(Note: This article was updated on Jan. 14, 2020.)

Jessica¹ met Duane at a party at her friend’s house when she was 14 years old. Duane, her eventual trafficker, was 27, and she performed “dates” with his friends to prove that she loved him so he would keep her as his girlfriend and help her become a model.

Holly went to work at age 20 for a U.S.-based South African family as a nanny for three small children after connecting with them through the embassy but did not expect that her employers would add cleaning and cooking every day to her duties, refuse to let her out of the home by herself, and take her passport until she “worked off” the cost of her visa and plane ticket from home.

Jarrett started running away at 14 because his parents did not like the way he dressed and talked to other men. While he was homeless, he exchanged sex for a place to sleep for a couple of nights, and there were a few places he knew he could always go if he could handle that.

These are profiles of human trafficking happening every day in Wisconsin. According to the Polaris Project, a well-respected national human trafficking advocacy organization, there are more than 25 types of trafficking, which all have in common the vulnerability of the victims who are exploited for commercial sex or labor. Force, fraud, and coercion are the primary legal elements of the crime, except that for minor victims of sex trafficking, those elements need not be proved and the basic exploitation of commercial sex activity as a minor is on its face considered trafficking.² This article focuses on the legal needs of U.S. citizens who are sex trafficked within the United States. The legal needs of undocumented or foreign-born trafficking victims in Wisconsin are equally real and complex; we save that for another article in the interests of space.

Jessica eventually attempted suicide and called a local hotline. The crisis center’s trained staff identified her as a victim of trafficking and referred her to LOTUS Legal Clinic for specialized legal services. While Jessica received therapy and medical care, her lawyer helped protect her safety and privacy interests during the trial of her trafficker and worked with her to clear her legal record of a prostitution charge. She now rents her own apartment and has begun a career as a mentor for at-risk youth.

Jessica’s story is inspiring, but many victims fall through the cracks and do not receive appropriate care when they come into contact with those who could help them. The problem of human trafficking is exacerbated by laws and practices that often do not protect its victims or hold perpetrators accountable.

What Human Trafficking Looks Like in Wisconsin

Sadly, human trafficking occurs throughout the country, almost everywhere, including Wisconsin. A 2007 report from the Wisconsin Office of Justice Assistance indicated that sex trafficking cases have been identified in more than one-half of Wisconsin’s 72 counties, both urban and rural.³Statewide, both federal and state prosecutions of traffickers have been on the rise, though we do not yet have official numbers. Milwaukee, often considered a trafficking hub, consistently ranks as one of the top five cities in the nation for the recovery of trafficked minors.⁴

While it is clear that human trafficking is a serious and widespread problem, the prevalence of human trafficking is unknown. The lack of a reliable estimate of the number of individuals involved is partly a result of the hidden and illicit nature of the activity. Estimates that can be found often do not represent the full scope of the problem. For instance, in Wisconsin, there were 63 cases of trafficking reported to the National Human Trafficking Hotline in 2016, 84 percent of which were sex trafficking cases.⁵ These cases represent only the number of verified trafficking cases that came from calls or texts to the hotline.

In 2015, the FBI reported that 65 victims of trafficking were recovered in Wisconsin during a nationwide human trafficking operation,⁶ but clearly not every trafficking victim in the state was recovered by the FBI during this operation. Additionally, a report by the Homicide Review Commission documented 77 commercially sexually exploited minors who had contact with the Milwaukee Police Department (MPD) from 2010 to 2012.⁷ This statistic only reflects the number of individuals under 18 who made contact with the MPD and were identified as trafficking victims.

Much work remains to fully understand the scope of human trafficking in Wisconsin and beyond and to properly identify trafficking victims when they appear. What is needed is greater awareness, training, and research to provide a reliable estimate of victims, data to demonstrate which policies and practices are most effective, and funding for appropriate services to which victims can be referred.

What Lawyers Need to Know

Consider past client interactions when things seemed odd as you tried to provide counsel in a matter or when you thought something was missing in the information you were given; it is possible you may have already had a client who was a victim of trafficking. Lawyers practicing in family law, criminal defense, housing, or immigration and lawyers representing clients pro bono or on behalf of legal-services providers are among the more likely providers to see victims of trafficking.

