Innocence Sold: Florida's legal system blurs the line between sex trafficking survivor and criminal, leaving lives ruined




  • In US
  • 2022-12-04 11:00:00Z
  • By South Florida Sun Sentinel
 

Last of four parts.

The girl wasn't talking.

A Fort Lauderdale police officer was in 13-year-old Laura's hospital room questioning her after she had disappeared in the middle of the night with her mother's car, credit cards and other valuables.

She was gone for eight days before returning home beaten and wearing somebody else's clothes. She had a fresh tattoo of a black rose on her neck and her mother told the officer Laura had been raped and sold for sex.

But Laura was too terrified to tell the police the same story and she had an active warrant. So the officer had others hold down the struggling teenager as he handcuffed her to her hospital gurney for stealing from her own mother.

A year-long investigation by the South Florida Sun Sentinel found that victims of sex trafficking, like Laura, are frequently retraumatized by a system that investigates, charges and prosecutes them for crimes they are coerced by their traffickers into committing.

Their criminal charges can follow them for years or even decades, making it a challenge to find stable jobs or housing.

If they choose to speak out against their traffickers, they can be put through a traumatizing deposition process distinct to Florida and just five other states.

In the end, they are left with few options and no help clearing their tarnished records.

The names of all victims in this story, including Laura, have been withheld or changed. But thousands of pages of police records, court filings and official databases, along with dozens of interviews, make it clear: Florida's law enforcement and criminal justice systems revictimize survivors of sex trafficking.

Victim or criminal?

Women and girls in the grasp of sex traffickers are forced to walk a thin line between surviving and breaking the law.

While in the hospital, Laura couldn't bring herself to recount her experience to the police. The officer asked her if she had been sexually exploited, and she said no. But the day after her arrest, she told investigators that her captor forced her to bring him her mother's car and money - and threatened to kill her if she failed. She had bruises on her neck from being choked. Her mother, Mary Skelly, insisted that Laura had been trafficked.

But Laura continued to deny that she had been sold for sex. She declined a rape test. Without her cooperation, all the officer had was a warrant issued after Skelly reported the incident. The officer detained Laura until detectives could interview her separately.

Skelly said she hoped the warrant would help bring her daughter safely home and get her the help she needed, especially after she told the officer that Laura was being trafficked. She didn't expect that Laura would be physically restrained.

"She was devastated. She was absolutely devastated," Skelly said. "She became so emotional and did not want them near her, and that was her initial fear of me taking her to the hospital. She didn't want to talk to police."

Laura's experience is common for trafficking victims. Women and young girls are frequently charged with crimes that they commit under the control of their pimps. Experts say that by investigating survivors and putting them behind bars, they are further traumatized and less likely to cooperate in prosecutions of their traffickers.

Data from Florida's Department of Children and Family Services reveals that out of 355 children that received services as victims of human trafficking, more than half also spent time in a correctional facility. The data is made available to the public by Robert Latham, associate director of the Children & Youth Law Clinic at the University of Miami.

But most experts agree that the problem is dramatically underreported. A 2015 survey by the National Survivor's Network found that among 130 human trafficking victims across the United States, 91% had been arrested at least once. Of those, two-thirds said that all or most of their arrests were due to their trafficking situation.

In 2020, Florida had the fifth-highest per-capita rate of human trafficking in the country, based on reports to the Human Trafficking Hotline.

Brent Woody, a Tarpon Springs lawyer who specializes in clearing criminal records for human trafficking victims, estimates that his firm alone has been responsible for getting about 1,000 charges overturned statewide. While he believes that expunctions are used more widely in Florida than many other states, his work is still only making a dent.

"I think the number of survivors who come forward for criminal record expungement relief is such a tip of the iceberg," Woody said. "There are thousands more who either are still being trafficked or were being trafficked, but they've not sought services. They've not been identified by law enforcement. They've not read the paper about criminal record relief, or they never even identified as a trafficking victim."

