Guest Post: Elena
Kuran is the current Lawyer Referral Service Intern at the Boston Bar
Association. Elena is a third-year International Affairs major at Northeastern
Last week, the BBA hosted “Post-Conviction Relief for Survivors of Human Trafficking: Overview of New Massachusetts Law.” The discussion was led by Lavinia Weizel (Mintz, Associate), Alec Zadek (Mintz, Member), Julie Dahlstrom (Boston University Law School, Clinical Associate Professor of Law), Deanna Tamborelli (Boston University Law School, Student), and Chelsea Tejada (Boston University Law School, Student).
The panel began by contextualizing the new
Massachusetts law that assists survivors of human trafficking by
streamlining the process of vacating convictions. Massachusetts is one of forty
states that has vacatur laws for adult survivors of sex trafficking. Prior to
the new law, vacating a conviction under Massachusetts Rule of Criminal
Procedure 30(b) was a complex process that demanded the survivor to provide an
affidavit, a requirement that was identified as taking a significant toll on
the survivor’s mental wellbeing.
The new law, which was passed as part of “An Act Relative to
Criminal Justice Reform” in 2018, mitigates the complexities and emotional
tolls of Massachusetts Rule of Criminal Procedure 30(b). The streamlined
process, while does not require an affidavit, requires a burden of proof. The
survivor has the burden to establish a “reasonable probability” that their
participation in the offense was “a result” of their having been a victim of
human trafficking. Exceptions are made in cases in which the survivor was a
minor during the time of the offense, or the survivor can provide official
documentation of their status as a victim of human trafficking at the time of
A motion may be heard by any sitting justice of a court of competent jurisdiction. A conviction vacated under the new law is deemed to have been vacated “on the merits.” The new law helps survivors by remedying past injustice, empowering them to access opportunities, and providing them a means to reclaim their experience.
As of now, the new law remains untested. For potential cases in Massachusetts, the panel encouraged referrals to be made to the Boston University Law School’s Immigrants’ Rights and Human Trafficking Program at 617-353-0993. For convictions outside of Massachusetts, the ABA Survivor Reentry Project serves as a good resource, as it conducts intake on an ongoing basis.
The program was hosted by Lavinia Weizel of Mintz Levin, co-chair of the BBA’s Human Trafficking Committee. You may recall reading about Lavinia—and her co-chair (and Mintz colleague) Alec Zadek—in our Issue Spot blog recently, in connection with their efforts to create a streamlined process to allow defendants to vacate convictions for offenses related to their status as trafficking survivors—a proposal the BBA Council recently endorsed. While that issue was raised during the event, the broader focus was on the various forms of sex- and labor-trafficking that are most common in Massachusetts and specific ways that attorneys can be part of the safety net for survivors.
Our first presenter was Beth Keeley, Chief of the Human Trafficking Division in the Massachusetts Attorney General’s Office and former head of the Suffolk County District Attorney’s Human Trafficking and Exploitation Bureau. She started with some recent history on the issue, dating back to the enactment in 2000 of the federal Trafficking Victims Protection Act, which strengthened pre-existing laws.
While Massachusetts was “late to the game,” passing a state law only in 2011, Keeley argued that it’s a particularly strong law, in that—with no requirement to prove force, fraud, or coercion— it’s easier to make a case. She also said that our statute, unlike many others, puts the focus on the trafficker/exploiter’s mens rea, rather than on the mind of the victim.
The key to enforcement, Keeley stated, is to follow a multi-disciplinary approach, with prosecutors, investigators, and victim-witness advocates all on staff at AGO, working with the State Police’s dedicated trafficking unit, the District Attorneys (many of whom also have dedicated prosecutors focusing on the problem), and social-service agencies. Her office is able to use its statewide jurisdiction to pursue defendants across counties, treating their operations as criminal enterprises in order to maximize the impact by identifying and taking down networks.