Defense lawyers are the lawyers most likely to see individuals who are actively being sex trafficked, due to criminal charges for prostitution, drug possession, and so on or for status offenses if the victim is a minor. People who have been trafficked in the past are more likely to appear at legal-services providers with needs for family law, immigration, housing, and other legal issues.

A study commissioned on the legal needs of youth trafficking victims in 2013 by Loyola University⁸ raised insights that mirror the experiences of the authors in Wisconsin when considering how legal services are delivered for trafficking victims here. These needs are true for both adult and juvenile clients, in our experience. Briefly summarized:

• Legal needs are compound, crossing many areas such as criminal justice, juvenile justice, immigration, labor, civil law, child welfare, family law, and education.

• Interdisciplinary work is crucial for any competent model of service delivery.

• Systemic barriers abound for providing appropriate legal protections and services. The primary barriers are lack of financial resources, training, personnel, and data.

• Cases are complex and resource intensive, further draining limited budgets for legal support.

• Legal services providers must be equipped from the start to spot and partly serve nonlegal needs (that is, social, psychological, economic, educational, and medical).

• Definitions of trafficking are misunderstood by some agencies, harming the effective referral process.

• There are no standardized mechanisms for data collection and research, such as screening and assessment. There is poor separation in data sets of juvenile and child sex trafficking cases from adult cases and lack of a well-considered approach to accurately separate that data.

If being trafficked as a life event is like floating in a rather chaotic and overwhelming river, victims need legal help upstream (before being exploited), midstream (in the midst of their experiences), and downstream (sometimes long after they are no longer being actively trafficked). Upstream, lawyers can identify and advocate for at-risk youth in the juvenile courts to get needed support and increase protective factors such as strong school attendance and connection to healthy adults. This reduces their chances of being taken advantage of by exploiters. Individual risk factors include low self-worth, multiple prior traumatic experiences (especially sexual abuse), running away or being forced from home by parents or other relatives, alcohol and drug use, unstable or harmful family environments, and lack of a strong positive social network.

Such factors combine with community and societal risk factors, including cultural messages about sexuality as power and money, lack of jobs for youth, living in a disadvantaged neighborhood, and pervasive solicitation from adults looking to exploit youth in online forums. Juvenile public defenders and guardians ad litem are in a good position to have open and honest conversations with youth involved in the child welfare or juvenile justice systems about their experiences; an awareness of risk factors may lead to opportunities to prevent a young person from being trafficked.⁹

Guiding Victims Through the Legal System

When at-risk youth or young people who have escaped a trafficking attempt or who have been trafficked are criminalized in the system (for example, by taking a plea for delinquency or prostitution), this only confirms the message that they are somehow responsible for the harm others have caused them. In this precarious river filled with rapids and obstacles, youth who have been trafficked can be very reluctant to characterize their experiences as the result of weakness or being taken advantage of: at times, it appears that traffickers came through with tangible help such as clothes, food, and affection when others were nowhere to be found. The victim may be portrayed to lawyers as manipulative or dishonest or may seem resistant to help.

Lawyers for trafficked youth can help young people navigate through a dizzying array of interviews and system responses by law enforcement, child welfare, court, and social services officials and employees, as well as deal with new concerns about the most effective supports needed.¹⁰

Midstream, a victim of trafficking may need a victim’s rights lawyer or a defense lawyer and sometimes both at once. For example, a client facing drug possession charges may be an unidentified trafficking victim; her defense lawyer may realize that she is a candidate for an affirmative defense of coercion.¹¹ Having a lawyer who understands how to sensitively raise this issue with her and how to proceed with her consent is powerful for victims. She may realize it is possible to mitigate the collateral consequences of arrest and conviction while being trafficked; she may also choose to get support and services to get out of “the life.”¹² It can be a long and dangerous process.

For victims who are identified as trafficked due to prosecution of a pimp or trafficker in the legal system, representation by a victim’s lawyer in a criminal case against their trafficker is important. This role is different than that of victim advocates provided by the courts because lawyers can file notices of appearance on behalf of victims, file motions, and negotiate with the prosecution and victim advocate¹³ to see that their clients’ needs are met and their rights enforced.

