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PERCEPTION, COMPULSION, AND THE “VICTIM-CRIMINAL”: Avoiding the Imposition of Criminality on Human Sex Trafficking Victims in Ohio

Written by Nikki Trautman Baszynski, Greif Fellow in Juvenile HumanTrafficking at the Ohio State University: Moritz College of Law

INTRODUCTION

The idea of a victim-criminal is not a unique one.  Certainly, there are plenty of criminals who have also been victims of crimes: a drug-dealer who is assaulted, a gang-member who is murdered, or a thief whose own property is later stolen.  But survivors of human sex trafficking are different.  It is by virtue of their victimization that they are also seen and treated as criminals.  This image of criminality undoubtedly influences those who enforce, interpret, and apply the law.  In order to most effectively recover and restore human sex trafficking victims, we must change our perspectives, practices, and laws to avoid burdening them with this dual-identity.  Ohio is taking significant steps toward this goal, but significant work remains to be done.

THE CREATION OF A “VICTIM-CRIMINAL”

Compelling someone to engage in a commercial sex act is a violation of Ohio’s recently-enacted Trafficking in Persons law.  O.R.C. § 2905.32.  It is a crime and the compelled person is a victim of that crime.  But it is also a crime to willingly engage or offer to engage in a commercial sex act.  O.R.C. §§  2907.241, 2907.24, 2907.25.  Importantly, victims of trafficking are often recovered once they have offered or attempted to engage in “sexual activity for hire.”  Id; see also Priscila A. Rocha, Our Backyard Slave Trade: The Result of Ohio’s Failure to Enact Comprehensive State-Level Human-Sex-Trafficking Legislation, 25 J.L. & Health 415, 437 (2012).  During an initial encounter with law enforcement, whether or not a victim is deemed a victim—or is instead seen as a criminal—turns on whether or not they are perceived to be selling themselves willingly.

Unfortunately, prior to the increased focus on human trafficking and efforts to raise awareness, there seemed to exist a presumption of willingness.  The inability of victims to self-identify as victims further solidified this presumption.  Laura Pratt, Hidden in Plain Sight: A General Overview of the Human Trafficking Issue, 75 Tex. B.J. 762, 764 (2012).  Red flags were ignored, and longstanding stereotypes contributed to the assumption that these transactions and exploitations involved freedom and choice.  See Kate Mogulescu, The Public Defender As Anti-Trafficking Advocate, an Unlikely Role: How Current New York City Arrest and Prosecution Policies Systematically Criminalize Victims of Sex Trafficking, 15 CUNY L. Rev. 471, 474 (2012); Jennifer A.L. Sheldon-Sherman, The Missing “P”: Prosecution, Prevention, Protection, and Partnership in the Trafficking Victims Protection Act, 117 Penn St. L. Rev. 443, 486–89 (2012) (discussing difference in perception among law enforcement who participate in human trafficking task forces and those who do not).  Perception generally defaulted to willingness, which means victims were generally seen as criminals.

Under federal law, any person under the age of 18 who is engaged in a commercial sex act is a victim of human trafficking.  22 U.S.C § 7102.  The federal law does not require proof of force, fraud, or coercion if the victim is under 18, which means juvenile victims can more readily be identified as such and avoid the criminal label.  A lack of willingness is essentially presumed by the law.  In contrast, a victim of human trafficking in Ohio is one who has been compelled (through force, fear, duress, or intimidation) to engage in a commercial sex act—regardless of age.  O.R.C. § 2905.32.  So, the perception of criminality is directly tied to the perception of willingness (I use the term willingness because Ohio law defines compulsion as “overcoming the will of the victim.”).  Id.

Thus, the victim-criminal identity is created by both perceptions and laws: the perception and presumption of willingness and the laws against the activity in which the victim is being compelled to engage.  See generally Mogulescu, supra.  Loitering, soliciting, and prostitution will very likely remain crimes in Ohio.  So, in order to avoid burdening survivors with the victim-criminal identity, we must change the perception that each individual engaged in commercial sexual activity is doing so willingly and enact laws that reflect that changed perception.  Ohio has taken several significant steps in this direction.  Three of these steps are highlighted below.

