Author: Josephine Ramage
Download a PDF of this postA Second Chance at the Good Life: Vacatur for Human Trafficking Survivors in Nebraska
Josephine Ramage*
J.D. Candidate, University of Nebraska College of Law
*Josephine v. Ramage, J.D. Candidate, University of Nebraska College of Law, 2025. I am grateful to the Nebraska Law Review Online Editors, Isabel Cheesman and Heather Haratsis, for their hard work in preparing this Article for publication. A special thanks to my Nebraska Law Review Mentor, Turner Jensen, J.D. ’24, for his time, diligent assistance, and helpful feedback. Finally, the utmost gratitude to my husband, Dylan, for his unwavering love and support throughout law school and life.
I. Introduction
Essentially homeless and dependent on the foster care system, seventeen-year-old Macy[1] was filled with hope when an older man promised to love and protect her.[2] After whisking Macy away from the group foster home, he strangled her until she was unconscious when she refused to earn him money by having sex with his male clients.[3] With the awareness that he could easily harm and kill her with his bare hands, Macy was repeatedly forced to have sex with men throughout the country.[4] Using her picture and the violent power he held over her, Macy’s exploiter sold her for sex on Blacklist.com for months.[5]
Law enforcement interacted with Macy as they intervened with her exploiter’s operation multiple times but did not save her from the trafficking operation or even identify her as a victim.[6] Too afraid of her trafficker to ask the law enforcement officers for help, Macy appeared to officers as a consenting sex worker.[7] Macy was only released from police custody after she was forced into promising that she would testify against her trafficker.[8] Instead of treating her as a victim of a horrendous crime in need of medical and legal assistance, the law enforcement officers perceived Macy as an asset to be utilized in criminal prosecution and even as a co-defendant to be penalized.[9] After later finding shelter and support at a safe house crisis center, Macy sought expungement of her criminal record with the help of a nonprofit legal center.[10] She should never have been charged with the crime of her own exploitation in the first place, and yet, this burden was added to one of the many obstacles on her path to recovery.
Unfortunately, the challenges Macy faced during and after exploitation are far too common for survivors[11] of human trafficking. Bearing the weight of a criminal record is an unjust and severe burden for trafficking survivors to carry. There should be an accessible and consistent pathway for survivors of trafficking to seek criminal record relief. A clear and feasible remedy to this legal dilemma is to implement vacatur laws for human trafficking survivors. Vacatur exonerates survivors by setting aside their convictions that resulted from their trafficking experience.[12] As one of the leading nonprofits in the fight against human trafficking, Polaris passionately advocates for specialized vacatur laws for trafficking survivors. In doing so, Polaris evaluated the vacatur statutes of each state and provided policy recommendations in a 2019 analysis.[13] There is a desperate need for vacatur among survivors in the United States, as Polaris explains:
While there is no nationwide data on how many trafficking survivors have a criminal record as a result of their victimization, we do know that people in trafficking situations are frequently arrested, detained, prosecuted, convicted, and, in some cases, incarcerated or deported without ever being identified as a victim of human trafficking by the criminal legal system.[14]
To provide the most effective relief for survivors, vacatur laws should be able to eliminate not just convictions, but criminal charges, citations, and any other criminal proceedings that occurred in connection to their exploitation. Criminal record relief is just one of the many policy areas in which federal and state laws fail to properly address the needs of human trafficking survivors. Addressing this niche legal need will make a world of difference to survivors struggling to recover from exploitation.
The epidemic of human trafficking exploits approximately 1.5 million people in the U.S.[15] and more than 24.9 million people worldwide.[16] At the cost of human rights, human trafficking is a multi-billion dollar global industry.[17]Only second to the drug trafficking industry, human trafficking is one of the most lucrative crimes in the United States.[18] The essence of human trafficking is a severe violation of an individual’s human rights for the monetary or personal benefit of another.[19] Though the injustice of human trafficking has infested the “Land of the Free” since the formation of the country, the U.S. has only in recent years started to adopt laws that address the human rights crisis.[20]
The U.S. government attempts to combat this crisis in four main identifiable ways: prevention, intervention, survivor restoration, and awareness training.[21] While each aspect of fighting human trafficking is vital[22] to decreasing the human trafficking crisis, survivor restoration is not adequately prioritized. When survivors don’t have access to necessary resources, they are left vulnerable to revictimization.[23] Fortunately, legal protections for human trafficking survivors have emerged in recent decades at the state level.[24]
The tragedy of being trafficked, the process of surviving exploitation, and the challenge of moving forward are all complex experiences that leave survivors with an array of challenges and needs. Vacatur laws address the burdens imposed by a criminal record that severely inhibit victims’ transition into survivors and reentry into society.[25] Though many states have varying vacatur and expungement laws to aid survivors in recovery, there is still no federal vacatur law for trafficking survivors.[26] The enactment of federal vacatur law would provide trafficking survivors relief from federal crimes as well as the necessary framework for all states to implement relief for survivors from state-law crimes.[27]
Compared to other states, Nebraska’s vacatur law,[28] according to the analysis conducted by Polaris...[29] However, the Nebraska statute is not without shortcomings. In addition to several procedural aspects of the statute in need of reform, the main defect of the statute is that it only provides relief to sex trafficking survivors, at the exclusion of labor trafficking survivors.[30] Nevertheless, it is a leading example to other states because of its otherwise comprehensive scope. Ultimately, without binding federal vacatur law, states must construct their own framework to implement statutes for criminal record relief that trafficking survivors are in desperate need of.
