Why is this Important for Decriminalization?
The criminalization of sex work means that people who trade sex often have arrest records which have long-term consequences that may bring years of harm and hinder a person’s life. The consequences of a prostitution-related arrest may include loss of government subsidized housing, barriers to other forms of employment, problems in civil or custody hearings, immigration consequences, or cause increased penalties for future convictions. Post-conviction relief means options for people on dealing with a sentence or criminal record after a conviction for a criminal charge. When working on decriminalization in policy change, we cannot forget that removing statutes are important moving forward, but we can’t leave people behind, and so considering provisions for post-conviction relief in your proposed bill is important. Below are several types of post-conviction relief options and a breakdown of language, but every state is vastly different in what these laws look like.
Not included below is an appeal, which is a type of potential post-conviction relief which challenges the legal decision in a case for a specific reason, and asks the case to be brought to a higher court for review. Either side can appeal if they disagree with the decision. It is not included because appeals are a part of litigation that an individual would make with their attorney that has time limitations. For example, if someone is found guilty of prostitution for using a dildo to peg a client during a pro-BDSM session, the attorney may appeal the conviction a higher court to say that because there was no genital contact, the conduct is not covered by the language in the prostitution law.
Types of Relief
There are multiple terms that refer to different types of relief, which all mean different things. Every state has different options which are based on statute, age of the person when the crime was committed, level of difficulty, type of crime, and timeline. Find an attorney in your state who works on broad post-conviction relief, and also understands the immigration consequences, to make sure the language is in line with existing code and will provide the support necessary.
Sealing. Record sealing is where court records are hidden from public view. In some cases, this means they are also destroyed, but in some circumstances they can be seen by courts and federal officials. This means that they are still going to be seen during immigration proceedings or government background checks. They can also be unsealed by the court in some circumstances. They may also be seen by certain employers who are required to do background checks, such as hospitals, especially if the charges are felony-level. The main difference in sealing is that while it might not show up to the general public, the record still exists.
Expungement. This option erases the arrest and it does not show up for general law enforcement procedures or to the public, so it goes a step beyond sealing. Depending on the state, expunged records may still show up in a federal background check, since as in immigration proceedings. Read more about expungement from the American Bar Association.
Vacatur. Vacating someone’s criminal record is the most complete version of post-conviction which “sets aside” the judgment. While sealing and expungement only refer to what appears on a record, vacating a conviction says the underlying charge should never have occurred. Originally it was similar to the end of an appeal, where a higher court agreed to reserve/set aside the original conviction. More recently it has become associated with survivors of trafficking who have convictions based on criminal activity they were forced to engage in by their trafficker. Most importantly, vacatur or vacating prior convictions is the best option to support migrant sex workers with prostitution-related convictions
Pardon. A pardon is where a governor or president can “forgive” someone for their conviction and removes the remaining punishment associated with that charge. Pardons are granted after an application, and sometimes a more public pressure campaign, and only possible in individual cases. Clemency is similar, but it is where there is a reduction of a sentence instead of forgiveness for the original conviction. Ideally, a clemency decision would shortened the sentence to an amount of time which has already been served (ie. if someone has served 15 years but has a life without parole charge, an official would ideally commute the sentence to 15 years and the person would serve no more time.)
Read about Alexis Martin, who was pardoned for a conviction which stemmed from her trafficking situation when she was 15 years old. (CW: Trafficking, violence, minors).
Prostitution-related charges have a different impact on immigration processes than other misdemeanor charges. Because of immigration decisions in the past and the history of stigmatization towards sex workers, prostitution charges are considered “Crimes of Moral Turpitude”, which means a crime with ‘evil’ intent. This causes problems for things like applying for a green card and other immigration procedures. When incorporating post-conviction support in any bill, consulting with an immigration attorney will be important in making sure it is supportive of migrant sex workers as well. As a general rule (every state is different), if a conviction or arrest shows up on a Federal background check, it will show up during immigration proceedings such as adjusting your status from a visa-holder to become a legal permanent resident.
Why are Vacatur discussed so much in Anti-Trafficking spaces?
There is a great deal of support in the anti-trafficking movement in support of vacating convictions for survivors of trafficking, mainly trafficking into the sex trades. Because many survivors of trafficking are migrants, they have access to a special visa known as a T-Visa to move them from being undocumented to documented. The beginning of this connection began at the Sex Workers Project, whose immigration program served many migrant survivors of trafficking. When going to change their status from having a T-visa to a more permanent status, they ran into the problem of long histories of prostitution-related arrests. Because the crime of trafficking means people were forced to engage in criminal activity, it became clear that these records needed to be removed in order to support migrant survivors. While the conversation began focused on migrants, broader conversations began around victims being forced to engage in criminalized behavior.
The Challenge to Victims of Trafficking. Many states are hesitant to acknowledge that they are regularly violating and harming victims of trafficking with arrest and legal proceedings and have put in significant barriers and limitations to accessing vacatur proceedings. One state requires you to have a closed state-level trafficking prosecution associated with your case, but has never prosecuted a case of trafficking on the state level. Many states only allow you to vacate prostitution convictions, but if you carrying a knife to protect yourself, you may have gotten a weapons charge on the same night. One state says that if you didn’t bring it up during your case, you can’t vacate convictions. In all states, you must directly connect your charge to your experience of trafficking.
The Challenge to Sex Workers. When vacatur is only available to victims of trafficking, that means the majority of people in the sex trades, and even many of the records of victims of trafficking, are still not covered by these laws.
Again, every state is vastly different. Below are some different examples of post-conviction language, both as part of a decriminalization bill, and as stand-alone bills.
Additional Considerations and Challenges
Implementation. Implementation of laws is always a challenging second step. To make post-conviction relief a reality means making a motion to the court, which means lawyers who know how to file these motions. In some places, vacatur statutes have been implemented, but lawyers who do post-conviction work either don’t know the law has been passed or don’t know how to write the motions.