The case of Cyntoia Brown has sparked a national reassessment of the ways the criminal justice system deals with survivors of abuse.
Aylaliya “Liyah” Birru sits in Yuba County Jail in Marysville, California — where US Immigration and Customs Enforcement holds immigrants — waiting to learn whether she’ll be deported to her native Ethiopia.
Birru, 35, was convicted of felony assault with a firearm and sentenced to six years in Folsom State Prison for shooting her husband, Silas D’Aloisio, in their Roseville, California, home in 2014. The pair had married two years earlier, after meeting while D’Aloisio worked at the US Embassy in Addis Ababa. But just months after they moved to America, Birru has alleged, her husband turned violent.
“He had become a very violent person physically, and I was in constant fear of what he could possibly do to me next,” Birru wrote of her husband, according to the Appeal, which covers the criminal justice system. “He even would tell me he sometimes worried he might end up hurting me really bad.”
A petition posted to Change.org by Survived & Punished, which supports and aims to free incarcerated survivors of gender violence, lays out the details of the case: On December 13, 2014, Birru alleges, D’Aloisio slammed her into a wall, pulled her hair, and struck her in the ribs. Panicked, she grabbed D’Aloisio’s handgun, hoping the weapon would scare him off. She fired, allegedly thinking the gun was empty, but a bullet hit D’Aloisio in the back, injuring him. (D’Aloisio did not respond to a request from Vox for comment.)
“She’s languishing behind bars right now,” says Emily Suh of Survived & Punished National, which is working to draw attention to Birru’s story. “Our last update, she hasn’t been feeling that great. It’s a very difficult and trying time.”
Birru’s sentence was shortened after she received her GED while incarcerated. But the accomplishment hasn’t stopped authorities from moving to deport her. (Since 1996, the Illegal Immigration Reform and Immigrant Responsibility Act has allowed for immigrants convicted of certain crimes to be detained after their release and deported.)
Survived & Punished is working with a slew of other groups to urge California Gov. Gavin Newsom (D) to pardon Birru and stop her deportation. Last month, organizers held a rally outside Newsom’s office in Sacramento and presented one of his representatives with a 33,000-signature petition from the public.
— #SurvivedAndPunished (@survivepunish) July 23, 2019
This strategy of drawing public attention to abuse survivors imprisoned for fighting back against their abusers has moved their plight from the shadows to the spotlight. In recent years, stories of women like Birru — now pushed out via social media, hashtags, and petition platforms such as Change.org — have sparked a national reconsideration of the ways the criminal justice system deals with survivors of abuse.
There is perhaps no clearer example of this culture shift than the story of Cyntoia Brown, who spent 15 years in prison for killing a man who solicited her for sex when she was 16. Arguing that Brown was being sex trafficked and that the killing was in self-defense, activists and celebrities like Rihanna and LeBron James rallied behind Brown more than a decade after she’d been imprisoned in Tennessee. More than 370,000 signed a petition to urge then-Gov. Bill Haslam (R) to grant her clemency. It worked. Brown was released on parole this month.
Marissa Alexander has become a notable advocate for imprisoned survivors (referred to by advocates as “criminalized survivors”) after she was charged with aggravated assault in 2010 for firing a warning shot in her Florida home to scare off her abusive estranged husband. Convicted in 2012, Alexander was sentenced to 20 years in prison but ended up spending three years behind bars after an appellate court overturned her case. Rev. Jesse Jackson and groups like Color of Change and the National Organization for Women passionately fought for Alexander’s release, pushing her case into the headlines.
“I was criminalized for my response to abuse. I had no time to fall apart and be in my feelings, it was paramount that I survive and make it out of there … and get home to my kids,” says Alexander, who now supports women in similar circumstances through her nonprofit, the Marissa Alexander Justice Project.
“I was able to come across so many other women and girls that I realized, this is not just an isolated issue. This is going on [everywhere]. I knew it was bigger than myself. There’s more Marissa Alexanders.”
Even decades-old stories are being cast in a new light. Earlier this year, a four-part Amazon Prime docuseries revisited the case of Lorena Bobbitt (now Lorena Gallo), the Ecuadorian immigrant who became the subject of countless comedy skits after she cut off the penis of her then-husband, John Bobbitt, with a kitchen knife in their Virginia home following years of severe abuse.
“First of all, this is more than a documentary — it’s a conversation that we should have had years ago, and you could feel the beginning of a new era in terms of how we talk about sexual abuse and violence,” producer Jordan Peele told the Los Angeles Times.
Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women, has spent more than two decades working with people incarcerated after abuse. She says the public’s newfound awareness of survivors’ criminalization is the latest surge forward in the movement.
“I’m encouraged by the amount of organizing that’s going on, I always am when it comes around,” Osthoff says. “But what’s different now is that it feels to me that the coalition of people who understand how racist and destructive the criminal legal system can be is just bigger.”
How abuse survivors end up in prison
Most survivors’ stories, however, won’t become headlines or be featured on streaming platforms.
Female, trans, and gender-nonconforming survivors of gender violence who have harmed or killed their abusers are often swept into the penal system with their history of abuse largely ignored. There is no agency that collects official data on the number of survivors incarcerated for defending themselves and no national statistics that track the rate of this criminalization. But according to a 2016 study published by the Vera Institute of Justice, 86 percent of women in jail are survivors of sexual violence, and 77 percent are survivors of intimate partner violence.
