Recent news stories have attracted overdue public attention to the major worldwide problem of human trafficking. Because of its large immigrant population, geographic size, major seaports and extensive international border, California are considered by experts to be one of the top United States destinations for this activity.
The California Penal Code treats human trafficking as a felony and includes in its definition several types of conduct.
The first is limiting a person’s freedom in order to force him or her to perform labor or other services. This is usually done through some type of coercion or threat, though instances of trafficked persons being physically confined do occur. An example is a clothing factory owner whose products are made by illegal Mexican immigrants. The owner provides room and board but little or no pay. If a worker threatens to leave or call authorities, the owner threatens to report him or her to immigration.
The second type of violation also involves the intentional deprivation of liberty, but with the intent to violate laws against prostitution, child pornography or other sexual exploitation of children, or extortion or kidnapping. This type of violation often involves a pimp who compels a girl or woman to engage in sexual activity for money by using threats of violence against her or her family.
The final type of trafficking violation is similar to the second but requires only that the accused persuade or attempt to persuade a minor to engage in a sex act for pay. No proof of deprivation of liberty or freedom of movement is required.
Upon conviction, sentences include incarceration from between 8 and 20 years (15 to life in some instances involving force or threats against a minor) and fines of up to $500,000. Penalties were increased adopted following the passage of the Californians Against Sexual Exploitation Act (also known as Proposition 35) in 2012. Those convicted of sex-related trafficking will ordinarily also be required to register as sex offenders.
Dealing With a Trafficked Person’s Criminal Record
The services a trafficking victim is compelled to provide may in themselves be crimes. While California law recognizes duress as a defense to most criminal charges other than murder, the sorts of coercion used to control a trafficking victim are typically not severe or immediate enough to legally qualify as duress.
As such, many trafficking victims wind up with arrest and conviction records. Those fortunate enough to escape often find that these convictions limit their employment, educational and housing options.
To address this issue, a number of states have adopted so-called “vacatur” statutes. These laws allow trafficking victims to have their criminal convictions removed from their records under certain circumstances. California’s current vacatur law was adopted in 2016. It allows a trafficking victim to request that convictions be vacated if:
- The crime was nonviolent and was a consequence of the person’s having been a human trafficking victim
- The person is not then incarcerated
- The person either has no other convictions during the prior two years or has satisfied all conditions of probation
Similar provisions address situations in which the victim’s activity has resulted in juvenile court records.