Required reading

by Eszter Hargittai on June 5, 2016

Everybody needs to read this. I’m in awe of the author for having written something so powerful, important and eloquent. No skimming or scanning, read every word.

{ 129 comments }

1

Lynne 06.05.16 at 8:44 pm

Wow. Very, very powerful. A few months ago Canada watched the Jian Ghomeshi sexual assault trial, where the complainants were eviscerated like that, first by the defence lawyer and then, even worse, by the judge when he found them lacking in credibility. No wonder hardly anyone reports rape.

2

Neville Morley 06.05.16 at 8:52 pm

Thank you for sharing this.

3

harry b 06.05.16 at 10:14 pm

Thank you Eszter. Anyone tempted to skim (which I always do), don’t. I would have done without Eszter’s exhortation not to, and would have lost the full force of it.

4

Saurs 06.05.16 at 10:20 pm

By contrast, here is the rapist’s father, complaining about the sixth-month (likely to be reduced to three-month) sentence.

5

someguy88 06.05.16 at 10:22 pm

Great verdict! I am glad another young life will not be ground to dust by the mass crime against humanity that is the US criminal justice system.

Oh wait. WTF! I am a conservative not a progressive! My bad.

I can be outraged by this. I can be mad that an unrepentant rapist’s well being has been prioritized over justice, compassion, and common sense with out being hypocritical and so, I am pissed.

I did not read the whole thing and I don’t feel I needed too. But I did read most of it and her straight forward matter of fact reasoning and rhetoric was very powerful.

6

R.Porrofatto 06.05.16 at 11:04 pm

Infuriating, depressing, courageous, and, on another level, awesome writing.
@4
My god, that complaint reads like a parody of clueless apologia. His poor suffering kid no longer has an appetite for rib-eye steaks and snacks? Are you shitting me? And this: [he’s] totally committed to educating other college age students about the dangers of alcohol consumption and sexual promiscuity
Promiscuity≠rape, you asshole.

7

RNB 06.05.16 at 11:15 pm

What this man made this woman suffer is sickening, and she has made me understand more than I had before what such violation does to a person. I am thankful to her for expanding the bounds of my empathy. She has written a transcendent statement.

There was a long CT discussion about affirmative sexual consent laws on college campuses. I was with many others an advocate of them on that thread. Now I feel even more strongly that they are needed to change campus culture.

http://crookedtimber.org/2014/11/12/adventures-in-sexual-implicature/

8

Sebastian_H 06.05.16 at 11:16 pm

Holy crap that is powerful. Ugh.

9

Mike Schilling 06.05.16 at 11:44 pm

Do you think I’m dumb? It’s going to be a Rick Astley video.

10

Dean C. Rowan 06.05.16 at 11:45 pm

It is extremely unlikely that this woman has read the work of Andrea Dworkin, particularly her essays from the ’70s through the ’90s. It’s possible, but I wouldn’t bet on it. Yet her literary and rhetorical manner recounting sexual violation echoes Dworkin’s. There is, for example, the cold-eyed paratactic series of one fact followed by another, culminating with telling outbursts of anger and sarcasm. Dworkin spent her life trying to ignite fires. Who but this woman can say whether turning now to Dworkin would help at all? But she should know that Andrea Dworkin, all along, on nights when she feels alone, was with her. When people doubt or dismiss her, Dworkin is with her. Dworkin fought every day for her. Dworkin believes her.

11

Watson Ladd 06.06.16 at 1:34 am

@RNB Or, you know, punishing rapists with long hard sentences when they actually rape people. If it works for murder, it can work for rape. This rapist knew what he was doing was wrong, and no amount of “campus culture” changing would ever make it more okay to take a deeply intoxicated woman outside, lay her on the ground, and rape her, anymore then this is correct behavior where affirmative consent standards don’t exist.

Rapists are a small minority of men, who are repeat predators. Incapacitation works.

12

Gareth Wilson 06.06.16 at 1:49 am

The rapist did claim, rather unconvincingly, that she gave affirmative verbal consent, and she wasn’t able to contradict him. It was the other evidence that convicted him. So I’m not sure how an affirmative consent standard would have helped.

13

Alan White 06.06.16 at 1:57 am

What a powerful statement. Thank you so much for this–I hardly have words to say just how courageous and important this is, and how shameful what passes for justice in this country.

14

Saurs 06.06.16 at 3:03 am

It is extremely unlikely that this woman has read the work of Andrea Dworkin, particularly her essays from the ’70s through the ’90s. It’s possible, but I wouldn’t bet on it.

Why would it be unlikely?

15

RNB 06.06.16 at 3:05 am

@12 The victim could not have given consent in the condition that she was: she was raped. Affirmative consent laws make that clear. They also should make some contribution to culture. @11 To play a positive role, affirmative consent laws need not deter a potential rapist (though I am not convinced that they do not) but they eliminate many alibis based on ignorance and should help to make the punishment appropriately severe. And they may contribute to more people recognizing a rape and understanding why they should be outraged by it and thus providing the kind of intervention that the victim was thankful for.
The statement by the father of the rapist @4 is unbelievably horrible.

16

Dean C. Rowan 06.06.16 at 3:30 am

Saurs @14: Gut feeling, I suppose. Ask any woman in her mid-20s these days if she has read Dworkin. Odds are good she’ll answer no.

17

Lynne 06.06.16 at 3:58 am

Can the prosecution appeal the grossly-inadequate sentence?

18

Sebastian H 06.06.16 at 4:23 am

She was raped under non-affirmative consent laws, and her rapist expressed a willingness to lie about things that would be just a much a problem under affirmative consent laws as the current system. What we have here is a race and class privilege protecting the rapist. Brock Turner, the convicted rapist, should not have been sentenced to so little time. The fact that he was is a horrible miscarriage of justice. The reasons he was not sentenced to more are a horrible indictment of our society.

19

Dean C. Rowan 06.06.16 at 4:33 am

Lynne @17: California Penal Code § 1238:

(a) An appeal may be taken by the people from any of the following: …
(10) The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence, except that portion of a sentence imposing a prison term which is based upon a court’s choice that a term of imprisonment (A) be the upper, middle, or lower term, unless the term selected is not set forth in an applicable statute, or (B) be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive. As used in this paragraph, “unlawful sentence” means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.

In other words, it’s a difficult appeal. If the sentencing laws for this violation permit the sentence, this code section says the prosecutor can’t appeal.

20

Saurs 06.06.16 at 4:34 am

Ask any woman in her mid-20s these days if she has read Dworkin.

Any woman? Any woman from where? Under what conditions? She’s not any woman. We know plenty about her from what she’s written.

Odds are good she’ll answer no.

Says what bookmaker?

