Originally published in the Austin-American Statesman.
Robbie Ann Hamilton was just 15 years old when she became a victim of human trafficking. After enduring horrific abuse, escaping her traffickers and beginning recovery efforts with the help of community groups, Hamilton faced prosecution for minor crimes she committed while being trafficked, none of which harmed or endangered another person’s life.
In 2020, Gov. Greg Abbott pardoned Hamilton for her crimes so that she could continue her recovery and live the new life she had been seeking, free from the burdens associated with criminal convictions. Hamilton’s case highlights the need for a more comprehensive affirmative defense for victims who commit crimes while under a trafficker’s coercion.
Texas reports as many as 1,700 victims of human trafficking every year. Many victims of these heinous crimes are prosecuted for actions they were forced to take by their traffickers. There is some hope for survivors in the form of an affirmative defense specifically for those victimized by traffickers. An affirmative defense allows victims to explain their actions in court and why they should not be convicted.
For survivors, this defense could excuse their crime if they can show it happened as a result of a trafficker’s influence or coercion. Although there is already a duress defense, it does not allow victims to introduce past histories of violence and abuse into evidence. Instead, it applies only if the victim is being actively threatened during the crime.
Most states around the country provide trafficking victims with affirmative defenses to use against charges such as prostitution or loitering. Other states go a step further and provide much broader and stronger legal protection, recognizing that traffickers exploit their victims for a multitude of illegal activities.
For example, Wyoming provides human trafficking victims with a broad defense against any crimes they may have committed while they were being trafficked. Wisconsin allows for the affirmative defense to be raised by a trafficking survivor, even if there is no conviction of the trafficker related to the case. Oklahoma, Texas’ northern neighbor, also provides a broad human trafficking affirmative defense and does not limit its applicability to specific crimes.
Although Texas has recognized the problem of prosecution of victims in the past and has made strides toward better protecting victims, state lawmakers can look to these examples to create better laws to protect survivors from prosecution for crimes they would not have committed had they not been trafficked or abused.
Texas has a strong history of advocating for trafficking survivors and prosecuting traffickers, setting an example of no tolerance for the abuse of vulnerable populations.
In 2009, the Texas Legislature created the Human Trafficking Prevention Task Force to combat trafficking in the Lone Star State. In 2020, Abbott streamlined the clemency process for survivors of trafficking. This tool is used to provide relief for survivors who have already been sentenced. While helpful, that does not prevent prosecution of trafficking victims in the first place.
In the 89th Texas Legislature, bipartisan lawmakers have introduced companion bills, Senate Bill 1278 and HB 2772, which provide human trafficking victims with an affirmative defense to prosecution. If survivors can demonstrate, by a preponderance of the evidence, that they are victims and that the crime they committed directly resulted from their victimization, they can successfully raise an affirmative defense.
Enacting this legislation would empower survivors of human trafficking, save taxpayer money by reducing unnecessary litigation, and promote the rehabilitation and recovery of victims. While we applaud the governor for using the power of the pardon, victims of sex and labor trafficking deserve fair protection under the law. Passage of these bills would ensure that the Lone Star State is a safe haven for survivors.