Laura was accused of grand theft auto for taking her mother's car. Detectives deemed the human trafficking allegations unfounded in their report, and nobody was ever charged in her exploitation. Laura was moved to a juvenile detention facility, where she was allegedly sexually assaulted by another resident there, according to a lawsuit filed by her mother.

Skelly said that what happened to Laura after she escaped her captors validated her fear of law enforcement.

"The biggest fear of hers was the police. She didn't want to get in any more trouble. At the time, she thought the police, that meant, 'I'm going to be arrested, bad things are going to happen to me.' And they did. They actually did," she said.

It took months for Laura to open up about the ordeal leading to her arrest. In a letter that Skelly recently provided to the Sun Sentinel, Laura detailed her experience under the control of an older man she met through a boy at her school. She wrote that the man threatened, drugged and raped her and charged other men to have sex with her.

Laura now lives out of state with her mother and has found some stability through professional help. The Fort Lauderdale Police Department did not respond to requests for comment on Laura's case.

Historically, Florida police were not trained to look for the warning signs or handle victims of commercial sexual exploitation. The state Legislature required all law enforcement officers to compete four hours of training on human trafficking by July of 2022. But that was four years after Laura was arrested in 2018.

But sometimes, authorities actually target sex workers who show warning signs of trafficking, strong-arming them into testifying against their traffickers.

One victim in Florida found herself in such a position when her traffickers were charged with running a drug and human trafficking ring. The Sun Sentinel is not identifying her or her traffickers due to concerns for her safety.

Her drug addiction was weaponized against her as her abusers kept her hooked and sold her for sex, she said. In the process, she racked up multiple drug possession charges.

Her traffickers were ultimately arrested and convicted on drug-related charges. But prosecutors also trained their sights on the victim and charged her as a co-conspirator.

She told the Sun Sentinel she remembers feeling that police, prosecutors, judges and others in the system were treating her as a criminal.

"If they would look past the track marks, if they would look past the physical appearance and maybe ask the question like 'Hey, what's really going on?' maybe somebody could have intervened sooner," she told the Sun Sentinel.

After charging her, prosecutors finally offered her a plea deal. She could avoid prison if she agreed to testify against her abusers and attend a program for human trafficking victims. Although she avoided a trial, she was burdened with a criminal record.

The fact that she was sent to a victims program should have made her situation clear, she said. But prosecutors pursued the charges and insisted she cooperate.

"If I wasn't a victim, why was I going to a program for victims? That didn't make any sense to me," she said.

A clean slate

That survivor's record was tarnished because the police and prosecutors were determined to convict her alleged traffickers. They offered to work with her when it suited that goal, but she was on her own when she tried to clear her record.

She was introduced to Woody while she was in prison for violating the terms of her plea agreement. He took on the effort to get her case expunged - the legal term for erasing criminal charges from a person's record. He saw her as a victim unjustly imprisoned and represented her pro bono.

Woody was exactly the person she needed in her corner. Besides representing victims through his non-profit, the Justice Restoration Center, he had a major role in drafting the legislation that allows human trafficking victims to have their records expunged.

His client defied the odds. She pursued her education, began a career and had her record scrubbed with Woody's help.

But very few victims with criminal records are as fortunate.

The 2013 law that created the victim expunction process passed with unanimous support in the state Legislature. It was recently called a "model statute" by Terence Coonan, executive director of Florida State University's Center for the Advancement of Human Rights.

But while the law opens the door for victims to a fresh start, it doesn't mean they're able to step through.

Victims have to pull together the money for an attorney, jump through legal hurdles and provide evidence that they were trafficked, often from a criminal justice system that mishandled their cases in the first place.

The challenges to scrubbing their records are so overwhelming that few even attempt it.

Much of the expunction process is secretive by design and difficult to track. Once a criminal charge is expunged, any record or mention of it is supposed to be destroyed.