21

Dean C. Rowan 06.06.16 at 5:01 am

I knew that was coming, Saurs. Let’s see if I can put it more plainly. I’m not pretending to calculate actual, measurable odds. I’m gut-checking, based on ordinary day-to-day experience…not on rigorous science, because sometimes the cost of doing the survey and measuring the data is prohibitive, not worth the benefit. Suppose I ask you to guess how many people living within a mile radius of you have read Andrea Dworkin. (By “read” I mean relatively substantial amounts: a book, an essay, or more, not merely a minimal quote in a newspaper article or other secondary source.) Among this population are people you know “plenty about,” others about whom you know nothing. Could you make a guess? Of course you could. Would it be accurate, reliable? Maybe, maybe not. Would you be inclined to guess on the order of, say, 80%? Probably not, unless you have a special reason to believe something like that number of people in the population has read Dworkin. (Or do you believe that any proper random sample of people will reveal that most have read her? I wish it were so.) How about 20%? Perhaps. Maybe 10% seems safer. And so forth. Put another way, if I were asked to bet that any woman (okay, let’s confine this to California, or to the United States) in her mid-20s had read Dworkin, I’d bet against. I might lose. My gut tells me the odds are in my favor.

Now, how does any of this bear on my comment about the remarkable similarity of this woman’s letter and the writing that I so admire by Andrea Dworkin?

22

Saurs 06.06.16 at 7:01 am

Now, how does any of this bear on my comment about the remarkable similarity of this woman’s letter and the writing that I so admire by Andrea Dworkin?

If one were to agree the “writing” (her “literary and rhetorical manner”) is similar, and one contextualized the circumstances in which the writing was produced, one would conclude she’d read her some Dworkin. But you, remarkably, as an “admirer” of Dworkin who has, ostensibly, read her extensively, think not. You made the comparison but conclude it must be coincidence. And yet you are curiously gunshy about sharing the exciting reasons behind this thesis, except rough numbers-from-ass pulling about The Average Young Californian Woman (AYCW) and what they may or may not have read of arguably the world’s–certainly the country’s–most famous, most contentious, and in many circles, most reviled feminist.

This woman, of course, not any old AYCW–and we’ll pretend they are an incurious lot, disinterested in and underexposed to what now constitute bogstandard classics of academic feminism–spent many hours, if not days or weeks, writing this speech, designed to be presented in court following the conviction but prior to the sentencing of the man who raped her and then likely to be published thereafter. You think it unlikely she did her homework. But can’t explain why beyond your gut and its feels. Okay.

23

krippendorf 06.06.16 at 12:19 pm

Good lord. How did this discussion devolve so quickly into an argument about whether the rape victim has or has not read Dworkin? It’s almost as if the victim left no room for mansplaining, so instead it’s fair game to question whether she’s a sufficiently educated feminist. Or something.

24

J— 06.06.16 at 12:55 pm

After the hearing, Turner’s attorneys notified the court they plan to appeal the conviction.

From the San Jose Mercury News.

25

Eszter Hargittai 06.06.16 at 12:55 pm

Krippendorf, quite something, isn’t it? (The first comment from both of these contributors was fine and on topic, I don’t understand how it devolved into what it has become. Please stop.)

I’ll attempt to get us back on track. For more insanity, check out some of the material Michele Dauber has posted on her Twitter feed from people defending Brock Turner’s shameful and criminal acts:
https://twitter.com/mldauber

In addition to the one already linked above in #4, here is another gem:
https://twitter.com/mldauber/status/739731624447746048

There is some good commentary under the #brockturner hashtag.
https://twitter.com/search?q=brockturner

26

J— 06.06.16 at 12:58 pm

That’s supposed to be a blockquote. You get the picture. Not sure on what grounds the defense attorney intends to appeal.

27

steven johnson 06.06.16 at 1:05 pm

This is about as strong a presentation of the logic for presumption of guilt in rape cases; denying the accused the right to plead innocent; mandatory sentencing with extremely longs sentences, and increasing the severity of conditions in prisons and jails as could possibly be made. Of course the arguments have compelled CT to advocate the program.

28

Eszter Hargittai 06.06.16 at 1:08 pm

The father’s full letter is here:
https://www.documentcloud.org/documents/2852614-Letter-from-Brock-Turner-s-Father.html

Key quotes:
“That is a steep price to pay for 20 minutes of action.”
“He [Brock] has no prior criminal history and has never been violent to anyone including his actions on the night of Jan 17th 2015.”

*including his actions on the night of Jan 17th* ?!?

29

bianca steele 06.06.16 at 1:35 pm

the cold-eyed paratactic series of one fact followed by another, culminating with telling outbursts of anger and sarcasm.

I’d guess about 99% of everyone fits the first part of the description much of the time, and probably the second part at times, as well. To suggest that the “ideal” such person would have read Dworkin is bizarre; for a man to suggest a woman who’s writing about her rape would be “helped” by realizing all men rape, all the time, and the only escape is to abjure men, is offensive, and verges on telling her if she’s going to go on like this, men will justly see her as a man-hater. The comment should have been passed over in silence, but it’s too late for that.

30

Lynne 06.06.16 at 1:54 pm

Dean C. Rowan and J- Thanks for the information. Disheartening that the prosecutor would have difficulty appealing the sentence and I feel sorry for the victim that the convicted man is going to appeal his conviction.

31

Yankee 06.06.16 at 2:35 pm

You know this guy will be doing this stuff for the rest of his life just because he can and people will let him. Him I sort of understand in a sick way, being a horny guy myself; his enablers, not. Didn’t finish the piece, sorry.

32

Michael 06.06.16 at 2:52 pm

I don’t think I’ve ever read such a sustained and powerful, reach-out-and-grab-you, expression of righteous anger in my life. It makes me optimistic that that woman will be able to take that energy and heal herself, and maybe others.

My one consolation is that the perpetrator will now live in an ever smaller world of himself, his own interests, his own own own. That hell, passing for heaven, is what he deserves. Not just the wretched deed, but the wretched sniveling and lying will dog him ever after. (Unless one day he figures out what he’s become …)

33

Dean C. Rowan 06.06.16 at 3:13 pm

bianca steele @29: I have to disagree with your comment, but before explaining why, I need to clarify that I have no intention of derailing the thread over the merits of Dworkin. I only wanted to point out a similarity in the young woman’s account to Dworkin’s own accounts involving either herself or other women. The young woman’s closing sentiments of support for victims of rape and sexual violence seem to me to echo Dworkin’s, too. Just an observation.

