Creating a Just Response for Survivors of Trafficking

In California, a 12-year-old boy with an abusive home life began running away. He was deemed a ward of the court but didn’t receive mental health or other services to get him off the streets and into a stable home environment. See In re D.C., 60 Cal. App. 5th 915, 918 (2021). Instead, an older man befriended him, drugged him, and then sexually assaulted him repeatedly. The abuse lasted for years. The boy cycled between the streets and the man’s home, where the boy was regularly forced into sex acts in exchange for drugs and a place to stay. The boy became terrified of the man, a heavy drug user who would become enraged and force the boy into the trunk of his car and then drive around. Id. After dropping him back on the streets, the man would always find him again. Afraid that he would be injured or killed, the boy kept a knife that he found while rummaging through the trash one day. A convenience store owner spotted the boy outside the store, begging for money and cigarettes. He saw the knife in the boy’s hand, even though the boy wasn’t threatening anyone, and called the police. The boy then concealed the knife in his sweatshirt, leading to his arrest and prosecution for carrying a concealed dirk or dagger. He was 15 years old at the time. Id. at 919.

This occurred near Los Angeles, less than three years ago. Like many states, California has an affirmative defense statute allowing defendants to present evidence that their crimes were committed as a “direct result” of being trafficked. The prosecutor argued, and the trial court agreed, that the boy could not avail himself of the human trafficking affirmative defense statute because the man did not direct the boy to carry the knife. However, the court of appeal disagreed and remanded the case for further consideration, finding that the affirmative defense statute could be applied to this case, where the boy was allegedly carrying the knife because he was a sex-trafficking victim whose life was in danger. Id. at 920–22.

Throughout the country, courts and lawyers are grappling with what’s been called “victim-offender” intersectionality and how to handle human trafficking victims who are involved in criminal activity. While many states have ended the shameful practice of prosecuting minors for prostitution, other crimes directly associated with trafficking are often met with a criminal justice response that fails to consider the trafficking and associated trauma that the survivor’s behavior is propelled by. In so doing, the justice system fails to respond to the realities of trafficking and instead contributes to the abuse of vulnerable youth and young adults. But attorneys are well-positioned to help, and this article will discuss why and how.

Addressing the Impact of Trauma

The legal definition of trafficking includes any commercial sexual exploitation of a minor or when a person of any age is made to work by force, fear, or coercion and is not free to leave. The focus of this article is sex trafficking, but forced labor occurs in a variety of industries. The reality of how sex trafficking plays out in America is often different than what the public typically imagines or expects. Not all victims are children, bound or shackled, for example. Victims of sex trafficking may appear to have autonomy over their actions and access to a cell phone, while in reality they are being closely monitored by their trafficker. Survivors rarely self-identify as victims and often think of their trafficker as a boyfriend or protector. Many victims are targeted by traffickers who initially groom them and then sexually, physically, and emotionally abuse them. This can lead to “trauma bonds,” in which a victim develops a dysfunctional attachment to their abuser. Traumatic bonding is characterized by misplaced loyalty and a reliance on their abuser for survival, similar to “Stockholm Syndrome” and “Battered Person’s Syndrome.” Common misconceptions and a general lack of understanding of these dynamics has fueled an inadequate response from multiple government systems that should be protecting victims.

The criminal justice response to trafficking still does not recognize the impact of trauma and its ability to affect decision-making and effects on the brain itself. Heather Dye, The Impact and Long-Term Effects of Childhood Trauma, 28 J. Hum. Behav. in Soc. Env’t 381 (2018). What complicates this further is the system-imposed dichotomy that currently exists for survivors: as a criminal or a victim. Historically, the United States has approached enforcing against the sex trade by prostitution abatement, and sellers of sex have taken the brunt of punishment. While the Trafficking Victims Protection Act of 2000 codified sex trafficking into law, recognizing that those selling sex could be victims, it also reinforced the dichotomy, requiring law enforcement to quickly determine whether someone engaging in commercial sex is a vicitm or criminal. This dichotomy has had a devastating impact on survivors, who have been characterized as criminal defendants, while their underlying trauma as a victim has been ignored.