But the Sun Sentinel requested the number of expunction petitions from the state attorney offices and clerks of courts in Palm Beach, Broward and Miami-Dade counties to determine how many have been filed.

While an exact figure could not be determined, responses from Palm Beach and Broward indicate that expunctions are rare.

Only eight expunction petitions were filed in Broward County between November 2021 and July 2022, according to the Broward County Clerk of Courts. No records were found prior to that.

Just four had been filed in Palm Beach County as of September, according to Susan Lugar, a spokesperson for the Palm Beach Clerk of Courts.

All told, the Sun Sentinel found evidence of just 12 petitions filed in Broward and Palm Beach counties.

Although most of the charges against Woody's client were cleared, her record still contains an arrest for a violent felony.

The charge was dropped, but many violent crimes cannot be expunged, even if the charges are dismissed or the state declines to prosecute them.

An amendment proposed by State Rep. Jackie Toledo, a Tampa Republican, in January 2022 would have modified the law to allow charges for violent crimes to be expunged if they were dismissed or the state declined to prosecute. But, after merging with other legislation, the provision was dropped in committee.. Toledo could not be reached for comment.

But the woman said that the expunction process wouldn't be necessary in the first place if law enforcement and the criminal justice system identified victims earlier in the process.

"If that happens, you know, we won't have to go back and make right what was done wrong where an injustice was done, right?" she said. "What are we doing to where we're not having to go back and fix what was done?"

Financial burden

Experts told the Sun Sentinel that victims are often unaware that expunction is an option.

But for those trafficking victims who do seek to clear their criminal records, there's another significant hurdle: money.

Financial insecurity is a common trait among victims. Girls from economically disadvantaged backgrounds have the most to gain by working for a predator.

And with an arrest on their record, employment options are usually limited to those that don't require criminal background checks. Hiring an attorney to clear their records is unaffordable.

Another woman who was charged with prostitution and distributing cocaine while being trafficked told the Sun Sentinel that the charges have followed her ever since.

The woman was sold for sex by William Foster, who operated one of the largest known trafficking rings in South Florida for more than two decades before being arrested in 2019. Foster's operation paid for mansions and exotic sports cars while the women under his control endured violence and psychological manipulation. In September, he was sentenced to 60 years in federal prison for operating a trafficking ring that the judge compared to "a cult."

The woman had previously broken away from her trafficker's operation. But Foster had siphoned off all of her earnings for years. She didn't have the means to retain a lawyer by the time she went to court on her own charges.

With no financial options or work, she returned to Foster's ring to pay for her attorney.

In the end, she pleaded no contest to avoid jail time and put the case behind her.

.

But her criminal charges continue to impact her. She can't pass background checks for jobs or housing, she said. She is at the mercy of a string of housemates who let her fly under the radar of landlords, and whose plans change frequently, leaving her out of a home once again.

The charges have even affected her ability to participate in the lives of her two children. When their school found out about her record, she was ostracized from the parent-teacher association..

"I don't deserve to have it on my record," she said. "It would be nice to go on school field trips with my children."

Even though her charges predate the birth of her first child, they have been used against her in her custody disputes.

"Custody court affects me the most," she said. "Everybody loves to mention that I have a felony, regardless of how many years ago it was."

"I don't even feel comfortable saying to a civil court judge that, 'I'm sorry but yes, I have that charge, but it was due to being a victim of human trafficking'," she said. "That doesn't even sound good in custody court, you know? They would think that you would be putting your baby in an at-risk environment, even just saying that statement."

Because of her financial issues, she was not able to pursue an expunction until recently, also with pro bono representation from Woody. The woman said that Foster's conviction was the critical proof she needed to get her record cleared. Without it, she wasn't sure her petition would succeed.

After 13 years with a criminal record, she was informed Thursday that the state will support her petition to expunge her case. It is currently pending final approval from a judge.

The victim that was charged as her trafficker's co-conspirator said she recognizes that she's part of a rare breed. It is difficult to find an attorney willing to work pro bono that understands the complexities of a trafficking survivor's case, she said.

