Explainer: R Kelly
Thank you for your patience and understanding over the last month. Lots of change happening over here, and, frankly, lots of change happening all over the place.
This week, I discuss the R Kelly cases—the two federal cases in Chicago and New York and the two state cases in Illinois and Minnesota. These cases touch on a number of topics we have covered in past newsletters and demonstrate the interplay between federal and state players.
Before I begin, I want to recognize the intense conversation/debate about R Kelly’s alleged history of sexually assault and abuse of Black women and girls that has roiled for nearly three decades. Many media sources have dug deeply into the layers of race, gender, and social norms that are ever-present in Mr. Kelly’s cases, and in nearly every case in the criminal legal system. Please check out the sources in the footnote to read more about the racial, social, and political context of R Kelly’s cases.1
In this newsletter, I focus solely on the facts and travel of Mr. Kelly’s cases—who, what, where, when, why, and how—so that you can better understand the excellent reporting on R Kelly, survivors, and the criminal trials.
R Kelly is currently facing indictments in three courts of law and was just convicted in the federal district court for the Eastern District of New York.
Between 1997 and 2020, Mr. Kelly had a number of civil suits filed against him by women alleging sexual assault, which appeared to have been settled out of court. He has also had multiple criminal charges filed against him, but either he won at trial (meaning he was acquitted) or the charges were dismissed.
What’s In A Name?
If you have Googled “R Kelly and criminal charges” recently, then you will notice, due to an earlier newsletter, that there are two cases titled U.S. v. Kelly and then there are State of Minnesota v. Kelly and The People of the State of Illinois v. Kelly.
U.S. v. Kelly means that United States Attorneys (USAs) from the Department of Justice, a federal agency, brought criminal charges against R Kelly for allegedly violating federal law. A federal grand jury decided to indict Mr. Kelly based on the evidence presented (more on that below), and the USAs then filed written indictments in the federal district court in their assigned circuit.
When the US is located left of the “v.”, it tells us that we will be in federal court and that a federal agent is initiating the charges. These cases will need to comply with the federal Constitution, federal law, and federal court rules and procedures. (More on each of those in later newsletters).
In State of Minnesota v. Kelly and The People of the State of Illinois v. Kelly, county-level prosecutors filed criminal charges against Mr. Kelly. The District Attorney for Hennepin County in Minnesota filed a criminal complaint against Mr. Kelly in the District Court (located in Minneapolis) charging that he violated Minnesota law.
The Illinois case was brought to a state-level grand jury by the District Attorney for Cook County. The grand jury decided to indict Mr. Kelly on violations of Illinois state law. If the case goes to trial, it will be heard in the Circuit Court of Cook County, located in Chicago.
In both state cases, other than the incorporated rights under the federal Constitution, these cases will adhere to state laws and state court rules and procedures.
What Are Grand Juries?
Just as there are federal and state governments, so too are there federal and state grand juries. Federal grand juries are required under the federal Constitution, but states may choose whether to utilize grand juries as part of their criminal legal procedures.
While the different jurisdictions operate by different rules, policies, and procedures, such as how the jury pool is selected, how many jurors must be seated, etc., they all have some things in common. (Caveat: There are exceptions to every rule, please understand I am speaking in generalities).
First, grand juries are required by the Fifth Amendment of the federal Constitution:
When a person is charged with a death-eligible crime (meaning they could face the death penalty) or with certain federal felonies, they must be indicted by a grand jury. This does not apply to the states, though many states do utilize a grand jury/indictment system for serious felonies.
Second, grand juries are supposed to be an impartial panel seated to hear evidence presented by prosecutors to determine if there is “probable cause to believe the individual has committed a crime and should be put on trial.” If the jurors vote to indict, then the prosecutor files a written indictment and the criminal legal proceedings begin.
Third, grand juries typically only include the prosecutors, the jurors, any witnesses called by the prosecutor, the court reporter, and, if needed, the interpreter. The person accused, his/her counsel, counsel for the witnesses, and all others are excluded from the room during the proceedings.
For more on grand juries, check out:
“How Federal Grand Juries Work, NPR, located at: https://www.npr.org/templates/story/story.php?storyId=4975837
“Charging,” U.S. Attorneys: Justice 101, U.S. Department of Justice, located at: https://www.justice.gov/usao/justice-101/charging
The Federal Indictments/Convictions
Northern District of Illinois
In the Northern District of Illinois (NDI), a law enforcement team, including Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service’s Criminal Investigations unit, and the Chicago Police Department, are credited with assisting the USA in bringing forward the evidence needed to support a 13-charge indictment. Each of these entities, except for CPD, are part of the executive branch of the federal government. I note this for upcoming newsletters, as well as to highlight the powerful, federally-funded agencies collaborating to prosecute Mr. Kelly.*
The NDI indictment involves survivors between the ages of 13- and 17-years-old at the time of the outlined incidents. The alleged incidents span from the late-1990s through the 2010s. The counts include:
the creation and transportation of child pornography across state lines,
the receipt of child pornography from across state lines,
the use of the means of interstate commerce to persuade/coerce/induce a minor to engage in sexual activity, and
obstruction of justice by conspiring to use abuse, violence, threats, blackmail, and other controlling behaviors to prevent the alleged victims from providing evidence to law enforcement.