In Kenosha, Wisconsin, Chrystul, a teenage girl, was one of many children that were commercially sexually exploited by Randall Volar. Even when Chrystul didn’t want to have sex, Volar pinned her down and filmed raping her. Jessica Contrera, Chrystul Kizer, Sex Trafficking Victim Accused of Killing Alleged Abuser, Wins Appeal in Wisconsin, Wash. Post, June 3, 2021. He drove her to motels and sold her for sex with other men. After withstanding the abuse for a year, Chrystul allegedly shot and killed the man, then allegedly set his house on fire. Ibid. At 17 years old, she was charged as an adult with murder. She attempted to use Wisconsin’s version of the affirmative defense law. Ibid. While the district court found it inapplicable, the appellate court reversed, which will allow Chrystul to present evidence that she was a child sex-trafficking victim, who committed the crimes in order to survive. State v. Kizer, No. 2020AP192-CR, 2021 WL 2212719 (Wis. Ct. App. June 2, 2021).

It is crucial to understand who survivors of sex trafficking are and how they fit into the sex trade as a whole. Research is limited when it comes to the prevalence of sex trafficking, in part because of its clandestine nature, and in part due to the challenges in identification. Much of the research available on the sex trade relies on participants willing and open to engage in research. Not surprisingly, survivors of trafficking under the control of an exploiter will likely not have the agency or ability to participate in such research. Furthermore, for many survivors of trafficking, it takes a significant amount of time out of “the life” to disclose the extent of exploitation—meaning, many persons being sexually exploited will not identify as a victim even when the signs are there because this is a survival mechanism and a trauma response, as well as fear of criminalization.

It took me 10 years to get out because I was afraid if I asked for help I would go to jail. When I did ask for help, my trafficker was right; I was treated like a criminal.—Rebecca A.

Despite the rarity of disclosures of victimization, law enforcement and prosecutors often rely on disclosures to even consider whether trafficking is applicable in a criminal case. Chrystul was not seen as a victim by the criminal justice system, even though her trafficker was being investigated for sexually abusing multiple children. Just a couple of months before his death, police executed a search warrant at his house and found hundreds of child pornography videos including homemade videos of him abusing girls who appeared to investigators to be as young as 12 years old. Chrystul was one of them.

Alexis Martin’s lawyer didn’t present evidence that she was a sex-trafficking victim at her murder trial, despite Ohio’s “safe harbor” law. Under the law, Alexis would have been able to present evidence showing that her crimes were a direct result of her circumstance as a victim. She was just 15 years old and disclosed having a “pimp” in her very first interview with police. Nonetheless, Alexis was arrested, charged as an adult, and convicted of felony-murder based on her role in setting up the robbery, during which her trafficker was killed. She was being raped at the time. She was terrified of her trafficker, who had sold, sexually assaulted, and beaten her for months. She hoped that the robbery would provide a diversion, during which she could escape. Jessica Contrera, The State of Ohio vs. a Sex-Trafficked Teenager, Wash. Post, June 1, 2021. Instead, Alexis was arrested and prosecuted, and spent nearly a third of her life in prison before the Ohio governor granted her clemency request last year. Ibid.

These are terrified children trying to survive. They don’t belong in cages. The treatment of sex-trafficked kids in the criminal justice system is an extreme human rights abuse. These are traumatized children who need healing. I know from my own lived experience.—Sara Kruzan

Rejecting the False Dichotomy

Children ensnared in the sex trade are by definition victims; many adults are too. The criminal justice response must recognize this—their circumstance as a sex-trafficking victim cannot be disentangled from their criminal behavior. Justice requires a trauma-informed response to those who typically are merely trying to survive under the most brutal of conditions. When arrest is necessary, cases involving children should be handled in juvenile courts, where even serious criminal behavior can be addressed through rehabilitation and restoration, as opposed to lengthy prison terms in the adult system. For adult trafficking victims, many with histories of trauma and abuse, their experience as a victim must be considered and addressed by the criminal justice system.

It is also important to recognize that much of the sex trade operates on a spectrum. On one hand are the clear cases of trafficking where a minor is engaging in commercial sex, or an adult is engaging in the sex trade because a trafficker is using force, fraud, or coercion to exploit them. These individuals have little to no choice in who their buyers are, or where or when the sex acts happen, and they have very little to no control over the money exchanged. The trafficker decides everything for them.

On the other end of the spectrum is a sex worker, who has agency to choose who their buyer is, can make choices about when and where to engage in sex acts, and has control of the money exchanged. Often, many persons in the sex trade fall somewhere between these two ends of the spectrum, and it may change over the time they are in the sex trade. Some persons engage in the sex trade in exchange for basic necessities like food or housing, often called sex for survival. Other individuals engage in the sex trade to feed an addiction. Some individuals have no other feasible work options, especially if they already have a solicitation arrest on their record. Some have been conditioned to believe it is the only way they have value. The diversity of who engages in the sex trade prompts a societal and criminal response that recognizes the nuances. The criminal justice response must adjust to reality and work in the gray space to truly help persons who are being exploited or want to leave the sex trade.

