This blog entry is the second in a series offering a few tips for working with human trafficking survivors who are represented by an attorney. This entry discusses attorneys as victim advocates. (The first in the series posted on 8/23/15 and was titled “When Human Trafficking Survivors Have an Attorney: Confidentiality”).
Often the University of Michigan Human Trafficking Clinic clinic serves as a victim advocate for survivors. This includes helping victims to aid in a law enforcement investigation of their traffickers, serve as a witness at trial, make a victim impact statement at sentencing, and request financial restitution.
While law enforcement agencies or prosecutors’ offices may have staff who serve as victim advocates or volunteers might play that role (all providing valuable help to survivors!), lawyers can play a different and, hopefully complementary, role. Attorneys have a confidential relationship with clients so that they can listen to clients’ concerns and advise them about various options, without disclosing those counseling conversations to anyone else in the case (unless they have the clients’ permission). And, attorneys are trained to prepare witnesses for trial and to advocate for their needs before the court.
Communications between survivors and staff members or volunteers are not usually legally protected as privileged communications. Victim advocates from law enforcement agencies and prosecutors’ offices cannot promise to keep communications confidential; indeed they may have a duty to report new information to their supervisors. Although a volunteer advocate might promise confidentiality, the promise is not legally enforceable.
Giving survivors access to confidential legal representation can actually benefit both survivors and law enforcement. Survivors have immediate access to a professional who represents only the survivors’ interests. When attorneys are present at an initial interview of someone identified as a possible victim of human trafficking, we, and law enforcement officers, quickly tell the survivor that the lawyer does not work for the law enforcement agency or for the court: that we are independent of the decision makers and we will advocate for only the survivor.
It is not difficult to imagine why this is helpful to survivors, but how does it aid law enforcement in the investigation? One of the greatest fears our clients express is the worry that they are in trouble, and that they are the subject of the investigation – that if they tell the truth, they will end up in jail or deported. This concern has typically been the threat made over and over again by their traffickers to keep them trapped. When they finally escape, they have difficulty trusting that law enforcement is there to help, not prosecute, them.
Also, some survivors come from countries where law enforcement and the courts are corrupt and cannot be trusted to protect victims. The attorney for survivors can help them understand that the trafficker is the true target of the investigation and reassure them that the attorney will be by their side throughout the investigation to help explain the process and to protect their rights. This often allows victims to cooperate freely with the investigation by giving law enforcement information that can support prosecution of traffickers.
Attorneys are trained to prepare clients for testimony, so attorney victim advocates can help to reassure a worried client-witness, and can provide valuable guidance about the client’s concerns to the prosecutor. This works especially well when the attorney has a respectful relationship with the prosecutor and stays in the role of victim advocate, not interfering with the prosecutor’s work.
Also, attorneys who serve as victim advocates can participate in developing victim impact statements for survivors, advocating for restitution, and collecting it on behalf of clients. In one of our cases, the Clinic worked with a client who cannot speak English to develop a victim impact statement for the Court. After her trafficker was sentenced, the clinic advocated for an award of restitution, which was granted. The trafficker appealed the restitution order and the clinic has recently submitted a brief in the United States Court of Appeals for the Sixth Circuit to defend the District Court’s award of financial restitution. Much of this work, and the ability to file an appearance and brief with the Court, could only be done by an attorney victim advocate.
As in most work in which a variety of people are trying to be helpful, one of our biggest jobs is to stay inside our appropriate role and to be respectful of each other’s work. The survivors with whom we work will be much better off if they can obtain the coordinated and complementary support of volunteer advocates, staff victim advocates, and attorneys while they attempt to navigate the complicated world of the criminal justice system.
Take Action: If you or someone you know wishes to contact the University of Michigan Human Trafficking Clinic for legal advice and/or possible representation, please call 734-615-3600.
Suellyn Scarnecchia is a Clinical Professor of Law at the University of Michigan Law School.