I attended The New York City Bar event dedicated to informing public about legislative and judicial process available to victims of sex trafficking that allows these victims to get rid of criminal history related to their sex convictions. The panel of experts, which included Melissa Sontag Broudo, Kate Mogulescu, John Temple, and moderated by Suzanne Tomatore did a fine job of informing legal and non-legal community about relevant laws and practical considerations. This article attempts to assist spreading their message to attorneys and those in need.
In a nutshell, persons, usually women, can have their prostitution-related convictions vacated, if they have been victims of sex-trafficking. The vacation of these convictions may mean a loss of stigma that may go with a criminal record. Vacation may also translate to better employment prospects, higher income, and improved quality of life. However, to reach this goal may not be easy. Victims, and their attorneys, need to be prepared for labor intensive document preparation, corroboration of victims past through third person and other evidence, and the emotional toll it takes on unfortunate victims of sex trafficking. Prosecutors may be tough on the victims seeking removal by requiring corroboration of their statements. In the end, if victims feel that removal of criminal stigma outweighs the emotional toll and financial burdens, going through the removal saga may worth the process.
Convictions for prostitution-related offenses that resulted from sex-trafficking are removed by court through application of 440 Motion. Specifically, New York Criminal Procedure Law Sec. 440.10(1)(i) states:
1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: …
(i) The judgment is a conviction where the arresting charge was under section 240.37 (loitering for the purpose of engaging in a prostitution offense, provided that the defendant was not alleged to be loitering for the purpose of patronizing a prostitute or promoting prostitution) or 230.00 (prostitution) of the penal law, and the defendant’s participation in the offense was a result of having been a victim of sex trafficking under section 230.34 of the penal law or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78); provided that
(i) a motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such motion, or for other reasons consistent with the purpose of this paragraph; and
(ii) official documentation of the defendant’s status as a victim of sex trafficking or trafficking in persons at the time of the offense from a federal, state or local government agency shall create a presumption that the defendant’s participation in the offense was a result of having been a victim of sex trafficking or trafficking in persons, but shall not be required for granting a motion under this paragraph.
The statute makes clear that it is only relevant to Sections 240.37 or 230.00 of the New York Penal Law. The statute also refers to two definitions of the “sex trafficking” victim: first under State Statute Section 230.34 of the New York Penal Law, and second under Federal Statute Trafficking Victims Protection Act of 2000.
Defining “Sex Trafficking” – Trafficking Victims Protection Act
The scope of the statute is not limited to “sex acts,” and includes “slavery-like labor.” Term “force” includes “torture, starvation, imprisonment, threats, psychological abuse, and coercion” in addition to rape. 22 U.S.C. 7101(b)(6). The Act, further extends government agency benefits to non-U.S. victims at both Federal and State level. 22 U.S.C. 7105(b)(1)(A). Additionally, the Act guarantees those victims in custody of law enforcement (e.g. police) or immigration, that they receive protection, medical care, and other assistance including translation services. 22 U.S.C. 7105(c). Furthermore, the Act permits non-U.S. victims to remain in the United States, but with caveat of cooperation. 22 U.S.C. 7105(c)(3)(A). Immigration relief can take forms of T- and U-Visas.
Defining “Sex Trafficking” – New York Penal Law Section 230.34
The statute is very broadly written, arguably broader than its federal counterpart, to include any act which is calculated to influence victim to engage in prostitution related activities. The influence can even include mental coercion such as threat to expose a secreat or withdrawal of affection (e.g. love). The panel speakers made clear that contrary to common perception, no movent is required to fall under “sex trafficking” definition. One said example was that a person can live in one block her entire life, be coerced to prostitute there, and fall within definition of “sex trafficking.”
It is worth noting that if the judge finds that the victim was trafficked within the meaning of above mentioned laws, the New York’s Criminal Procedure Law Sec. 440.10(1)(i) requires judge to vacate prostitution convictions (i.e. vacation is mandatory).
The real challenge, it seems, is to establish that the victim was in fact a victim. Prosecution in New York expressed preference for corroboration of all allegations by a victim, while defense side of the panel opined that no corroboration is required by law, nor it is practical for victim to come up with corroboration because that victim is usually not in position of control.
Since CPL 440.10(1)(i) is relatively new on the books of New York, not too many cases have been decided. Yet, in those few that have, judiciary had opportunity to elaborate, and the interested reader is invited to review them: