BBA Council Supports Streamlined Post-Conviction Relief for Human Trafficking Survivors

In January 2014, the BBA launched the Human Trafficking Subcommittee of the Delivery of Legal Services Section. Following a successful Human Trafficking Symposium in June 2013, the BBA formed this Subcommittee so that we could continue to focus on the issue. Alec Zadek of Mintz Levin was selected as a co-chair upon its launch and has remained in the position over the past four years, and he’s now joined by Lavinia Weizel, also of Mintz Levin.

Since its launch, the Subcommittee has hosted a number of programs and developed an interest in a number of policy proposals, including H. 766, An Act to Reduce Sexual Exploitation of Human Trafficking, which Alec and Lavinia helped to draft. This bill, and the similar S.906, An Act to enhance the lives of survivors of human trafficking, establishes procedures for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker.

Initially, the Human Trafficking Subcommittee, with endorsement from the full Delivery of Legal Services Section, sought BBA support for H.766, but in the meantime, as part of the Criminal Justice Reform debates, both H.766 and S.906 were included as amendments in the respective House and Senate packages. Each of the amendments contained various, mostly minor, modifications and are now in Conference Committee. The Conference Committee will report out one of the versions, combine the two and report out a hybrid, report out an entirely different version, or decline to report out any version or hybrid.

Broadly, all of the proposed versions of the legislation would update the Massachusetts human trafficking laws passed in 2011, to address those instances when individuals operating under the control of a trafficker are arrested and convicted of prostitution-related offenses. More than thirty other states have passed similar laws, which streamline the process of vacatur, and often record sealing, for those who have been trafficked. Existing laws in Massachusetts allow criminal defendants to seek post-conviction relief under the Massachusetts Rule of Criminal Procedure 30(b), but this process is complex, unpredictable, expensive and often challenging for indigent survivors to navigate on their own.

Legislation that addresses this challenge can ease the process through a number of means, including the creation of a presumption, upon a showing that the survivor was trafficked at the time of the underlying offense, that a conviction for one of the relevant offenses was the result of human trafficking. In addition, traditional hearsay rules can be relaxed so that official documentation can be considered by the court, reduce the need for voluminous filing through the use of a standardized form, and provide for the automatic sealing of records in certain circumstances.

Because of the various versions pending, and because advocates like Zadek and Weizel felt any of the proposed language would be a major improvement in the processes of post-conviction relief for survivors, the proposal eventually evolved into a broad statement of support for the creation of a streamlined process, without comment on any specific language. Following an enlightening presentation by Zadek and Weizel, the Council voted to endorse the proposal.

With the vote, the BBA expresses its support for legislation that would create an efficient, and less-onerous, process for survivors to pursue vacatur of certain offenses that result from human trafficking – especially for acts undertaken as a juvenile – and sealing of arrest records and any other criminal records associated with such convictions. From an access to justice perspective, the creation of a streamlined process is crucial to ensure that survivors have an accessible, efficient, and effective means to remove and reduce barriers to rebuilding their lives.

The presence of a criminal record creates major legal and practical barriers for individuals seeking critical life necessities, including, but not limited to, employment, housing, education, and healthcare. The recent BBA report on Criminal Justice Reform, No Time to Wait, discusses the broad array of serious and long-lasting consequences that accompany criminal convictions. For survivors of human trafficking, who often face these barriers on account of criminal convictions for acts completed while under the control of a trafficker, that burden is especially unwarranted. Without this process survivors of trafficking, facing unemployment, housing insecurity, and a lack of access to other crucial services, are more likely to find themselves back under the control of a trafficker or in other difficult or dangerous situations that can undermine their ability to successfully re-integrate into society.

The BBA is proud to support measures that will create meaningful access to post-conviction relief for survivors and will be respectfully urging the conference committee to ensure that this opportunity to improve access to justice for these survivors is not missed. Continue to watch this space for more updates about the progress of these proposals, and the continuing criminal justice reform debates.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association