Intersections and Vulnerability Factors

While in many criminal cases, only the direct circumstances are considered, it is important to consider underlying vulnerabilities with which many survivors present because it provides a road map of places for early intervention and prevention of revictimization. Many survivors have histories of abuse and neglect, and may come from situations of generational trauma. Traffickers are adept at manipulating these vulnerabilities, gaining trust, and fostering trauma bonding.

Keiana was sexually abused by her stepdad as a young child. Her mom, who had also been sex-trafficked and abused, was unable to provide safety or stability. By the time she was a teenager, Keiana was running away from home to get away from her family and her abusive and dysfunctional homelife. She was picked up and placed in juvenile hall multiple times, but she was never given the support that she needed to change her trajectory. Instead, she was commercially sexually exploited by multiple traffickers.

Trauma is a vulnerability to further trauma. In fact, studies have shown that children who have experienced five or more traumatic events are 8.3 times more likely to experience sexual violence as an adult. And children who are sexually abused are three times more likely to be a victim of sexual assault later in life. Katie A. Ports, Derek C. Ford & Melissa T. Merrick, Adverse Childhood Experiences and Sexual Victimization in Adulthood, 51 Child Abuse & Negligence 313 (2016). At one point, Keiana even testified against one of her traffickers, hoping that her status as a victim would yield some support. Instead, she was quickly back out on the streets, couch surfing and being sexually exploited on a nightly basis. One night, she and another minor met with a man who was attempting to buy Keiana for sex acts and the creation of child pornography. Instead, the teens kidnapped and robbed the man. Keiana was charged as an adult and ultimately sentenced to nearly 10 years in prison—a longer sentence than her trafficker had received. Anita Chabria, Sex Trafficking Victim Suicidal, L.A. Times, Sept. 7, 2020.

I was sent to prison as a teenager. Even though I was a sex-trafficking victim, no one helped me. Once you’re in prison, you’re nobody to anybody. I had to just figure out how to grow up. Instead of locking me up and throwing away the key, they could have offered me some sort of support system. I could have had a different life.—Keiana Aldrich

Thanks to the district attorney’s willingness to reconsider the case and the court agreeing to resentence her, Keiana was recently released and has begun to put her life back together. Smart, resilient, and determined, she has an opportunity to recast her future, but she is overcoming years of trauma and incarceration that she never should have been forced to endure. Anita Chabria, Sex-Trafficked and Imprisoned, Keiana Aldrich Wins Freedom After Long Fight, L.A. Times, Nov. 6, 2020.

It is important to recognize that certain populations are considered more vulnerable to trafficking, often due to the marginalization they face in society. This includes foster youth, youth with high ACE scores (adverse childhood experiences), foreign born or immigrants, persons suffering homelessness, runaway youth, individuals with various disabilities, persons from the LGBTQ+ community, and young persons aged 18–24 years old, who are considered adults under the law but very much still developing mentally. Traffickers understand and use these vulnerabilities to exploit victims and avoid culpability. The harm is exacerbated by failures in the legal and child welfare systems where early opportunities to intervene and offer a support structure are missed.

There are a number of intersections with the sex trade that often complicate adequate law enforcement response. Many situations of sex trafficking have components of domestic violence, often mirroring the power dynamic seen in abusive relationships, yet law enforcement miss additional cues relating to sexual exploitation. The intersection with sexual assault is obvious with commercial sexual exploitation—every sex act with a minor is an offense, and many sex acts with adults are not by choice or consent. Yet, despite being survivors of sexual assault, trafficking victims are often not provided with responsive vicitm services, including the right to a sexual assault advocate.

Those in the sex trade, regardless of the extent of exploitation, are at higher risk for violence and negative health outcomes. Individuals selling sex have mortality rates significantly higher than the general population, 17 times higher according to one research article, and are frequently subjected to violence and aggression, 40–90 percent more than the general population depending on the study. Michael Shively et al., A National Overview of Prostitution and Sex Trafficking Demand Reduction Efforts: Final Report (2012). This violence increases when layering racism, homophobia, and transphobia. Cheryl Nelson Butler, The Racial Roots of Human Trafficking, 62 UCLA L. Rev. 1464 (2015).

