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.
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