She wondered out loud how a victim could come up with the thousands of dollars needed to hire an attorney.

"Especially a survivor who's just now trying to make a living for herself, find a wage that's sustainable," she said. "Which, with a criminal record, that's hard to obtain, right?"

"I was extremely blessed in being able to obtain career-type employment," she said. "But that doesn't happen. My story is unique. It's not the norm."

No justice, no help

When it comes to clearing their names, victims receive little to no help from the system.

The legislature does not currently provide state funds to help victims of sex trafficking clear their records or recover lawyers fees after successful expunctions.

A bill introduced in the Florida Legislature in 2018 by State Sen. Lauren Book, D-Davie, would have established a fund to support survivors, including providing assistance for expunction petitions.

But, like many other major trafficking bills, state legislators failed to push the bill through. Despite passing with unanimous support in the Senate, the bill was never voted on in the House and died.

While some public officials push to expand access to expunctions, Woody cautions that just because not many people seek them, it doesn't mean the process is flawed.

"I think sometimes the public gets the impression that if something isn't utilized, it's a flaw in the system, and it may not be that," he said. He explained that it takes substantial legal groundwork to move forward with an expunction, including a sworn statement on the victim's trafficking experience.

"In the midst of everything else that they need in the restorative process of trauma counseling, and housing, and employment and all of those challenges to rebuilding their lives, sometimes this isn't the top of the list," Woody said. "It's extremely important, but because the process can be somewhat potentially retraumatizing for a human trafficking survivor, sometimes it's not the most important thing they have to deal with."

Reliving the nightmare

Victims of sex trafficking play a crucial role in prosecuting the criminals who exploit them. But in Florida, turning on their traffickers can mean a grueling deposition process that forces victims to relive the horrors they endured.

Depositions are witness interviews conducted by attorneys before a trial. Florida is one of just six states that allow lawyers to depose witnesses in criminal cases without the court's permission. It is one of just three with no exception for sexual abuse victims.

While Florida prosecutors can try to prevent a victim from being deposed, 47 other states generally require the court's permission to allow them in the first place.

The prospect of recounting details of their ordeals to potentially hostile lawyers can deter victims from cooperating and make prosecutions of sex traffickers significantly more difficult.

One girl's story shows how Florida's policy can unwind a case.

Police reports - which refer to the victim only as N.L. - lay out her ordeal in excruciating detail. She was 16 and missing for eight days when officers found her wandering the streets in the Liberty City neighborhood of Miami-Dade County. N.L. said she had been raped by at least 25 different men in homes around the area while being provided alcohol, cocaine and other drugs.

After receiving emergency medical attention, she provided a detailed statement to police and was able to identify eight men. She remembered addresses where she stayed and drove with officers from house to house. At least six of the suspects were convicted felons, and all eight consented to have samples taken for DNA analysis.

But N.L.'s cooperation was about to end. Faced with the prospect of questioning by lawyers of the men she accused - potentially eight at the same time - N.L. balked. Her therapist warned prosecutors that recounting her story during a high-pressure deposition would be a setback for her recovery.

State attorneys allowed six of the men to plead out, leaving just two lawyers questioning her. Even then, it was too much. The deposition was stopped part way through when it became clear N.L. was unable to cope with the questioning.

The Miami-Dade State Attorney's Office decided that protecting N.L. was a higher priority than getting convictions on higher charges. Without her testimony, they declined to prosecute the men on numerous sexual abuse charges, including human trafficking. All received probation, with one defendant getting out of supervision early.

Human trafficking cases often hinge on a cooperative victim, and records indicate that depositions are a major reason survivors decide to back down.

The Sun Sentinel obtained records for 21 human trafficking cases in which the Broward County State Attorney's Office declined to pursue charges or a plea deal was struck.

