The measure was inspired by a 15-year-old girl who was sentenced to 20 years in prison after committing an aggravated robbery with her alleged pimp in 2016. The fact that the teenager was trafficked never came up in her case, nor did the fact that she was pressured to commit a crime by the same person who found men to pay her for sex.
The bill is the first of its kind for sex trafficking survivors, according to legal experts, and it’s a much-needed antidote to a legal system that often treats people who commit crimes against or at the behest of their abusers as cold-blooded offenders.
“When an individual has the power to sell your body in order to provide you with basic necessities, he is your trafficker,” said Elizabeth Henneke, the executive director at Lone Star Justice Alliance in Texas who advocated for the proposed legislation. “It doesn’t stop because in that moment he is not asking you to sell sex [but] asking you to rob someone.”
State Rep. Senfronia Thompson (D-Houston), who co-authored the bill, said it would give survivors who were coerced into committing crimes a second chance and the ability to clear their name.
“[This bill] could give them the opportunity to work,” she said. “It could give them an opportunity at life.”
Under the proposed legislation, clemency applications would be reviewed by a panel of experts, including a social worker, survivor and behavioral specialist, who understand the nuances of trauma and victimization and would advise the Texas Board of Pardon and Paroles on the case. Applications are currently only evaluated by the board, which is made up primarily of former law enforcement agents who might not have special training in sex trafficking or domestic violence.
“We have to look at the underlying circumstances and what people were experiencing at the time of their offense.”
Not everyone understands that the coercion and control involved in these abusive relationships could lead victims to commit crimes, said Kate Mogulescu, an assistant professor of clinical law at the Brooklyn Law School.
“You need people who understand the dynamics,” she said. “You need people whose first response is not ‘Why didn’t she leave?’ ... We have to look at the underlying circumstances and what people were experiencing at the time of their offense.”
More than half of human trafficking survivors who were arrested for crimes said they committed them as a direct result of being exploited, and another 24% said their crimes were partially related, according to a 2016 study by the National Survivor Network. There is no comprehensive national data for how many trafficking and domestic violence survivors are imprisoned for offenses related to their abuse, but a report from New York’s Department of Correctional Services found that in 2005, 67% of women convicted of killing someone close to them had also been abused by that person.
Tennessee’s governor granted clemency to Cyntoia Brown last year, after she had been sentenced to life in prison without parole in 2006 for killing a man who hired her for sex. But Brown’s pardon came after activists launched a public campaign that got celebrity attention, and there is typically limited legal relief available for survivors who are criminalized.
The nonprofit Polaris in March evaluated the legal relief available to human trafficking victims convicted of crimes, and gave 28 states an F. Some states have affirmative defense laws to protect survivors from receiving lengthy sentences or vacatur laws that can wipe their criminal records clean, but most relief is limited to prostitution charges and does not include violent misdemeanors or felonies. Yet studies have found that 91% of trafficking victims have been arrested, often for crimes such as drug possession, battery or theft.
Some states have taken measures to protect domestic violence survivors who offend ― for example, New York just passed a bill that gives judges more discretion when sentencing survivors whose crimes are linked to their abuse ― but experts say the available legal relief is still insufficient.
“[Perpetrators] engage in social engineering and make people think they are consenting participants to their own exploitation, when all the while they are pulling strings like a puppet master.”
And even if there were better laws, Henneke said many law enforcement and legal service providers fail to identify survivors of sex trafficking and domestic violence because they hold false stereotypes about them and lack the training to properly screen for subtle signs of exploitation. And survivors don’t always self-identify because of ongoing trauma, fear of the legal system or fear of their abusers.
“[Perpetrators] engage in social engineering,” said Kimberly Mehlman-Orozco, who has a Ph.D. in criminology and who wrote a book about sex trafficking. “And make people think they are consenting participants to their own exploitation, when all the while they are pulling strings like a puppet master.”
In Texas, a survivor currently can’t apply to have a sentence commuted without letters of support from at least two of the following people: the sheriff, the prosecuting attorney and a judge in the county where the crime was committed. The clemency bill does not require those letters, according to Henneke.
Mogulescu recently tried to help a Texas-based sex trafficking survivor ― who was sentenced to 15 years in prison in 2015 for helping her pimp recruit a minor ― apply for clemency. Her own victimization was not factored into the sentence. Mogulescu said a sheriff in Bexar County, Texas, would not support the application. This bill could give her client, now 26, another chance at clemency.
The proposed legislation also means the teenager who committed a robbery with her pimp, and others like her, would have the opportunity to present the full context surrounding their crimes.
“It gives her a chance to ask the governor to understand those moments,” Henneke said, “and to give her the mercy she’s been denied for so long.”
Texas’ governor has until mid-June to sign the bill and it would go into effect in the fall. Mogulescu said the bill marks a major victory, but that she would ideally like to see comprehensive laws that protect survivors from being arrested in the first place and that allow those in prison to vacate their convictions.
“The criminalization of survivors is a huge issue,” she said. “It’s at a crisis level.”
Need help? In the U.S., call 1-800-799-SAFE (7233) for the National Domestic Violence Hotline.