Court Tests of New Defense Are Likely

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In September of last year, Governor Brown signed Assembly Bill 1761 into law. The Bill provides that a victim of human trafficking will have the opportunity to assert that fact as a defense against prosecution for certain nonviolent crimes. Traffickers are known to use violence and threats to compel their victims to perform illegal acts, and even violent crimes (other than capital offenses) may also be excused if they were the result of this type of duress.

To date, no cases in which the trafficking defense has been asserted have been publicly reported. However, given the disproportionate percentage of trafficking victims who are females forced into lives as sex workers, the most likely scenarios would seem to be ones in which the trafficking victim is charged with prostitution, theft or drug possession.

Human Trafficking

Affirmative Defenses 

AB 1761 created a so-called “affirmative defense” to criminal charges. Here’s how these defenses come into play.

Even when all the actions that make up a particular crime are proven or admitted, a criminal defendant is given an opportunity to show that those actions were justified and that he or she should not be held criminally responsible. Because the defendant must raise the justification, it is referred to as an  “affirmative” defense. Only certain legally recognized circumstances may qualify.

Self-defense is probably the most widely known. The defendant may not even dispute that he deliberately took another person’s life, which would ordinarily be considered criminal culpable homicide. However, that defendant will then be allowed to provide proof that he was attacked by the victim, that he was in fear for his life and that deadly force was necessary. The jury must then weigh both sides of the story and determine whether the defense is credible and justifies a not guilty verdict.

In short, if the defendant can show that her treatment at the hands of a trafficker was directly responsible for her crime, she should be found not guilty.

With the enactment of AB 1761, California joins approximately thirty-five other states that have formally recognized an affirmative defense to non-violent criminal charges based on the defendant’s own status as a trafficking victim, and comparable bills have been introduced in several others.

In addition, AB 1761 provides that a trafficking victim may be found not guilty of a violent crime (other than one punishable by death) by proving that he or she acted under duress – that is, the threat of harm to the victim or to others, typically by the individual responsible for depriving the victim of his or her liberty.

Additional Protections

AB 1761 also:

  • Requires the court to dismiss all charges against a defendant under age 18 to the extent they are related to a “commercial sex act”, that is, any sex act in connection with which money is paid to any person
  • Allows a trafficking victim who successfully asserts an affirmative defense to have all court records sealed and to be released from all penalties
  • Creates a presumption that expert testimony may be introduced by either the defense or prosecution to show the effects of human trafficking on its victims


Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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