chevron-down Created with Sketch Beta.
April 21, 2021 Feature

The Judicial System Can Mitigate Re-traumatizing Sex and Labor Trafficking Survivors

By Judge Virginia Kendall and Christi Wigle

Survivor experiences included in this article are permission-based. The terms victim and survivor are used interchangeably according to the preference of each individual. To understand the implications of a trauma-informed judicial system, we must listen to survivors and their experiences with judicial actors.

"My Trafficker Got More Than 10 Years, and I Got a Life Sentence."

"Erin" is a sex trafficking survivor who was trafficked when she was 18, along with several other females, including a minor. Her trafficker beat and assaulted her and the other victims and threatened those who left or attempted to leave. Her trafficker was eventually convicted of sex trafficking of children, conspiracy to obstruct a sex trafficking investigation, and other drug-related charges. Erin's testimony helped the federal prosecutor secure more than a 10-year sentence against her abuser.

Following her trafficker's arrest and with few items left to call her own, she took steps to get her life back on track again. This included a promise from the Federal Bureau of Investigations (FBI) to return her belongings that had been confiscated during her trafficker's arrest. Even after the court proceedings ended, Erin never received her personal items. Although she felt safer with her trafficker in prison, she said she would have reconsidered providing her testimony if she had known that the FBI's promises of follow-up support would not materialize. She was awarded a $1,500 civil litigation payment, but the lack of receiving trauma counseling left Erin struggling with the nightmares she had endured as a sex trafficking victim.

The lack of community resources made it harder for Erin to get back on her feet and not become a victim again because many survivors do not want to be on their own and may choose to remain in an abusive relationship to avoid being alone. Erin was one of those victims who remained in an abusive relationship and did not have stable housing, which eventually led her to lose her parental rights to her infant daughter.

The emotional distress of saying goodbye to her daughter challenged her desire to live. Despite this mental hardship, Erin's challenges with the court system did not end when she lost her parental rights. She was required to pay child support, even after she was approved to receive Social Security Disability Insurance (SSDI) due to post-traumatic stress disorder (PTSD) from her victimization. The state threatened her multiple times that she would lose her driver's license if she did not pay the child support every month. Erin's love of her daughter never wavered, and she did whatever she could to make a payment to child support most months. It was not until years later that the state informed her that they should never have made her pay the child support because she was on SSDI. None of those funds have been returned to her.

Erin is thankful that her trafficker was sentenced to prison and that he can no longer hurt her while he is incarcerated. But as she reflects upon her experience with the judicial system, she does not have anything positive to say about the lack of trauma-informed care she received throughout this process. She was promised that everything was going to be okay by the prosecutor, but her experience proved that there was a lack of community programs available to provide a continuum of care.

Her recommendation to the judicial system is to never make promises that you cannot keep. Good intentions do not secure a stable lifestyle, nor do they open doors of opportunity without having access to those resources. Making promises that cannot be kept perpetuates a cycle of not trusting the very people who are there to help.

Erin acknowledges that counter-trafficking progress has been made over the last several years, but she encourages the judicial system to become better educated on the trauma endured by trafficking victims and work diligently with community resource providers to offer resources that may allow families to stay together. The prevalence of sex and labor trafficking is unknown, but every survivor who agrees to testify against their abuser should receive trauma-informed resources from community partners, court advocates, attorneys, and judges. Engaging and interacting with the judicial system impacts each survivor's view of those included in this process. If re-traumatization occurs, even unintentionally by one of the multidisciplinary team members, it may leave a negative impact on the survivor's involvement and diminish their trust in the entire system. The burden lies within the judicial system to ensure that contributors in this process have received trauma-informed training in working with victims of human trafficking.

Erin's trafficker will walk free after serving more than 10 years in federal prison, but she knows that she has lost her daughter for the rest of her life. Erin is a fighter and a survivor who has secured stable housing during the last several years. She also just welcomed a son during 2020. She desires to one day be reunited with her daughter.

