Judicial Protections, Remedies, and Restitution for Human Trafficking

• Most states have enacted laws that shield trafficking victims from criminal prosecution for actions they were forced to commit, offer pathways to clear criminal records, and provide mechanisms for financial recovery-including restitution and civil standing-to provide additional rights to survivors of human trafficking.

• Many states now provide immunity, diversion, or affirmative defenses for survivors, with specific provisions tailored to vulnerable youth and adults to remove barriers to recovery, as well as asset forfeiture provisions for violators of human trafficking laws.

State lawmakers have legislated several criminal protections and civil remedies for trafficking victims in the judicial system. Measures have provided immunity to, diversion from, and affirmative defenses against, criminal prosecution for actions victims were forced to commit by their traffickers. Laws additionally create mechanisms to seal, vacate or expunge previous criminal convictions and provide for civil standing and restitution procedures that enable survivors to recover financially from their traffickers.

Criminal Protections

Criminal protections for trafficked survivors have been implemented at different stages in the justice process.

• Immunity and Diversion: measures to prevent or divert survivors from the justice system.
• Affirmative Defense: measures ensuring survivors' experiences are considered by courts.
• Vacation and Expungement: measures enabling survivors to clear their criminal records.

Financial Recovery

Lawmakers have also created mechanisms to help survivors recover financially from their traffickers.

• Restitution: as part of the criminal process, requires convicted traffickers to pay survivors for damages.
• Civil Standing: enables survivors to recover civilly for damages against them.
• Forfeiture: criminal forfeiture enables justice officials to seize assets used in, or benefitted from, criminal conduct.

Immunity and Diversion

To prevent arrested victims from entering the justice system, state laws can provide for immunity from prosecution or diversion to rehabilitative services. Many states apply these protections only to trafficked youth, as they are considered the most vulnerable population. Laws also charge agencies with developing comprehensive plans for assisting trafficked youth once they are identified and diverted from the justice system. Diversion options may require the admission of guilt or entering a conditional plea.

40 States and the District of Columbia Provide Victims Immunity and Diversion

State Examples

• Kentucky, Montana, North Dakota and Oklahoma require that a youth be a victim of trafficking crimes to receive immunity.
• North Dakota provides immunity for misdemeanor forgery, misdemeanor theft, credit offenses and controlled substances crimes in addition to prostitution.
• Kentucky provides immunity from prosecution for status offenses committed by trafficked youth.
• Nebraska and Wyoming are the only states to provide immunity from prosecution for trafficked children and adults.

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Affirmative Defense

Most states enable trafficked victims to assert an affirmative defense to criminal charges they face because of actions they were forced to commit by their traffickers. An affirmative defense is evidence that, if found credible, negates criminal liability even if it is proved the defendant committed the acts at issue. Statutes differ in the crimes for which an affirmative defense can be raised, but many cover prostitution, loitering and solicitation.

40 States Provide Affirmative Defense for Trafficking Survivors

State Examples

• Colorado allows an affirmative defense to be asserted if a person was under duress or coerced into committing offenses that were a direct result of, or incident to, trafficking.
• Illinois enables trafficked victims to assert an affirmative defense for charges of lewdness, prostitution and obscenity.
• Maryland requires a defendant wishing to assert an affirmative defense to notify the State's Attorney at least 10 days prior to trial.

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Vacating and Expunging

Many trafficked survivors have criminal records as a result of actions they were forced to commit by their traffickers. Forty-seven states have created procedures for survivors to expunge, vacate or seal criminal records related to being trafficked. Two of those states (Kansas and South Dakota) only provide relief for survivors who were minors when they were trafficked. As of 2023, Alaska, Iowa, and Maine do not provide criminal record relief for survivors. However, many of these laws have specific provisions and processes and are limited to certain crimes. Clearing a survivor's criminal record removes barriers to obtaining housing, gaining employment, pursuing education and restoring certain civic rights.

Criminal Record Relief 2023 Report

Criminal Record Relief Laws for Survivors

States that Seal, Expunge, or Vacate Survivors' Criminal Records

State Examples

• In Florida, the expungement law applies to arrests, charges or convictions if they occurred when a person was a victim of trafficking. The law does not limit the number of arrests or convictions.
• New Mexico enables a trafficked survivors' record to be sealed for non-homicide crimes if their involvement was due to duress, coercion, use of force or fraud.
• Washington provides survivors with procedures to vacate their prostitution convictions if it resulted from certain crimes committed against them. The crimes are promoting commercial sexual abuse of a minor, promoting prostitution in the first degree or trafficking.

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Restitution

When traffickers are convicted of their crimes, laws in many states require that they pay restitution to their victims. The goal of restitution in criminal cases is to address financially the harms done to a person in order to make them whole. State restitution laws in trafficking cases may contribute to payment for medical and psychological services, housing, childcare, property costs, repatriation and the cost of labor provided.

49 States Provide Restitution for Trafficked Survivors

State Examples

• Alabama requires forfeited proceeds from human trafficking crimes to first satisfy restitution.
• North Carolina requires restitution be paid in an amount equal to the value of the survivors' labor according to the Fair Labor Standards Act.
• Texas requires a person convicted of compelling prostitution to pay restitution in an amount equal to the cost of the medical and psychiatric treatment for all victims under 18 years of age.

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Civil Standing

State laws provide guidance on the civil suits survivors can bring against their traffickers. These laws can establish in which court a survivor can file their suit, what sort of damages can be recovered (actual damages, compensatory damages, punitive damages, injunctive relief, attorney costs and fees, treble damages, etc.) and the statute of limitations for their case to be brought to court.

48 States Provide Standing for Survivors' Civil Suits

State Examples

• Massachusetts requires a civil action to be brought within three years of the victim being identified, or if they were a child, within three years after they reach 18.
• Nevada enables a prevailing plaintiff in a civil action to also be awarded attorney costs and fees.
• West Virginia allows a trafficked survivor to recover treble damages if the defendant's acts were willful and malicious.

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Forfeiture

State laws enable justice officials to seize the property and assets of individuals and business entities convicted of committing trafficking crimes. Assets able to be seized can include profits, buildings and vehicles. States can direct funds specifically to victims of trafficking crimes via special funds or restitution, to government entities incurring costs of investigation or prosecution or to funds for general victim services.

48 States and D.C. Set Forfeiture Procedures for Trafficking Crimes

State Examples

• Alabama law requires the forfeiture of assets used in first- and second-degree human trafficking. The assets are required first to be used to pay restitution to trafficking victims, then to pay damages awarded to survivors in a civil action, next to the cost of the investigation and prosecution of trafficking crimes, with the remainder going towards the Alabama Crime Victims Compensation Fund.
• Rhode Island requires any person convicted of involuntary servitude or sex or labor trafficking to forfeit any profits, proceeds or property interest acquired or maintained as a result of the criminal activity. All forfeited proceeds will be deposited in the general fund.
• Wyoming requires the forfeiture of all buildings knowingly used to further human trafficking if the owner has knowledge of, or gives consent to, its use.

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