The START Act: New York State Expands Vacatur Relief for Victims of Human Trafficking
The Department of Homeland Security defines human trafficking as “the crime of compelling a person to provide labor or services, or to engage in commercial sex acts.”
In most cases, being a victim of human trafficking may ultimately lead to committing another offense, such as prostitution, drug or weapon possession, and more. These victims then have a criminal record, which impacts their job and housing but also their immigration status if they are non-U.S. citizens.
In response, the New York state legislature worked on creating a law enabling victims of human trafficking to introduce a motion to vacate their convictions. In other words, this motion would allow these victims to introduce a request asking the court to nullify or erase a previous conviction or judgment under certain conditions.
The 2010 Introduction of Vacatur Relief into the New York Penal Law for a Limited Set of Charges.
The first step towards establishing vacatur relief for victims of human trafficking was taken in 2010 with the introduction of New York Criminal Procedure Law section 440.10(1)(i).
This statute enabled victims of sex trafficking, sex trafficking of a child, labor trafficking, aggravated labor trafficking, compelling prostitution, or trafficking in persons under the Trafficking Victims Protection Act to vacate their judgment of conviction for:
- loitering for the purpose of engaging in a prostitution offense,
- prostitution, and
- prostitution in a school zone.
Section 440.10(1)(i)(i) specified that such a motion may only be filed after the defendant has ceased to be a victim of such trafficking or has access to support services while taking into account the safety of the defendant and their family.
While this motion may be granted without any official documents, if such documentation exists proving the defendant’s victim status at the time of the offense, courts will automatically presume that the resulting offense was committed involuntarily (section 440.10 (1)(i)(ii)).
Although New York was the first state to implement this law within the U.S., it quickly fell behind when other states broadened the scope of their laws to include all offenses related to human trafficking. Critics, including the New York City Bar Committee on International Human Rights, argued that the New York law did not reflect the reality of human trafficking because it only allowed vacatur for a limited set of charges.
The START Act: Aligning Vacatur Relief with the Realities of Human Trafficking
For this reason, the New York State Assembly enacted the Survivors of Trafficking Attaining Relief Together Act, also known as the START Act, which came into effect November 16, 2021. The START Act addresses both the scope of offenses and procedural barriers.
1.No limited set of charges required to file a motion
The START Act erased the limited set of charges for which victims of human trafficking in general can introduce a motion to vacate their convictions. This motion is not only available for prostitution-related offenses but for all offenses resulting from human trafficking.
2.Presumption of involuntary commission of the offense if documentation exists
The START Act retained the presumption that the offense was committed involuntarily if documentation exists. However, it is not mandatory to have such documents in order to have the motion granted.
3.Confidentiality of motion and supporting documents
The START Act also introduced section 440.10(1)(i)(ii) which provides that such motion and all pertinent papers and documents shall be confidential. This information is not available to any person or entity, public or private, except “when specifically authorized by the court,” protecting the privacy and safety of the human trafficking victims.
4.Consolidation of motions in a single proceeding
Finally, the START Act enabled the consolidation, in a single proceeding, of motions to vacate judgments imposed by distinct or multiple criminal courts, with the consent of the petitioner and all the state and local prosecutorial agencies that prosecuted each matter. (Section 440.10(1)(i)(iii)).
Overall, the START Act represents a significant step towards the protection of human trafficking victims.
Matthew Galluzzo is a criminal defense attorney and former Manhattan prosecutor. If you or a loved one have been affected by human trafficking or related offenses in the New York City or Westchester area and would like to pursue relief under the START Act, you should strongly consider contacting him to discuss his engagement.
Tiphaine Marlange contributed to this blog post.