Erin's story is not unique in a judicial system where multidisciplinary teams need additional training about the psychological victimization of human trafficking. In reflection upon the judiciary, most judges have little experience with the crime and tend to analyze these cases from an archaic viewpoint that fails to consider the power structure of the trafficker over his victim. Others tend to assume that they have no role in protecting the rights of victims or providing them with services--this is a role for the prosecutor's office or for law enforcement. This lack of knowledge is not surprising when judges have not been trained to know what rights victims have; how this psychological control impacts the manner in which they appear, testify, and act; and how trauma impacts their future.

In 2005, the United States ratified the United Nations's Palermo Protocol as part of the United Nations Convention against Transnational Organized Crime. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, was adopted by General Assembly Resolution 55/25 and entered into force on December 25, 2003. It is the first global legally binding instrument with an agreed definition on trafficking in persons. To date, 147 countries have ratified the protocol. Within the protocol, each signatory agreed to enact legislation to combat trafficking, and critical to its focus were the protection and treatment of victims. States were expected to train law enforcement and the judiciary to provide humane treatment to victims. Cooperation between nongovernmental actors such as nonprofit organizations was expected to provide services to victims. Key to the protocol is training--training of prosecutors, first responders, and the judiciary.

In a criminal justice system where law enforcement officers are trained to interview victims and suspects to obtain the who, what, when, where, and how of a crime, human trafficking victims rarely are cooperative with law enforcement during their first confrontation. They have been trained to be evasive and to lie about their age and what they are doing with the trafficker. Failure to follow the code set forth by the trafficker results in physical and sexual abuse. Victims come across to law enforcement as confrontational and even as potential defendants instead of survivors. The result is inconsistent statements, which develop in detail as the victim receives services and finally sees that he or she might escape the cycle of abuse.

These inconsistencies come back to haunt victims as they enter the courtroom. Inconsistent statements are fertile ground for tough cross-examination by skilled defense attorneys. Even the various services provided to the victims become the basis for challenging the "benefits" received from the government "in return for the victim's testimony against the defendant." It takes a tough person to withstand this attack after suffering the abuse of her trafficker for months and even years.

A trained judiciary can fulfill the obligations of the United States under the Palermo Protocol. Judges must be trained about their obligations to victims. A case with minor victims should be prioritized over criminal matters and should not be delayed. The victims are entitled to have their identities withheld from the public record; to receive HIV testing and counseling; to have an advocate with them in the courtroom; and to be linked to services like education, housing, and immigration counseling. International victims are entitled to be repatriated to their home countries or given access to a T-visa or U-visa that enables them to start on the track to remain in the United States.

During the trial, judges must be aware of the body of case law that permits expert testimony to explain to an unknowing jury what the traffickers use as their modes and methods. The jury must learn that the psychological force is sufficient to vitiate any consent that appears to have been given by an adult and, if the victim is under 18, that no force, even psychological, is necessary. Accurate jury instructions are critical to the successful conviction. Judges also must learn the evidentiary rules that prohibit the defense from bringing in past sexual conduct of the victim.

Finally, if a conviction occurs, the judge must give the mandatory restitution necessary to afford the survivor a path to reintegration into society. Sadly, not all judges are aware of these basic obligations, and stories like Erin's prevail. Most victims who pass through the criminal justice system complain of two things: (1) the lack of information about the process and (2) the length of time to complete the process. Judges can ensure a remedy to both of these complaints.

Take, for example, another victim, "London." Her experience with the judicial system was much different than Erin's. London indicated that she received trauma-informed care throughout most of her interactions with the court system.

As a sex trafficking survivor, her experience with the prosecutor was trauma-informed, and London felt protected throughout the entire process following the arrest of her trafficker. She received community support to help in her recovery process. She said she felt strong enough to face her trafficker and she chose to offer her testimony in the trafficking case; however, her trafficker died while depositions were being conducted. She acknowledged that she never felt pressure from the state to testify, which helped her to trust them and the judicial process.

As a result of being trafficked, London had more than 20 criminal charges filed against her, including prostitution and drug-related charges. She struggled to get a cell phone in her name, volunteer at school, or do other normal activities that require a clean criminal record. Her trauma impacted her daily life, and she sought to receive SSDI because of her PTSD.

