New York Law Journal Features Q & A On Legal Aid's Innovative Trafficking Victims Advocacy Program
MONDAY, JULY 29, 2013

Last week, the New York Law Journal featured an extensive Q & A article on The Legal Aid Society's Trafficking Victims Advocacy Program in the Criminal Practice. The program, praised by the American Bar Association as one of only two criminal defense efforts in the United States that is addressing the needs of trafficking victims, is directed by Kate Mogulescu, who provided the answers to the Law Journal's questions. Jeff Storey, a Law Journal editor, conducted the interview and introduced the article with a quote from Steven Banks, The Legal Aid Society's Attorney-in-Chief, who said the program complements the Society's representation of adolescent victims of sex trafficking in our Juvenile Rights Practice and our Civil Practice's representation of survivors of sex and labor trafficking.

Banks said that the new trafficking victims effort "has been recognized nationally for its innovative, defender-based approach to sex trafficking," and the expansion will "enhance the comprehensive representation we provide to victims of trafficking throughout the City."

New York Law Journal
Q&A: Kate Mogulescu
By Jeff Storey
July 26, 2013

Two years ago, when she was representing clients charged with prostitution offenses in the Midtown Community Court, Legal Aid Society attorney Kate Mogulescu developed a program to better identify and advocate for victims of sex trafficking and exploitation caught in the criminal justice system.

Now, Legal Aid, supported by the NoVo Foundation, has expanded the pilot program to the entire city. As supervising attorney of the Trafficking Victims Advocacy Program, Mogulescu works with four full-time attorneys.

There is plenty for all of them to do. The NYPD makes an average of 2,700 arrests each year for prostitution and loitering for the purpose of engaging in prostitution citywide.

Steven Banks, Legal Aid's attorney-in-chief, said the program complements the society's representation of adolescent victims of sex trafficking in its Juvenile Rights Practice and its Civil Practice's representation of survivors of sex and labor trafficking.

He said that the new effort "has been recognized nationally for its innovative, defender-based approach to sex trafficking," and the expansion will "enhance the comprehensive representation we provide to victims of trafficking throughout the city."

Mogulescu is a 1999 graduate of SUNY Binghamton and received her law degree from Yale in 2003. She joined Legal Aid in 2003.

She recently was selected as one of the best LGBT lawyers under 40 by the National LGBT Bar Association. In 2012, she was named as a finalist for the American Constitution Society's David Carliner Public Interest Award.

Q: You supervise an unusual project at The Legal Aid Society that focuses on people charged with prostitution offenses. Why was this program established?

A: In large part due to New York City's zero-tolerance policing, many trafficking victims face repeated arrest and prosecution for engaging in prostitution and other offenses. Traditionally in criminal court, prostitution cases were given the shortest shrift, often labeled as "disposable," meaning they were expected to be resolved quickly and without much consideration. Consequently, the people arrested for these charges also came to be seen as somewhat disposable. This group was, and still is in many ways, the most marginalized, even within the criminal justice system.

The Trafficking Victims Advocacy Program is the first effort by a public defender organization to address the systemic criminalization of victims of trafficking and sexual exploitation by changing how criminal courts handle prostitution-related arrests. The project offers comprehensive services to Legal Aid Society clients who are identified as victims of sex trafficking, at high-risk for being trafficked, or simply arrested for a prostitution offense.

Q: How did you get involved?

A: Several years ago, I started focusing my own work on representing individuals arrested and prosecuted in criminal court for prostitution offenses. I did not have any specific background in human trafficking, and was new to the issue. Initially, I focused on these cases because of my interest in clinical teaching. I saw it as a fertile ground to bring students in for clinical training. There is also my interest in how quality-of-life policing—a strategy adopted in many urban areas and particularly embraced in New York City—affected those most targeted.

As I began to spend time with this particular client group, a few themes emerged. The more I learned about their experiences, the more I came to understand that many of them were trafficked, the more I began to recognize the overwhelming extent of violence, sexual assault and trauma they had endured and the more I saw that they were the most disconnected among the clients I had represented as a public defender.

I also recognized the ways in which the criminal justice system was only exacerbating these problems. Initially, I looked at what the Legal Aid Society, as a public defense organization, could do better. I was fortunate to be able to build on the work that many had already begun in different spheres, but wanted to see a more active public defender role. Public defenders were on the front lines when it came to interacting with victims of trafficking and exploitation and were uniquely situated to intervene.

Q: How old are your clients? On average, how long have they been involved in prostitution?

A: My clients range in age from 16 to 60. For clients who were born in the United States, many entered prostitution as adolescents, between the ages of 13 and 20. For those born outside the United States, slightly older. The one characteristic that all of my clients share, regardless of age or background, is they each acutely experience the stigma associated with having been arrested for prostitution.

Q: How are they trafficked into prostitution and discouraged from leaving?