CURRENT EFFORTS

Law Enforcement

Because of the concerted efforts of multiple federal, state, and local entities, perceptions of those engaged in what seems to be solicitation and prostitution are changing.  A 17-year-old girl in a hotel room is not necessarily presumed to be there of her own accord.  Those who encounter her may ask her questions, may question her answers (which is important because most trafficking victims have been trained to lie to law enforcement), and may attempt to connect her to resources and social services instead of arresting her outright.  See Robert Moossy, Nat’l Inst. of Justice, Sex Trafficking: Identifying Cases and Victims (2009).  But, these changes have developed because law enforcement is treating the individual as a potential victim first.

A local vice detective highlights this new perspective by explaining that officers should treat every prostitution or solicitation case as a potential human trafficking case first.  Legal and Law Enforcement Panel, Ohio 5th Annual Human Trafficking Awareness Day (Jan. 9, 2014)  Little harm is caused if it turns out the case doesn’t involve a trafficking victim.  But, if it turns out that that it does, criminalizing the victim creates a host of obstacles.

First, treating the victim like a criminal sets him or her up for numerous difficulties.  Solicitation and prostitution charges can result in jail time, fines, a criminal record which will serve as a barrier to employment and resources, and a feeling of devaluation.  See Amy L. Solomon, Nat’l Inst. of Justice, In Search of a Job: Criminal Records as Barriers to Employment; Julie Lefler, Shining the Spotlight on Johns: Moving Toward Equal Treatment of Male Customers and Female Prostitutes, 10 Hastings Women’s L.J. 11, 35 (1999); Bernard P. Perlmutter, “Unchain the Children”: Gault, Therapeutic Jurisprudence, and Shackling, 9 Barry L. Rev. 1, 19 (2007).  Second, it legitimates the stories and warnings traffickers feed their victims to persuade them not to seek help from authorities.  Traffickers tell their victims that police will simply arrest them and throw them in jail and that they are not interested in helping them.  Miami-Dade Grand Jury, Final Report 3 (Fall Term 2012), http://www.miamisao.com/publications/grand_jury/2000s/gj2012f.pdf.  When police later do exactly that, it enhances the power of the trafficker and confirms his threats.  This reduces the likelihood that victims will seek out help in the future or that they will cooperate with law enforcement if the trafficker is ever charged and brought to trial.  This result is yet another way criminality burdens the trafficking victim.

Accordingly, altered police tactics in recovering victims and investigating these cases is essential.  Rocha, supra, at 442.  Ohio’s trend toward this new style of investigation echoes the federal government’s efforts to “recast child prostitution” cases as human trafficking cases.  Feds Recast Child Prostitutes as Victims, Not Criminals, NPR: All Things Considered (Oct. 24, 2013), available at http://www.npr.org/2013/10/24/240493177/feds-recast-child-prostitutes-as-victims-not-criminals.  In order to effectively transform these cases, law enforcement must be trained to recognize red flags, address victim needs, and understand the culture of human sex trafficking.  Recent efforts on the part of the Ohio Governor’s Office and the Ohio Attorney General’s Office to increase training of law enforcement should ensure we achieve skilled investigation of human trafficking cases and compassionate treatment of victims as victims instead of criminals. See Ohio Human Trafficking Task Force, http://humantrafficking.ohio.gov (last visited Jan. 16, 2014); Human Trafficking Commission, Ohio Attorney General, http://www.ohioattorneygeneral.gov/Individuals-and-Families/Victims/Human-Trafficking-Commission (last visited Jan. 16, 2014).  This approach should also then reduce the number of arrests, the amount of jail time, and the number of criminal records for victims resulting from human sex trafficking.  In short, it will allow more victims to avoid being seen and treated as criminals, too.