Know and Protect Victims’ Rights. Throughout the case, rights to privacy, to make a statement at sentencing, and to be treated with fairness and dignity are constitutional and statutory for victims, and so is the basic right to standing in their case.¹⁴ These rights are outlined in Wis. Stat. chapter 950 and in the Wisconsin Constitution, which provides that,¹⁵ “The State shall treat victims with fairness, dignity and respect for privacy.” Lawyers specifically work to ensure the following rights afforded to victims:¹⁶

• Timely disposition;

• Opportunity to attend court;

• Notification of what is occurring in the case;

• Opportunity to confer with prosecution;

• Protection from the accused throughout criminal justice process;

• Statement at disposition;

• Restitution;

• Compensation;

• Information about case outcome; and

• Information about the release of the accused.

Lawyers can be vital in the protection of these rights in trafficking cases, especially the rights to privacy, restitution, and protection from the accused. Witness intimidation and the client’s fear of the trafficker are common in these representations.

Section 950.105 of the Wisconsin Statutes establishes the victim’s right to standing. While a right to a lawyer for victims is not stated per se in Wisconsin law, the implied right to counsel is well established. Victim’s rights lawyers follow the practices established by the National Crime Victims Law Institute, which takes the position that “[t]hese rights must be interpreted through the lens of due process; consequently, victims’ rights must be afforded in such a way that the rights are meaningful.”¹⁷

In both federal and state courts nationwide (including Wisconsin), there is ample evidence in the past decade of victim’s rights counsel intervening in courts to prevent the violation of a client’s rights, or, if a right has been violated, to enforce the right by making courts accountable for correcting that violation.¹⁸ The victim’s right to counsel in Wisconsin is evolving to follow national trends, with a bill currently being drafted that would provide the right to counsel for victims of sexual assault when defense counsel issues a subpoena for their mental health records. (This issue stems from the controversy about Shiffra-Green motions that has been reported on here.¹⁹)

Advocate for Victims Who Also Face Criminal Charges. Legal needs for a trafficking victim’s rights representation can overlap with that individual’s criminal defense needs. Some human trafficking victims are dual status – they may be seen by courts as both victims and defendants at the same time. Trafficking victims are sometimes complicit in recruiting other victims for the trafficker (they are sometimes called “bottoms” or “bottom girls”) and are charged as traffickers themselves, or they may commit other crimes in other states while being trafficked and risk being prosecuted in another jurisdiction because of disclosures during prosecution of the trafficker in Wisconsin.

In this situation, criminal defense lawyers need to know about affirmative defenses available for their clients, know options for vacatur or expungement if a defense is not successful, and be adaptive enough to advocate within the legal system or outside it in other ways for the needs of the client as a victim first, not a defendant.

Helping Survivors Build a Safe and Stable Future

While some victims of trafficking never break free from the debilitating life of trafficking,²⁰ others make it out and must then focus on building a new life. Downstream, survivors need many civil legal services as they begin to reconstruct a life and build a foundation for economic and personal stability. Problems related to housing, immigration status, family law, and municipal records or warrants for unpaid tickets are typical. Sometimes it is effective to give legal advocacy in a preventive way to keep victims’ legal problems from snowballing. For this, it helps lawyers to have a longer-term relationship with a client and to be in touch with an organization that works frequently with victims for wraparound services.

One specialized, noncivil remedy that Wisconsin law allows is the vacatur or expungement of a trafficked person’s prostitution convictions.²¹ This process can be time-consuming and is best approached when coupled with clearing up a victim’s entire legal record. While Wisconsin’s vacatur statute is not as powerful as it needs to be, pursuing these efforts is very meaningful for victims and important as a matter of justice.

In September 2017, LOTUS teamed up with the American Bar Association’s Survivor Reentry Initiative and lawyers from Foley and Lardner LLP to provide free training for lawyers interested in providing these services through LOTUS’s pro bono program. Training topics for this work include the legal foundation nationwide and in Wisconsin for vacatur remedies, the nuts and bolts of filing petitions in Wisconsin, addressing special concerns such as immigration and privacy, case examples, and best practices for working with victims.