A: Traffickers create conditions of total isolation and dependence. Trafficking relationships are often intimate, and we must apply everything we have learned about intimate partner violence to help understand these particular cycles of abuse, power and control. Traffickers work hard to wear down those they control through constant degradation and abuse. Systems of intermittent reward and punishment nurture the development of traumatic bonds between exploiter and exploited, which serve to keep exploited individuals from leaving. Very few of my trafficked clients are physically detained in the way one might first imagine—locked in a basement or brothel without any ability to leave—but instead are discouraged from leaving by a complicated web of manipulation, fear and coercion.

Many have great difficulty, rightfully, trusting in the very systems that purport to want to help them. Many have had negative experiences with law enforcement or come from communities with a profound distrust of law enforcement, and would never seek assistance from law enforcement. Many have been disappointed time and time again by court, social welfare, educational, and medical systems that have not been a source of safety, comfort or assistance, but rather the opposite.

Current arrest practice also provides traffickers with a powerful tool to continue exploiting those under their control. Many of our clients report being warned by their trafficker that, because they have a prostitution arrest history, they will never obtain legal employment. The economic reality mirrors this threat, as many survivors of trafficking have not completed school and have no legal job experience that would allow them economic mobility or independence. This too can contribute to feeling stuck.

Many of our clients are told that should they consider reporting being trafficked, they would likely not be believed due to their arrest histories. In some of our cases, traffickers have used victims' criminal histories as grounds for bringing proceedings against them in Family Court. When one of our clients recently left her trafficker, he immediately sought custody of the daughter they had in common. The basis for his claim that she was an unfit mother was the series of prostitution convictions she had on her record—while she was being forced by him to prostitute.

Q: What makes individuals particularly vulnerable to trafficking?

A: I believe poverty to be one of the primary factors. Many clients are rendered vulnerable simply because they do not have a safe space to sleep at night. Homelessness has been directly connected to vulnerability to trafficking and exploitation, particularly among young people. Most notably, our greatest client need is shelter services, a need that often goes unmet. Taking a broader view, vulnerability also stems from several societal, or systemic, inequalities, such as the proliferation of gender-based violence and sexual assault. Many of my clients are impacted at an early age by sexual abuse. Media and culture play a role as well, as we must look at messaging that consistently reinforces to girls and young women that their worth is in their physical appearance and sexual value. LGBT youth and adults are also marginalized by non-acceptance and discrimination, which increases their vulnerability to exploitation and abuse.

Q: Do many people arrested for prostitution go to jail? What other consequences do convictions carry?

A: Yes, many do end up in jail. Several hundred people arrested for prostitution are sentenced to jail each year. As with anyone facing a criminal record, even for a misdemeanor, criminal convictions carry tremendous consequences—in employment, housing, education. This is compounded for people convicted of prostitution offenses, because of the particular stigma and judgment those involved in prostitution face throughout society. Then when you consider that those arrested and prosecuted may be victims of trafficking, the impact is even more troubling because these individuals are criminalized for conduct in which they are compelled to engage. Criminalization then serves to reinforce their isolation and marginalization. Contrary to what some may offer as justification for vigorous prostitution enforcement, we are not solving the problem of human trafficking by arresting people for prostitution.

Q: One of your program's principal tools is a law passed in 2010 that allows prostitution convictions to be vacated if the defendant was a victim of sex trafficking. Is that a hard sell? How do you convince prosecutors and judges that a defendant is a victim rather than a criminal?

A: Any time one seeks to attack a conviction post-judgment, it can be difficult. Remember, our criminal justice system firmly believes in the importance of the "finality" of convictions. However, we have had tremendous success implementing and utilizing the Vacating Convictions law, and have benefitted from the cooperation of all of the local district attorney's offices, as well as prosecutor's offices in other parts of the state.

In some cases, we have extensive corroborating information about our client's experience being trafficked—whether in the form of official certification from a government agency, or by identifying a specific trafficker through a criminal history or other means. The law requires that the person seeking vacatur show that either they have ceased to be a victim of trafficking or that they have sought services for victims. Often, we include letters or affidavits of support from therapists or counselors who have worked with our clients to process the trauma they have experienced.

However, in some cases, the sole evidence we have is our client's own narrative or testimony. We have had success in these cases as well, mostly because the fact that a survivor is willing to go through the vacatur process is a significant indicator of the veracity of his/her claim. Survivors of trafficking face tremendous difficulty in sharing their experience. Bringing a motion under the statute requires a rather thorough revisiting of a particularly traumatic and difficult experience, one that can be accompanied by shame, embarrassment and fear.

The advocates at the Sex Workers Project at the Urban Justice Center, and many others, deserve tremendous credit for getting this landmark law enacted as it is a transformative piece of legislation. Many judges who have heard our motions under the statute have been particularly moved by what they have learned about the defendants in front of them. The most unique part about the vacatur law is that it is one of the only anti-trafficking laws that operates solely for the benefit of survivors of trafficking, paving the way for them to move forward unencumbered by their prior criminalization. This law does not require or demand cooperation with law enforcement, and does not serve as an investigative or prosecutorial tool. This sets this statute apart. The other truly remarkable thing about the law is that it recognizes that our criminal justice system often does not get these cases right the first time around.

