Lauren Alexander, left, and Lara Bach, right.

In 2013, the Florida Legislature enacted the human trafficking expungement statute (Fla. Stat. Section 943.0583) which provides for the expungement of certain criminal records of human trafficking victims. In enacting this statute, the Florida Legislature intended to give victims of human trafficking a fresh start without being held back by their criminal records that were the result of acts committed unwillingly while being trafficked. Nevertheless, the expungement statute, while providing broad relief, has gaps that work against the intent of the Legislature to give full relief to trafficking victims.

Survivor Case Study

Consider Mary, a survivor of years of horrific sex trafficking that included forced commercial sex, brutal physical and verbal abuse, isolation, and loss of freedom. During the period in which she was trafficked, Mary was not recognized as a victim and was instead arrested on numerous occasions. Her arrests, charges and convictions ranged from prostitution (as one may anticipate) to kidnapping another woman who was being held, like Mary, by her trafficker. Despite eventually freeing herself from her trafficker, securing counseling and working tirelessly to build a new life for herself, she continues to be held back by the stain of her criminal record for acts committed unwillingly while under the control of her trafficker. Her criminal record had a profound impact on her ability to move forward, preventing her from employment and educational opportunities, as well as housing. For others, it could also impact the victim's immigration status, government benefits, child custody and voting rights.

Fortunately, for victims of human trafficking like Mary, the human trafficking expungement statute provides for the expungement of certain criminal records of human trafficking victims. In Mary's case, her entire criminal record was successfully expunged, but the unprosecuted charge for kidnapping was not because the expungement statute makes certain felony offenses, regardless of their disposition, ineligible for expunction.

Florida's Report Card

Earlier this month, Polaris—an organization dedicated to combating human trafficking—published a report grading the effectiveness of criminal record relief laws across the country for survivors of human trafficking. The report, which was designed to serve as a blueprint for drafting, amending and implementing state expungement laws, ranked Florida third in the nation with a grade of “C.” While the report recognized Florida's broad expungement statute for victims of human trafficking, it identified certain gaps in the statute that are preventing trafficking survivors from obtaining full and complete relief.

The most glaring hole in Florida's human trafficking expungement statute is the carve-out for certain felony offenses, including, for example, kidnapping, robbery, aggravated battery and others. This carve-out fails to recognize that victims of human trafficking, often under threat of physical violence, are forced to commit a wide range of offenses at the direction of their traffickers. Under the Florida human trafficking expungement statute, victims of human trafficking charged with any of these types of felonies are ineligible to expunge the offenses from their criminal record, regardless of the disposition of the charge or the circumstances surrounding the arrest.

This is particularly problematic when the victim is charged with an offense but not prosecuted for the offense because the charge was subsequently dropped by the prosecutor. In the case of Mary, she was charged with kidnapping another woman who was also being held and trafficked. The prosecutor in her case dropped the kidnapping charge and never prosecuted it against Mary. Nonetheless, that charge remains on her record today because of the incomplete relief afforded by the Florida human trafficking expungement statute.

Just last year, this issue was in front of the Florida Third District Court of Appeal in M.G. v. State of Florida. The Third DCA recognized that expunction of all charges, including a kidnapping charge, would be consistent with the intent of the Legislature to allow victims of human trafficking a fresh start free from the convictions that resulted at the command of her trafficker. Despite this recognition, the Third DCA concluded that the plain language of the human trafficking expungement statute did not allow the court to expunge the kidnapping charge. As the Court noted, only the Florida Legislature can amend the statute to provide victims of human trafficking full and complete relief.

We Can Do Better

While we may celebrate that Florida's expungement statute ranks high among other states, Florida can do more to help victims clear their criminal records and move past their victimization. The Florida Legislature should amend the human trafficking expungement statute to address the shortcomings identified in the Polaris report. In addition to including all types and levels of offenses eligible for relief, the statute should be amended to provide mandatory confidentiality for all motions filed under the expunction statute. Confidentiality is necessary due to the inherent risk that a former trafficker may locate a victim based on public disclosure of the victim's personal and sensitive information. Additionally, the current statute provides that a victim of trafficking cannot have multiple motions for relief pending at the same time. This requirement drags out the expungement process for victims who have convictions in multiple states or multiple jurisdictions in Florida and only delays the much-needed relief. Until the gaps in the statute are filled, victims of human trafficking, like Mary, will continue to suffer ongoing punishment—difficulty securing housing, employment, and a fresh start—for acts they committed unwillingly under coercion by their trafficker.

Lauren Z. Alexander is a senior associate in Weil, Gotshal & Manges' Miami office and a member of the firm's complex commercial litigation practice. 

Lara B. Bach is a senior associate in the firm's complex commercial litigation practice, where she has substantial experience in multidistrict litigations, consumer fraud and products liability class actions, alter ego and fraudulent conveyance litigation, and disputes arising out of restructurings and bankruptcy proceedings.