The right to social expungement

• Author: Itay Ravid
• Position: Assistant Professor of Law, Villanova University Charles Widger School of Law, J.S.D '20, J.S.M '13, Stanford Law School
• Pages: 347-404

THE RIGHT TO SOCIAL EXPUNGEMENT

Itay Ravid*

ABSTRACT

In recent years, policy makers advancing criminal legal reform have engaged

in attempts to correct years of harsh and expansive use of criminal laws. Two

main parallel trends dominate these attempts. One is forward-looking—the

decriminalization of many activities currently punishable by the criminal legal

system. The second is backward-looking, and related—expungement and vacatur

reforms that aim to allow individuals to start fresh.

While these latter efforts are intended to erase the criminal stain from official

criminal records, the non-official domain gained less traction, leading to an

absurd reality in which news stories about individuals’ criminal histories remain

accessible in the virtual world, practically forever. Tragically, these online news

stories are often more practically detrimental to reintegration than the official

criminal records. As such, they frustrate the criminal legal system’s efforts to

correct past mistakes.

The literature on criminal legal reform thus far has given less attention to this

crucial problem. This Article contributes to narrowing this scholarly gap. To do

so, it introduces “the right to social expungement”—which recognizes the right

of individuals arrested for or convicted of offenses now vacated, expunged, legal-

ized, or decriminalized to have stories about their past interaction with the crimi-

nal legal system removed from media websites.

Utilizing the case study of individuals arrested for or convicted of selling sex,

this Article provides two theoretical justifications for recognizing this right: (1)

the socio-legal paradigm of cultural shifts and its effects on existing law and

* Assistant Professor of Law, Villanova University Charles Widger School of Law, J.S.D ’20, J.S.M ’13,

Stanford Law School. I would like to thank Todd Aagaard, Deborah Ahrens, Kendra Albert, Gilat Bachar, Michelle

Dempsey, Amy Gajda, Amit Haim, Mary Haggerty, Brett Frischmann, Sarah Lageson, Andrew Lund, Brian

Murray, Teri Ravenell, Shea Rhodes, Tuan Samahon, Emily Stolzenberg, Alexia Tomlinson, Ari Waldman, and the

participants of the “Digital Punishments: Collateral Consequences of Criminal Records” panel at the Law &

Society (“LSA”) Annual Meeting 2022, the Privacy Law Scholars Conference (“PLSC”) 2022, and the Villanova

Law School summer WIP workshop for helpful comments and conversations. I would also like to thank the

incredible research team of the Villanova University Charles Widger School of Law Institute to Address

Commercial Sexual Exploitation (“CSE”) for their invaluable contribution and dedication to this Article; first and

foremost, Caroline Rini, without whom this project would have never happened. Blaire Bernstein, Alessandra

Brainard, Juliette Mogenson, Natalie Poirier, Anne Ringelestein, Vanessa Ruggiero, Alexandra Santulli, and Briana

Smalley also provided terrific research assistance. I am also grateful for the ACLR editorial team, particularly Tara

Mahesh, Victoria Sheber, and Elizabeth Pianucci, for their careful, insightful, and thoughtful work on this piece.

Finally, I would like to thank the many individuals we know (and those we do not know) whose devastating stories

about the effects of their criminalization, and later their informal re-criminalization through the presence of online

news stories, inspired the writing of this Article. I hope that this Article will ignite a conversation about how we

can, and should, offer remedies for these individuals, and for many others who were once tainted by the criminal

stain and now wish to reintegrate into society. © 2023, Itay Ravid.

347

policy, and (2) criminal law’s amelioration doctrine, which offers a path to retro-

actively apply lenient criminal justice policies. The piece further argues that,

counter to conventional wisdom, the right to social expungement can sit comfort-

ably within a plausible interpretation of the right to privacy and freedom of the

press. The Article concludes by offering preliminary guidance for establishing

the right to social expungement.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