Lawyers who work with victims of trafficking must understand trauma and its physical and mental health consequences. A 2014 study of health consequences experienced by domestic sex trafficking victims found tremendous suffering in all aspects of life. For instance, victims reported the following:²²

• 99 percent had at least one physical health problem, with 92 percent experiencing neurological problems;

• An average of 12 types of psychological issues, including depression (89 percent) and PTSD (55 percent);

• 95 percent experienced some type of violence or abuse, with 82 percent indicating forced sex; and

• 84 percent abused or misused alcohol or drugs, often as a result of their dire circumstances.

Extra training in trauma-informed legal advocacy, mental and physical health consequences of trafficking, culturally competent practice, and the different contexts and patterns for trafficking helps lawyers provide appropriate service and be patient and compassionate while doing so – possibly the most important skill of all. Learning good habits for professional encounters of all kinds is a side benefit to clients who work with their attorneys in a legally based mentoring relationship. Finally, lawyers function best for their clients when they are part of an interdisciplinary team, working alongside their clients’ therapists, doctors, benefits specialists, family, and friends.²³

Legislative Efforts to Reduce Trafficking and Help Victims in Wisconsin

To better assist trafficked minors, Wisconsin is following a trend among states to enact a “safe harbor” law. Safe harbor (SH) laws align state criminal statutes with state and federal human trafficking laws to ensure that sex trafficked minors are treated as victims rather than criminals. With an SH law in place, minors do not face criminal consequences for prostitution activity and instead are redirected to social services.

The Wisconsin Legislature is considering Assembly Bill 186, legislation that would make minors immune from prosecution for prostitution. This bill follows 2015 Wis. Act 367,²⁴ which expanded the definition of child abuse to include child sex trafficking and required reporting (by law enforcement agencies) and investigation (by child welfare agencies) of cases of sex trafficked minors, regardless of whether the abuser was the child’s caregiver. If AB 186 passes, these two laws, in conjunction, will make Wisconsin’s safe harbor law one of the best in the country. The inclusion of all minors, instead of just those under the age of 16 or 14, along with the coupling of decriminalization with access to services, will provide sex trafficked minors with positive options instead of further traumatization via the criminal justice system.

It has been a long road to get to this point. AB 186 is not yet law, and it could be improved. For instance, some states’ SH laws also enhance penalties for individuals who solicit sex from minors,²⁵ require law enforcement agencies be trained to deal with sex trafficked minors, or both. Furthermore, neither 2015 Wis. Act 367 nor AB 186 appropriates funds to ensure that law enforcement and social service organizations have the resources or training needed to adequately serve sex trafficked minors, a population with complex and long-term needs. These provisions should all be essential components of a state’s response to the sex trafficking of minors.

Wisconsin also still has much to do to address the demand for commercially sexually exploited individuals. Sex trafficking cannot solely be addressed by focusing on the victims and their traffickers. Two bills are currently intended to fill this gap. Senate Bill 308, if enacted, would increase the penalty for individuals who have a third conviction for “patronizing a prostitute.” Convictions for patronizing a prostitute are likely to be infrequent, so it is unclear if this bill would serve as a deterrent. Assembly Bill 435 would impose a $5,000 fine on people “convicted of patronizing or soliciting prostitutes, pandering, or keeping a place of prostitution,” to deter demand for prostitution, with proceeds being used to fund victim services and law enforcement investigation of internet crimes against children.

There may be more effective ways to address the root causes of demand that use behavior-modification methods rather than imposing economic sanctions, but the effort at passing laws targeting demand is nevertheless noteworthy. (Economic sanctions can be inequitable to minorities or low-income people because of arrest practices. Such arrest methods focusing only on street trade might miss other types of habitual offenders from wealthy suburbs who use the internet to buy sex, for example.) Efforts to curb the demand for sex trafficking are a crucial part of the solution, and evidence-based policies to combat this problem should be pursued.

Conclusion

There are challenges in working with victims of trafficking, but the lack of engaging, creative work with inspiring people is not one of them. Survivors of trafficking are often smart, talented, determined, and unique individuals who need people who believe in them. The best reward is when your client believes in you and in the law just as much as he or she believes in his or her own future.

