Op-Ed: Ghislaine Maxwell’s case puts a spotlight on trafficking’s victim-defendants

In the sex-trafficking trial of Ghislaine Maxwell, British socialite and close associate of the late disgraced financier Jeffrey Epstein, prosecutors and the defense have presented dueling theories. Prosecutor Lara Pomerantz has alleged that Maxwell and Epstein were “partners in crime” in perpetrating horrific sexual abuse. Maxwell’s attorney Bobbi Sternheim presented a quite different narrative. She argued that Maxwell is on trial because she is a “convenient stand-in” for Epstein. She suggested that Maxwell was a victim of Epstein’s manipulations.

What if both sides are right?

Perhaps we will never know if Maxwell was truly a victim of Epstein. What we do know is that most victim-defendants in trafficking cases in the U.S., unlike monied socialite Maxwell, are more likely to be people of color, indigent and have suffered a history of abuse.

Their criminal cases are less likely to command headlines. Rarely can they afford private counsel. They are less likely to share their stories of victimization. When they do, they are less likely to be believed. In trafficking rings, some victims take on responsibility for and control of other victims within the enterprise, often out of fear and to survive. Yet, media portrayals tend to feature simplistic views of villains and victims when the reality is more complex.

Legislators and prosecutors have consistently struggled to make sense of victim-defendants. Since Congress passed the Trafficking Victims Protection Act of 2000, which established federal sex trafficking crimes and protections for victims, we continue to see how the categories of “victim” and “defendant” have proven to be less than tidy.

According to a recent study from the United Nations Office of Drugs and Crime, women and girls represent the majority of human trafficking victims. They also make up a large portion of those prosecuted for trafficking-related crimes. The study notes that while most countries report female offenders accounted for less than 15% of total crimes, 30% of trafficking cases involved female defendants. The report also found that “traffickers use victims to shield themselves from prosecution.”

Many victims who play a role in the trafficking are themselves victims of gender-based violence. Indeed, they are often intimately connected to the lead perpetrators. They are their partners, their sisters and their mothers.

For example, in 2016, a Boston man, Raymond Jeffreys, was sentenced to 30 years in prison for sex trafficking. Jeffreys was accused of trafficking women and teenage girls across multiple states in New England. He targeted women who were unhoused and struggled with substance abuse. Yet, many of the victims had children with Jeffreys; some actively facilitated his crimes. Two women, despite being victims, were ultimately charged with trafficking-related crimes. They were sentenced to prison and five years of supervised release — punishments that, no doubt, would delay efforts to rebuild their lives.

Criminal law is a blunt instrument for navigating the challenges presented by the victim-defendant. There is little room for gray. Moreover, anti-trafficking efforts in the United States have prioritized criminal prosecution. Federal money has flowed into nonprofit organizations to promote collaboration with governmental task forces and law enforcement. Few incentives exist to unravel the complexities presented by victim-defendants or provide alternative solutions.

We are seeing new efforts to try to correct course. Some states have passed laws to allow victim-defendants to vacate or expunge criminal convictions related to their victimization. Some victim-defendants, such as Cyntoia Brown, have told their stories publicly and galvanized support for clemency. Some survivors have received prominent pardons. Meanwhile, human trafficking courts, while imperfect, have emerged to divert victim-defendants from the criminal legal system.

The reality is that these efforts, alone, are insufficient to stem the flow of victim-defendants into the criminal system. Gaps still remain. For example, there is no federal avenue to vacate criminal convictions that relate to trafficking. There are very few reentry programs that help victim-defendants who emerge from the criminal legal system. Moreover, criminal law remains the dominant mode of governmental intervention. The typical response is to seek prosecution, rather than examine the factors that render individuals vulnerable to exploitation and abuse.

Victim-defendants in sex trafficking cases are often doubly punished by the criminal system. We should be having a broader discussion about just treatment for these defendants and consider more nuanced solutions.

Julie Dahlstrom is a clinical associate professor of law at Boston University, the director of the Immigrants’ Rights & Human Trafficking Program, and the author of the recent law review article “Trafficking and the Shallow State.”