Analysis: Cyntoia Brown, R. Kelly and the refusal to recognize black and brown female victims

Cyntoia Brown said she was forced into prostitution when she was 16 and was scared for her life when she shot Johnny Allen, a 43-year-old who picked her up for sex in 2004 at a Tennessee Sonic. 

She was tried as an adult and given a life sentence for first-degree murder and aggravated robbery, which was commuted Monday by Tennessee Gov. Bill Haslam, who said in a statement that her rehabilitation and young age warranted mercy.

What Haslam didn't mention was the violence Brown said she experienced leading up to that point. And that didn't go unnoticed by the advocates who helped catapult Brown's case to the national stage.

“It is a travesty that he does not address the crimes that happened to her,” says Tonya Lovelace, CEO of Women of Color Network, Inc., an initiative that works to end violence against women, addressing the unique challenges facing women of color. "The point is that the actual crime here is the demand for girls, the child trafficking and the statutory rape that she endured."

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Lovelace and other advocates also noted that Brown's commutation came amid another national flashpoint on violence against women of color. The docu-series “Surviving R. Kelly," which premiered Jan. 3 on Lifetime, made headlines this week alleging that Kelly physically and sexually abused scores of girls and women while the music industry turned a blind eye. Kelly denies the allegations. 

Such cases highlight a long history of women of color being victims of gender-based crimes without being treated as such by the justice system or society.

A 1999 study found that girls of color who are victims of abuse are more likely to be caught up in the criminal justice system and labeled as offenders than white girls, who are more likely to be treated as victims and referred to child welfare and mental health systems. 

"It’s all the same thread of truly not caring about the welfare of black and brown girls," said Lovelace. “I think it’s all based in the concept of misogynoir, a particular kind of racism and sexism that black women and girls experience, based on the idea that we can’t be victimized."

Though Brown was 16 when she was arrested, and told interviewers she had been raped and forced into prostitution, prosecutors tried her as an adult. Understandings of child sex trafficking have evolved in the 15 years since. 

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A highly-cited paper from the Georgetown Law Center on Poverty and Inequality, Human Rights Project for Girls and Ms. Foundation for Women titled "The Sexual Abuse to Prison Pipeline," found "that in a perverse twist of justice, many girls who experience sexual abuse are routed into the juvenile justice system because of their victimization."

Authors of the report say that child sex trafficking is child sexual abuse, though many jurisdictions still view those victims as perpetrators: "These girls are arrested on charges of prostitution even though they are too young to legally consent to sex."

Though Brown’s case received attention from celebrities, such as Rihanna, Kim Kardashian and Alyssa Milano, she's not unique. There are many other women, particularly women of color, who are incarcerated after experiencing abuse.

A 2012 study published by the Justice Department's Bureau of Justice Statistics found that of incarcerated women, 86 percent reported being a victim of sexual violence and 77 percent reported a history of domestic violence. 

A 2008 study of 60 incarcerated women found that nearly half had committed what could be considered defensive measures to stop abuse. 

The exact number of women and girls caught up in the criminal justice system for self-defense or self-preservation in violent situations is not known, says Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. No federal agency tracks those statistics.

“The question is, how many women are in prison for a crime that’s related to a history of abuse? Some people would argue probably most of them,” Osthoff says.

Women who committed violence are also sentenced to longer terms than men, said Sandra Morgan, director of the Global Center for Women and Justice at Vanguard University. 

"Even when you look at trends of convictions of men who kill their spouses, men get shorter sentencing than women, consistently," Morgan said. "Part of it is the element that women are supposed to nurture. ... If a woman kills a man, that somehow is more egregious than a man killing a woman. It’s part of our societal imaging, it's more shocking, and juries don’t know what to do with that."

Biases against women who take defensive action are ingrained in the American legal system and long-standing gender norms, Morgan said.

That's where Marissa Alexander found herself in 2010 after firing a warning shot during an attack by her estranged husband in which she says she feared for her life. Though Alexander had a restraining order against her husband at the time, and her shot caused no injuries, Alexander was arrested. 

"It was a shock to me," Alexander said. "I didn’t think I would get arrested that day. I don’t believe that what I did was a crime, so I was really shocked."

Alexander, who lived in Florida, was denied "Stand Your Ground" immunity from prosecution. Her case garnered national attention as it played out in conjunction with that of George Zimmerman, who was tried and cleared in 2012 in the fatal shooting of Trayvon Martin. Zimmerman's defense lawyers argued he shot in self-defense, and the "Stand Your Ground" law played a part in the way the police approached the initial investigation.

Alexander was found guilty of three counts of assault with a deadly weapon and received a mandatory minimum sentence of 20 years in prison. She successfully appealed her conviction in 2013 and in 2014 took a plea deal for time served plus 65 days in prison and two years probation.

Alexander says that from her initial arrest, despite her husband's documented history of domestic violence, she doesn't believe she was perceived as a victim of domestic abuse. 

"I really feel like people didn’t feel like as a black woman I had the right to defend myself," Alexander said. "In my experience, it's the perception that especially being a black woman, that we’re aggressive and that we’re angry."

Alisa Bierria, an assistant professor in the Department of Ethnic Studies at University of California, Riverside, says the prosecutor in Alexander's case made it clear that she viewed Alexander as angry rather than fearful, and that impacted the decision on her "Stand Your Ground" defense. 

“Black women in this country have never been allowed the full spectrum of human emotions and human identity, and that includes their access to the identity of survivor,” says Bierria.

Even in the wake of the #MeToo movement, which was started by Tarana Burke 10 years ago to give voice to black girls who have been the victims of abuse, stories of women and girls of color often took a backseat in the media to those of white women. Allegations against Kelly had been reported by media outlets for nearly two decades prior to the premiere of "Surviving," as Kelly continued to produce chart-topping hits and work with some of the biggest names in the music industry.

In 2000, the Chicago Sun-Times reported on allegations of Kelly having sexual relationships with underage girls, including details of a lawsuit filed by Tiffany Hawkins in 1996 who claimed personal injuries resulting from a relationship with Kelly that started when she was 15. In July 2017, his alleged misdeeds returned to the headlines after a Buzzfeed News story claimed Kelly lures women into "cult"-like sexual relationships. The singer denied the allegations, but a "Mute R. Kelly" campaign called for boycotts of his music and further investigation into his behavior in the months since.

The docu-series has prompted renewed interest by law enforcement in Atlanta and Chicago, as Cook County State's Attorney Kim Foxx called the broadcasted allegations “deeply disturbing.”

Yet, according to numbers released Thursday by Nielsen, album sales, song sales and audio and video streams for the artist have spiked since the premiere.

Lovelace says multiple layers of racism and sexism contribute to supporters buying Kelly's records even in light of the allegations.

"This is across the board, this is not isolated to the mainstream or to white people or to white men who are engaging in this. Black and brown girls are vulnerable to everybody because some of the strong critics are black women who are standing in solidarity with R Kelly," Lovelace said. "What you have is this internalized response to what’s happening to our community where we become protective to the degree that we disregard the most vulnerable among us. That is embedded in the initial roots of racism enacted upon us."

Alexander sees some promise in the current dialogue, and in men who have been holding others to account.

Chance the Rapper, who said he was misquoted in "Surviving," clarified later on Twitter that "any of us who ever ignored the R. Kelly stories, or ever believed he was being set up/attacked by the system (as black men often are) were doing so at the detriment of black women and girls."

He added, "I apologize to all of his survivors for working with him and taking so long to speak."

Alexander says that only through those hard conversations will we drive social change.

"Giving people the space to say, 'We knew, but we are going to do better.' That was a good step for him to say that, it is the truth."