II. Human Trafficking: Assessing the Crimes and Addressing Victims’ Needs A. Demographics, Statistics, and Logistics OverviewHuman trafficking takes many forms,[31] and traffickers target survivors from an array of different demographics.[32]While any person from any set of demographics can be trafficked, exploiters typically target already vulnerable individuals.[33] According to the Department of Justice, Native American communities, LGBTQAI+ individuals, foster youth, individuals with disabilities, undocumented migrants, runaway youth, homeless youth, temporary guest workers, and low-income individuals are some of the most susceptible populations to human trafficking due to their vulnerable life circumstances.[34] Trafficking occurs in a multitude of legal and illegal industries, including hospitality services, agriculture, construction, domestic services, spas, manufacturing, and the sex work industry.[35] Common methods to lure victims include false promises of a job, the creation of fear, and grooming.[36] For an adult to be a victim of sex or labor trafficking, one of these elements must be present between the trafficker and victim: force, threats, fraud, or manipulation.[37] When a minor is trafficked, however, they are a victim regardless of whether the elements can be proven or not; traffickers are strictly liable for the exploitation of a minor.[38]
B. Government RecognitionAt the turn of the century, the United States government formally acknowledged the human trafficking crisis and finally began to take steps toward minimizing it. The Trafficking Victims Protection Act[39] (TVPA) was passed by Congress in 2000, which codified human trafficking as a crime.[40] Thereafter, the TVPA guided federal anti-trafficking policy and set forth the legal standards necessary to define human trafficking. The federal crime of sex trafficking is defined in the U.S. Code as “. . . a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.”[41] Meanwhile, labor trafficking is defined by the Code as “the recruitment, harboring, transportation, possession, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”[42]After codification, state and federal resources poured into punishment and deterrence efforts—but not into survivor restoration initiatives.[43]
Thus, United States is too heavily focused on the criminal justice aspect of combating human trafficking while efforts for survivor restoration are left at a minimum.[44] Though prosecuting perpetrators is certainly important to achieve justice and prevent further injustice, punishment of exploiters does not adequately remedy the harm done to survivors of trafficking nor protect them against revictimization.[45] Unfortunately, the prioritization of prosecution often produces further violations of survivors’ rights.[46] During law enforcement raids, victims are often detained with their traffickers either because officers fail to screen them for trafficking[47] or victims refrain from identifying themselves out of fear.[48] Additionally, the threat of facing prosecution is frequently used to manipulate survivors into testifying in court against their trafficker—which can re-traumatize them by having to face their trafficker against their will.[49] Even worse, some survivors are charged with their traffickers as co-defendants based on the possibility that they may have, at some point, been a willing participants in the trafficker's operations.[50]
Even if survivors did initially consent to working for or interacting with their trafficker, there is no justification for charging victims with crimes committed against them and crimes they were forced to commit. Nor is their justification for further exploiting trafficking survivors in the criminal justice system. Both situations understandably further traumatize survivors and create in them a distrust of the governmental systems designed to attain justice.[51] Ultimately, when survivors’ rights are neglected in the name of prosecution, they experience a greater susceptibility to revictimization at the hands of their trafficker and the government.[52] Therefore, survivors of trafficking are in desperate need of statutory relief from criminal records resulting from human trafficking.
C. Other Legal Protections for SurvivorsIn addition to criminal record relief laws, there are other forms of legal protections for human trafficking survivors. Rather than the retroactive manner of vacatur, some states provide an affirmative defense for survivors to utilize in prosecution for crimes committed during their trafficking experience.[53] The underlying premise of an affirmative defense for human trafficking survivors is similar to the affirmative defense of duress: they were coerced into acting under the command of their exploiter.[54] Unlike people under duress, however, human trafficking victims do not always experience a direct threat of imminent bodily harm or death at the time they are forced to commit a crime.[55] Rather, traffickers threaten victims with calling the police, reporting their immigration status, and other forms of psychological harm in addition to or instead of physical harm.[56] Even if the circumstances surrounding the commission of a crime are true, the fact that their trafficker coerced them to commit the crime enables survivors to raise an affirmative defense to avoid conviction.[57] In order to ensure the scope of affirmative defenses for survivors is not too broad, the language of an affirmative defense statute can specify that it only covers offenses a survivor committed as a direct result of being trafficked and that they had a reasonable fear of harm.[58] However, it can be difficult to meet the evidentiary burden of proving a reasonable fear of harm.[59]
For many survivors of human trafficking, their immigration status is a major concern.[60] T nonimmigrant status (often referred to as a T visa) is a temporary immigration status for survivors of human trafficking.[61] In order to be eligible for a T visa, an applicant must be a victim of sex or labor trafficking, be physically present in the United States or U.S. territories, show that they complied with reasonable requests from law enforcement agencies during any prosecution proceedings, demonstrate the extreme suffering and hardship resulting from potential removal from the U.S., and be admissible to the U.S. or be eligible for a waiver on certain grounds of admissibility.[62]
With a T visa, a survivor can “remain in the United States for an initial period of up to 4 years if they have complied with any reasonable requests for assistance from law enforcement in the detection, investigation, or prosecution of human trafficking or qualify for an exemption or exception.”[63] T visa holders can also qualify for employment authorization and be eligible for government services and benefits.[64] Qualifying family members of T visa holders may also be eligible for T nonimmigrant status if they are in present danger of retaliation—as a result of a survivor escaping or cooperating with law enforcement.[65] Even if family members are not in immediate danger, they may still be eligible by meeting certain criteria, such as spouses and unmarried children under 21 years of age.[66]
Similar to the T visa, U nonimmigrant status (U visa) provides victims of certain violent crimes temporary immigration status—including but not limited to the crimes of: trafficking, sexual assault, sexual exploitation, abusive sexual contact, involuntary servitude, kidnapping, prostitution, rape, slave trade, murder, and manslaughter.[67] The application process and benefits are similar to the T visa, and survivors of trafficking may apply for either.[68] Both were created by the TVPA and are meant to aid in the investigation and prosecution of trafficking and other crimes while also providing immigration relief, government services, and legal protections to victims.[69]
From just the language of the requirements for survivors to receive immigration protections, one can observe the U.S. government’s continued prioritization of criminal prosecution. This priority resounds throughout laws associated with human trafficking in general and victim relief specifically. Survivor restoration should also be regarded with such importance—with comprehensive legislation, adequate funding, and acute awareness. As survivors of human trafficking face many challenges during recovery, it is crucial that they have access to legal relief from crimes they were forced to commit by their traffickers.