The records reveal that many victims refuse to cooperate because they are terrified of reliving their trauma in a deposition. In 15 of the 21 cases, prosecutors noted that the victim was unwilling to cooperate in a case against their trafficker. In five of those 15 cases, a deposition was specifically mentioned as a reason they didn't want to come forward.

Without their key witnesses, prosecutors often have to allow defendants to plead to lower charges, as in N.L.'s case.

But defense lawyers maintain that questioning witnesses through depositions is a right for their clients and a critical part of building a defense - even when the witnesses are alleged victims.

Ernest Chang, president of the Florida Association of Criminal Defense Lawyers, is among the attorneys that want to protect the right to depose human trafficking victims.

"Every single citizen has a constitutional right to confront their accuser," Chang said. "A push to prevent a victim from being deposed takes away that accused person's right."

Chang argues that depositions can actually protect victims by allowing them to avoid testifying in a public court room.

"While the state has an interest in protecting their victims from going through the trauma, if you will, of being deposed and having to relive the nightmare, I will tell you that from a defense lawyer's perspective, it probably helps to resolve the case," he said. Whether the deposition hurts or hinders the state's argument, it can prevent a case from going to trial by hashing out issues early on.

Katherine Rundle, the state attorney for Miami-Dade County, has pushed to change the law and the state's criminal procedure rules to prohibit depositions of sexual abuse victims. While permitted in Florida, there is no constitutional right for defendants to depose a victim, she said in an interview with the Sun Sentinel.

The American Bar Association goes even further. It only recommends depositions in criminal cases if a person is unable to testify at trial or if the testimony would be an unjust surprise in the courtroom.

In federal criminal cases, depositions are only allowed in very limited circumstances and at the discretion of judges. So state attorneys sometimes send cases to federal court, where they are usually allowed to proceed without depositions, according to Neva Rainford-Smith, a senior prosecutor with the Broward State Attorney's Office.

"It is an uphill battle that we fight on a daily basis which is why, oftentimes, it is better to send our state cases to the federal authorities for prosecution because there are no depositions [in the federal cases] and the cases are taken to trial much quicker than they are at the state level," Rainford-Smith wrote in an email.

A report from the Miami-Dade State Attorney's Office suggests eliminating the right to depose victims and requiring defendants to prove that a deposition is necessary. But the state Legislature has repeatedly shot down such proposals.

In Tallahassee, at least six separate bills have been introduced since 2021 that would severely limit depositions of human trafficking victims.

One by one, those bills died, most in committee. One received nearly unanimous support in the state legislature in March 2022, but never made it to a final vote in the Senate before the end of the session, effectively killing the bill. The sponsors of the bills could not be reached for comment.

Under current Florida law, accused traffickers can threaten depositions of victims to get a more favorable plea.

One trafficker, Tadd Clukey, used his deposition right to secure a more favorable sentence, according to the closeout memo for his case.

Clukey was charged in 2015 with soliciting and recruiting seven minors on social media for commercial sex acts. Three separate cases were filed on behalf of three of the victims. Under Florida statutes, any commercial sexual activity with a minor is considered trafficking.

But the case wasn't shaping up favorably for the prosecution. Even after hearing about all the victims, the court was set to release Clukey on bond. State attorneys were also worried that a jury would view the victims as compliant, since Clukey didn't use force.

Clukey asked for a plea offer. The agreement: If he received a more lenient plea, he wouldn't force any of the children to relive their experiences in a deposition.

Clukey pleaded no contest in 2016 to three counts of human trafficking and traveling to meet a minor, but charges of sexual contact with a minor were dropped. While the maximum penalty for human trafficking is a 30-year prison sentence, he received five years in state prison, followed by five years of probation, and must register as a sex offender.

Clukey is currently out on probation and lives in Coconut Creek. His supervised release is scheduled to end in 2025.

Reporter David Fleshler contributed to this report.

If you have tips, feedback or information for the reporters, email ITeam@sunsentinel.com. More ways to submit confidential tips can be found at SunSentinel.com/tips.

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