Although the Protocol against Trafficking in Persons treats trafficked persons as victims, it does not grant them immunity from prosecution, detention, deportation or other forms of punishment for crimes committed during the period of their exploitation, such as breaches of immigration and labour laws, possession and use of forged official documents, prostitution or drug offences. Nor does the Universal Declaration of Human Rights.
However, paragraph 5 of Guideline 4 of OHCHR's Recommended Principles and Guidelines on Human Rights and Human Trafficking outlines that States should consider "[e]nsuring that legislation prevents trafficked persons from being prosecuted, detained or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as trafficked persons".
This approach is also reflected in the Council of Europe Convention, the Directive 2011/ 36/ EU of the European Parliament and of the Council of 5 April 2011, and the Association of Southeast Asian Nations (ASEAN) Convention against Trafficking in Persons, especially Women and Children (2015):
The non-criminalization principle is important for numerous reasons. Schloenhardt and Markey-Towler (2016, p. 12) note, in particular, that it increases the likelihood that "victims will exit their trafficking situation and cooperate freely with law enforcement and other authorities in the investigation and prosecution of their traffickers" (the article observes that the principle is still somewhat contentious). The principle responds to the recognition that victims of trafficking are often given no choice by their traffickers to engage in forms of criminal conduct, as well as the fact that, too often, "trafficking victims are treated not as victims but as criminals" (Elliott 2009, p. 738).
Several countries have enshrined this principle into their anti-trafficking law, examples of which are included in Box 25.
The immunity granted by some countries is conditional on the victim assisting or cooperating with law enforcement and prosecution authorities to prosecute traffickers. For example:
Nina ran away from home at 14. She met a woman who put her up in a hotel room and brought "clients" to her. For the next 13 years, Nina had 20 different pimps who advertised her for sex on the internet and abused her verbally and physically. By the time Nina - whose real name I won't reveal to help protect her identity - was finally referred to victim services, she had been convicted of 52 offenses, mostly prostitution, but also theft and using a false ID. She had spent time in both juvenile hall and jail. Should Nina have a criminal record? The ramifications of a criminal record are very real- whether for a survivor of sex trafficking who cannot get a job or rent an apartment because of prior arrests for prostitution; a domestic worker who has fled her abusive household and needs protection but instead is penalized for violating U.S. immigration laws; or those forced by organized criminal groups to produce, transport, and sell drugs. This is a reality many local governments and law enforcement officials are grappling with because of the growing awareness about human trafficking, also known as modern slavery, and an understanding of who the victims are. We now know that some of the very people being criminalized are those that need the most protection. Recently, I spoke at the National Association of Attorneys General winter meeting in Washington D.C. in support of vacatur laws for trafficking victims convicted of nonviolent crimes committed as a direct result of their victimization. Some U.S. states have enacted provisions that provide survivors the ability to seek a court order vacating or expunging criminal convictions entered against them that resulted from their trafficking situation. These laws are needed, as often, victims who are forced to commit a crime are mistaken for criminals by law enforcement and judicial officials. Many victims of both sex and labour trafficking, both here in the U.S. and around the world, remain undetected among those who have committed crimes because they fear coming forward and law enforcement lack of proper victim screening and identification measures. (…)
While government efforts can never fully undo the trauma that results from human trafficking, we can start by improving our laws and policies to ensure that human trafficking victims are not prosecuted for crimes they have been forced to commit in the first place. If prosecuted and convicted, we must have a system in place to vacate, or expunge, the criminal records of trafficking victims. In 2010, New York became the first state to pass a law allowing survivors of trafficking to vacate their convictions for prostitution offenses. In 2013, Florida's law went even further, providing for the expungement of "any conviction for an offense committed while ... a victim of human trafficking." Vacatur laws provide trafficking victims not only with an opportunity to correct past injustices, but also help them rebuild their lives. At least one study found an estimated 80 percent or more of employers in the United States use criminal background checks during their employment process. Vacatur increases a survivor's ability to find work, reducing economic vulnerabilities and the risk of being re-trafficked. (…)
Trafficking survivors deserve a fresh start and a future full of possibilities and potential, without the stigma and pain of human trafficking haunting them forever.
Luz, a 33-year-old woman trafficked into the U.S. from Latin America, had multiple encounters with the New York Criminal Justice System that left her feeling scared, confused, and disempowered. She explained: "Each time [the police] raided a place I was working, I was very scared. The police would take me and the other women working there to a police precinct, where they would take our fingerprints and hold us in a cell overnight. … Sometimes, the owner of the house would send a lawyer to represent us … He would speak to all of the women together and tell us that when we went before the judge, we should say we were guilty… When I went before the judge, [the lawyer] would do all the talking in English. I didn't say anything. There was an interpreter, but I didn't really understand what was happening. I was nervous and confused the whole time." Even after escaping her trafficking situation, Luz was trapped by the poverty and hardships that resulted from having been trafficked into the sex industry, exposing her to continued exploitation: "I had no money and an infant son to support, and so I had to continue working. Although I desperately wanted to stop working in prostitution, I was unable to do so immediately because I owed money for rent and food for my family. I tried to find other work, but I didn't speak English, I wasn't in the country legally, and I didn't know what else to do. Without any friends, financial support, or work documents, I had no other way to take care of myself and my son. Therefore, I regrettably continued in the only thing I knew to do." When Luz finally was able to break free from engaging in prostitution, she found that her convictions posed a huge barrier to moving forward with her life:
"I have worked many different jobs since I stopped working in prostitution, but it is always hard to find work that pays enough for me to meet my expenses and care for my children. … I completed a program to be certified as a home health care attendant. As soon as I received the certification, I submitted an application to be listed by a home health care agency, but they rejected my application because of my criminal record. I believe a big reason I have had such a hard time finding and keeping a job is because of the prostitution-related criminal convictions that are on my record."
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