I. THE INTELLECTUAL ORIGINS OF THE RIGHT TO SOCIAL EXPUNGEMENT—

THE RTBF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

A. The RTBF—General .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

B. The RTBF in the U.S. Context . . . . . . . . . . . . . . . . . . . . . . . . 360

1. The Dominant View: No RTBF in the United States . . . . 360

a. First Amendment Superiority .. . . . . . . . . . . . . . . . . 360

b. Implications of the Dominant View: The RTBF and

the News Media . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

2. Recognition of Privacy: A Door to Rethink the RTBF . . . 366

3. RTBF on the Ground: Legislative Protections . . . . . . . . . 373

C. The Right to Social Expungement: A Primer . .. . . . . . . . . . . . 376

II. APPLYING THE RIGHT TO SOCIAL EXPUNGEMENT: PROSTITUTION CHARGES

AS A CASE STUDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

B. Cultural Shift: Moving Away From Criminalization . . . . . . . . 381

C. Cultural Shifts Translated into Legislative Actions . . . . . . . . . 386

1. International and Federal Legislative Responses . . . . . . . 386

2. State Legislative Responses . . . . . . . . . . . . . . . . . . . . . . 388

a. Post-Conviction Relief: Vacatur Remedy . . . . . . . . . 388

b. Safe Harbor Provisions . . . . . . . . . . . . . . . . . . . . . . 391

c. Affirmative Defenses .. . . . . . . . . . . . . . . . . . . . . . . 391

3. Cultural Shift as Justification for the Right to Social

Expungement . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392

D. Socio-Legal Theories of Cultural Shift: Law and Policy as

Reflections of Changing Social and Moral Values .. . . . . . . . . 393

E. Retroactive Leniency: Amelioration Doctrine . . . . . . . . . . . . . 394

III. THE RIGHT TO SOCIAL EXPUNGEMENT CAN SIT COMFORTABLY WITH FIRST

AMENDMENT RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

IV. POTENTIAL MODELS OF IMPLEMENTING THE RIGHT . . . . . . . . . . . . . . . . 401

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

348 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:347

INTRODUCTION

M’s life was never easy. She was molested as a child. As a teenager she strug-

gled with drug and alcohol addictions and was in a string of abusive relationships.

By the time she was eighteen, she was trafficked by her boyfriend which resulted

in M’s criminal conviction for prostitution. Finally, after years of struggling, she

was able to escape the cycle of horror that plagued her life, receive treatment,

begin therapy, and become sober. After taking these steps to rehabilitate her life,

M hoped to start fresh alongside her family and friends. But her past haunted her.

More specifically, a story detailing her past prostitution conviction in 2017 that

appeared in an online local newspaper followed her wherever she went.

During her first attempt to rent a house after her recovery, the landlord discov-

ered the 2017 story during a routine online search and asked M to pay her rent in

sex. She then searched for new housing, but the new landlord also found her story

online during a simple Google search and once again, she endured another landlord

asking her to pay rent with sex. She had to move out, and since then, she has been

trying to clear her past. She was partially successful after getting her criminal re-

cord expunged, but the online news story remained accessible to all. She reached

out directly to the newspaper that published her story asking to unpublish it, but

her request was rejected.

1

M, many like her, and millions of other Americans, are all products of the ultra-

punitive American criminal legal system—a system that for years made criminal

law more present in the public sphere by criminalizing many activities. Given the

systemic flaws in the American criminal legal system—first and foremost, the

deep racial biases so ingrained in its DNA—the heavy hand of this punitive system

has been disproportionately felt by minorities, mostly Black and Latino populations.

2

There are numerous studies supporting this proposition. See, e.g., ASHLEY NELLIS, SENT’G PROJECT, THE

COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN STATE PRISONS 13–15 (Oct. 13, 2021), https://www.

sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/; Elizabeth Hinton &

DeAnza Cook, The Mass Criminalization of Black Americans: A Historical Overview, 4 ANN. REV. CRIMINOLOGY

261, 268–74 (2021).

Those once implicated by our harsh criminal legal system then proceed to suffer from

social alienation stemming from the “Mark of Cain” that is a criminal conviction.

3

See MARGARET LOVE & DAVID SCHLUSSEL, COLLATERAL CONSEQUENCES RES. CTR., FROM REENTRY TO

REINTEGRATION: CRIMINAL RECORD REFORMS IN 2021 1 (Jan. 2022), https://ccresourcecenter.org/wp-content/

The effects are long-lasting, from the deprivation of liberty by incarceration and

1. M self-identifies as a victim of sex trafficking. As such, her story amplifies her subjective experience in the

sex trade. This is not to suggest that all individuals going through the experiences described by M should be

inherently categorized as “victims” or “survivors.” See MOLLY SMITH & JUNO MAC, REVOLTING PROSTITUTES:

THE FIGHT FOR SEX WORKERS’ RIGHTS (2018) for other perspectives. In fact, this Article contends that all

experiences should be respected and heard, but these discussions are not at its core. Instead, this Article focuses

on all those who were arrested for, charged with, and/or convicted of prostitution for selling sex, regardless of the

reasons that led them to sell sex or how they self-identify. From the Article’s perspective, the criminalization of

individuals engaged in prostitution, and then the re-criminalization through online news stories, reflect an

extension of the harm from which these individuals suffer. Individuals selling sex include cisgender or

transgender women and men, gender nonconforming, and LGBQ individuals.

2.

3.

2023] THE RIGHT TO SOCIAL EXPUNGEMENT 349