Respecting the substance of your comment, I disagree that most people write in the way I describe. Take this thread as an example, where there appears what seems a typical percentage of subordinate clauses. But now I really do risk making light of a serious situation. My real concern is your perpetuation of the myth of Dworkin as “man-hater” who believed all sex is violence, and the suggestion that my comment by association attempts to identify the young woman as of a kind. Nothing could be further from my intention, nor from the truth respecting Dworkin. Rather, I thought the one meager helpful contribution of my comment would have been to make a reciprocal association that would have put Dworkin’s writing in a more congenial light by virtue of its similarity to this young woman’s painful, sympathetic statement.

I can’t help much when it comes to men who view as man-haters rape victims who refuse to be silenced. This discouraging phenomenon is symptomatic perhaps of these men’s individual mental or emotional issues, perhaps of wider and deeper social impulses and incentives. We can call it patriarchy, but again, that doesn’t help much. I wish it were not so.

34

bianca steele 06.06.16 at 3:33 pm

I have no intention of derailing the thread

Good! But then you go on,

I have to disagree with your comment, but before explaining why, I need to clarify that

And on and on and on. And you really don’t! Maybe you feel have to disagree, but do you really have to post it?

You are the one who brought Dworkin into a discussion of a post on a site that is mostly about pro sports but is also the go-to site if you want an explainer (written by a man) about “rape culture.” I have no interest in discussing this with you. I merely pointed out my disagreement with Eszter’s opinion that your first comment wasn’t in any way objectionable.

35

Dean C. Rowan 06.06.16 at 3:38 pm

I thought I was explicitly refraining from explaining “rape culture,” hence, “I can’t help much…” I have no interest in explaining “rape culture.” I’ll respect Eszter’s request to stop.

36

Eszter Hargittai 06.06.16 at 4:42 pm

Bianca Steele, I appreciate your point. I found the overall sentiment supportive of the author at the end of that comment, that’s what I was referring to.

37

TheSophist 06.06.16 at 6:36 pm

According to The Grauniad, the judge who imposed the sentence was himself a former Stanford athlete. I wonder if this means Trump would think he should have recused himself. I’d love to see Trump asked that question…

38

Sumana Harihareswara 06.06.16 at 7:03 pm

Eszter Hargittai: I am so glad you pointed to this and said it should be read thoroughly, not skimmed. I am in awe of it. I have basically the same reaction as Michael did:

I don’t think I’ve ever read such a sustained and powerful, reach-out-and-grab-you, expression of righteous anger in my life. It makes me optimistic that that woman will be able to take that energy and heal herself, and maybe others.

It hit me like an arrow when she mentioned this deep painful truth about guilt, saying of her sister:

when she is crying so hard on the phone she is barely breathing, telling me over and over again she is sorry for leaving me alone that night, sorry sorry sorry, when she feels more guilt than you [the assaulter], then I do not forgive you.

And I am overwhelmed by the series of resounding metaphors in the section where she responds to his statement:

Lastly you said, ‘I want to show people that one night of drinking can ruin a life.’

A life, one life, yours, you forgot about mine. Let me rephrase for you, I want to show people that one night of drinking can ruin two lives. You and me. You are the cause, I am the effect. You have dragged me through this hell with you, dipped me back into that night again and again. You knocked down both our towers, I collapsed at the same time you did. If you think I was spared, came out unscathed, that today I ride off into sunset, while you suffer the greatest blow, you are mistaken. Nobody wins.

39

Peter Dorman 06.06.16 at 7:25 pm

Yes, a powerful statement by the victim and a horrible “defense” by the dad. I think there are two issues here. One is the obvious role of privilege for the rapist. We don’t scale traffic fines to income to acknowledge the difference a couple hundred bucks makes to people on the bottom vs the top, but when a blue chipper is convicted of rape the damage to his exalted status somehow becomes relevant. Incredible.

The second issue is the claim that someone incapacitated by drugs or alcohol can give consent. Isn’t it possible to be clear and precise about this: if two people are not in an ongoing sexual relationship, and if one of them is incapacitated by alcohol or drugs, no defense of consent will be allowed, period. Men who try to exploit binge parties to get laid should know they are taking big risks. Maybe that will lessen the problem. (I know, sex with someone who’s not fully conscious can be pretty disgusting in an ongoing relationship, but the consent defense gets murkier in that case. There’s more room for interpretation.)

40

ZM 06.06.16 at 9:04 pm

bianca steele,

“Maybe you feel have to disagree, but do you really have to post it?”

It is best to completely ignore dean c rowan’s posts in my humble opinion and not respond to any of them

41

Saurs 06.06.16 at 10:23 pm

How did this discussion devolve so quickly into an argument about whether the rape victim has or has not read Dworkin?

It didn’t. It was about a commenter hijacking a thread about a victim to brag about reading Dworkin. My gut tells me the odds of a man needing to toot his own horn about feminism on the interwebs having actually read and absorbed the lessons of this feminist literature are not good.

42

engels 06.06.16 at 10:23 pm

the judge who imposed the sentence was himself a former Stanford athlete

That’s horrendous.

43

Saurs 06.06.16 at 10:24 pm

Also, this isn’t the first time this same commenter had to step into a thread to talk about a female writer being insufficiently “word crafty” for his lofty tastes. So.

44

The Temporary Name 06.06.16 at 10:38 pm

Thanks Eszter.

45

J— 06.07.16 at 12:05 am

One more detail on the planned appeal: it will be handled by Dennis Riordan, a very prominent Bay Area appeals attorney who’s represented Barry Bonds and Phil Spector, among others.

46

PGD 06.07.16 at 2:33 am

This is about as strong a presentation of the logic for presumption of guilt in rape cases; denying the accused the right to plead innocent; mandatory sentencing with extremely longs sentences, and increasing the severity of conditions in prisons and jails as could possibly be made. Of course the arguments have compelled CT to advocate the program.

What? Are you trying to be ironic or something? I find that ‘program’ (a presumption of guilt for any rape accusation plus mandatory severe sentencing) to be ridiculous and unjust, but this letter hardly argues for it. The entire point is that the guy was actually guilty. The letter is powerful precisely because it is not a simple he said/she said claim, ‘I accused him so he’s guilty’, but painstakingly lays out the details of her situation, the brutality of her treatment, and his consistent refusal at every step to take responsibility for the damage he caused (even after the jury finds him guilty). I am glad we all (him included) have the procedural mechanisms available to defend ourselves if we are innocent, but not glad when the guilty use these mechanisms to smear their accusers. No contradiction there.

47

Lyle 06.07.16 at 2:37 am

@PGD, I have little faith that he bothered to much if any of the victim’s letter. Perhaps because in his mind, the assailant here is the “real victim,” being a man and all, etc etc ad nauseam.

