In June 2020, Georgia passed “The Survivors First Act.” This new law allows criminalized survivors of sex trafficking to petition the court to vacate convictions they sustained as direct result of their victimization. Vacatur laws, such as Georgia’s new “Survivors First Act,” take a retroactive approach to criminal record relief by recognizing that sex trafficking survivors should not have been penalized for crimes they were forced to commit. These laws are critical in helping survivors move forward by seeking housing, education, and employment without the restrictions of a criminal record. The “Survivors First Act” is particularly important as Georgia was once among the minority of states that only permitted minor victims of trafficking to have their criminal convictions cleared.
The CSE Institute is impressed by Georgia’s new vacatur law and hopes it can serve as a model for other states, including Pennsylvania, to improve existing criminal record relief laws. Georgia’s new law is expansive, allowing survivors to petition to vacate any conviction that was a direct result of their victimization, including felonies. This stands in stark contrast to Pennsylvania’s current vacatur law, which limits petitions to six minor convictions: prostitution, disorderly conduct, criminal trespass, loitering and prowling at nighttime, obstruction of the highways, and simple possession of a controlled substance. Georgia’s new law validates the feedback and experiences of survivors, who often have convictions for a wide range of crimes.
Furthermore, Georgia’s improved vacatur law holds two important administrative additions: (1) requiring the Attorney General create and promulgate a form for survivors to use to petition the court and (2) allowing for remote electronic testimony. These portions of the new law will undoubtably increase the number of survivors who are able to access the remedy when compared to other jurisdictions. For instance, the Pennsylvania vacatur statute provides little guidance on how to access the remedy and therefore requires the assistance of an experienced attorney. Many survivors are unable to afford or locate an attorney to represent them. Further, a survivor may feel uncomfortable exposing the details of their victimization in front of an open court. A statewide form and the ability for electronic testimony removes many of the barriers faced by survivors who wish to vacate their convictions in Pennsylvania and similarly situated states.
Polaris, who scores and grades the utility of United States vacatur laws, moved Georgia’s score up from 0 to 72 following the passing of “The Survivors First Act.” Now Georgia’s vacatur law is rated third in the country for criminal record relief for trafficking survivors. Unlike Georgia’s new law, Pennsylvania’s vacatur provision creates unique challenges for victims of sex trafficking. According to 18 Pa.C.S.3019(d), the motion “must be consented to by the attorney for the Commonwealth” in order to be filed. This requirement has and continues to deny survivors their day in court, and therefore greatly restricts survivors from using a remedy that was supposedly created to benefit them.
In addition, in Pennsylvania, a motion to vacate must include supporting evidence described “with particularity.” In light of the abuse and trauma survivors experience, this requirement is highly problematic. Trauma complicates memory encoding, storage, and retrieval, which may make it extremely difficult for survivors to recall specific facts, details, or timelines to satisfy the “supporting evidence” provision.
Vacatur laws across the United States have made significant strides toward justice for survivors but many still contain harmful and restrictive provisions. Thus far, the vast majority of successful vacatur petitions in Pennsylvania have occurred in Philadelphia County. Both the Philadelphia District Attorney’s Office and the Philadelphia Municipal Court have demonstrated thoughtful consideration of trafficking survivors’ experiences and developed policies that reflect this. We, at the CSE Institute, hope that other counties throughout the Commonwealth will adopt similar vacatur processes.
The CSE Institute praises Georgia for the steps it has taken to serve survivors and encourages the Pennsylvania General Assembly to reconsider the limitations of our current vacatur law. We will continue to acknowledge the injustices faced by our clients and other survivors in the Commonwealth who wish to vacate their trafficking-related convictions. We won’t stop pushing for reforms and working with our statewide network of partners to create necessary shifts in our criminal justice system. However, we can’t do any of this without financial support. Please consider supporting the CSE Institute’s mission and the vacatur work of our Justice for Victims Fellows.