Trafficking victims get lost under unjust criminal convictions

Trafficking victims get lost under unjust criminal convictions
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Twenty-nine-year-old Cyntoia Brown has been imprisoned since she was sentenced at 16 years old for killing an adult man who hired her for sex.

Although her attorneys argued she was a runaway who was raped, abused, and sex trafficked by a pimp known as "Cut Throat," Brown was convicted of first-degree murder and aggravated robbery in 2004 and sentenced to life in prison.

A PBS documentary about Brown's case recently caught the attention of celebrities such as Kim Kardashian West, Rihanna, and Snoop Dogg, who posted their support on social media with the hashtag, #FreeCyntoiaBrown, garnering a national spotlight.

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The documentary filmmaker Dan Birman and other purported experts claim that if Cyntoia Brown were arrested today, she would be treated like a victim of sex trafficking, not an offender.

Unfortunately, this isn't necessarily true.

In 2011 Tennessee passed a "safe harbor" law, which — according to the American Bar Association — is intended to:

  1. Decriminalize prostitution for anyone under a specific age (minors cannot be held criminally liable for exploitation);
  2. Divert victim minors from delinquency proceedings toward supportive services;
  3. Provide specialized services for minor victims; and
  4. Reclassifying minors as victims or sexually exploited children.

However, data from the FBI uniform crime report suggests that juveniles continue to be arrested for prostitution in states that pass safe harbor laws or other legislation meant to decriminalize sex trafficked youth.

For example, although the Californians Against Sexual Exploitation Act (CASE Act) states that “Because minors are legally incapable of consenting to sexual activity, these minors are victims of human trafficking whether or not force is used,” a year after it was passed a young girl named Aarica S. was arrested, charged, and convicted of prostitution when she was 17, despite the fact that she testified she was raped by her father as a child and sex trafficked for three years.

Regardless of legislative changes, juvenile trafficking victims are often erroneously criminalized for crimes related to their victimization. For example, earlier this year child sex trafficking victim Hope Zeferjohn was sentenced for sex trafficking, despite the fact that she was operating under the influence of a "coercive and violent older man.”

It is important to understand that Cyntoia Brown's case is not an isolated incident and the outcome wouldn't necessarily be different today. As a human trafficking expert witness, I am called to testify for the prosecution of human traffickers, as well as for the defense in cases of erroneously criminalized victims. Given the clandestine nature of sex trafficking crimes, misidentification of victims is prevalent.

In fact, erroneous criminalization is so prevalent that an increasing number of states are passing vacatur statutes to provide post-conviction relief to these misidentified trafficking survivors.

Ultimately, even if a victim is correctly identified, they aren't necessarily provided with trauma informed services and often find themselves re-victimized post-”rescue.”

At the time of this writing, an online petition urging Tennessee's governor Bill Haslam to consider clemency for Brown has more than 170,000 signatures. However, the gap in policy that is affecting Cyntoia Brown also affects thousands of other teenagers who are being sex trafficked in the United States.

Readers should consider calling their representatives to advocate for accountability in implementing these safe harbor policies. Also, support organizations that provide victim-centered and trauma-informed education, vocational training, job placement, and housing services to human trafficking survivors.

Human trafficking survivors often have the will for independence, but they need the roadway to get there, and a criminal conviction is a huge impediment that needs to be overcome for this already marginalized population.

Dr. Kimberly Mehlman-Orozco holds a Ph.D. in Criminology, Law and Society from George Mason University, with an expertise in human trafficking, and sits on the board of Empower Her Network. She currently serves as a human trafficking expert witness for criminal cases and is the author of “Hidden in Plain Sight: America's Slaves of the New Millennium." Dr. Mehlman-Orozco’s writing can be found in The Washington Post, Forbes, The Crime Report, The Houston Chronicle, and The Baltimore Sun, among other media.