III. A Vital Remedy: Vacatur for Survivors A. The Desperate Need for VacaturAfter escaping the atrocity of human trafficking, many survivors continue to be oppressed by their criminal record resulting from their exploitation.[70] In a 2016 National Survivor Network survey of 130 survivors, over 90 percent reported they were arrested at least one time while being trafficked.[71] Sex trafficking survivors are frequently charged with prostitution but are also often charged with unlawful possession of weapons, drug possession, various financial crimes, and identity theft.[72] Similarly, labor traffickers also force their victims to cultivate, possess, transport, and sell drugs, along with identity theft, financial crimes, and an assortment of misdemeanors.[73] Traffickers make victims commit these crimes not only as an operational matter and as an additional benefit gained from their exploitation but also to produce a criminal record that they can use as leverage over their victims.[74] This tactic furthers their exploitation as traffickers can threaten to report victims for crimes if they do not comply with the traffickers’ demands.[75]
The stigma of a criminal record is often accompanied by the inability to secure employment, housing, and other necessities.[76] Due to the presence of a criminal record during the job search process, survivors often face the dilemma of either having to explain their trafficking experience to potential employers or having to walk away from job opportunities.[77] The National Survivor Network also found that out of the survivors with criminal convictions, 72.7% faced difficulty with employment, and 57.6% struggled with housing.[78] Without a doubt, employment and housing are basic necessities for anyone and especially needed by those trying to recover from severe trauma.
Additionally, criminal records can be utilized against survivors in family court proceedings (such as child custody battles) and put survivors at risk for deportation.[79] Survivors may also be left ineligible for government benefits and financial aid (including private loans) due to convictions and other criminal history.[80] Thus, in addition to the physical and psychological suffering survivors experience, the blight of a criminal record can severely inhibit their daily lives and recovery journeys.[81] With such limited access to meet their basic needs, survivors are left without the stability required for trauma recovery and life improvement.[82] Fortunately, specialized vacatur law provides trafficking survivors with a second chance at reentering society with less stigma and a fresh start on their public records.[83]
B. Why Vacatur?While there are two other main forms of criminal record relief at the state level, vacatur remains the most effective option to completely exonerate survivors. The least effective form of relief is sealing a criminal record.[84] While a sealed conviction is hidden from the public, it is still accessible by court order because the conviction remains intact.[85]Similarly, though also not visible to the public, expungement of arrests and convictions remains visible to government agencies and can be used against survivors in later legal proceedings.[86] On the other hand, vacatur completely exonerates survivors by vacating and dismissing convictions.[87] In a sense, vacatur confirms the criminal proceedings were substantively defective all along. According to Polaris, vacatur is so beneficial to survivors because it is:
. . . [T]he closest thing to a legal recognition that the survivor should not have been convicted in the first place. It indicates that had the court known all the information that is now available, the survivor would not have been convicted of the offense. Vacatur that does not specifically codify its basis as a substantive defect is still an important form of relief and is preferable to the other options of expungement or sealing of records.[88]
While no legal remedy can completely correct the injustice of human trafficking, vacatur does eliminate a major encumbrance on survivors’ path to recovery. As the most effective form of criminal record relief, vacatur finally recognizes survivors as victims—rendering the criminal proceedings that disregarded their exploitation as substantively defective.
C. Addressing Concerns and Flawed Alternatives to Specialized Vacatur 1. Sufficiency of General Vacatur ReliefA logical response challenging the need for specialized vacatur for human trafficking survivors might be: why are standard types of criminal record relief that already exist not adequate for survivors? The purpose of and justifications for granting survivors relief are what differentiate specialized vacatur from standard vacatur for anyone else with a criminal record.[89] Survivors seek vacatur because they should never have been convicted of crimes that their trafficker forced them to commit.[90] Additionally, the unique needs of survivors require specialized statutes to protect them in the criminal justice system.[91] General record relief is awarded to criminal record holders as a result of their law-abiding behavior.[92] On the other hand, record relief for trafficking survivors is justified not by their later conduct after conviction but by the fact that they only committed crimes because of their threatening traffickers.[93] The evidentiary burden of specialized vacatur statutes is another necessary difference from general vacatur, as it accounts for survivors demonstrating evidence of their exploitation as the cause of their criminal record.[94] Ultimately, separate and specialized vacatur statutes for survivors of human trafficking ensure that they have access to seek relief from crimes that they had no choice but to commit during their exploitation.
2. Duress Defense ArgumentAnother challenge to specialized vacatur law is that human trafficking victims should seek relief through the duress doctrine rather than the potential redundance of urging state legislatures to create new laws to meet their needs.[95]However, the affirmative defense of duress requires the defendant to meet the standard of proof that they acted under a threat of imminent physical violence.[96] Not only is this a high standard of proof to meet, it is also an extremely narrow standard that not all survivors can meet. Due to traffickers using an array of other coercive measures—not just imminent physical harm—to leverage victims into committing crimes against their will, the affirmative defense of duress is an insufficient framework for survivors to rely on when being targeted by the criminal justice system.[97] In light of this challenge, some states[98] have enacted legislation to create a human trafficking defense.