Q: On what grounds do prosecutors oppose vacating prostitution convictions?

A: The New York statute was drafted to apply specifically to cases where the arrest charge was Penal Law §230.00, prostitution, or Penal Law §240.37, loitering for the purpose of engaging in a prostitution offense. However, we have found that trafficking victims are not just compelled to engage in prostitution, and end up facing arrest for a variety of charges. Many have been convicted of charges other than those specifically defined also as a result of having been trafficked.

Although New York's law does give courts discretion to take additional action where appropriate, some prosecutors have opposed motions where the charges fall outside of the two designated charges. However, the first decision under the statute also vacated a conviction for criminal possession of a controlled substance in the seventh degree. Since then, courts have vacated convictions for criminal trespass, unlicensed driving, and criminal possession of a weapon in the fourth degree under the vacatur provision.

New York was the first state in the nation to pass a vacatur law for survivors of trafficking. Encouragingly, at least 10 other states have passed similar laws since. In fact, the trend seems to be toward a more nuanced and sophisticated understanding of the ways in which trafficked individuals come into contact with the criminal justice system, i.e., not just when arrested for prostitution offenses. As a result, the last two states to adopt vacatur laws, Wyoming and Florida, did not restrict the relief to prostitution charges, but allow for the remedy for nearly any offense that was committed as a result of being trafficked.

Q: How many motions to vacate has Legal Aid filed? How many have been successful? How many are pending?

A: The Legal Aid Society has filed 30 motions to vacate convictions for trafficking survivors for 23 clients (some have convictions in multiple counties). Of those, 20 have been successful, and vacatur granted, and 10 are pending. We have been incredibly fortunate to have the assistance of two amazing partners in our vacatur work—we have collaborated with the International Women's Human Rights Clinic at CUNY Law School, where students have been working on vacatur cases for the last two years. In addition, we have had the tireless pro bono support of Cleary Gottlieb Steen & Hamilton. Cleary Gottlieb has co-counseled with the Legal Aid Society on seven of our filed cases and is working to draft and compile another nine cases.

Q: Do you develop personal relationships with the clients you represent?

A: It is hard not to care deeply about your clients. I have tremendous admiration for my clients as they are some of the strongest and most resilient people I have known. Many have endured repeated trauma and survived crisis after crisis, much more than any one person should have to confront in a lifetime.

While I wouldn't necessarily characterize the relationships as personal, it is extremely important to me that the relationships be consistent and transcend traditional notions of an attorney/client relationship in a criminal case. The project's support and services remain available to clients well after their criminal cases have ended. It is there that we see the most success and transformation as criminal cases move too quickly, and, not surprisingly, criminal court is not a site that inspires change.

Q: Do you find your work challenging? Frustrating?

A: It certainly can be both. Frustration can come in the seemingly unending nature of this work. There is always a challenge when representing and advocating for people charged with committing crimes. They are an unpopular constituency. Furthermore, the criminal justice system is fairly resistant to change and innovation, particularly because our criminal courts depend on the quick and thoughtless resolution of cases.

Several misconceptions still abound when it comes to human trafficking. Despite its emergence as a critical issue, many still believe that human trafficking victims are all foreign-born, and that domestic trafficking does not exist. Many incorrectly believe that trafficking cannot impact men, or LGBT individuals, but it does. Much work has been done to educate the public about the commercial sexual exploitation of children, and there is concern about those prostituted at a young age. However, the majority of our clients are over the age of 18. Although many entered prostitution at a young age, that becomes less important in the criminal justice system as they get older and continue to be arrested. Sympathy declines precipitously as clients turn 18, or 21. Thus, a challenge remains in the work to be done to shift (mis)perceptions about who is impacted by trafficking.

Another challenge we confront is that predominant anti-trafficking efforts, like with so many other issues, continue to adhere to a traditional criminal justice approach, rather than a victim-centered or human rights approach. These efforts are governed by a singular focus on apprehending perpetrators rather than supporting survivors.

Q: While at Yale, you helped organized a program on "rebellious lawyering." What does that mean? Are you a rebel?

A: Rebellious Lawyering is an annual conference at Yale Law School that promotes a culture of lawyering first described by Gerald Lopez in his book of the same name. More than anything, rebellious lawyering requires practitioners to question their own participation in legal systems, and to constantly redefine the practice of the law to reflect the needs of the community. The conference is now the nation's largest student-run public interest legal conference.

I suppose it is a sad reflection on the legal community that this kind of lawyering—progressive, energetic, and sometimes difficult—continues to be seen as rebellious. However, I grew up in a family that was firmly committed to social justice, and particularly to movements that challenged inequality and oppression. More times than not, this landed us on the side of the rebels, so I have no discomfort with this label now.