by Hanan Kolko and Chloe Serinsky
The employment consequences of criminal convictions have recently begun to receive increased public attention. New York City, for example, enacted “Ban the Box” legislation this past year, which prohibits employers from inquiring into the criminal history on job applications. The heightened awareness of the relationship between the criminalization and exploitation of workers is rightfully deserved. Criminal histories hinder individuals from finding gainful employment, sometimes confining them to informal economies, where they are especially vulnerable to exploitation. In turn, abusive workplaces often go unreported due to workers’ fears of law enforcement, or concerns about finding another job while encumbered by a criminal record.
Neutralizing the ongoing effects of convictions, particularly in the employment realm, requires advocacy strategies that are both extensive and diverse. In this post, we focus on an underutilized and very specific remedy: New York’s vacatur statute, which allows individuals with criminal convictions to vacate their convictions if they satisfy certain conditions. In 2010, this statute was amended to extend vacatur to convictions that were the result of being sexually trafficked. While at first glance this remedy may seem too narrow to apply to most workers, the amendment’s overlooked significance is that it can be interpreted to grant access to vacatur for individuals beyond those who were sexually trafficked. Interpreting this law to apply to victims of non-sexual labor trafficking would positively impact a number of workers with criminal records—workers among the most likely to suffer employment exploitation.
Extending New York’s Vacatur Statute to All Victims of Trafficking
New York’s law provides that vacatur is available “where the arresting charge was under 240.37 (loitering for the purposes of engaging in a prostitution offense[)] . . . or 230.00 (prostitution),” and where the individual seeking vacatur
was either a victim of sex trafficking as defined by the New York Penal Law or trafficking in persons as defined by the federal Trafficking Victims Protection Act (“TVPA”). But what about when an individual was neither arrested on a prostitution charge nor a victim of sex trafficking? The first question may be answered by turning to the statute’s catchall provision, which authorizes courts to “take such additional action as is appropriate in the circumstances.” Using the flexibility of this provision and the policies underlying the statute, courts have already begun to vacate non-prostitution offenses where they have deemed it appropriate—albeit it only, so far, for victims of sex trafficking. In People v. L.G., 41 Misc. 3d 428 (Queens Cnty. 2013), for example, the court vacated the defendant’s conviction for criminal possession of a weapon in the fourth degree, noting that limiting vacatur to prostitution arrests would “neither address the coercive forces confronting trafficking victims nor comport with the ameliorative legislative purposes.”
The question of how vacatur may be extended to victims of non-sexual labor trafficking is a little trickier, although not insurmountable. The language in the New York legislation permits vacatur where an individual is either a victim of sex trafficking or a victim of trafficking in persons under the TVPA. Significantly, the TVPA does not limit the definition of trafficking to acts of sex trafficking, but instead, broadly defines it as “the recruitment, harboring, transportation, provision, 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.” Therefore, an individual need not be a victim of sex trafficking to be a victim of trafficking under the TVPA, and by extension, to qualify for vacatur under the New York statute. Instead, under the statutory language, an individual may obtain vacatur where (1) he is a victim of trafficking under the TVPA, and (2) vacatur would be appropriate under the circumstances.
Courts have used the catchall provision to vacate non-prostitution convictions where doing so would give full effect to the policies behind the statute, which the legislative sponsors described as “giving victims of human trafficking the fresh start they deserve.” Citing the State Department’s 2007 Trafficking in Person’s Report, the bill jacket notes that “trafficking victims should not be punished for crimes that are a direct result of being trafficked—such as not holding proper immigration documents or violation of prostitution, labor, or begging statutes.” In enacting this legislation, the sponsors were primarily concerned about reversing the consequences of a criminal history for those who faced past victimization and those whose offenses were the product of coercion. The law’s focus on sex trafficking makes sense, because prostitution is a very clear—and even paradigmatic—example of a criminal offense that may be the result of trafficking. However, prostitution is not the only conduct that is both criminal and may derive from force, fraud, or coercion.
The Significance of Extending Vacatur to Victims of Non-sexual Trafficking
Embracing the full scope of the New York vacatur language could potentially have a significant impact. Take, for example, selling or buying drugs, or even selling goods without a license. Each of these acts may result in conviction, and each of these acts may be performed by a trafficked individual. In fact, interpreting “coercion” broadly, vacatur could benefit everyone from a domestic violence victim forced to transport drugs for her boyfriend to an individual forced to sell drugs to satisfy a debt from an aggressive loan shark. Extending vacatur to these individuals would give them the benefit of the statute’s fresh start policy, and decrease the chances of them being retrafficked into illegal activity or cut off from the formal economy. Sex trafficking often attracts special attention from policymakers, perhaps because it is a provocative subject, and perhaps because of the popular perception of who its victims are. But in the context of the vacatur statute, the distinction between types of trafficking is largely meaningless. Trafficking arises where there is force or coercion, and the repercussions of a criminal record are the same regardless of underlying conduct.
It is imperative that workers’ advocates recognize the relationship between the criminalization and exploitation of workers. A criminal history often paves the way for workplace exploitation and trafficking, just as coerced labor can result in convictions. An extension of the vacatur law to all victims of trafficking is just a start, but it is one that must not be ignored. Vacatur must be extended to all trafficked workers, and advocates should take advantage of the statutory mechanisms making this possible.
Hanan Kolko, a skilled and experienced litigator in labor and employee benefits law, joined Meyer, Suozzi, English & Klein, P.C. in 1999 and became a Member of the firm in 2003.
Chloe Serinsky is a 3L at CUNY Law, an editor of the CUNY Law Review, and a law clerk at Meyer Suozzi.