3. The Affirmative Defense ApproachWhile the ability to use a human trafficking affirmative defense is incredibly important, survivors still need access to post-conviction relief.[99] Even if affirmative defenses and other legal protections are available during trial, a survivor may not be aware of them or utilize them. Not only is legal counsel costly but there is a scarcity of attorneys available to adequately meet the unique needs of human trafficking survivors.[100] Even when a conviction does not result from a survivor being prosecuted or ultimately convicted, a survivor can still face long-term complications from citations, arrests, charges, and other criminal activity on their record.[101] Therefore, the availability of a human trafficking affirmative defense does not preclude the necessity of specialized vacatur law.
4. The “Wasted Free Pass” ArgumentAnother concern surrounding vacatur laws is that survivors petitioning for vacatur will overburden the court systems.[102] However, data largely suggests that survivors of human trafficking will not “. . . flock to the courts and flood the system.”[103] Perhaps the most complex set of doubts concerning vacatur laws for human trafficking survivors argues that many survivors will return to their traffickers, even after their records are vacated.[104] This presumption stems from the concept of “trauma bonding” that human trafficking victims can experience as a result of the psychological control traffickers hold over them.[105] One may argue that if human trafficking survivors are going to return to their traffickers anyway, then their records are vacated for no reason.[106] Some may even go so far as to say this is a “waste of a free pass.” However, this argument misunderstands and misconstrues the aim of vacatur.[107] While survivors returning to their trafficker is an unfortunate possibility, they should still have access to request that their criminal record be vacated.[108] Traffickers manipulating their victims into loyalty does not mean that victims choose their victimization or consent to the crimes they commit under the control of their trafficker.[109] Overall, vacatur gives survivors the freedom that was taken from them by their traffickers and provides an opportunity for a fresh start on their record, if and when they are ready to utilize it.[110]
C. The Lack of Federal VacaturUnfortunately, there is no specialized relief for victims of human trafficking at the federal level.[111] Although legislation to enact a criminal relief statute has been introduced to Congress several times, there is still an ongoing debate about its effectiveness and which federal offenses it would cover.[112] Despite the name of the TVPA, it does not include any legal provisions to protect victims from criminal prosecution.[113] Thus, while the criminalization of human trafficking survivors is in direct opposition to the TVPA, the Act makes no mention of the need for affirmative defenses or vacatur law. [114]
Currently, a presidential pardon is essentially the only form of relief for federal convictions.[115] Article II, Section 2, Clause 1 of the Constitution provides that the President is authorized to "grant Reprieves and Pardons for Offenses against the United States."[116] In addition to the difficulty of waiting for and attaining a presidential pardon, the process requires that survivors admit responsibility for the federal crimes they committed.[117] This is an inappropriate solution for survivors because they are seeking to invalidate the criminal records they were unjustly burdened with, not looking to take responsibility and seek forgiveness for crimes they were forced to commit.[118] Likewise, the federal conviction is not even removed from their record; the pardon is merely noted next to the conviction.[119]
In 2010, New York was the first of many states[120] to provide trafficking survivors with the opportunity to set aside state-based convictions that arose from their exploitation.[121] The current condition of varying vacatur laws in different states lacks the uniformity, certainty, and consistency that survivors need nationwide.[122] Otherwise, survivors’ access to vacatur is left to the fate of inadequate state statutes, the lack thereof, and the unpredictability of local judicial discretion.[123] The implementation of federal vacatur law would ensure survivors can vacate any federal-level criminal records they incurred while being trafficked and provide a model statute to inspire state statutes.[124]
IV. Nebraska’s Vacatur Statute and a Roadmap for ReformNebraska’s vacatur statute[125] ranked the highest nationwide in an analysis conducted by Polaris,[126] but is still in need of critical reform. After conducting an analysis of all existing state criminal relief laws for human trafficking survivors, Polaris graded each state according to a constructed “report card” and subsequently recommended best practices for improvement.[127] Polaris hopes that “. . . this framework will serve as a blueprint for policymakers and advocates as to how best to draft, amend, or implement state law and that this will lead to more accessible relief for survivors across the country regardless of where their arrest or conviction occurred.”[128] Accordingly, these report cards encourage states to be as clear and complete as possible by advocating for laws that provide adequate guidance to both survivors and attorneys.[129]
With the perspective of criminalized trafficking survivors in mind, the grading rubric was designed by researchers and practitioners.[130] Polaris then used the grading rubric to compare the existing statutes to what Polaris and the Survivor Reentry project would consider ideal provisions in a vacatur statute for criminal record relief.[131] The analysis uses thefollowing categories to assign state statutes with grades: Range of Relief, Arrests and Adjudications Relief, Offenses Covered, Judicial Discretion, Nexus to Trafficking, Time Limits and Wait Times, Hearing Requirement, Burden of Proof, Official Documentation, Confidentiality, and Additional Restrictive Conditions on Relief.[132] Each category was assigned a number of points ranging from two to thirty, with the possibility for a state to score a maximum of 100 points.[133] Ten states[134] that had no vacatur laws received an F with a score of zero.[135]
A. Nebraska in the National AssessmentNebraska ranked the highest, receiving a B grade with a total score of eighty one points.[136] Nebraska’s statute,[137]implemented in 2018, is distinct from standard criminal record relief in the state.[138] Although the statute uses the language “set aside” rather than the word vacatur, it provides a vacatur level of relief for victims of sex trafficking.[139]Nebraska scored well in the Arrests and Adjudications category because the statute offers relief for not only convictions but for arrests, adjudications, and non-prosecuted cases as well.[140] As long as a survivor satisfies the evidentiary burden, any offense is eligible for relief.[141] The statute provides a detailed but not exhaustive list of possible evidence.[142]
B. Reform Needed for Effectiveness: Burden of Proof and ConfidentialityHowever, the statute does not specify the standard for the burden of proof.[143] Without this clarity, applicants are left to judicial discretion.[144] This ambiguity is a surprising shortcoming, considering the amount of detail the rest of the statute provides.[145] Polaris recommends that the burden of proof requirement should ideally be a “preponderance of evidence” standard.[146] The preponderance standard is optimal for human trafficking survivors as they must prove that it is “more likely than not” that their criminal record was incurred as a result of their trafficking experience.[147] This a lower standard than is typically used in the criminal context, the highest of which is “beyond a reasonable doubt.”[148]Other statutes use a higher than preponderance standard of “clear and convincing evidence,” where survivors must show it is ‘highly probable” that they were the victim of human trafficking at the time of the offense.[149]
Statutes that are completely silent on the burden of proof are the least effective because they lead to inconsistencies for survivors trying to attain vacatur.[150] While Nebraska scored well in most of the categories, the Nebraska statute received zero points in the Burden of Proof category as it lacks any specific burden of proof requirement.[151] Without specification, survivors in Nebraska are left to the mercy of judicial discretion as to the evidentiary standard for offering proof to support their request for vacatur.