48

J-D 06.07.16 at 6:29 am

Yankee @31
‘You know this guy will be doing this stuff for the rest of his life just because he can and people will let him. Him I sort of understand in a sick way, being a horny guy myself; his enablers, not.’

That’s also the question I most want asked, and answered: not ‘What makes people do this kind of thing?’ but ‘What makes people think this kind of thing is okay?’

49

ZM 06.07.16 at 7:43 am

Watson Ladd,

“@RNB Or, you know, punishing rapists with long hard sentences when they actually rape people. If it works for murder, it can work for rape. This rapist knew what he was doing was wrong, and no amount of “campus culture” changing would ever make it more okay to take a deeply intoxicated woman outside, lay her on the ground, and rape her, anymore then this is correct behavior where affirmative consent standards don’t exist.

Rapists are a small minority of men, who are repeat predators. Incapacitation works.”

I don’t often agree with you Watson, but I agree with you here.

I also think the woman’s point about how when she read the news article about her rape, which was how she learnt what happened that night to her, the article finished with the perpetrator’s swimming times in order to cancel out what he did to her, which was again what happened in court, the fact he went to a private university and had fast swimming times was used to reduce his sentencing, was really awful. How does this make what he did any less bad? If he had these privileges in life, surely this makes what he did even worse.

“And then, at the bottom of the article, after I learned about the graphic details of my own sexual assault, the article listed his swimming times.

She was found breathing, unresponsive with her underwear six inches away from her bare stomach curled in fetal position. By the way, he’s really good at swimming.

Throw in my mile time if that’s what we’re doing. I’m good at cooking, put that in there, I think the end is where you list your extracurriculars to cancel out all the sickening things that’ve happened.”

“The consequences of sexual assault needs to be severe enough that people feel enough fear to exercise good judgment even if they are drunk, severe enough to be preventative.

The probation officer weighed the fact that he has surrendered a hard earned swimming scholarship. How fast Brock swims does not lessen the severity of what happened to me, and should not lessen the severity of his punishment. If a first time offender from an underprivileged background was accused of three felonies and displayed no accountability for his actions other than drinking, what would his sentence be?

The fact that Brock was an athlete at a private university should not be seen as an entitlement to leniency, but as an opportunity to send a message that sexual assault is against the law regardless of social class.”

50

Dipper 06.07.16 at 10:57 am

Just for comparison here is a case from here in the UK of a professional footballer and an under-age girl

https://www.theguardian.com/uk-news/2016/mar/24/adam-johnson-should-be-jailed-for-up-to-10-years-court-told.

51

Lynne 06.07.16 at 12:17 pm

It seems clear the current legal system doesn’t work for sexual assault.

Some figures from the YWCA: http://www.huffingtonpost.ca/2014/10/30/sexual-assault-canada_n_6074994.html

Out of every 1000 sexual assaults, 33 are reported to the police.
Of those, 29 are recorded as a crime, 12 have charges laid, 6 go to court, 3 lead to convictions. 997 go free.

Women don’t trust the legal system. The victim in this case may have to go through another trial to ensure her rapist his right to appeal. No one is ensuring her rights because she has no legal standing in the court room. The system isn’t so much broken as never designed to handle this type of crime in the first place.

52

Alex K--- 06.07.16 at 1:56 pm

It seems that some commenters are unhappy with certain features of the justice system rather than this particular judge’s sentencing decision. For instance, evidence of good character is routinely presented, if available, at the punishment stage. If athletic achievement counts as such, it should be presented, which explains the “fast swimming times… used to reduce his sentencing.” The victim is understandably offended by this, but in the context of the legal process, it makes sense as part of character evidence at the sentencing stage. This is the way the system works, not just in rape cases. The “swimming times” would have been introduced even if the defendant had pled guilty and spared the victim the discomfort of the trial.

Likewise, she had every right to blame the defendant for subjecting her to the lengthy trial, but when she suggested that the man be punished more severely for exercising his constitutional right to a jury trial, she went beyond the scope and purpose of a victim impact statement. Yes, prosecutors often punish defendants for exercising that right – that’s why plea bargaining works – but two wrongs don’t make a right.

What is unusual about this case – apparently – is the judge’s departure from the sentencing guidelines. In her letter to the judge (you can find it at documentcloud.org), Prof. Michele Landis Dauber says the lower limit for the crimes for which Turner was convicted is 2-3 years. (He was initialy charged with two counts of rape, assault with intent to rape, and two counts of “penetration with a foreign object” – his fingers, judging by the context. The first two charges were dropped after a preliminary hearing.) Prof. Dauber explains that a sentence below the lower limit would be permitted in “unusual” cases, such as the crime being “substantially less serious than the circumstances typically present in other cases” and the defendant being young with no prior record. She argues that the facts of the case are serious and the defendant’s youth and achievement do not make the case “unusual.” As an illustration, a recent survey found that 43% of female seniors at Stanford had been victims of sexual assault or misconduct while at the university, and in 85% of the cases, the alleged perpetrator was another Stanford student – that is, a young overachiever.

Prof. Dauber’s daughter has been a close friend of the victim since middle school, so she’s not an impartial observer in the case. On the other hand, she has taught law and sociology at Stanford for 15 years and clerked for a famous liberal judge in the late 1990s, so she is hardly one to stake her reputation on a poorly sourced legal claim.

This said, Judge Persky has never been accused of bias, or impropriety, or disparity in sentencing. There is nothing in his record to indicate that he might be prejudiced against a rape victim in favor of a rich young man. (Yes, he was captain of his school’s lacrosse team while at Stanford and helped coach the lacrosse team as a law student at Berkeley. A rather different beast than a student on an athletic scholarship.) It has been reported that Persky relied on the report by probation officers in sentencing Turner. It means that he was not being arbitrarily lenient but found the probation report more convincing than the prosecution’s arguments. Will that file be made accessible to the public in full?

53

Kiwanda 06.07.16 at 1:58 pm

Lynne @50: when you phrase it as “victim/rapist”, you make it easy: listen to the victim, punish the rapist. But rape is not a unique category of accusation where the presumption of innocence should be thrown out. When someone is beaten half to death, they undergo additional suffering during any trials of their attacker. When someone is murdered, those who loved them undergo additional suffering when the killer is tried, and when the killer appeals, and appeals, and appeals. We don’t in those cases declare that the legal system is wrongly designed, because the accused have the presumption of innocence.

54

Lynne 06.07.16 at 2:37 pm

Kiwanda, no one said the presumption of innocence should be thrown out. But look at the statistics; rape is an overwhelmingly under-reported crime. Even when it is reported, it seldom gets to trial. And the trials are hideous for the victims. Apparently (in Canada, anyway) attorneys for the accused regularly engage in what they call “whacking” complainants on the stand, as the young woman in the OP describes. There can be hours, even days of being hammered with questions about her memory, her dress, etc—anything to shred her credibility. Naturally many women decline to go through this.

