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In 2014, Pennsylvania enacted Act 105, permitting judges to vacate certain criminal convictions that are an outgrowth of sexual exploitation. For many vulnerable populations, sexual exploitation is common and can lead to individuals becoming addicted to drugs, being physically threatened and harmed, and other life-threatening circumstances. Too often, those who experienced exploitation ended up in the juvenile or criminal legal systems. Years and even decades later, their records can prevent them from accessing jobs, housing, education and can even impact their ability to keep their families together.

Attorneys at Community Legal Services (CLS) help people file petitions to have eligible convictions vacated so that they can access vital opportunities and get a fresh start.

How Does Vacatur Work

In order to get a conviction vacated, a written motion must be filed and the District Attorney's office must agree. No official form of documentation can be required to show that someone is eligible. If the DA's office agrees, then the motion goes before a judge.

If a motion for vacatur is granted, the conviction is undone and the criminal record is fully expunged. The striking of the adjudication of guilt also releases the individual from paying any remaining court debt owed on the case.

The Criteria

An individual convicted of the following offenses may file a motion to vacate: criminal trespass; disorderly conduct; loitering and prowling at night time; obstructing highways and other public passages; prostitution; or an offense for simple possession of a controlled substance committed as a direct result of being a victim of human trafficking.

The statute's legal definition of human trafficking broadly encompasses the common experiences of individuals who are charged with prostitution and related convictions. A person meets the legal definition, if by threat or action, someone else subjected them to the following conduct: serious bodily harm; physical restraint; kidnapping; abuse of the legal process; retaining personal or real property; unlawful conduct with respect to documents; extortion; fraud; criminal coercion; duress; facilitating or controlling the individual's access to a controlled substance; and using any scheme or plan that will cause the person to believe that if they did not perform the requested services they would suffer serious harm or restraint. Also, if the person is or was under the age 18, the statute recognized them as having been per se trafficked. This expansive criteria allows legal service providers to help many individuals who may not initially identify as being survivors of human trafficking.

Many CLS clients upon learning of the vacatur law feel it does not apply to their situation. But our in-depth process for building trust with clients and screening them thoroughly for their eligibility almost always leads us to find that they do in fact qualify. Often, they were exploited and controlled by someone else, could only have a place to live if they performed services, were given drugs to perform work, were threatened, were restrained, were beaten or were minors at the time. We are able to help individuals find their opportunity to be released from the stigma and persecution associated with having prostitution and related convictions on their criminal record.

The Impact

Young people with histories of abuse, trauma, neglect and contact with the dependency or juvenile justice system are more at risk of becoming victims of trafficking and forced to engage in prostitution or survival sex work. This reality is disproportionately prevalent in the lives of black, brown and LGBTQ youth. A study conducted in Philadelphia, Washington, D.C. and Phoenix, Arizona, revealed that 14% of homeless youth were victims of human trafficking at some point in their lives. Among these young people who self-identified as victims of trafficking, 33% also identified as LGBTQ. We need to protect our most vulnerable youth at the times they need us most.

Room for Improvement

When vulnerable youth are sexually exploited at a young age, they are more likely to continue engaging in the sex trade into adulthood. Fortunately, the city of Philadelphia has moved toward crisis intervention to address this issue rather than criminalization. Philadelphia was the first city in the country to design and implement a problem-solving court that assists women with repeat prostitution offenses. However, the program is only for nonviolent offenders. A growing number of women are charged with violent offenses such as assault and the underlying incidents often stem from women protecting themselves from domestic abuse or acting out deeply triggered trauma. While much progress has been made, there is still more work to be done in regards to being trauma-informed. For example, Pennsylvania's trafficking law could mirror California's and allow any conviction to be vacated if there is a connection between the offense and the individual's trafficking history.

In addition, more must be done to ensure that our laws and systems are gender-responsive and LGTBQ competent. While some LGBTQ youth identify as being survivors of trafficking, some do not and are often left out of the conversation and denied protection. LGBTQ youth are often kicked out of their homes, disowned by their families, overlooked and excluded in school, denied access to jobs and housing, and are overall pushed to the outskirts of society. Historically, the only industry that has not denied them employment has been the sex trade. We need to recognize prostitution for what it is in this context—survival sex work. While this does not fit into the standard narrative of human trafficking, LGBTQ members of our community who engage in survival sex work deserve and should be afforded the protections of vacatur laws.

Tracie Johnson is an equal justice works Fellow sponsored by Greenberg Traurig in the employment unit at Community Legal Services. She first worked with CLS as a certified legal intern on the Youth Justice Project. She now works to create career pathways for women and girls of color who face barriers to employment and higher education because of their juvenile and adult criminal records.