The other category in which Nebraska received no points was Confidentiality.[152] The Nebraska statute has no provision that protects the confidentiality of survivors’ personal information as they go through the vacatur process.[153]Polaris urges state statutes to ensure confidentiality for survivors by enabling their vacatur motions to be filed as sealed documents and be shielded from public disclosure.[154] Otherwise, Polaris emphasizes that “. . . failure to protect confidentiality defeats the purpose of these laws and puts some survivors in danger.”[155] Polaris graded this component of state statutes without taking into account other state or local rules that could provide the confidentiality of filing documents under seal in general criminal record relief.[156]
To ensure confidentiality for survivors throughout the state, Nebraska needs to add an express confidentiality provision so that survivors can file documents under seal. Including this provision rather than expecting survivors to utilize other statutes is a necessary step in creating the most optimal statute for criminal record relief tailored to survivors of human trafficking. If the goal of this statute is to restore justice by alleviating survivors of criminal records they unjustly incurred, then the means for survivors to seek restoration of justice should be as accessible, safe, and clear as possible.
C. Nebraska Compared to Neighboring StatesThe second highest-ranking state, Wyoming, received a C grade with seventy eight out of on hundred points in the analysis conducted by Polaris.[157] Wyoming’s vacatur statute scored higher than Nebraska in the Nexus to Human Trafficking category, meaning that victims only have to prove the crimes were committed “as a result” of their trafficking experience rather than “proximately caused” by their exploitation.[158] However, the statute also lacked the specification of the burden of proof and the assurance of confidentiality; like Nebraska, Wyoming received no points in those categories.[159] Additionally, the Wyoming statute only provides vacatur for convictions rather than for vacatur of any adjudication based on a substantive defect or on the merits.[160] Wyoming was the only neighboring state by Nebraska to place well in the analysis. [161]
On the other end of the spectrum, Kansas and Colorado both received Fs from the Polaris analysis.[162] With an overall score of fifty points, Colorado ranked twentieth in the nation.[163] Colorado’s statute received minimal points in the range of relief category, because it does not provide a vacatur level of relief.[164] Absent of any confidentiality provision, the Colorado statute received no points in the Confidentiality category.[165] Colorado also scored no points in the Official Documentation category, because official documentation of a survivor’s trafficking experience does not create a legal presumption of eligibility for criminal record relief in Colorado.[166] Similarly, Kansas is ranked thirty eighth nationally with thirty four points.[167] Kansas only scored well in two categories: the Arrests and Adjudications Relief category because relief is not exclusive to convictions and in the Nexus to Trafficking category because survivors only need to prove their crimes were committed “as a result” of trafficking (which is less restrictive than other states).[168]However, Kansas received no points in the categories of Additional Restrictive Condition on Relief, Burden of Proof, Confidentiality, Hearing Requirements, Official Documentation, and Time Limits and Wait Times.[169] Nebraska’s other neighboring states, South Dakota, Iowa, and Missouri, received no points and no grades due to their complete lack of vacatur laws.[170]
D. A Severe Shortcoming: Excluding Labor Trafficking SurvivorsIn addition to the procedural components[171] of Neb. Rev. Stat. § 29-3005 that need to be reformed, the most glaring deficiency of the statute is the exclusion of labor trafficking survivors. Unfortunately, only survivors of sex trafficking have access to criminal record relief in Nebraska.[172] While evidence of labor trafficking can be harder to prove and sometimes can be found less compelling than sex trafficking, survivors of labor trafficking still deserve the chance to vacate records of crimes they were forced to commit.[173] Research has found that many labor trafficking victims are documented or undocumented immigrants with few legal options.[174] Their employers take advantage of their immigration status, poverty, and lack of legal protections.[175] Yet, in Nebraska, they are not being afforded the same opportunity to access specialized criminal record relief as sex trafficking victims.
While the atrocities of sex trafficking and labor trafficking should not be compared against each other as they are each brutal violations of human rights, there is a stark discrepancy in the prevalence of advocacy for victims and survivors of labor trafficking compared to sex trafficking victims and survivors. Victims and survivors of labor trafficking are less prioritized because sexual exploitation seems more graphically compelling than mistreatment from employers.[176]However, labor trafficking also exploits vulnerable individuals by forcing them to live and work in extremely severe conditions.[177] While labor trafficking can vary widely depending on circumstances, it generally involves “. . . some sort of involuntary service that holds economic value and some type of penalty or threat of penalty if the victim fails to complete that service.”[178] Leverage held over victims can include “. . . withheld wages;. . . violence; abuse of the legal process, including the threat of arrest or deportation; deprivation of food or sleep; and the withholding of identification documents.”[179] Therefore, labor trafficking victims certainly undergo circumstances of severe exploitation and should not be burdened by a criminal record they were forced to incur by their traffickers.