I don’t have the solution, but when only 3 % of rapes are even reported, it’s pretty clear there is a lack of confidence in the justice system.

This case actually resulted in a conviction, but then a hand-slap of a sentence. It’s a disgrace.

55

The Temporary Name 06.07.16 at 6:53 pm

As Lynne says, in the case we are focusing on the guy is guilty of three felonies right now. Enough qualified people agreed to that, and it is anyway hard to square innocence with a guy running away from the dumpster his bloody victim is passed out behind.

56

RNB 06.07.16 at 6:58 pm

@51 The intervening students apparently prevented forcible penetration by the penis; he would have apparently raped in her multiple ways. This would seem to be reason to enforce at least the customary minimum sentence. I don’t see how swimming times are evidence of his moral character, or are relevant. Certainly the press seems to have made too much of them to create an undue admiration for the rapist. It was the Judge’s responsibility to correct for any prejudice in the probation officer’s recommendation; he seems only to have confirmed them. I can understand why there is a movement to recall him.

57

Dipper 06.07.16 at 7:56 pm

Just a follow up from my previous reference to the case of a footballer in the UK.

Judges publish their sentencing remarks which go into detail about why a sentence was given. The ones for this case are here: https://www.judiciary.gov.uk/wp-content/uploads/2016/03/r-v-johnson-sentencing.pdf. Personally I always find these much more instructive than any newspaper reports, and they often restore one’s faith in judges and the legal system.

I’m curious whether similar documents are published in the US and how the summing up here compares with similar cases in the US.

58

harry b 06.07.16 at 8:17 pm

Putting aside the idiotic idea that swim times are any evidence of character, should character witnesses be allowed in the process? Doesn’t that inevitably skew sentencing inequalities to the benefit of people who are more affluent and more educated? My children could get articulate high status people to testify to their (previous) good character; many young people with no acquaintances who have graduated college cannot.

I ask this question as someone who was once convicted of a crime, and did, indeed, bring a character witness. (FWIW I don’t think it actually affected the “punishment” and, anyway, I was not guilty).

59

Alex K--- 06.07.16 at 8:32 pm

@55: you are entitled to your opinion as to what would have happened if the youngster had been left alone with the lady. I might as well conjecture that he would have ejaculated in his pants and fallen asleep by her side. As for the swimming times, achieving them required years of hard work, which can be interpreted as character evidence. (I have no idea how the judge or the probation officer actually thought but this sounds plausible to me.) At any rate, there is no disagreement between Dauber and Persky that youth and zer0 prior record can be treated as mitigating factors: they disagree whether they should be so treated in this particular case.

60

Sebastian_H 06.07.16 at 8:34 pm

Hmmmm, youth and zero prior experience are mitigating factors in theory, but he isn’t that young, and six months seems over-mitigated.

61

DHMCarver 06.07.16 at 8:39 pm

@57, your point about character witnesses can and should be equally made for victim impact statements — it is a valid and necessary argument about how these elements further distort an already troubling criminal justice system. Thanks to Alek K @51 and subsequently for bringing the law to bear on this issue. What has worried me the most about the outcry after this sentence is the recall efforts being organized against this judge — I have heard there are two, but have not heard who is organizing them. If those recall efforts get any traction, I shudder for every defendant who has to go before a California judge in the future.

62

Eszter Hargittai 06.07.16 at 8:59 pm

63

Ronan(rf) 06.07.16 at 9:07 pm

“many young people with no acquaintances who have graduated college cannot.”

My laymans, and anecdotal, take on this (based on observing in a district court when I was younger and my sister in law was thinking of training to be a solicitor) is that it’s not entirely true that “many young people with no acquaintances who have graduated college cannot.” (although this is not the US Im talking about, so perhaps it’s different)

Less privileged kids could still get a social worker, or community organiser or even religious figure/teacher/well respected person in the community etc to vouch for them. Even newer immigrants seemed to be able to get people to speak for them.
There was obviously an across class divide, but even within the group that was less privileged there was (to my eyes) a divide between those who were worried about punishment, who perhaps did something stupid (or a number of stupid, even pretty inexcusable things) and those who didnt care.

So Id wonder what inequalities does it deepen? Certainly across class lines, but how much does it really add to the already existing inequalites of class in the justice system? Plausibly Id say getting rid of character witnesses could make it more difficult to help those who are generally just youngsters caught up in circumstances (and who could use a social worker etc to argue their corner) by not giving them an option to differentiate themselves from the bad eggs, who don’t really care.

As I said though, I’ve no meaningful evidence to back any of that up. So Im happy to be off base.

64

Rob 06.07.16 at 9:46 pm

Very powerful moving piece. Extremely important that the victim has a voice. I understand that many people disagree with the sentencing, mostly that it is far too light. What they compare it to is other sentences passed in similar circumstances but against people of different socioeconomic backgrounds. I understand now there is a change.org petition calling for the removal of the judge that sentenced him. Without comparing the sentence passed in this case to others, can we discuss what would be an appropriate sentence instead.

As I understand it imprisonment has three purposes. A disincentive for crime, rehabilitation, and to protect the populace. At least on paper. There is a fourth purpose we don’t like to talk about but it plays a large role as well and that is Revenge. To what degree are we protesting the sentencing based on the first three reasons versus the fourth? A six month sentence seems absurd, but at what point is justice served?

65

harry b 06.07.16 at 9:51 pm

Ronan – thanks. It could worsen inequalities in sentencing across class lines, and still be justified for the reason you give — eg if character witnesses in general shortened unjustly long sentences for less privileged offenders, we might think that is worth it, even if the cost was unjustly shortening the sentences of more privileged offenders even more (sorry, the syntax of that sentence is weird, but at least I know what I mean). I was just thinking outloud, and still am. (And appreciate DHMCarver’s response too).

66

RNB 06.07.16 at 9:52 pm

@58 I thought (but am not sure) it was the opinion of the students who intervened that he would have also penetrated her with his penis had they not stopped him. I of course have no independent opinion of what would have happened, but see no reason to doubt the opinion of those heroic students.

67

Kiwanda 06.07.16 at 10:28 pm

The Temporary Name 54: “As Lynne says, in the case we are focusing on the guy is guilty of three felonies right now. Enough qualified people agreed to that, and it is anyway hard to square innocence with a guy running away from the dumpster his bloody victim is passed out behind.”

