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6. Survivors of Sexual Abuse and Sex Trafficking Criminalized for Self-Defense

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The case of Cyntoia Brown—who was sentenced in 2004, at age 16, to life in prison for killing a man who bought her for sex and raped her—garnered the support of A-list celebrities and received widespread news coverage. In January 2019, after Brown had served fifteen years in prison, Tennessee governor Bill Haslam granted her clemency, describing her case as “tragic and complex” and citing “the extraordinary steps Ms. Brown has taken to rebuild her life.”

In contrast to the spate of news coverage from establishment outlets, which focused on Brown’s biography and the details of her case, independent news organizations—including the Guardian, Democracy Now!, Rolling Stone, and Mother Jones—stood out by reporting that cases like Brown’s are all too common. Victims of sex trafficking and sexual violence are often prosecuted for acts of self-defense. In a January 2019 interview, Mariame Kaba, the cofounder of Survived and Punished, an organization supporting survivors of violence who have been criminalized for self-defense, told Democracy Now!, “There are thousands of Cyntoia Browns in prison.”

In an article published by the Guardian in January 2019, Kaba wrote that multiple studies indicate “between 71% and 95% of incarcerated women have experienced physical violence from an intimate partner,” and many have experienced “multiple forms of physical and sexual abuse” in childhood and as adults, a pattern that experts have described as the “abuse-to-prison” pipeline. On Democracy Now!, Kaba referred to activist Susan Burton, another incarcerated survivor, who has argued that the system essentially works to “incarcerate trauma” when sexually-abused victims are sentenced to prison for self-defense.

Tracing contemporary attitudes toward women of color defending themselves against sexual abuse back to myths that arose in the 19th century during slavery, Kaba noted in her Guardian article that black women “have always been vulnerable to violence” in the United States and “have long been judged as having ‘no selves to defend.’” Today, she wrote, self-defense laws that are “interpreted generously” when applied to white men threatened by men of color are often interpreted “very narrowly” when women of color and gender nonconforming people invoke them in domestic violence and sexual assault cases.

While Cyntoia Brown’s case eventually received national attention, the public remains unaware of many more stories like hers because establishment news outlets seldom treat them as newsworthy. For example, in 2012, Marissa Alexander was convicted in Florida of aggravated assault with a deadly weapon, when she used a gun (which she was licensed to own) to fire a single warning shot into the air to deter her abusive husband. In a pretrial hearing, the judge ruled that the state’s “stand-your-ground” law did not apply to Alexander’s defense because she did not “appear afraid.” As Kaba reported in her Guardian article, a jury found Alexander guilty after just twelve minutes of deliberation. Alexander was sentenced to a mandatory minimum sentence of 20 years. In January 2017, after two years of house arrest and three years of incarceration, Alexander was freed through what Kaba described as “good lawyering and a national participatory legal defense organizing campaign.”

Responding in part to publicity generated by Cyntoia Brown’s case, lawmakers in Congress and three states have proposed legislation that would “overhaul how courts treat juvenile sex trafficking victims tried as adults for committing crimes against their abusers,” Mother Jones reported in May 2019. Under existing state and federal laws, juvenile victims who commit serious crimes, such as murder, are often tried in adult courts—without considering that victims of sex trafficking may resort to violence in efforts to escape their situation. Historically, the trauma experienced by victims of sex trafficking “has not been well understood and hasn’t been taken into account when deciding the cases of victims who commit crimes,” Olivia Exstrum reported for Mother Jones.

Citing research on how the trauma of being sex trafficked can affect decision-making, especially by young people, the legislation in process in Congress and in Nevada, Arkansas, and Hawaii would have judges consider the effect of trauma on offenders’ conduct and would give courts the authority to ignore mandatory minimum sentencing requirements in such cases. James Dold, the founder of the nonprofit Human Rights for Kids, which helped draft the model legislation, told Mother Jones that, to his knowledge, this is the first time that legislation at the federal or state level has sought to address defendants who have been victims of juvenile sex trafficking.