Endnotes

¹ Case composites and pseudonyms are used to protect privacy.

² Wisconsin human trafficking statute, Wis. Stat. section 940.302, Wisconsin trafficking of a child statute, Wis. Stat. section 948.051; Federal laws: 22 U.S.C. ch. 78 (Trafficking Victims Protection); and Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464. Other laws for prosecutors to use include the Mann Act (1910), the PROTECT Act (2003), and the Civil Asset Forfeiture Reform Act (2000).

³ Wisconsin Human Trafficking Protocol and Resource Manual (Madison, WI: Wisconsin Office of Justice Assistance, 2012).

⁴ Wis. Anti-Human Trafficking Consortium, Milwaukee Known as “Harvard of Pimp School” – Still Thriving (June 26, 2017).

⁵ National Human Trafficking Hotline.

⁶ Federal Bureau of Investigation, FBI Announces Results of Nationwide Human Trafficking Operation (Oct. 15, 2015).

⁷ Homicide Review Commission, Estimating the Number of Sex Trafficked Youth Using Contacts with the Milwaukee Police Department (2013).

⁸ Center for the Human Rights of Children, Loyola University, Legal Services Assessment for Trafficked Children Cook County, Illinois Case Study (Aug. 2013).

⁹ Interview with Claudine O’Leary of Rethink Resources, May 14, 2017.

¹⁰ Id.

¹¹ Wis. Stat. § 939.46.

¹² Many slang terms are used in human trafficking and are important for lawyers to know. For instance, the “Life” and the “Game” are phrases used by victims, offenders, buyers, and advocates to describe the subculture of the commercial sex trade, which includes human sex trafficking. Shared Hope International, a survivor advocacy organization, publishes a glossary.

¹³ A statutory role to assist victims and witnesses in criminal cases; each county has victim advocates who report to the district attorney. See Wis. Stat. § 950.06.

¹⁴ Wis. Stat. section 950.105 establishes the victim’s right to standing.

¹⁵ Wis. Const. art. 1, § 9m.

¹⁶ Wis. Stat. ch. 950; Wis. Const. art. 1, § 9m.

¹⁷ National Crime Victim Law Institute, Victim Law Position Paper, Crime Victims Have the Right to Retained Counsel’s Presence During Investigative Interviews, Victim Law Position Paper (Aug. 2014).

¹⁸ See generally National Crime Victim Law Institute professional resources library; and NAVRA National Alliance of Victims’ Rights Attorneys and Advocates.

¹⁹ www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=24963.

²⁰ Women involved in prostitution face becoming victims of homicide at a rate 18 times higher than other women of similar ethnicity and age. John J. Potterat et al., Mortality in a Long-term Open Cohort of Prostituted Women, Am. J. Epidemiology 159:778–85 (2004). This was a longitudinal study of prostitution in Colorado Springs; the sample size was 1,969 people in prostitution from 1967 to 1999.

²¹ Wis. Stat. § 973.015.

²² Laura J. Lederer & Christopher A. Wetzel, The Health Consequences of Sex Trafficking and Their Implications for Identifying Victims in Healthcare Facilities, Annals of Health Law 23(1), 61-91 (2014).

²³ “Interdisciplinary collaboration between legal and nonlegal service providers is a critical component of any service delivery model for trafficking victims.” Legal Services Assessment, supra note 8. See also ABA Task Force on Human Trafficking, Voices for Victims: Lawyers Against Human Trafficking Tool Kit for Bar Associations (2013).

²⁴ Act 367 was enacted April 16, 2016. It amended and created several provisions in Wis. Stat. chapter 48 and Wis. Stat. chapter 938, relating to “the crime of child sex trafficking, the inclusion of child sex trafficking in the definition of child abuse, the investigation of a child abuse report in which a person who is not a caregiver of the child is suspected of permitting, allowing, or encouraging the child to engage in prostitution or of child sex trafficking for purposes of a commercial sex act, and providing a penalty.”

²⁵ Note that enhanced penalties do exist for those involved in the trafficking of minors.

²⁶ www.lotuslegal.org.

²⁷ www.legalaction.org/.