The central paradox of human trafficking is that victims, not traffickers, are most likely to face criminal charges. In fact, an individual is more likely to be struck by lightning than prosecuted for trafficking. Which begs the question, why?
How Traffickers Turn Victims into Defendants
To start, prosecutors and law enforcement act on the best available information and training, but traffickers are insidious and clever: they shield themselves behind the actions they force victims to take and then use those actions to control their victims further. Through force, fraud, or coercion, victims are made to take a variety of unlawful actions like drug use, petty theft, forging government documents, and of course, prostitution. Traffickers then hold those acts over their victims’ heads to keep them from going to the police for help. The trafficker’s work is done for them when those victims are, in fact, prosecuted for the crimes their trafficker made them commit.
Record Relief Is Not Enough
This is such a well-known problem that all but three states have a form of expungement or nondisclosure for survivors with records who can show their crimes were a result of their victimization. Just this year, the federal government passed the Trafficking Survivors Relief Act, which allows for expungements at the federal level.
While fixing erroneous records is vital, it is not enough. Survivors must not be convicted in the first place. If they did not intend to commit the crime of their own accord, they are factually innocent.
The law should not require survivors to rebuild their lives twice: once after escaping a trafficker and again after escaping the consequences of a wrongful conviction.
This is why survivors need an affirmative defense to prosecution.
The Power of an Affirmative Defense
An affirmative defense helps in two ways. First, it provides a tool for survivors to introduce evidence of their trafficking experience at trial. It educates the jury on the realities of the psychological torture survivors face, and it allows survivors to assert their innocence more effectively. Second, it educates the system. Not all law enforcement or prosecutors have experience with the nefarious tactics of traffickers, so an affirmative defense can serve as an informative tool that will lead to fewer unjust arrests and prosecutions of victims. This is particularly important because the fear of the criminal justice system is what keeps so many victims from seeking help.
A Model for the Nation
Texas took the lead in this endeavor in 2025 by passing Senate Bill 11, the first affirmative defense of its kind. Unlike generalized affirmative defenses passed in other states, SB 11 created a narrowly tailored defense tied directly to the force, fraud, or coercion traffickers use to control their victims. Additionally, it applies to the broadest range of crimes addressed by any state.
Congress soon followed with the Trafficking Survivors Relief Act. In addition to federal record relief, the law created a human trafficking defense that allows a defendant charged with a covered federal offense to establish duress by showing the defendant was a trafficking victim when the offense occurred.
These defenses do not grant blanket immunity. They require evidence, preserve the prosecution’s ability to test the claim, and distinguish conduct directly caused by trafficking from unrelated criminal activity. That balance protects the integrity of the justice system while recognizing the basic principle that coercion is not consent, and exploitation is not voluntary criminality.
The other 49 states should follow the Texas and federal models. Legislatures should pair those defenses with early identification tools and trauma-informed training for prosecutors, law enforcement, and judges. Trust must be rebuilt between survivors and the legal system, and the real criminals need to be held accountable.
Justice requires more than simply clearing a survivor’s record after the damage is done. The only way to end human trafficking is to punish traffickers and treat victims as what they are: survivors.
Jenna King Lewis is the Texas State Director for Right on Crime, the national criminal justice reform initiative of the Texas Public Policy Foundation.
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