Sure, clearly he’s guilty. But Lynne was also speaking more generally of a broken legal system, with respect to sexual assault. If the problem of reforming that system is expressed entirely in terms of victims and rapists, then the answer is easy: throw the bastards in jail. That is, skip the presumption of innocence. Or at least, treat the crime, the accusers and the accused, in a way different from how they are treated by the legal system when other crimes are considered.

68

parse 06.07.16 at 11:00 pm

That is, skip the presumption of innocence. Or at least, treat the crime, the accusers and the accused, in a way different from how they are treated by the legal system when other crimes are considered.

It might be the case that treating the crime, the accusers and the accused less differently than how they are treated by the legal system when other crimes are considered in current practice would result in the kind of improvements Lynne is looking for. (Which, I think, comprise: more cases reported, more perpetrators prosecuted, more accused convicted.)

I don’t have evidence beyond the anecdotal but I believe, for example, that a woman who reports a sexual assault is far more likely to find police skeptical that a crime occurred than complainants in other criminal cases.

69

Alex K--- 06.08.16 at 4:15 am

FYI, here’s the criminal complaint that started the case in January 2015. It should not be taken as gospel truth but in the absence of transcripts from the trial, it’s a good introduction IMHO. You can find other case-related stuff on DocumentCloud by Googling for ” “brock turner” site:documentcloud.org”. Some brief reports from the courtroom were published by The Stanford Daily.

Unfortunately, the discussion has been based on selective disclosure, which is a great way to shape a narrative but not to understand a court case. As I’ve said, we should at least be able to access the whole of the file that was on the judge’s desk at the time of sentencing. The Guardian has just released more letters to the judge from people who know Turner, but one gets the impression this is mostly being done to shame them as villains.

I don’t know if the Swedish students are “heroes” – they simply did what any decent persons would have done in their place, once they realized the girl was unresponsive – but I don’t see why their opinion on Turner’s intentions should be definitive. In the absence of court transcripts or at least a summary of everyone’s testimony, it’s impossible to make any reliable conclusions about the case. I’m even agnostic about Turner’s actual guilt or innocence.

What I do believe, though, is that the judge used the discretion the law allows him – correctly or not is a separate question – and that attempting to remove a judge for giving a light sentence, unless he broke the rules, is going to backfire. Today it’s Persky and tomorrow, any of the judges accused of being “soft on crime” by you know what kind of crowd.

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Saurs 06.08.16 at 10:40 am

I’m even agnostic about Turner’s actual guilt or innocence.

You don’t say. And yet you acknowledge the woman’s lack of consciousness and have apparently read the complaint that documents proof of her injuries by way of photographs and a medical examination. I guess she was lucky you weren’t on the jury–who need no transcripts because they were there at the time and based their verdict on the concrete evidence you seem to be simultaneously ignoring and hand-waving away–that found him guilty because you apparently don’t know what rape is and are determined to stay that way.

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SamChevre 06.08.16 at 12:26 pm

harry b @ 63

On character witnesses: My wife worked in a boy’s reform school (she’s a teacher) when I first met her. Almost everyone there was from a low-privilege background.

Her observation was that there was a big difference between three groups of people (all of whom have juvenile criminal records).
1) People who had done the best they could in situations where all the options were terrible. (For example, hurt someone in a fight in an attempt to protect a third party.)
2) People who’d had a bad 15 minutes. (For example, beat someone up once, in a case where they were having a particularly bad day and were provoked.)
3) People who were more generally tended to predatory/criminal behaviour.

The school tried to identify the groups so they could do effective rehabilitation, and character witnesses were a substantial part of how they did so.

72

Lynne 06.08.16 at 12:54 pm

Alex K: “I’m even agnostic about Turner’s actual guilt or innocence.”

Since you referred to Turner as a “youngster” I was unsurprised by your agnosticism.

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Alex K--- 06.08.16 at 2:53 pm

@69: I’m agnostic because felony complaints are preliminary outlines subject to challenge at the trial, and because I do not automatically trust convicting juries (acquittals are a different matter). Once I see the transcript of the trial, I should be able to understand the case better. I am neither ignoring or hand-waving away any “concrete” evidence because evidence only becomes concrete after it is examined by the parties at the trial.

You seem to believe that the woman’s unconscious state proves Turner’s guilt but you have to consider the scenario in which she gave her consent and then passed out (Turner being too drunk to notice). Not a very plausible scenario – the jury must have rejected it – but I need to find out why its probability failed to clear the reasonable doubt hurdle. If Turner’s case was so obviously weak, why didn’t he plea bargain?

I didn’t want to get dragged into a discussion of the guilt phase. My point concerns the sentencing: the reasons for the lenient sentence can only be properly understood with sufficient disclosure. We don’t have the full transcript of the judge’s comments – just a few quotes out of context. We don’t have the probation officer’s report and the character references and the full text of all the letters to the judge.

What we’re observing is a recall campaign spearheaded by Prof. Dauber of Stanford. When the probation officer recommended a term of less than a year in county jail, Dauber urged Persky to stick to the minimum term of 2-3 years in state prison. She argued that it would be wrong to apply mitigating factors such as youth and lack of prior record: the lawmakers reserved that provision for unusual cases while the typical campus rapist is young and has no criminal record so there is nothing unusual about that.

The judge agreed with the probation officer. Is that a good enough reason for the hysterical recall effort? The county public defender and deputy public defender have spoken in support of Persky. They called him “a fair and even-tempered judge” and “an exceptional jurist”. I take it to mean he’s hardly a hanging judge and the Turner case could be in line with his general approach to sentencing.

Mr. Goodman, the deputy public defender, said he had worked with the judge for three decades and denounced the proposed recall…
“You have to judge a case on its merits only,” Mr. Goodman said. “The narrative on social media is ‘We have to judge this case as part of the larger social issue of campus sexual abuse,’ but as a judge, he is not allowed to do that.”

Prof. Dauber once clerked for a famous liberal justice. Now she’s attacking another judge – hardly a conservative – in a Bolshevik fashion.

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RNB 06.08.16 at 3:33 pm

Persky’s sentence does not seem to be in line with the sentence usually received by people who have committed these felonies of sexual assault, even if they are first-time offenders. There seemed to be more concern about the damaging consequences of the customary punishment on a wealthy, white former Stanford undergrad who had great swim times than there would have been had the rapist been a poor minority with a GED and without easy access to a pool.

Persky will have plenty of time to show that his sentence here was consistent with what he and his colleagues have imposed in the past.

Your reference to Bolshevism is revealing and nonsensical.

75

PGD 06.08.16 at 3:38 pm

Note that the story linked @61 should perhaps lead those saying that we should reduce procedural safeguards for those accused to rape to reconsider.

Agreed with SamChevre @70 that character witnesses are not a class bias. Everyone lives in a community and everyone has people who know them. A propensity to credit rich character witnesses and not others would of course be a class bias, but there the bias is in how you listen to the witness and not existence of the witness.

