When the Absence of Something Means Everything: The Expansion of New Jersey’s Vacatur Relief to Human Trafficking Survivors

BLOG POST BY MICHELLE STEGMANN, ESQ.

NJCAHT Operating Council Member and Human Trafficking Vacatur Volunteer with Volunteer Lawyers for Justice

“Anytime I can help, I am happy to.” The words in the email were not unexpected, but every time I read them, or something similar, they make me smile.

They were written to me by a New Jersey Prosecutor.

I had been working with this Assistant D.A. on the dismissal of a decade-old bench warrant for one of my clients; a Prostitution charge against a Human Trafficking survivor. He could have opposed the dismissal, and required me to file a formal motion. He could have delayed responding, especially given his large caseload. But instead, he replied quickly, filed the motion to dismiss himself, and told me he’d let me know once the judge signed the Order.

I thanked him for his responsiveness, and these inspiring and thoughtful words were his reply back to me.

The New Jersey Legislature is Committed to Expanding Relief for Human Trafficking Survivors

In January 2022, the New Jersey Senate convened to consider the numerous Bills before it. One of them—A5322—was an expansion of the vacatur and expungement law as it applies to human trafficking survivors. That original law—passed in 2013--allowed for vacatur/expungement of a conviction relating to Prostitution, but nothing more. This year’s Bill expanded the relief to extend to ALL CONVICTIONS, except murder, manslaughter, aggravated manslaughter, kidnapping, luring or enticing a child and sexual assault. Both the NJ State Assembly and the Senate passed the Bill unanimously. On January 18, Governor Phil Murphy signed it into law.

What exactly is vacatur?

Vacatur is Latin for “it is vacated,” and is a rule of law that sets aside a finding or determination. In a criminal case, this means that the guilty finding is overturned, and the person is no longer convicted of committing that crime. To the outside world, it is as though the conviction never existed.

Why is this important to human trafficking survivors?

Imagine being the victim of a crime, and as it’s happening, YOU are convicted of committing a crime. This is the experience of survivors of sex trafficking. They are threatened, often physically harmed, and feel they have no choice but to engage in sex for money. Then, they are arrested, charged and convicted of doing so. Often more than once. Their trafficker maintains control over their money, and their access to basic life needs such as food and shelter. They are forced back on the street and the situation repeats itself.

Through courage and strength, the survivor breaks this cycle, and attempts to start a new life. They often move to another state, perhaps complete their education, and find a job. Only to have the background check uncover multiple convictions.

You can imagine what happens next.

The Need to Raise Awareness of the Availability of Vacatur

While the laws are still fairly new on the books, thus far, few have taken advantage of them and cleared their records.

Why is this?

• Most survivors are likely unaware that this relief even exists.
• Trafficking may have occurred years ago, and the survivor may wish to not revisit in any way
• The survivor may still be concerned for his/her safety in the event they step forward and identify their trafficker
• The survivor may feel that they cannot afford to hire a lawyer to navigate this process for them
• The survivor may believe that the process is complicated and requires numerous court appearances, and is unwilling to subject themselves to that experience. Their prior court experience was painful enough.

Good News: The Reality of the Vacatur/Expungement Process in New Jersey

• Survivors May Qualify for Free Legal Representation

Legal assistance is available for free for those who qualify. The Volunteer Lawyers for Justice (“VLJ”) have a program in which volunteer lawyers in New Jersey handle the matters from start to conclusion. Their website is https://www.vljnj.org

• Intake/Initial Discussions are Private and Completely Confidential

I have been working with VLJ, representing survivors in expunging their records, since 2020. The intake process is one on one, and covered under attorney-client privilege. I speak with clients via Zoom or FaceTime (due to the pandemic) and obtain the information needed to file the motions. While remembering is painful, we do our best to go over facts quickly, and one time only (unless we need to fill in some gaps). The facts are then drafted into a Certification that the survivor signs and that is attached to the motion.

• Often, No Court Appearance is Required

In the next step, the lawyer reaches out to the Prosecutor involved. Often, the Prosecutor will consent to the vacatur, in which case they approach the Court. Both the Prosecutors and Courts with whom I have worked have been very supportive. They will often grant the motions on the papers, without any need for an appearance by the survivor. The only person with whom the survivor has contact is me. This may vary in certain courts, but so far, this has been my experience.

• The Trafficker is Not Involved in the Process in Any Way

When the motion is filed, it is done “Under Seal,” meaning that the documents filed with the court and the case itself cannot be accessed by the public. A survivor does NOT need to identify their trafficker by name, but can refer to them by initials or a nickname. The trafficker will likely never even learn of the vacatur.

This is not an investigation into or prosecution of the trafficker. This process is not about them.

It is all about the survivor, and healing.

• The Process is Fairly Straightforward, and Often Does Not Take Long

New Jersey law now provides for automatic expungement of the records, which should be undertaken by the Court itself. So, after the Vacatur motion is granted, the record disappears.

Does the law extend to anything other than criminal convictions?

Yes! The law can be used to vacate outstanding warrants (most of my clients have at least one), and the defense of being trafficked can be used as a complete defense in any current pending criminal case.

Are you a survivor who would like to learn more?

Contact VLJ at https://www.vljnj.org. Legal Services of New Jersey also provides assistance, and can be reached at https://www.lsnj.org.

Are you a lawyer who wants to assist?

As Jessica Kitson—VLJ lead counsel on human trafficking and co-author of the new law—states, “This Bill is a tremendous victory for survivors of human trafficking. I am deeply grateful to all of the legislators who helped ensure that New Jersey remains at the forefront of anti-human trafficking legislation, and for continuing to provide this much-needed relief for survivors seeking to reclaim and rebuild their lives.

With this expansion, VLJ and LSNJ can use as many lawyers as possible to assist in this work. Simply reach out to them at the websites above.

And join Jessica and me at our upcoming New Jersey State Bar CLE course (2 credits),“Human Trafficking in New Jersey and Recent Developments in the Law,” scheduled for June 7, 2022. Register at https://tcms.njsba.com/personifyebusiness/njicle/CLEPrograms/NJICLEEventsCalendar/MeetingDetails.aspx?productId=78171275 [tcms.njsba.com].