Human traffickers deprive their victims of freedom, agency, and self-determination. While the criminal justice system seeks to restore these rights, the realities of criminal prosecution sometimes undermine this goal. Human trafficking prosecutions often rely heavily on victim testimony. However, trafficking victims are often unwilling to cooperate with law enforcement or appear in court. When victims refuse to testify, prosecutors may face a difficult choice: they can drop the case, allowing a trafficker to go free. Or they can secure the conviction – at the expense of the victim’s freedom, agency, and self-determination.

Courts have enormous power to compel witness testimony. When a court anticipates that a witness’s testimony is material to a case, but determines that the witness is unlikely to appear willingly, the court may issue a material witness warrant for the witness’s arrest, without regard to whether the witness is also a victim. It is not uncommon for courts to issue these warrants in human trafficking prosecutions, particularly in sex trafficking cases, where the material witnesses are sometimes the defendant’s victims. The result is that human trafficking victims – some in their early teens – are arrested and, in some cases, detained in jail pending their testimony so that the government can pursue a conviction against their traffickers.

Federal authorities often tout the importance of a victim-centered approach to human trafficking prosecutions. Although the practice of arresting, jailing, and forcing trafficking victims to testify is inconsistent with a survivor-centered, trauma-informed approach, courts seem willing to accept that victims’ wishes should take a back seat to efforts to convict. Indeed, courts frequently issue material witness warrants without any discussion of the negative impact arrest and detention will likely have on human trafficking victims. That impact can be significant, particularly for those who have only recently escaped their traffickers.

Read the full report here.