London shared that the most positive experience she has had in the judicial system is working with her Social Security attorney. Her attorney fought for her, even through each denial. The judge denied London's disability claim because of her criminal history. In addition, she applied for the victim compensation fund, but she was denied due to her felonies.

Her attorney assisted in the process to petition the state to expunge the crimes she was charged with as a sex trafficking victim. The state granted her petition, and all her criminal charges have been dropped. London is now proceeding to appeal the victim compensation fund request and her SSDI request.

London encourages the judicial system to ensure that judges, attorneys, court advocates, and other key personnel receive intensive training on providing trauma-informed care to human trafficking victims. There is a need to look beyond what they see in someone's file during a court proceeding.

The impact of not getting approved for SSDI has presented long-lasting consequences in London's daily life, including not affording housing rent because she is unable to work. Thankfully, she has an attorney who is continuing to fight for her as they appeal the disability court's decision . . . with a file that no longer includes a criminal history on her record.

Human Trafficking Cases in the Judicial System

Traumatic encounters with the court system are not an uncommon experience for trafficking victims, as Erin's and London's experiences mirror those of other survivors who are unable to lead normal lives due to arrests for offenses committed while being victimized. Unfortunately, the sensationalized imagery of human trafficking often reflects mistakenly onto victims, creating barriers for judges and attorneys who then mischaracterize a victim as an offender.

This problem was clearly illustrated by a 2016 survey conducted by the National Survivor Network on the impact of criminal arrest and detention on survivors of human trafficking. Of the 130 survivor respondents, 91 percent reported being arrested as minors, 65.3 percent indicated they had been arrested for prostitution, 40 percent reported being arrested for drug possession, and 60 percent reported being arrested for other crimes. Common judicial exposures include immigration hearings, divorce proceedings that determine parental rights of the children, child welfare proceedings, disability hearings, drug arrests, and juvenile delinquencies.

To be clear, the courts have a critical role in establishing processes to apply a trauma-informed response for all victims. This role includes connecting community resources to each victim to ensure they feel safe throughout the court process. The trauma experienced by Erin and London during two of the few human trafficking cases that make it to prosecution illustrate the importance of ensuring all aspects of a survivor's interaction with the court system are trauma-informed.

Making Data-Driven and Trauma-Informed Decisions

Justice system actors are tasked with identifying, classifying, and responding to human trafficking cases. As a result of improved human trafficking education and training, law enforcement agencies, lawyers, and judges have dramatically reduced the criminalization of trafficking victims. There is, however, more work to do to prevent vulnerable victims from falling through the cracks; therefore, survivors continue to push for a consistent, trauma-informed approach to the legal treatment of victims to help build trust in the criminal justice process.

To this end, the Urban Institute recently released a brief for practitioners, law enforcement officials, prosecutors, judges, and advocates to initiate trauma-informed care at several decision points, including arrest, investigation, and prosecution. A key method included building trust with survivors and recognizing how crucial it is to provide critical support in their healing journeys.

One potential approach is to ensure court-appointed advocates are made available to survivors to understand the processes and impact of courtroom proceedings and actions. This can help reduce barriers to survivor participation by guiding each survivor through court appearances. For example, some survivors may fear wearing a mask during a pandemic because it reminds them of abusive and controlling practices by their trafficker. If the court fails to understand this, any reactionary behavior could be perceived as belligerent behavior and could impact the perception of the survivor in court. Some survivors may be required to appear on video for a court meeting but refuse to proceed because they are triggered from being forced to do pornography during their exploitation. Labor trafficking survivors who are foreign nationals may avoid court appearances because of a fear of deportation. A failure to understand how traumatic emotional injuries impact a survivor's behavior risks a miscarriage of justice in individual cases and endangers the integrity of the justice system's approach to trafficking. A court advocate can be a critical part of that understanding and can help ensure each interaction with the courts is trauma-informed, emotionally safe, and more likely to succeed in providing justice.

