Gov. Greg Abbott vetoed Senate Bill 1278, which would have let victims of human trafficking claim duress as a defense against any crimes they're charged with committing on behalf of their traffickers. Abbott has directed lawmakers to revisit the issue in a special session, starting Monday, July 21.
"SB 1278 would help people who were forced to break the law because they were being trafficked or abused," said Elizabeth Henneke, CEO of the Lone Star Justice Alliance. "It says that if they committed a crime because the were threatened or controlled by someone else, like a sex trafficker, they could explain that in court as part of the defense."
The Houston-based nonprofit Children at Risk has worked with victims of human trafficking for decades. Caroline Roberts, the organization's general counsel and senior director of policy, said those victims often wind up with criminal records themselves.
"Usually, a trafficker is not going to take any risk himself or herself that they can put onto that victim, and so they're going to have that person carrying their drugs or opening a bank account in their name that they're then going to default on," Roberts said. "All of that risk then gets put onto the trafficking victim."
Such a scenario has long-term consequences if and when a trafficking victim is ever able to escape their trafficker and begin the road to recovery.
"That criminal record is really, really difficult to overcome, in terms of getting housing, a job, a place in the community," Roberts said. "That criminal record is a massive hindrance, and it's a massive hindrance for someone who is wanting to escape."
Henneke said that, in a 2021 decision, the Texas Court of Criminal Appeals narrowed the ability of trafficking victims to claim duress as an affirmative defense.
"And in that case, the criminal court of appeals said it was not relevant that a survivor of crime had been subjected to potentially years of abuse," Henneke said. "What was relevant was simply what had happened immediately prior to the incident in question."
Henneke argued that demonstrated a fundamental misunderstanding of the effects of trafficking on its victims.
"By the time a trafficker has asked them to engage in some sort of act, be it smuggling drugs or committing a robbery, if they've already overcome their will and required them to sell their bodies, it's very easy to get them to commit other crimes," Henneke said.
Abbott vetoed the original bill, which passed with strong bipartisan support, saying it was too broad and could allow victims immunity for crimes that had little to do with their being trafficked.
"No State has done more to both protect and advance the future of victims of human trafficking. Our commitment to supporting those victims will remain steadfast," Abbott said in his veto proclamation. "The bill's approach, however, severs the link between culpability and conduct. If the person is a qualifying victim, the bill holds out ‘an affirmative defense to prosecution' — any prosecution. That means a person could be immune not only for acts of prostitution that are linked to their own prior victimization, but also for raping a child, murdering a law enforcement officer, or engaging in acts of terrorism."
Henneke said she supports the work Abbott has done in the past to help victims of trafficking, and that any revised bill needs to make clearer that trafficking victims often have had their wills overridden by months or years of grooming and abuse.
"So, we'll be seeking guidance from the governor to say how can we better focus our attention on the proof that a survivor needs to provide that their will has been overcome, that they've been coerced, that they have fears [of] reprisal and keep the focus there, rather than on the actions of the survivor which would lead to the charge and the offense," Henneke said.
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