The various statutes, e.g. 18 USC 2422 or 18 USC 2251(a), describe what the prosecutor must prove beyond a reasonable doubt in a court of law in order to convict Mr. Kelly. If he is convicted, he could face significant prison time and will be required to register as a convicted sex offender under SORNA.
Eastern District of New York
On September 27, 2021, Mr. Kelly was found guilty of all counts included in the Eastern District of New York (EDNY) indictment: racketeering, bribery, sexually exploiting children, kidnapping, forced labor, and violations of the Mann Act2 after a 7-week jury trial in an EDNY federal district court.
The EDNY USA alleged that the purpose of R Kelly’s business and brand was both to make music and to “recruit women and girls to engage in illegal sexual activity with [Mr.] Kelly.” The racketeering charges involve allegations that R Kelly and his associates collaborated to coerce or induce young girls across state lines to both engage in sexual activity and create videos of their sex acts, which constitutes child pornography under the law.
In other words, the EDNY indictment goes beyond R Kelly’s alleged individual sexual acts with minors to aver that R Kelly’s entire business enterprise, including his employees, endeavored to make those unlawful sexual encounters and assaults happen. The indictment stated that R Kelly’s employees helped facilitate meetings between R Kelly and minors by introducing themselves to Mr. Kelly’s selected girl, bringing her to meet him, making travel arrangements, setting up meetings via telephone and internet, etc., all with the understanding that they were facilitating R Kelly’s sexual assault of minors.
R Kelly’s sentencing is scheduled for May 4, 2021. Based on the above convictions, he is facing a wide range of prison time, from the mandatory minimum of 10 years to life imprisonment. This range is based on the federal sentencing guidelines.
What is interesting about this conviction and confounding some legal thinkers is how the jury convicted Mr. Kelly of racketeering. If any of you listen to true crime podcasts, you may have heard the terms racketeering or RICO (Racketeer Influenced and Corruption Organization). As R Kelly’s defense attorney stated, “The nature of a RICO case typically fits that of Mafia or drug kingpins directing their underlings to do various (illegal) things and this is a far different scenario.” How and why the jury voted to convict R Kelly on these particular charges will be interesting to understand as this case is studied and analyzed in upcoming months and years.
The Commerce Clause Returns
If you take a look, you will notice that all of the above federal charges mention “interstate commerce,” “interstate travel,” or “across state lines.” Why? Because the federal criminal laws under which Mr. Kelly has been charged/convicted were all enacted by Congress. Congress does not have policing power under the Constitution and must couch any criminal statute it enacts in one of its enumerated powers. Therefore, all of the charges stem from federal criminal laws that Congress enacted through the anchor of the Commerce Clause.
The State Indictments/Charges
In State of Minnesota v. Kelly R. Kelly is charged with two felonies:
Prostitution-Engage 16 to 17 Yr Old
Prostitution-Hire 16 to 17 Yr Old
Under Minnesota law, the prosecutor filed a complaint, stating the charges against Mr. Kelly and providing enough facts to demonstrate that s/he has probable cause to believe that Mr. Kelly committed those acts. The prosecutor alleged that Mr. Kelly solicited, hired, and had sex with a 17-year-old resident of Minnesota while he was visiting the state.
In February of 2019, R Kelly was indicted by a Cook County grand jury on multiple counts of aggravated criminal sexual abuse of a minor. This case alleges that Mr. Kelly had sex with minors between the ages of 13 and 17. There are also three separate indictments with a combined 20 counts, including aggravated criminal sexual abuse, criminal sexual abuse, and bribery.
How these two state cases will resolve given Mr. Kelly’s recent federal conviction and outstanding federal indictment remains to be seen. It is possible that the states will decide not to spend its resources on prosecuting R Kelly because he was already convicted for similar crimes in federal court; however, there is nothing to stop the states from proceeding. Time will tell.
As ever, thank you for reading!
Tayo Bero, “If Society Valued Black Women and Girls, Convicting R Kelly Wouldn’t Take So Long,” The Guardian
Bethonie Butler, “For Black Women and Activists, the R. Kelly Verdict Is ‘bittersweet’: ‘There’s so much damage that has been done’,” The Washington Post
Fabiola Cineas, “R. Kelly Was Convicted. Are We Finally Listening to Black Women?” Vox
Jelani Cobb, “R. Kelly and the Complexities of Race in the #MeToo Era,” The New Yorker
Jim DeRogatis, “Parents Told Police Their Daughter Is Being Held Against Her Will In R. Kelly’s ‘Cult’,” BuzzFeed
Saida Grundy, “The Flawed Logic of R. Kelly’s Most Unlikely Supporters,” The Atlantic
Chris Heath, “The Confessions of R. Kelly,” GQ
Natalie Moore, “The R. Kelly Verdict Is A Relief For Those Advocating For The Voices Of Black Girls,” NPR
Candice Norwood, “R. Kelly Has Been Convicted of Sex Crimes Against Black Women. Why Did It Take Nearly 30 Years?,” The 19th
Cheyenne Roundtree, “How R. Kelly Preyed on and Controlled an Underage Aaliyah",” The Daily Beast
The Mann Act, also called the White-Slave Traffic Act of 1910, has a storied racist history based on fears of white women being trafficked for sex with Black men, as well as concerns of women’s sexual freedom. It has been used over the years to punish consensual, interracial sex. Most infamously, the federal government used the Mann Act to harass, indict, and convict record-breaking boxer, Jack Johnson. Learn more about the Mann Act here and here.