Other best practices have been pursued over the last several years to change the narrative of victims testifying in court and limiting requirements that may be harmful. The D.C.-based nonprofit Collective Liberty has created an innovative space for collaboration through multidisciplinary and multijurisdiction trainings, serving as objective facilitators and trainers. Over 2,500 law enforcement officers and 3,000 professionals have been trained to use cutting-edge technology and actionable data to inform their internal detection and investigation practices to help end human trafficking.

Rochelle Keyhan, CEO of Collective Liberty, says, "Our data-driven intelligence support, and collaborative training efforts, have empowered multiple jurisdictions to charge their first labor trafficking cases and dozens of jurisdictions to move away from arresting victims who don't outcry. The investigative energy is now shifting toward exploiters--identifying and prosecuting traffickers, and identifying and prosecuting buyers, especially those who attempt to purchase children. The digital community of practice where national anti-trafficking detectives come together to access resources and connect with one another to collaborate has also led to the combining of forces, making weaker cases in multiple jurisdictions one collaboratively strong case."

Detective Joseph Scaramucci, with the McLennan County (Texas) Sheriff's Department, joins Collective Liberty and trains judicial system actors across the country. "We need to shift our mindset and build cases around other types of evidence. We often spend too much time trying to leverage cooperation from victims instead of moving forward on a case." Scaramucci continues, "Current methods used to identify victims and traffickers are not working and are often re-traumatizing victims due to arrest. Using innovative, non-traditional best practices to investigative trafficking, without the need for a victim to cooperate, or to be arrested, will not only ensure we are arresting real perpetrators but will help with the holistic needs our survivors need to have met."

Keyhan adds, "There are almost 18,000 jurisdictions in the U.S., so we have a long road ahead with training and equipping all of them with the data and resources they need to both strongly implement and enforce current anti-trafficking laws and also to strengthen provisions in existing laws."

Developing innovative methods to provide trauma-informed care in the court system requires us to understand the trauma experienced by victims, an understanding that can only come from collecting and analyzing front-line data around trafficking and the aftermath from survivors. Those data do not currently exist; to help fill this void, United Against Slavery will launch a National Outreach Survey for Justice across the judicial sectors to identify elements to improve the fight against human trafficking; this will also include a survey of sex and labor trafficking survivors to provide a comprehensive collection of experiences in the courtroom and offer recommendations to improve future outcomes for trafficking survivors.

The fight against human trafficking is challenging and complex. It requires a multidisciplinary approach, rooted in law and informed and driven by data collected from victims, survivors, and industry. The challenge we face is to provide a comprehensive trauma-informed approach for sex and labor trafficking survivors in the judicial system.

The Importance of Listening to Trafficking Survivors and Their Experiences

Ronny Marty is a former member of the U.S. Advisory Council on Human Trafficking. As a labor trafficking survivor, Ronny shared that his experience with the judicial system is unique because the entire process was positive.

From the first moment that he started working with the U.S. Immigration and Customs Enforcement (ICE) agent, she always treated him and the other survivors with respect and dignity. She was the main point of contact between the survivors and the attorney assigned to the case. The interview process was not stressful because of the respect and compassion that were shown to each survivor. The ICE agent made Ronny feel like everything was not lost. She referred Ronny to a local nongovernmental organization for a continuum of care and she worked with the officer on the case to assist Ronny with the T-visa application process.

Ronny's recommendation for the judicial system is to have a proper trauma-informed approach, have compassion for others, and listen more before judging or making conclusions. Ronny acknowledges that the positive experiences with his case are not as common for other survivors.

He says, "I highlight my positive experience to prove that if we are properly trained and treat people with respect, the story of lots of survivors could be different and we can make it right."

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    By Judge Virginia Kendall and Christi Wigle

    Hon. Virginia Kendall is a district court judge in the Northern District of Illinois. She teaches human trafficking law at a number of law schools, including the University of Chicago. Christi Wigle is the CEO and co-founder of United Against Slavery (UAS) and is the principal investigator for the award-winning UAS research and data collection of more than 20 stakeholder groups, in collaboration with professionals in more than 22 countries.