To date, AGO has mostly gone after sex-trafficking, but they are building up their enforcement in labor-trafficking. While the former is found most often in massage parlors, brothels, and the Web, the latter shows up in construction, domestic and cleaning work, and the service sector in general. Still, one always needs to be mindful, in any enforcement action, of the concerns of victims. They frequently suffer from poverty, abuse, and addiction—all factors that make people vulnerable to traffickers in the first place. And—although the law provides them with an affirmative defense, and prosecutors, starting with AG Maura Healey, have pledged not to do so—they may be fearful of being prosecuted themselves for offenses they committed, such as sex for a fee or working without documentation.
At the same time, advocates are always striving to raise public awareness of the problem, including the role that demand plays, and exploring what else can be done beyond prosecution—educating law enforcement, holding trainings, working with labor leaders, providing pro bono representation, and advocating for enhanced funding.
We next heard from Rochelle Keyhan, who leads the Polaris Project’s strategic initiative to eliminate illicit massage business (IMB) trafficking in the US, and Francheska Loza, formerly of Foley Hoag LLP and now Polaris’s Disruption Strategies Community Organizer. Keyhan talked more about the patterns she sees, and the 25 different types of trafficking that Polaris has identified—all of which call for distinct responses. In the IMB sector, for example, victims tend to be older women from outside the country, often undocumented—especially from China and Korea, cultures where these activities trigger high levels of shame and self-blame, making it even more difficult to come forward to law enforcement. They frequently fear authorities, carry high debts, lack full awareness of their rights, and are under threat from their abusers.
Two other common loci are bars and strip clubs, where an excessive cover charge may be hiding the illegal activities. Victims there tend to be younger and come from Latin America—or US-born Latinas. As with workers in IMB, they are usually targeted based on extreme economic need, and the networks frequently have roots in Latin America.
Labor trafficking can be found in such venues as karaoke bars and nail salons. These cases, which are often interconnected with sex trafficking, can be easier to prosecute because victims are more willing to come forward and to reveal details to investigators.
Polaris’s disruption strategy, a focus of Loza’s work, includes research, creation of a safety net for survivors, partnership with other stakeholders, and the use of culturally-competent and trauma-informed interpreters. It’s also critical to try to find connections among survivors, for purposes of identifying networks, since trafficking operations are generally much more sophisticated than a typical pimp’s.
The methods of control used by traffickers, which are important for people to be aware of in identifying possible operations, include:
isolation and confinement
threats directed at the victim or their family
intimidation and abuse, including sexual/emotional abuse
So. Armed with all this information, what can you do to help crack down on trafficking? Some advice from our panel:
Be suspicious of cash-only businesses, very low prices for services, or when a provider is adamant about getting a large tip.
Victims may be receiving little or no base compensation, making it an urgent matter that they maximize the income they generate through tips.
Other red flags include…
Excessive surveillance cameras.
“Body work” establishments. Massage therapists must be licensed, but using this term is a way around regulation.
Read online reviews:
Many users are up-front in describing the illegal services they’ve bought.
Call the property owner, the police, municipal officials, or the Polaris hotline.
Call your elected representatives about making the issue a priority.
At the local level, ask about strengthening ordinances, since some cities and towns lack the authority to shut down or even investigate a business
Take on cases pro bono.
Again, you may be able to help with vacatur: Even absent the BBA-endorsed streamlined approach now under consideration in the Legislature, there exists a procedure (albeit lengthy and convoluted) to vacate convictions if the defendant was under the duress of a trafficker.
Finally, watch our Issue Spot blog for updates on the progress of vacatur legislation, and keep an eye on the BBA calendar for more events on human trafficking.
Government Relations Director
Boston Bar Association
Beth Keeley (Chief of the Human Trafficking Division at the Massachusetts Attorney General’s Office, far right) makes opening remarks at the event. She’s joined on the panel by Lavinia Weizel (Mintz Levin, BBA Human Trafficking Subcommittee Co-Chair, far left), Rochelle Keyhan and Francesca Loza (Polaris Project).