The Victim As a Witness
The participation of a victim as a witness in the criminal justice system is always complex, often placing additional pressure on the victim and resulting in retraumatization. Victims of human trafficking may have extensive exposure to violence and psychological trauma. They suffered under conditions that left them with a sense of hopelessness that is further complicated by the trafficker's success in convincing the victims that they are responsible for their own suffering.
Personal safety and self-preservation are the primary concerns of the victim. Despite the good intentions and expertise of the first responder, victims are likely to be preoccupied with basic matters of self-protection and survival, and thus may seem reluctant or nonresponsive. A law enforcement action, for instance, does not automatically signal to a victim that all is well. Victims need to feel safe and know that their traffickers are not nearby. Victims are usually fearful about facing their traffickers (and/or turning on them) and testifying against them, and they will require a great deal of support through the process. See Section 5.3 on Victim Interview and Preparation for more information on rapport-building strategies and trauma-informed victim interviewing considerations.
Maintaining confidentiality is a complex issue. Criminal investigations can often be a one-way information flow that often frustrates victims, service providers, and victims' civil and immigration attorneys. Investigators and prosecutors ask victims many questions, but, for many reasons (e.g., statutes, regulations, and policy), the investigators and prosecutors cannot share all of the information that they obtain from other people and sources. Criminal investigations can be compromised if confidentiality of certain information is not maintained. It is important that the victim explains what is known from personal experience but not what was learned from others. Maintaining the integrity of the victim's recollections is important to avoid defense counsel's objections on evidentiary grounds. However, information should be shared among task force partners to build safety and trust, and these parameters need to be discussed and worked out between law enforcement and social service providers. Information that is protected by state and federal victims' rights laws must also be adhered to, such as informing and involving victims in the process of trafficker sentencing. Task forces need to know the confidentiality laws, regulations, and policies that govern the actions of different task force members during human trafficking investigations.
Both law enforcement and prosecutors must understand and account for trauma and its impact on victims when working a human trafficking case. Prosecutors and law enforcement must expect that many victims will fail to self-identify as victims, may initially make statements that would seem to protect the offenders, and may even run away from law enforcement and victim service providers who are trying to assist them.
Such realities require a greater investment in time and patience by law enforcement and prosecutors than in traditional cases. Too often, an investigator or prosecutor rejects a potential human trafficking case because it involves a victim who may seem uncooperative or makes inconsistent victim statements. Proper training and expertise in trauma and its impact on victims can ensure that what would otherwise be perceived by some prosecutors as insurmountable hurdles are actually opportunities that a trauma-informed prosecutor can use to support their prosecution (see Section 4.1 for more information on the trauma-informed approach). Partnering with victim service providers and mental health practitioners through your task force to understand why a victim may act in such a way can be critical to building a human trafficking case. Asking why and working with professionals to understand the psychology around victim actions will contribute immensely to building your case.
Prosecution and law enforcement should always collaborate with victim service providers in supporting victims, particularly in the development of safety plans, accessing victim assistance, the protection of victim's privacy (including the redaction of names from official documents and the use of rape shield laws), and the empowerment of the victims themselves to build their own future with the help of a case manager. Collaboration with a victim's attorney is also crucial to ensure that a victim is able to achieve the most comprehensive recovery from the crime. Civil actions may need to be filed before or during the criminal prosecution to ensure that the statute of limitations does not run out. A follow-on civil action may be another forum for a victim to recoup the full measure of her/his losses. Victims' attorneys can also help ensure that the victims' rights are protected throughout the process and that the prosecutor is able to consider the full scope of restitution. Criminal prosecutions are complex, and not even the best prosecutor will be successful with every case. Collaborating appropriately with the victim's civil attorney will improve the measure of justice for every victim, regardless of the outcome of the criminal case.
Likewise, both prosecutors and investigators should consider the best interests of human trafficking victims, even when those interests conflict with the pursuit of a criminal arrest or prosecution. For example, a prosecutor may need to dispense with calling an important trial witness because he or she cannot safely undergo courtroom proceedings. Law enforcement may uncover facts during an investigation requiring an immediate rescue of child trafficking victims, even though such a recovery may compromise an otherwise covert operation. While steps should be taken to protect the interests of both the victims and the criminal case alike, a victim-centered approach to a criminal investigation and prosecution requires that the needs of the victim must come first in the final analysis.
The criminal justice process can be lengthy and frustrating. At a federal level, it is not uncommon for human trafficking investigations and prosecutions to take 1 to 2 years or more. Many victims, wanting to move on with their lives, become frustrated by the criminal justice system process. Maintaining contact and providing updates to the victim throughout the process can help to alleviate this frustration.
A good practice of a task force is to have one victim service provider serve as the coordinating victim service organization. Clear agreements, trusting relationships, and a proven track record of mutual reliability make this relationship invaluable to all involved and give law enforcement strong confidence about the control of information and how it is shared. See Section 3.1 on Task Force Operational Protocol for more information on how to establish processes and procedures that further support collaboration between law enforcement and victim service provider task force members on behalf of victims.
Tips for Prosecutors Working With Victim-Witnesses
- Be aware that for a human trafficking victim, recounting the victimization, participating in any court process, or even hearing the trafficker's name may trigger re-traumatization. Prosecutors and other investigators should give victims and their advocates as much notice as possible regarding trial preparation or trial dates. This will allow victims and their advocates to create a safety plan and emotionally prepare for the experience.
- Discuss constraints and timelines with victim service providers and law enforcement in task force meetings so that everyone can respond to the victims efficiently.
- Stay in close communication with victims, making certain that they remain informed about the process, the actions being taken on their behalf, and the duration of time they should anticipate between actions. This is best accomplished by service providers and case managers so that it does not appear to be coaching.
- Remember that the victim needs time to heal. An untimely encounter with the perpetrator in court could be disastrous for the victim's mental and emotional well-being, as well as for the case. Unfortunately, legalities may not offer an alternative if a perpetrator is in custody or under arraignment, but preparation can reduce the impact. This is a significant factor to be considered in completing an investigation and bringing the matter before the court. Victim service providers are essential at this stage of the case and should work in partnership with the prosecutor to identify when victims might encounter the trafficker and provide support before, during, and after these events.
- Utilize other task forces across the country to create a prosecution strategy and think outside the box regarding victim protection.
- Focus on building strong evidence-based investigations that support the victim-witness and corroborate testimony.
- Be prepared to provide additional support to victims post-trial. While the end of a trial often signals closure for investigators and prosecutors, many victim service providers notice deterioration in victims' emotional and physical wellness after a verdict or plea. Service providers are wise to be aware of and prepare for this possibility by engaging additional supports for victim-witnesses.
For additional information and tools, visit the Resource page for Section 5.4 Landing a Successful Prosecution.