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RNB 06.08.16 at 4:07 pm

Well yes who has the character to be sent to prison or even jail for a long time and whose “character” (read: racial and wealth characteristics) makes them unsuited to be in prison or even jail for no more than what will probably be a reduced three months even if they are guilty of sexual assault? Are we talking about character of the impunity of a certain class of people with certain characteristics?

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RNB 06.08.16 at 4:08 pm

sorry typos as usual.

Well yes who has the character to be sent to prison or even jail for a long time and whose “character” (read: racial and wealth characteristics) makes them unsuited to be in prison or even jail for no more than what will probably be a reduced three months SENTENCE even if they are guilty of sexual assault? Are we talking about character OR the impunity of a certain class of people with certain characteristics?

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bruce wilder 06.08.16 at 4:14 pm

“Bolshevik fashion” ??!

Now, who is getting hysterical?

We have a democratic check on judges and it is being used, as it should be, as part of a process of cultural change.

Everyone on the thread has been thoughtful and reflective, in response to the powerful rhetoric of the victim’s statement and the sentencing that transmuted three felony convictions into an effective misdemeanor punishment.

The two points of my greatest ambivalence are these:

1.) Why did Turner not take a plea? This is a point of emphasis in the victim’s statement: both the additional pain imposed and the absence of effective remorse.

I think Alex K— conspicuously fails to properly account for this factor in his analysis. What is in apparent dispute in the case between the parties and in the culture involves alcoholic intoxication as a context and excuse and mitigating factor. No one is claiming mistaken identity — it is all about intent and consent and self-awareness, or lack thereof.

If I were designing a system, the sentence, not the plea, would be the scene of bargaining between the parties. I guess that is not the case. Still, I wonder that more was not required of the convict for a lenient sentence, more particularly in terms of confronting his own guilt and culpability in the events.

2.) What is the effect of punishment? Prison in the U.S. (and many other places) is a cruel place, that perpetuates and creates great evils. I understand why a judge would hesitate to commit anyone without a long criminal record to prison.

Prison sentences are not simply symbolic expressions. They are lived experiences.

I do not know what justice requires, when expressed in years in a horrifying place. Proportionality? Proportional to what? Vengeance? I do not know how to calculate on such things and I am glad it is not my job.

79

RNB 06.08.16 at 4:37 pm

Why didn’t he take the plea bargain? The father’s statement is revealing. It was obviously unthinkable to him that his white and handsome son who had been admitted to Stanford and swims really fast could have his life ruined for “twenty minutes of action”. And one fears that Brock Turner may well not have been found guilty unless other white male Stanford students testified that he was indeed raping the victim.

80

engels 06.08.16 at 5:07 pm

What are the purposes of incarceration?

To control the population. As SamChevre’s comment indicates character witnesses hrlp to separate those who who have proved themselves willing and able to obey (but may have been led astray by others, reacted to particularly desperate circumstances or momentarily let their impulses get the better of them) from those who can not do it (the mentally ill) or consciously reject it altogether (career criminals, terrorists etc).

81

Lynne 06.08.16 at 6:16 pm

Brock Turner doesn’t admit his guilt. He thinks he’s been convicted of being drunk and promiscuous, apparently, since that’s what he’s willing to educate other students about. I don’t know what theory of justice is prevalent in California but it seems to me that the biggest reason to put Turner behind bars is protection of the public.

And yes, prisons are bad places. He has arranged to put himself there by his own actions, unlike the victim, whose lived experience is also a hell, because of Turner’s actions.

82

The Temporary Name 06.08.16 at 6:18 pm

83

bruce wilder 06.08.16 at 6:50 pm

Lynne: And yes, prisons are bad places. He has arranged to put himself there by his own actions, unlike the victim, whose lived experience is also a hell, because of Turner’s actions.

What’s the feminist critique of that rhetoric?

84

Lynne 06.08.16 at 7:00 pm

Bruce, ? I was responding to your wanting to spare the convicted rapist because prison is bad. What he did to the victim is also bad.

Is the justice system perfect? Obviously not. Terribly inadequate for sexual assault crimes, as I’ve said, and prison conditions are lamentable, etc. But really, this case is not (it seems to me) the time to worry about the poor prisoner. There has been far too much worry about him, and not enough about the woman he assaulted.

85

PGD 06.08.16 at 7:38 pm

Here is an interesting take defending the sentence by Sajid Khan, a working public defender in California. He believes that a minority individual appearing in front of the same judge with the same background (no previous record, successful college student) would have received a similar sentence. In general public defenders appear to think highly of Persky.

http://thesajidakhan.tumblr.com/post/145573169734/debriefing-and-defending-the-brock-turner-sentence

A quote from his piece:

– My only outrage about Judge Persky’s decision would be if similarly situated public defender clients, particularly minorities, receive harsher sentences than Mr. Turner from Judge Persky; no one has been able to provide any such example. In fact, many colleagues in my office that have appeared before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him.

– Mr. Turner didn’t get off easy. There are many punitive, harsh layers of the sentencing that the headlines don’t capture. He received six months jail with formal, felony probation. Anyone questioning the severity of six months jail should spend one night in jail and then tell me Mr. Turner got off light. Six months of confinement should never be diminished. Mr. Turner is now a convicted felon, a branding he cannot shake for the remainder of his being. He must register as a sex offender for the rest of his life. He will be responsible to pay the victim restitution for any damages or losses she suffered. He will be vigorously supervised by a probation officer. If he violates his probation, he can still be sentenced to up to 14 years in state prison.

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bruce wilder 06.08.16 at 9:08 pm

“Six months of confinement should never be diminished.”

A likely 3 months of confinement, according to many reports. In jail, not prison. A misdemeanor punishment for felony convictions.

“He will be vigorously supervised by a probation officer. ”

I would not assume that actually happens or continues for the full term of probation. How long will he be required to even reside in the State? How well supervised will be be back in his native Ohio?

A felony conviction severely limits employment opportunities and registering as a sexual offender can be a serious burden as well, in part because the label is so ambiguous. As the subject of a celebrated case, he will have a different experience — better probably than he deserves as some misinformed reactionaries react sympathetically even as others react with horror or fascination.

87

Saurs 06.08.16 at 9:23 pm

You seem to believe that the woman’s unconscious state proves Turner’s guilt but you have to consider the scenario in which she gave her consent and then passed out (Turner being too drunk to notice).

That is still rape.

88

LFC 06.08.16 at 9:44 pm

@RNB
Why didn’t he take the plea bargain?