One persistent aspect of the dilemma is the stigma surrounding labor trafficking, which is rooted in misconceptions about trafficking and smuggling undocumented people. [180] In the eyes of many U.S. citizens, labor trafficking victims may choose their fate by willingly being smuggled across the U.S. border. While undocumented people may initially choose to be smuggled into the U.S.,[181] their smuggler can then exploit them by forcing them to work against their will.[182] Labor trafficking victims often choose to enter the U.S. to seek employment[183] and send money to their families back home. Thus, labor traffickers take away their victim’s freedom after they have entered the U.S. by threatening to harm them and sometimes to harm their families as well.[184]
Another main reason people look the other way when it comes to labor trafficking is the national reliance on the work done by labor trafficking victims.[185] The U.S. agriculture industry heavily benefits from labor trafficking because it provides a continuous supply of low-cost, moveable labor.[186] Anyone remotely familiar with Nebraska is aware of how prominent agriculture is in the state. To conduct oversight on the overall employment practices by commercial farms throughout the state would cause considerable political waves. However, allowing labor trafficking survivors the chance to have their criminal records vacated would be one crucial step toward restoring justice for labor trafficking survivors that are so frequently forgotten in the Nebraska community. Therefore, labor trafficking survivors in Nebraska rightfully deserve access to vacatur under Neb. Rev. Stat. § 29-3005.
E. An Imperfect but Premier ExampleNevertheless, the otherwise wide scope of Neb. Rev. Stat. § 29-3005 is a leading example for other states—especially in the absence of a federal framework for vacatur law. Specific cases in which survivors utilized the Nebraska statute cannot be examined because the vacated judgments and other documents are no longer accessible as public records. Nebraska has already outperformed other states with the most effective vacatur statute to date and should keep striving to create the most accessible form of criminal record relief in the nation. By adding provisions ensuring confidentiality and clarifying the burden of proof to be a preponderance of the evidence, the statute would be as procedurally effective as possible, according to Polaris’ standards for the ideal specialized vacatur statute. With the expansion of relief available to labor trafficking victims, the statute would provide an opportunity for restorative justice to those being mistreated by exploitive employers—predominately, those in the agricultural industry working hard to feed Nebraska families.
V. ConclusionThe tragedy of being trafficked, survival, and survivor recovery are all complex experiences that leave trafficking survivors like Macy with an array of needs and challenges. One immense challenge during recovery is the ability to maintain stability through employment, housing, and other necessities. Survivors throughout the country struggle to attain these necessities due to the looming presence of their criminal records. While no legal remedy can completely correct the injustice of human trafficking, providing survivors with relief from their criminal record restores one fragment of justice that will greatly benefit survivors in recovery. While there are other forms of criminal record relief, vacatur remains the most effective option to completely exonerate survivors—as it accounts for the unique needs and experiences of trafficking survivors as well as their reasons for seeking vacatur. By its very essence, vacatur acknowledges that trafficking victims should never have been convicted in the first place for crimes committed against them and crimes they were forced to commit.
The current lack of federal vacatur law leaves survivors without relief from federal crimes and state legislatures without a blueprint after to which to model state vacatur statues. This shortcoming is reflection of the government’s high prioritization of prosecution and acute neglect of survivor restoration efforts. Fortunately, several state legislatures have made strides in recent years to offer specialized vacatur for trafficking survivors. In a national analysis, Polaris deemed Nebraska’s vacatur statute to be a leading example for other states. Nevertheless, Neb. Rev. Stat. § 29-3005 still needs to be reformed to include three vital components: a confidentiality provision, the preponderance of evidence standard of proof, and the inclusion of labor trafficking survivors. With these changes, recovering human trafficking survivors in Nebraska will have the best possible second chance at “The Good Life.”
[1] Macy is a pseudonym used to protect her identity.
[2] Andrea Powell, Why Do We Lock Up Survivors of Sex Trafficking?, N.Y. TIMES (Sept. 28, 2016), https://kristof.blogs.nytimes.com/2016/09/28/why-do-we-lock-up-survivors-of-sex-trafficking/?_r=0.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Although this author primarily uses the more empowering term “survivor,” the word “victim” is used in the when describing the active exploitation of trafficking and when discussing the criminal law context in which vacatur laws arise.
[12] See generally Ashleigh Pelto, Criminal Record Relief for Human Trafficking Survivors: Analysis of Current State Statutes and the Need for a Federal Model Statute, 27 MICH. J. GENDER & L. 473, 474–97 (2020) (defining and analyzing criminal record relief for trafficking survivors a the national and state level).
[13] See POLARIS, State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking, 4–28 (Mar. 2019) (discussing an analysis conducted of all specialized state vacatur statutes and recommending ideal provisions for the most effective vacatur statute), https://polarisproject.org/wp-content/uploads/2019/03/Grading-Criminal-Record-Relief-Laws-for-Survivors-of-Human-Trafficking.pdf.
[14] Id. at 4.
[15] Emma J. Staats, Innocent All Along: An Argument for Improving Vacatur Laws in Tenth Circuit States for Victims of Human Trafficking, 62 WASHBURN L. J. 345, 345 (2023).
[16] Emma Ecker, Breaking Down Global Estimates of Human Trafficking: Human Trafficking Awareness Month 2022, HUM. TRAFFICKING INST. (Jan. 12, 2022), https://traffickinginstitute.org/breaking-down-global-estimates-of-human-trafficking-human-trafficking-awareness-month-2022/.
[17] Staats, supra note 15, at 352.
[18] Id.
