and proposed orders for the court to sign. The petition is then filed with the local court, and any interested parties to the matter, such as law enforcement and the prosecutor’s office, must be served a copy and given a chance to object. Depending on that outcome, the court can grant the relief, request more information, or, rarely, a hearing may be necessary in the case of an objection. Due to the legally complex nature of the petition, we recommend seeking legal assistance when filing for vacatur.
For insight into criminal record expungement, please read How Pro Bono Legal Services Can Secure Second Chances.
VLJ is a Strong Advocate For Survivors of Human Trafficking
Through our New Jersey Survivors Justice Project, Volunteer Lawyers for Justice (VLJ) provides wrap-around legal services for trafficking survivors, including immigration and criminal record clearing assistance through vacatur. VLJ uses a trauma-informed approach to legal services, putting a survivor’s desires and autonomy at the forefront.
While vacatur is just one form of relief for survivors, it is an impactful one. Vacatur relief can help remove the barriers a criminal record presents, and reopen opportunities that they may have previously thought impossible. Importantly, it is a form of retroactive justice that allows survivors to truly shed their past and live on their own terms.