Intersections of race, gender, and sexuality compound vulnerabilities. Recent attention to missing and murdered indigenous women and girls connects to historical sexual violence and exploitation. Nick Pachelli, “Nobody Saw Me”: Why Are So Many Native American Women and Girls Trafficked?, Guardian, Dec. 18, 2019. Black women are disproportionately—90 percent— represented among female victims of prostitution-related homicide. Black women are also more likely to be arrested, have higher fines levied, receive more jail time, and have their children removed by the child welfare system. Dr. Valandra, Reclaiming Their Lives and Breaking Free: An Afrocentric Approach to Recovery from Prostitution, 22 J. Women & Soc. Work 195 (2007). They are also disproportionately trafficked. Nationally, despite being only 13 percent of the population, Black women make up 40 percent of human-trafficking survivors. Duren Banks & Tracey Kyckelhahn, Characteristics of Suspected Human Trafficking Incidents, 2008–2010, U.S. Dep’t of Just. Special Report, April 2011. Nearly 40 percent of those arrested for prostitution are Black. Crime in the U.S., FBI: UCR, tbl.42 (2017). Black women are overrepresented in a prison system where the majority of women have been victims of sexual abuse or exploitation. In fact, the vast majority of incarcerated girls have been subjected to physical or sexual abuse. Malika Saada Saar et al., The Sexual Abuse to Prison Pipeline: The Girls’ Story (n.d.).

While reporting numbers from law enforcement are low, there are indications that members from the LGBTQ+ community are vulnerable to sexual exploitation and subject to higher levels of violence. Omar Martinez & Guadalupe Kelle, Sex Trafficking of LGBT Individuals: A Call for Service Provision, Research, and Action, 42 Int’l L. News, Fall 2013, at 21. This underreporting is in part due to law enforcement’s procedures not being inclusive, but also due to the shame and stigma still associated with being anything other than cisgender and heterosexual, especially in the sex trade. Violence Against the Transgender Community in 2019, Hum. Rts. Campaign.

Paging Lawyers

Lawyers play such a pivotal role in assisting survivors of trafficking, regardless of specific expertise. Shifting the dichotomy away from criminal or victim when it comes to the sex trade is a much larger cultural shift that permeates all legal systems. Being able to recognize and address contributing factors of vulnerability in a survivor’s life can help with an affirmative defense, but also help in the overall healing process for a survivor. Lawyers are confidential and trusted counselors who are uniquely positioned to learn about potential vulnerabilities, trauma, and exploitation. Lawyers also have powerful tools to help address legal issues that limit a survivor’s ability to move forward with their life.

For me, being a lawyer is a path to empowerment. Throughout my journey, I’ve seen firsthand the power of the court system; it has the potential to criminalize survivors, unfortunately, but also has the power to restore survivors’ lives, helping them to rewrite the history of their convictions. I am deeply committed to being a part of the solution and helping other survivors overcome steep barriers—barriers I myself had to overcome to escape the cycle of sex trafficking and lead a meaningful life. The process of removing old convictions from my record took years and seemed insurmountable. The system isn’t set up for someone like me to succeed; I am going to law school to change that.—Nicole M.

Survivors have a number of legal needs that may include criminal defense, immigration relief, victim rights, civil actions against exploiters or abusers, vacatur and expungement of criminal records, pursuing of restraining orders, and gaining custody of children through family court. Helping survivors move past legal limitations can mean the difference of being able to find meaningful employment, feeling safe in a community, and moving forward. Working with local service providers ensures survivors can start to rebuild safety nets and have their basic needs met in a culturally responsive, trauma-informed manner. Attorneys should connect with the local human trafficking coalition in their area to meet partners working on the issue and get trained on how to be a trauma-informed advocate for survivors of trafficking. When lawyers have a chance—whether in criminal courts, juvenile courts, immigration courts, or family courts—to interact with a young person who may have been subjected to trauma and exploitation, the legal system’s response must include addressing the underlying trauma.

The legal field also has the opportunity to generate meaningful employment for survivors, with training programs and paid internships, that provide opportunity regardless of a criminal record or previous work experience. Survivors who overcome their abuse and choose to work within the legal and policy spaces offer invaluable perspective and insight on anti-human-trafficking advocacy, law, and policy. The voice of survivors is crucial as we push our policymakers away from the historical approach to the sex trade and create a more just world for survivors and children who are at risk. Despite how far society has come with policies addressing commercial sexual exploitation, significant gaps remain, and the impact has been at the expense of survivors. It is time to address these gaps and ensure a justice system that is responsive to the traumatic realities of sex trafficking.