[19] See Jessica Emerson & Alison Aminzadeh, Left behind: How the Absence of a Federal Vacatur Law Disadvantages Survivors of Human Trafficking, 16 U. MD. L. J. RACE, RELIGION, GENDER & CLASS 241, 241–55 (2016) (examining the crime of human trafficking and advocating for federal vacatur law to address the pressing injustice of prosecuting human trafficking survivors).
[20] Staats, supra note 15, at 352.
[21] Deanna Longjohn, Four Dimensions of Human Trafficking Prevention, 8 J. GLOB. JUST. & PUB. POL'y 123, 124 (2022).
[22] Id.
[23] Id.
[24] Polaris, supra note 13, at 4.
[25] See Sarah Devaney, Justice for All? Impeding the Villainization of Human Trafficking Victims via the Expansion of Vacatur Laws, 49 PEPP. L. REV. 271, 274 (2022) (examining the perpetual revictimization of human trafficking survivors by the criminal justice system and the merits of vacatur law to address this issue).
[26] Emerson & Aminzadeh, supra note 19, at 251–52.
[27] Id. at 241.
[28] Neb. Rev. Stat. § 29-3005.
[29] Pelto, supra note 12, at 494.
[30] Id. at 496.
[31] Longjohn, supra, note 21, 124–25.
[32] Id. at 125.
[33] Id.
[34] What is Human Trafficking?, DEPT. OF JUST. (last visited June 5, 2023), https://www.justice.gov/ humantrafficking/what-is-human-trafficking.
[35] Emerson & Aminzadeh, supra note 19, at 243.
[36] Longjohn, supra note 21, at 124.
[37] Id.
[38] Id.
[39] 22 U.S.C. § 7101(b)(19).
[40] Pelto, supra note 12, at 497.
[41] 22 U.S.C. § 7102(11)(a).
[42] 22 U.S.C. § 7102(11)(b).
[43] Emerson & Aminzadeh, supra note 19, at 245.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id. at 246.
[49] Id.
[50] Id. at 247.
[51] Id. at 246.
[52] Id.
[53] See generally Jessica Aycock, Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims, 5 CRIM. L. PRAC. 5, 5-20 (2019) (advocating for states to implement affirmative defense statutes and vacatur laws for human trafficking survivors).
[54] Id. at 19.
[55] Id. at 20.
[56] Id.
[57] Id. at 17.
[58] Id.
[59] Id.
[60] See generally Maureen Q. McGough, The Prevalence of Labor Trafficking in the United States, NAT'L INST. OF JUST. (Feb. 26, 2013) (discussing immigration concerns as one of the many challenges that documented and undocumented trafficking victims face), https://nij.ojp.gov/topics/articles/prevalence-labor-trafficking-united-states.
[61] U.S. CITIZEN AND IMMIGR. SERVS., Victims of Human Trafficking: T Nonimmigrant Status (last visited Sept. 23, 2023), https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] Id.
[67] U.S. CITIZEN AND IMMIGR. SERVS., Victims of Criminal Activity: U Nonimmigrant Status, (last visited Sept. 23, 2023) https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status.
[68] Benjamin Thomas Greer and Scott Davidson Dyle, Determining the Reasonableness of Non-Compliance: Examining the "Trauma Exception" for T-Visa Applicants, 15 SCHOLAR 385, 388 –89 (2013).
[69] Id.
[70] Emerson & Aminzadeh, supra note 19, at 241.
[71] NAT'L SURVIVOR NETWORK, National Survivor Network Members Survey: Impact of Criminal Arrest and Detention on Survivors of Human Trafficking, 1, 3 (Aug. 2016), https://perma.cc/92KQ-JMBL.
[72] Pelto, supra note 12, at 475.
[73] Id.
[74] See Sarah Dohoney Byrne, Meeting the Legal Needs of Human-Trafficking Survivors, 52 WAKE FOREST L. REV. 379, 37982 (2017) (discussing why human trafficking survivors need vacatur laws among many other unique needs).
[75] Id. at 382.
[76] Emerson & Aminzadeh, supra note 19, at 241.
[77] Pelto, supra note 12, at 477.
[78] NAT'L SURVIVOR NETWORK, supra note 71, at 1.
[79] Pelto, supra note 12, at 477.
[80] Id. at 476.
[81] Emerson & Aminzadeh, supra note 19, at 241.
[82] Id.
[83] Id. at 251.
[84] Pelto, supra note 12, at 478.
[85] Id.
[86] Pelto, supra note 12, at 477.
[87] Polaris, supra note 13, at 8.
[88] Id. at 14.
[89] Pelto, supra note 12, at 479.
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Polaris, supra note 13, at 18.
[95] Staats, supra note 15, at 379.
[96] Id.
[97] Id.
[98] Aycock, supra note 53, at 16.
[99] Staats, supra note 15, at 379.
[100] Alyssa M. Barnard, “The Second Chance They Deserve”: Vacating Convictions of Sex Trafficking Victims, 114Colum. L. Rev. 1463, 148–86 (2015).
[101] Pelto, supra note 12, at 476.
[102] S. Ernie Walton, Protecting Sex Trafficking Victims through Expungement and Vacatur Statutes: Will Virginia Join the Rest of the Nation?, 6 J. GLOB. JUST. & PUB. POL'Y 95, 110 (2020).
[103] Id.
[104] Staats, supra note 15, at 379.
[105] Samantha M. Meiers, Note, Removing Insult from Injury: Expunging State Criminal Records of Persons Trafficked in the Commercial Sex Trade, 47 U. Tol. L. Rev. 211, 215 (2015).
[106] Staats, supra note 15, at 380.
[107] Id.
[108] Id.
[109] Id.
[110] Id.
[111] Polaris, supra note 13, at 12.
[112] Id.
[113] Staats, supra note 15, at 360.
[114] Melissa Owens, Human Trafficking Victims' Need for Vacatur: Demolishing Roadblocks to Freedom, 28 AM. U. J. GENDER SOC. POL'y & L. 214, 214 (2020).
