Photograph of an empty courtroom
"Courtroom" by Karen Neoh is licensed under CC BY 2.0 (via Flickr)

Cyntoia Brown’s name has frequently been in the news.  Her cause was taken up by celebrities including Rihanna, Kim Kardashian, Lebron James, and Ashley Judd. Cyntoia Brown is also the subject of a 2011 PBS documentary. Brown, 30, is currently serving a fifty-one year prison sentence for killing a man when she was sixteen years old.  

In 2004, sixteen-year old Cyntoia was involved with twenty-four year old Garion “Cut-Throat” McGlothen. The teenaged Brown was assaulted by McGlothen and trafficked into sex work.  One day, a man named Johnny Allen, 43, picked up Brown and brought her to his house to sexually assault her (at sixteen, she was below the minimum age of consent, which is eighteen years of age in Tennessee). Brown testified that Allen engaged in intimidating behavior, showing her his gun collection, and pacing and watching her as she tried to sleep. He reached out to grope her. Brown rebuffed his move, and he rolled over, reaching for something. Fearing he was reaching for a gun, Brown grabbed her own gun from her purse and shot him.  

Prosecutors argued that the case did not look like self-defense, emphasizing Allen’s bodily position (which did not necessarily contradict Brown’s version of events) and the fact that Brown took Allen’s wallet and a couple rifles after the shooting. They contended that the subsequent taking of his wallet and guns was Cyntoia’s premeditated motive for the killing, rather than an afterthought. When Cyntoia displayed erratic behaviors, they were paraded as evidence of a wilful, premeditated behavior instead of the actions of a traumatized teen (in addition to her trauma, Cyntoia may have been a sufferer of Fetal Alcohol Syndrome and was theorized by her counsellors to have borderline personality disorder). Cyntoia was tried as an adult and sentenced to fifty-one years of prison.

Today, fourteen years later, Cyntoia would not be tried as an adult. Her state of Tennessee now recognizes that underage sex workers are not a category: children are de facto sex-trafficking victims rather than sex workers in virtue of being unable to consent. This is one way in which Cyntoia’s case was shamefully handled: using an archaic framework that did not take her childhood and her victimhood into account. These point to systemic issues. Other systemic issues concern her gender and race, and logical problems with the ways in which criminal law articulates our notion of justifiable self-defense.

Self-defense as a legal argument has several requirements, among them imminent threat and reasonable fear of harm. The prosecutors argued that Allen did not pose an imminent threat to Cyntoia.  

The notion of “imminent threat” and “reasonable fear of harm” has already been nuanced by advocates for women pointing out that some victims of intimate partner violence and sexual assault exhibit “battered women syndrome” (BWS), a state of fear and helplessness brought on by the cyclical tactics of an abuser. BWS is a legal concept more than a clinical one, but psychologists have associated its symptoms with those of post-traumatic stress disorder (PTSD). Individuals who suffer repeated sexual and physical trauma at the hands of intimate partners develop a fear of the partner, attributing extensive power to the partner due to a history of violence and threats on the abuser’s part. This is not an irrational fear, as nearly three women are killed every day by a male partner.  

One of the features of victims of sexual and physical violence is that what looks like an “imminent threat” to a woman or child so habituated to being the object of violence may look very different to a person not regularly subject to abusive behaviors. In fact, what appears to be an “imminent threat” and “reasonable fear of harm” to two parties of roughly equal power in a roughly equal situation without a history of abuse will look different from that of a woman or child in the power of a much stronger male or grown individual. Our notions of “self-defense” do not adequately capture this power imbalance. The same goes for the idea of “proportionate response,” also central to the legal notion of legitimate self defense. A man facing an assault from an equally or less strong man could theoretically ward off the attack with a lesser show of force than a child or less physically imposing person. A person with much weaker strength who responds with minimal force could merely risk being harmed more vehemently by angering their opponent with an ineffective show of resistance inadequate to the other’s strength.    

Arguably, the law has in place a softer interpretation of self-defense that can allow for these power differentials, called “imperfect self-defense.” Imperfect self-defense describes those individuals who honestly anticipate imminent harm and act accordingly.  Such honest belief might be unreasonable (in reference to a presumably objective observer) but the genuine motive of the actor would be an extenuating circumstance, as malice would be lacking to their action.  This notion extenuates individuals who do not match up to an “objective” observer (i.e. an observer who is presumably at the height of intellectual, physical, and social access, i.e. an observer who is an adult male).

Cyntoia’s prosecution and the jury did not appear to find it overwhelmingly plausible that a child in a vulnerable position to being sexually and physically assaulted by a grown man would subjectively or objectively be in fear for her safety. They could arrive at the judgment they did in part by erasing Cyntoia’s victimhood as a child trafficked into sex, and by interpreting behaviors understandable in a traumatized teen as the willful malice of a fully-formed adult able to negotiate her situation. It is also extremely likely that the final verdict depended upon a limited default understanding of self-defense as between parties of equal strength and power. Martha Nussbaum’s Frontiers of Justice notes that much of our political theory is built upon this inaccurate notion. It appears that some of the foundational concepts of widespread legal theory are still bound by similar limitations, to the immense detriment of those who do not match the “default” adult male paradigm. Cyntoia bears a heavy cost for her difference – both in terms of her initial exploitation and in receiving an inhumanly harsh penalty for her action.

Amy-Elyse Gordon, recent PhD graduate from Carleton University and formerly Visiting Professor of Philosophy at Ashoka University, specializes in ethics, social and political philosophy, Ancient Greek philosophy, and critical theory. She has researched poverty and the history of economics with the Robert Schalkenbach Foundation and worked with Academics Stand Against Poverty. Her research has been presented at international conferences and published in conference proceedings, and she is currently converting her doctoral research on political emotions in ancient and contemporary philosophy into a book.