Document Type
Article
Publication Date
2026
Abstract
The non-punishment principle is a legal norm that has increasingly gained legitimacy over the past quarter-century within international, regional, and domestic law on human trafficking. At its core, this principle opposes the punishment of human trafficking victims for unlawful conduct they engage in as a consequence of their trafficking victimization. Little is known about the presence and operation of the non-punishment principle within U.S. law. This Article fills this gap as the first to comprehensively map and analyze the principle’s instantiation across state and federal law.
From this new map, three key themes emerge. First, the non-punishment principle has a distinct presence within U.S. law. This manifests predominantly through statutory immunity and affirmative defenses specifically based upon trafficking victimization, diversion to human trafficking courts, treatment programs, and social services for defendants identified as trafficking victims, and vacatur, expungement, and sealing laws providing criminal records relief for trafficking victims. Second, states often restrict non-punishment statutes and judicial initiatives to apply to only a subset of trafficking victims. Such limitations include excluding more serious offenses from eligibility, imposing age limitations, and requiring proof of a definitive nexus between the crime and trafficking victimization. Consequently, many victims are excluded from the non-punishment principle’s reach and are subjected to criminal liability and punishment. Third, current approaches to the non-punishment principle largely reflect the oversimplified binary embedded within the criminal legal system that treats individuals solely as victims deserving of protection or solely as offenders deserving of punishment. This paradigm fails to appreciate the victim–offender overlap that often exists within human trafficking situations and its implications for addressing the complex harms involved.
Given the limits of current approaches, this Article advances the novel argument that restorative justice holds great promise as a non-punitive mechanism to address harm caused by trafficking victims who victimize others while avoiding violation of the non-punishment principle. Restorative justice’s flexibility, focus on repair and reintegration, and appreciation of the dynamics surrounding the harm make it a valuable mechanism for addressing the complexities of the victim–offender overlap within the human trafficking context. On a broader level, this proposal supports decarceration efforts by advocating for the use of restorative justice instead of incarceration to respond to serious and violent crime committed by human trafficking victim–defendants.
Recommended Citation
Rachel J. Wechsler,
The Non-Punishment Principle and Restorative Justice, 174 University of Pennsylvania Law Review 363
(2026).
Available at: https://scholarship.law.missouri.edu/facpubs/1375