The killing of Breonna Taylor and the Black Lives Matter protests have pushed the victimization and oppression of black women and girls in the criminal justice system to the forefront of the national conversation on racial disparities in law enforcement.
The subjugation of black women and girls in the criminal justice system has been systemically enabled and overlooked. Among the most vulnerable are the thousands of young black girls who are trafficked every year. Sex trafficking survivors are overwhelmingly black, representing about 40 percent of overall sex trafficking cases.
As a black woman working in criminal justice reform, the failure to protect sex trafficking survivors is not new and the disparate criminalization of black survivors has always been apparent. You may recall the heartbreaking story of Cyntoia Brown. At 16 years old, Brown was sentenced to life in prison for killing a man who solicited her for sex. Despite being a minor, she was charged with a life sentence and denied any self-defense claims. After serving 15 years, thanks to a successful social media-led campaign, last year she was granted clemency and released.
Brown was denied her ability to have her trafficking used as a mitigating factor during her trial. Brown’s new story, as told by the prosecution, was of a violent woman in prostitution. Not until celebrities heard her story, many years later, was she given a chance to reclaim the voice that was stolen from her at 16 years old.
Survivors have been systematically criminalized and denied the ability to tell their own stories. For survivors sitting on the defense side of courtrooms, prosecutors and judges have had the most power and control over their stories. Even though prosecutors and judges are presented with strong mitigating evidence that may show a lack of intent, many fail to fully understand the realities of trafficking. These system actors have yet to integrate the stories of other survivors that shed light — and potentially a colorable defense — on a survivor’s history.
Prosecutors have limited options when handling murder cases in our punitive, adversarial system, even when they acknowledge the survivor’s trauma. A prosecutor’s job is to overcome the burden of proof and establish that the survivor killed someone, which almost universally leads to a long period of incarceration. This response fails to address the complex experience of trafficking, the effect it can have on behavior and the outcomes of accountability survivors are fighting for.
Most survivors don’t deny the fact that they took someone’s life, nor claim what they did was morally right. They express remorse for their actions and, simultaneously, maintain that their actions were the only fathomable path to safety. As the effects of trauma are studied more deeply, there has been substantial evidence of the physical and psychological symptoms of trauma, which greatly affect a person’s cognitive and behavioral functioning.
These effects are especially powerful for trafficking survivors who experience prolonged abuse. The growth in research on Trauma Coerced Attachment (TCA), a cyclical state of abuse that causes a survivor to develop a powerful emotional attachment to their abuser, has helped to explain the impact of coercive control tactics abusers employ to alter a survivor’s perception of themselves and the world. TCA can serve as an important lens for criminal justice system actors by centering the inquiry on why trafficking survivors resolve to kill their abuser, as well as provide evidence on why committing homicide may be the only reasonable self-defense. And yet, the legal mechanisms that would allow survivors to have their cases considered holistically in light of their trauma are scarce.
The limitations begin with a survivor’s inability to avail themselves of an affirmative defense. Only eighteen states have adopted human trafficking affirmative defense statute, which requires a court to determine if a survivor’s criminal act is a direct result of their trafficking. Survivors bear the burden of proving the reasonableness of their actions in light of the circumstances, but if proven beyond a reasonable doubt, mitigates any criminal consequences and allows them to seek rehabilitative services. While success is not guaranteed, affirmative defense gives survivors the opportunity to reclaim their voice in a system that failed to protect them in the first place.
Tragically, most states limit their affirmative defense statutes for trafficking survivors to misdemeanor charges, like prostitution. Only Wisconsin and Wyoming have broad enough affirmative defense statutes to include violent crimes. To this day, there has never been a violent felony case against a trafficking survivor in which an affirmative defense was applied.
Wisconsin could be in a particularly unique position to set an inclusive precedent in the case of a young black survivor, Chrystul Kizer, who is currently awaiting an appeal hearing on an affirmative defense claim. If the Wisconsin Appellate Court overturns the lower court ruling, Kizer will be able to share her experiences with the assistance of expert testimony on trauma and trafficking. This decision could pave the way for all survivors who have been silenced in criminal courts across the country.
With the current momentum of the Black Lives Matter movement, it is imperative to push for justice on all fronts, for all black people who have been denied justice. Ending the targeted sex trafficking of young black girls needs to be highlighted and reforms must work towards ending incarceration and criminalization of the survivors that have failed to be protected in our communities in the first place.
Michelle Mason is the Policy and Operations assistant for the Institute for Innovation in Prosecution at John Jay College. Follow the IIP on twitter at @IIP_JohnJay.