Even if a person does not directly commit a crime, they can still be sent to prison for it.
Every state in the U.S. has a version of “accomplice liability” — laws that allow someone to be punished for assisting or supporting another person who commits a crime, in some cases, even if that participation is under the threat of violence.
A recent Marshall Project investigation found survivors of domestic and sexualized violence are particularly vulnerable to prosecution under these laws because of the control their abusers hold over them.
Reviewing court documents, we found nearly 100 cases where prosecutors charged a person (almost always a woman) for supporting, taking part in or failing to stop a crime by their alleged abuser. The cases include a woman who is in prison because her boyfriend severely beat her child, even though she wasn’t home at the time. In another instance, a woman helped her abuser sell stolen goods after a murder because, she said, she was afraid he would kill her.
Here are five takeaways from our investigation into how these laws can punish survivors of domestic and gendered violence.
1. There is no comprehensive data about how many survivors are incarcerated for an abuser’s crime, but some research suggests it’s a significant issue.
A study of 72 women serving life in Michigan prisons found 60% were there for a murder they didn’t commit. Most of those crimes were connected to a man they had a relationship with. In a different survey of people serving time for murder or manslaughter in women’s prisons, 13% of the respondents said they had been convicted for a crime committed with their abuser.
Reviewing court documents, The Marshall Project identified nearly 100 cases where a person was punished in connection with an abuser’s crime. This is likely just a small sample of the cases that exist.
2. Evidence of abuse is sometimes excluded at trial; other times it’s used against women.
In some states, it does not legally matter if a person helped with a murder because they were threatened with death or feared physical violence. As a result, evidence of domestic abuse may not be considered relevant.
In other cases, a survivor’s history of abuse may be used to justify their punishment. For example, prosecutors in Tulsa County, Oklahoma, pointed to evidence that a woman’s boyfriend had choked her before, arguing that she should have known better than to allow him near an infant. After he severely beat her baby, she pleaded guilty to failing to protect her child. Now she is serving a 20-year sentence.
Rachel White-Domain, an Illinois lawyer who represents incarcerated survivors, estimates about a quarter of her current caseload consists of people who were charged using accomplice liability or similar laws. She thinks the cases get less attention because they are harder to explain to the public.
4. Some states have passed laws that allow domestic violence survivors to present evidence of abuse to have their sentences revised. But many people prosecuted under accomplice liability laws are left out.
For example, in 2015, Illinois passed a law to allow people in prison to apply for resentencing if their crime was directly related to domestic violence. The state does not track how many people have been released from prison early under the Illinois law, but the number has been much smaller than many advocates for domestic violence victims hoped. One reason is that the law doesn’t say whether judges can diverge from mandatory minimums.
So even if a person presents evidence they were involved in a crime because they were coerced by an abusive partner, if they are serving a mandatory minimum sentence, a judge has ruled the law can do nothing to help them.
5. People who were sex trafficked by an abusive partner are vulnerable to prosecution for assisting with crimes, even if their participation was minimal.
In one instance, a girl with developmental delays was sex trafficked when she was 17 years old by a man who “savagely beat her,” according to a sentencing memo. But because she had helped store a gun and drugs for him, federal prosecutors in Washington state charged her as his co-defendant in his trafficking ring. She agreed to a plea deal at age 19 and was released with time served in 2009, but had to serve a year of supervised release.
In another case, Ajela Banks was convicted in federal court for conspiracy to sex traffic a minor in Alaska, despite being 19 years old and being trafficked by the same man who was her co-defendant. According to court documents, he had recently shot her in the stomach while she was pregnant with his child. Although she was sentenced to time served, she had to register as a sex offender, and her home address was made public, which she said makes her vulnerable to further harassment and threats.
Lawmakers and advocates for survivors say there are two ways to tackle the problem. The first would be to limit accomplice liability so fewer people can be charged using those laws. Last year, a bill that would have done that failed to gain traction in the Illinois legislature, but activists with groups like Restore Justice say they are continuing to push for changes.
Another approach some states have taken is to rethink how domestic violence victims are sentenced. New York’s Domestic Violence Survivors Justice Act, passed in 2019, allows judges to depart from mandatory minimums when sentencing (or resentencing) survivors. According to the Survivors Justice Project, which works to free victims of domestic violence from prison, 64 people have been resentenced in New York after filing applications.
