Proposal advanced to set aside convictions for sex trafficking victims

Victims of sex trafficking could have their convictions set aside and their court records sealed under a bill advanced by lawmakers March 21.

Under LB1132, introduced by Lincoln Sen. Patty Pansing Brooks, a victim of sex trafficking could file a motion to set aside a criminal conviction or adjudication of prostitution or a criminal offense that is otherwise incidental to sex trafficking.

Pansing Brooks said the bill would give victims privacy, security and hope for their future.

“These criminal records follow the victims long after they are free from trafficking,” she said. “It is time to turn to trafficking victims and provide them the support they need to move on with their lives.”

The person filing for a set aside of a conviction would be required to submit evidence proving that he or she was a victim of sex trafficking at the time the crime was committed. Evidence considered by the court could include a copy of an official record, certification or eligibility letter from a federal, state, tribal or local proceeding indicating that the person was a victim of trafficking.

The court also could consider an affidavit or sworn testimony from an attorney, member of the clergy, a medical professional, staff member of a victim services organization or other professional from whom the victim sought assistance in addressing trauma related to trafficking.

A judge could consider additional evidence in determining the credibility of the person as a victim of trafficking, such as:
• branding or other tattoos on the person that identify him or her as having a trafficker;
• testimony or affidavits from those with firsthand knowledge of the person’s involvement in the commercial sex trade;
• financial records showing profits from the commercial sex trade;
• internet listings, print advertisements or business cards used to promote the person for commercial sex; or
• emails, texts or voicemail records between the person and the trafficker or solicitors of sex.

If a set aside is granted, it would nullify the conviction and remove all civil disabilities and disqualifications imposed as a result of the conviction. Upon receiving a set aside, the victim could file to have his or her criminal record sealed.

Sen. Paul Schumacher of Columbus expressed concern that the language would severely limit the ability of judges to use their discretion. It would be easy for people to take advantage of the law, he said, get away with very serious crimes.

“Unless I’m reading this wrong, I don’t see any wiggle room here that gives a judge any authority to say, ‘You’re going away for a long time,’” he said.

Although he said he was supportive of the bill’s intent, Omaha Sen. Ernie Chambers agreed that the bill’s language would need to change.

“It cannot be a blanket free pass to somebody who would commit any kind of crime,” he said. “When the word related to what a judge is supposed to do is ‘shall,’ no matter how the judge feels, he must do what the statute says.”

Omaha Sen. Brett Lindstrom introduced an amendment, adopted 30-0, that would incorporate provisions of his LB855 into the bill. As amended, it would allow a person who has received a pardon to file to have his or her criminal record sealed.

Provisions of Omaha Sen. Sara Howard’s LB897 also were included in the amendment. These would remove a mandatory reporting requirement that currently forces medical professionals to contact law enforcement when a patient is suspected to be a victim of sexual assault.

As amended, the medical professional must secure written consent from the patient before contacting law enforcement. Howard said not all victims of sexual assault are prepared or willing to engage with law enforcement.

“Allowing survivors of sexual assault to make their own choices following an assault … is a critical component of the healing process,” she said. “By ignoring adult victims’ choices, mandatory reporting requirements can mean individuals don’t get a rape kit done or receive health care.”

Following the adoption of a technical Judiciary Committee amendment, senators advanced the bill to select file on a 27-0 vote.