Safe Harbor Law and Juveniles

Ohio’s recent human trafficking legislation, House Bill 262, enacted a series of provisions known as “Safe Harbor” to safeguard against burdening victims with the criminal label.  Melinda Sykes Haggerty, Human Trafficking in Ohio, Ohio Lawyer Nov./Dec. 2013, at 6, 9.  Before Safe Harbor, a juvenile victim charged with loitering, solicitation, or prostitution would enter the court as a standard delinquency case: the child would admit or deny the charges and if adjudicated delinquent, the exploitation would either establish or further mar their juvenile record.  Now, when a juvenile victim is charged with loitering, solicitation, or prostitution, he or she has the opportunity to avoid further victimization by the courts.

The Safe Harbor Law requires a guardian ad litem to be appointed in every case where a juvenile has been charged with loitering, solicitation, or prostitution, or where trafficking is suspected.  O.R.C. § 2152.021(f)(3).  It empowers the court to hold the complaint in abeyance.  O.R.C. § 2152.021(f)(1).  Instead of determining a punishment, the court can order the juvenile to participate in a series of programs aimed at rehabilitation.  O.R.C. § 2152.021(f)(4).  Significantly, if the juvenile successfully completes the program, the charges are dismissed, the records of the case are expunged, O.R.C. § 2152.021(f)(5), and the criminal identity is avoided.  (Though juveniles charged with and adjudicated to have been engaged in these crimes would technically be considered “delinquent,” see McKeiver v. Pennsylvania, 403 U.S. 528, 571 (1971), many juveniles charged with these crimes feel as though they are treated as criminals, whether the label is legally accurate or not.  See id. at 542–43; see also Barry C. Feld, Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy, 88 J. Crim. L. & Criminology 68 (1997)).  Though the federal law is more ideal as it ensures every juvenile victim avoids being identified as a criminal, the Ohio Safe Harbor Law still serves as an effective way of guarding against this danger.

Record Expungement

For those victims who are not fortunate enough to avoid being cloaked with a criminal identity, HB 262 enacted a process to later remove the evidence of their exploitation from their record.  O.R.C. § 2953.38(B).  “Victims of sex trafficking who are forced into prostitution are frequently arrested for prostitution-related offenses and saddled with the criminal record. They are blocked from decent jobs and other prospects of rebuilding their lives.  Even after they escape from sex trafficking, the criminal record victimizes them for life.”  People v. G.M., 32 Misc. 3d 274, 281 (Crim. Ct. 2011).  The expungement process allows human trafficking victims to expunge prior convictions and “pursue a future uninhibited by the past.”  Vacating Convictions, Polaris Project, http://www.polarisproject.org/human-trafficking/sex-trafficking-in-the-us/street-prostitution (last visited Jan. 16, 2014).  The expungement includes any charges (established by a preponderance of the evidence) to have been a result of their victimization.  O.R.C. § 2953.38(B).

Though efforts should obviously be spent avoiding criminalization, providing a way to cast off a criminal identity moves victims closer to restoration.

NEXT STEPS

Ohio’s new laws are rooted in a shift in perspective.  This new perspective acknowledges that human trafficking exists “in our own backyard” and that victims should be treated as victims, not criminals.  But because the laws are so new, they are largely untested and the statutory protections remain to be interpreted in the courts.  Those interpretations will be informed by perceptions of this exploitation and the victims themselves.  As important as the training of law enforcement is to avoiding the criminalization of victims, those who are encountering victims within the courts must be trained, as well.  Every component of the legal system must develop an awareness and understanding of this uniquely tragic form of exploitation in order to safeguard against imposing a damaging criminality on some of society’s most vulnerable victims.

The author thanks Megan Mattimoe of Advocating Opportunity for her help in drafting this article.

nikki

Nikki Trautman Baszynski is the inaugural Greif Fellow in Juvenile Human Trafficking at the Ohio State University Moritz College of Law.  She is a 2013 graduate of Moritz and spent two years clerking at the Franklin County Public Defender’s Juvenile Division before accepting her current position.  Prior to law school, she served as a founding teacher at the high-performing Columbus Collegiate Academy and as a Teach for America corps member in the Bronx.