[115] Emerson & Aminzadeh, supra note 19, at 254.
[116] U.S. CONST. art. II, § 2, cl. 1.
[117] Emerson & Aminzadeh, supra note 19, at 255.
[118] Id. 254–55.
[119] Id.
[120] Id. at 241.
[121] Id. at 242.
[122] Owens, supra note 114, at 215.
[123] Id.
[124] Emerson & Aminzadeh, supra note 19, at 255.
[125] Neb. Rev. Stat. § 29-3005(2) (Reissue 1989).
[126] Polaris, supra note 13, at 28.
[127] Id. at 4.
[128] Id.
[129] Id. at 13.
[130] Id. at 4.
[131] Id. at 13.
[132] Id.
[133] Id.
[134] Alaska, Georgia, Iowa, Maine, Massachusetts, Minnesota, Missouri, South Dakota, Tennessee, and Virginia did not have vacatur laws at the time of the Polaris State Report Card analysis.
[135] Polaris, supra note 13, at 28.
[136] Id.
[137] Neb. Rev. Stat. § 29-3005(2) (Reissue 1989) provides:
(2) At any time following the completion of sentence or disposition, a victim of sex trafficking convicted in county or district court of, or adjudicated in a juvenile court for, (a) a prostitution-related offense committed while the movant was a victim of sex trafficking or proximately caused by the movant's status as a victim of sex trafficking or (b) any other offense committed as a direct result of, or proximately caused by, the movant's status as a victim of sex trafficking, may file a motion to set aside such conviction or adjudication. The motion shall be filed in the county, district, or separate juvenile court of the county in which the movant was convicted or adjudicated.
[138] Pelto, supra note 12, at 494.
[139] Id.
[140] Id.
[141] Id. at 495.
[142] Neb. Rev. Stat. § 29-3005(5) (Reissue 1989) provides:
(5) In considering whether the movant is a victim of sex trafficking, the court may consider any other evidence the court determines is of sufficient credibility and probative value, including an affidavit or sworn testimony. Examples of such evidence include, but are not limited to:
(a) Branding or other tattoos on the movant that identified him or her as having a trafficker;
(b) Testimony or affidavits from those with firsthand knowledge of the movant's involvement in the commercial sex trade such as solicitors of commercial sex, family members, hotel workers, and other individuals trafficked by the same individual or group of individuals who trafficked the movant;
(c) Financial records showing profits from the commercial sex trade, such as records of hotel stays, employment at indoor venues such as massage parlors, bottle clubs, or strip clubs, or employment at an escort service;
(d) Internet listings, print advertisements, or business cards used to promote the movant for commercial sex; or
(e) Email, text, or voicemail records between the movant, the trafficker, or solicitors of sex that reveal aspects of the sex trade such as behavior patterns, meeting times, or payments or examples of the trafficker exerting force, fraud, or coercion over the movant.
[143] Pelto, supra note 12, at 495.
[144] Id.
[145] Id.
[146] Polaris, supra note 13, at 18.
[147] Id.
[148] See generally CORNELL L. SCH., Beyond a Reasonable Doubt (last updated May 2020) (discussing the reasonable doubt standard for burden of proof in a criminal case), https://www.law.cornell.edu/wex/beyond_a_ reasonable_doubt.
[149] Polaris, supra note 13, at 18.
[150] Id.
[151] Pelto, supra note 12, at 495.
[152] POLARIS, Nebraska (2019), https://polarisproject.org/wp-content/uploads/2019/10/2019-CriminalRecordRelief-Nebraska.pdf.
[153] Id.
[154] Polaris, supra note 13, at 19.
[155] Id.
[156] Id.
[157] POLARIS, Wyoming (2019), https://polarisproject.org/wp-content/uploads/2019/10/2019-CriminalRecordRelief-Wyoming.pdf.
[158] Id.
[159] Id.
[160] Id.
[161] Polaris, supra note 13, at 28.
[162] Id.
[163] POLARIS, Colorado (2019), https://polarisproject.org/wp-content/uploads/2019/10/2019-CriminalRecordRelief-Colorado.pdf.
[164] Id.
[165] Id.
[166] Id.
[167] POLARIS, Kansas (2019), https://polarisproject.org/wp-content/uploads/2019/10/2019-CriminalRecordRelief-Kansas.pdf.
[168] Id.
[169] Id.
[170] Polaris, supra note 13, at 28.
[171] The two procedural provisions of the Nebraska statute that need to be added are a preponderance of evidence standard and a confidentiality provision.
[172] Pelto, supra note 12, at 496.
[173] McGough, supra note 60.
[174] Id.
[175] Staats, supra note 15, at 356.
[176] See generally Cassie Gardner-Wong, Addressing Labor Trafficking: The next Step in the Anti-Trafficking Movement, 99 DENV. L. REV. 233, 238-48 (2021) (discussing factors in the current discrepancy of advocacy for labor trafficking compared to sex trafficking).
[177] Id. at 248.
[178] Id. at 238.
[179] Id. at 238-39.
[180] See Norma Gonzalez, The Other Side of Human Trafficking: Effectively Advocating for Labor Trafficking Survivors under the Trafficking Victims Protection Act, 14 SEATTLE J. SOC. JUST. 839, 840-45 (2016) (explaining how misconceptions about smuggling immigrants over the border influence stigmas about labor trafficking).
[181] Id. at 844.
[182] Id. at 845.
[183] Id. at 840.
[184] Id. at 845.
[185] Gardner-Wong, supra note 176, at 247.
[186] Luz E. Nagle, Tainted Harvest: Transborder Labor Trafficking and Forced Servitude in Agribusiness, 37 WIS. INT 'l L.J. 511, 518 (2020).
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