“The same thing that makes somebody vulnerable to sexual violence by [their peers] also makes them vulnerable to prosecution and criminalization,” says Moira Meltzer-Cohen, a New York City-based attorney who frequently works with survivors. “It makes it more likely that they’ll be in a position that, for their own survival, they may have to violate some laws, and they’ll be extremely harshly prosecuted for those violations.”
Many courts do recognize “battered woman syndrome” as a legal defense; it posits that long-term domestic abuse has lasting psychological effects. But researchers say such a diagnosis doesn’t address the structural inequalities that lead to abuse. This year, New York legislators signed into law the Domestic Violence Survivors Justice Act, which will give judges more options to reduce sentences for those convicted of violence against abusive partners, rather than forcing strict adherence to the state’s sentencing guidelines. But the law comes with several limitations, activists argue.
A 2004 study by sociologist Angela M. Moe published in Women’s Studies Quarterly found that gender violence leads to women’s incarceration in both direct and indirect ways. Activists call this “the sexual abuse to prison pipeline.” Women who have experienced abuse as children or in adulthood — including molestation, assault, intimate partner violence, or child maltreatment — are more likely to be incarcerated than women who have not, according to the National Online Resource Center on Violence Against Women.
“Strategies that women use to cope with the effects of and survive in the face of violence and abuse include behaviors that have been deemed criminal, such as fighting back, use of illegal drugs, and theft,” according to one of the group’s reports.
Birru has alleged that prosecutors in Placer County, California, disregarded her background when they decided to charge her and ultimately determine her fate.
“All of the evidence showing that I was a survivor of domestic violence was ignored. They believed a white man who was a citizen over me at every step and did not consider the experience of domestic violence survivors when sentencing me,” Birru told the Appeal. (Black women are incarcerated at around double the rate of white women.)
In a statement to Vox, the county’s assistant district attorney Jeff Wilson rebuffed Birru’s claims, saying that Birru shot D’Aloisio out of jealousy. (Suh told Vox that Birru denies this.)
“The only evidence that the defendant was a victim of domestic violence was provided by the defendant,” Wilson says. “The evidence clearly showed that she shot the victim in the back while he was fleeing from the home and that he posed no immediate threat to the defendant.”
Reconsidering the justice system
Police have long been criticized for their handling of domestic violence calls (in the past, they’ve simply told abusers to cool off). So feminist activists in the ’70s and ’80s sued police departments for the lack of adequate response. As a result, legislators introduced mandatory and dual arrest laws. Counterintuitively, these laws have led to the arrest and incarceration of victims after they report abuse.
In 2010, Tiawanda Moore called the police to her Illinois apartment after a domestic disturbance only to be allegedly molested by one of the cops and ultimately arrested and charged with felony eavesdropping after filing a complaint against the officer. Nikki Addimando, a Poughkeepsie, New York, mother, was convicted of second-degree murder and second-degree criminal possession of a weapon in April for fatally shooting her boyfriend after years of alleged physical abuse.
“In Nikki’s case, it’s presented as a mutual back-and-forth, like they were just in a toxic relationship. It’s like, no, we have enough research on domestic violence to know that’s not what’s happening here,” says Rachel Foran, an organizer with Court Watch NYC — a collective demanding accountability in the city’s courtrooms — who is also working to support Addimando.
Many activists are now asking the public to take a critical look at law enforcement, traditionally considered a tool to battle domestic and sexual abuse, as instead perpetuating the violence.
“Law enforcement approaches to violence against women may deter some acts of violence in the short term,” survivor organizers with INCITE and Critical Resistance wrote in a statement on gender violence and the criminal penal system. “However, as an overall strategy for ending violence, criminalization has not worked.”
Activists say it’s also time to pay attention to the powers of prosecutors, who decide whether to charge survivors and what they will be charged with. Prosecutors also recommend bail, which greatly influences whether a judge will set bail for a survivor, Foran says.
“The desire to get the conviction is actually stronger than wanting to actually understand what’s going on. Racism and sexism is reflected in who is charged, and with what, and for how long their sentences,” Foran says. “A lot of these cases are women or caretakers; they can’t sit in jail. It creates a coercion to plead guilty because you know you’re not gonna be able to pay [bail]. And you really gotta get home.”
These cases, as a result, rarely go to trial. Birru pleaded no contest in her case; she appealed her sentence in 2016, but her request was denied a year later.
The plight of the survivors who find themselves in the justice system is steadily becoming a public concern. Just as activists and concerned citizens rallied around Alexander, Moore, and Brown, movements to free Addimando, Birru, and others are growing.
Birru has reached a last resort. She told the Appeal this spring what she’d say if she could speak with Gov. Newsom face-to-face.
“I’d want him to know who I am, and that the worst moment of my life isn’t who I am,” she said. “I’d want him to understand that like so many other survivors, months of constant abuse placed me in a situation where I felt trapped and had no way out.”
Char Adams is a New York-based reporter with People magazine, focusing on human interest. Her work has appeared in Teen Vogue, OprahMag.com, Noisey, Bustle, Zora, and more.
Author: Char Adams