A 2019 United Nations report, issued by the United Nations Office on Drugs and Crime, found that human trafficking continues to rise. According to the report, “Most of the victims detected globally are trafficked for sexual exploitation,” and the “vast majority” of those victims are female.

Corporate news organizations provided considerable coverage of Cyntoia Brown’s clemency. However, many of those reports treated Brown’s case in isolation, emphasizing her biography or the advocacy on her behalf by celebrities such as Rihanna, Drake, LeBron James, and Kim Kardashian West. On January 17, 2019, the New York Times published an article on how Brown’s case had inspired “a push for juvenile criminal justice reform” in Tennessee, where she had been convicted and served her sentence. Although this report noted that Brown was “a teenage trafficking victim,” it focused on the sentencing of people who were minors when they committed crimes, rather than on sex trafficking or sexual violence as circumstances that lead some minors to engage in acts of self-defense that result in criminal prosecution. An NBC News report took a similar tack, emphasizing age (“young people tried in adult courts”) and race (“one of many young black women and girls who land in the criminal justice system”) without acknowledging either sex trafficking and sexual violence as factors that often lead to violent acts of self-defense, or racial inequalities in courts’ interpretations of “stand-your-ground” laws when victims act to protect themselves.

Reports that did link Cyntoia Brown’s case to broader patterns of sexual violence and sex trafficking were often filed as opinion pieces, rather than news stories, by corporate news media, as was one exceptionally detailed piece, written by Andrea Powell and published by NBC News. Powell, the founder and executive director of Karana Rising, a nonprofit that supports survivors of human trafficking, explained how credibility bias and racial stereotypes work against many survivors of sex trafficking when they are tried for “crimes they were forced to commit in self-defense or at the hands of their traffickers.” Girls with histories of juvenile detention, sexual abuse, or running away from foster placements may be seen as less credible, she explained, while racial stereotypes underlie beliefs about girls of color being “less innocent and more sexually mature than their white peers.”

Noting that the “history of child victims of sex trafficking being arrested as prostitutes or worse runs deep in the American criminal justice system,” Powell wrote that, instead of arresting child victims, “we need to legally treat them as traumatized children in need of services.” Powell pointed to New York State’s “Safe Harbor” law, which protects and offers immunity to minors involved in any form of commercial sex, and HOPE Court of Washington, DC, which provides a special court program and direct services for youth survivors of commercial sex exploitation. Lastly, she noted that the best solution, “a controversial one,” is to stop treating sex workers as criminals: “By treating all sex workers as criminals, we end up criminalizing sex trafficking victims.”

Mariame Kaba, “Black Women Punished for Self-Defense Must be Freed from Their Cages,” The Guardian, January 3, 2019, https://www.theguardian.com/commentisfree/2019/jan/03/cyntoia-brown-marissa-alexander-black-women-self-defense-prison.

Amy Goodman, “There are Thousands of Cyntoia Browns: Mariame Kaba on Criminalization of Sexual Violence Survivors,” Democracy Now!, January 10, 2019, https://www.democracynow.org/2019/1/10/there_are_thousands_of_cyntoia_browns.

Kellie C. Murphy, “Beyond Cyntoia Brown: How Women End Up Incarcerated for Self Defense,” Rolling Stone, January 28, 2019, https://www.rollingstone.com/culture/culture-features/cyntoia-brown-beyond-other-cases-775874/.

Olivia Exstrum, “Child Sex-Trafficking Victims Face Decades behind Bars for Killing Their Abusers. That Could End Soon,” Mother Jones, May 9, 2019, https://www.motherjones.com/crime-justice/2019/05/cyntoia-brown-sara-kruzan-sex-trafficking-abuse-legislation/.

Student Researcher: Jaidene Samiec (North Central College)

Faculty Evaluator: Steve Macek (North Central College)

Review Article with Credder

Daniel Christof

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