There are 2 obvious possibilities as answers, neither of which RNB mentions. These are not the only 2 possibilities, of course, but the ones that immediately present themselves. (1) He did/does not think he is guilty of the charges. (2) He thinks he is guilty of the charges but made a calculation that the evidence was such that he had a reasonable chance of acquittal.

Instead, RNB turns this into a matter of race, suggesting that if the two grad students who interrupted the assault and chased him and tackled him had not been white and male, their testimony wd have been given less weight. My own hunch is that if one of those grad students had been Asian-American and one African-American, instead of two Swedes, I doubt the outcome of the trial wd have been different, holding everything else the same. (I shd say I know nothing about the California ct system, but this is Palo Alto we’re talking about, not a small town in, say, rural Mississippi or Alabama or etc.)

89

The Temporary Name 06.08.16 at 9:55 pm

(1) He did/does not think he is guilty of the charges. (2) He thinks he is guilty of the charges but made a calculation that the evidence was such that he had a reasonable chance of acquittal.

There’s also being on the sex offender registry, which follows you for life.

A demo of the Ohio version (I used the address of the Rock and Roll Hall of Fame):

http://www.icrimewatch.net/results.php?AgencyID=55149&whichaddr=home_addr|temp_addr&SubmitAddrSearch=1&AddrStreet=1100+E+9th+St&AddrCity=Cleveland&AddrState=36&AddrZip=44114&AddrZipPlus=&excludeIncarcerated=

90

The Temporary Name 06.08.16 at 9:56 pm

91

LFC 06.08.16 at 10:02 pm

There’s also being on the sex offender registry, which follows you for life.

Yes of course that also cd have been a factor in his not taking a pleal. (Though sometimes plea bargains can involve special concessions, the prosecutor here prob wd have insisted on the registry or might well have no discretion in the matter — I’m not sure.)

92

LFC 06.08.16 at 10:03 pm

typo correction: plea not “pleal”

93

RNB 06.08.16 at 10:21 pm

@90 Well we don’t know whether there was plea bargaining or what the offer was. But we do know what the father thought. And he seems to have thought his son had a reasonable chance of acquittal, and was only promiscuous and drunk.

You seem to think that Brock Turner’s race/class/Stanford status could not have entered into the family’s possible calculation that Brock Turner had reasonable chance of acquittal. A minority and poor family would probably be less willing to roll the dice in a case like this.

I would guess–and yes, it’s a guess– that he would have had a higher chance of acquittal if the intervening people who gave damning testimony had not had Stanford ‘status’ and had not been white and had not been men. That is, I do not think evidence from non-elite/non-white/female witnesses would be given the same credibility. I think our society and the judicial system is shot through with bias. If you look around, you’ll find evidence for these beliefs.

By the way, I did not introduce the ‘race’ angle; it was introduced @62

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RNB 06.08.16 at 10:34 pm

@87 links to Sajid Khan who writes:

“- My only outrage about Judge Persky’s decision would be if similarly situated public defender clients, particularly minorities, receive harsher sentences than Mr. Turner from Judge Persky; no one has been able to provide any such example. In fact, many colleagues in my office that have appeared before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him.”

We do not know Persky’s sentencing history, but from Dauber I get the sense that the sentence Persky gave is unusually light even in Northern California for a felon who committed acts of sexual assault, even if that felon is a first-time offender. The maximum sentence for the crimes of which he was convicted is something like 14 years; the minimum recommended sentence is 2 years in prison, no? Persky seems to be letting Brock Turner get out in 3 mos from jail.

Now perhaps this would be the appropriate sentence for all first time offenders who have committed these kinds of sexual assaults, with an apparent intention to commit even more. But it does not seem to be what is customary.

And it does seem as if Brock Turner has received an outrageously lenient sentence.

95

RNB 06.08.16 at 10:36 pm

@84 link is pretty revealing.

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RNB 06.08.16 at 10:46 pm

And by the way @80 I shared a fear: “And one fears that Brock Turner may well not have been found guilty unless other white male Stanford students testified that he was indeed raping the victim.”
I did not argue for the counterfactual that had the two witnesses been poor women of color who had GED’s only Brock Turner would have been acquitted. I simply expressed my concern that prejudice may haunt our legal proceedings in this way even in Silicon Valley where by the way I grew up. The fear could be unfounded or exaggerated, but I am sure it is not mine alone. But you addressed what I wrote as an assertion of fact; if it had been I would not have included “And one fears” with which I began the sentence.

97

LFC 06.08.16 at 10:48 pm

You seem to think that Brock Turner’s race/class/Stanford status could not have entered into the family’s possible calculation that Brock Turner had reasonable chance of acquittal.

No, I think it cd have entered into the calculation. I don’t know, so this is all speculation.

98

LFC 06.08.16 at 10:51 pm

RNB @98
You did say “and one fears,” and perhaps I shd have focused more on that qualification.

99

roger gathmann 06.08.16 at 11:37 pm

Well, if we want to start moving away from prison as a punishment, why is poor Brock our only experiment? How about David Ray Conley. He’s charged with the murder of six. And, like Brock Turner, the kids he murdered brought it on themselves, according to him. http://www.nydailynews.com/news/national/confessed-killer-david-conley-blames-victims-behavior-article-1.2322909 Let’s go easy on him for a start of our new era of non-imprisonment. Which of course was the whole intent of our wonderful Judge Aaron Persky. His ruling was not an indication that he holds sexual assault to be a crime less worthy of punishment than jaywalking – it was a deep, philosophical protest against the socially constructed idea of crime itself, and henceforward, he is not going to sentence anyone to jail, recognizing the deforming influence it has on the prisoner’s life.

It is good to know we have heros like Persky in our criminal courts system.

100

Ogden Wernstrom 06.08.16 at 11:52 pm

@12 Gareth Wilson 06.06.16 at 1:49 am:

…I’m not sure how an affirmative consent standard would have helped.

I hope that it will end up changing people’s expectations…and reduce the number of people who think this sort of behaviour is acceptable. It may take a while longer than we would like, though.

However, you do frame your concern in the past tense, and about preventing this case. Are our choices reduced to (a)create a solution that would have been certain likely to prevent this case, or (b)do nothing in response to this case? (I hope not. I hate it when the binary-choices-only universe begins to cross into the universe I inhabit. Maybe I incorrectly interpreted the concern as a criticism of an affirmative consent rule when it’s really a call for something stronger and more-effective than affirmative-consent rules.)

On another note, I hope the lifetime sex-offender registration requirement will keep the convicted and his father from enjoying their ribeye steaks ever again. Or, at least until they face the truth in a manner that they would understand that “20 minutes of action out of 20 plus years of life” is not an adequate description, and that rape is not a result of binge drinking. Plus understand that moans or agonal-breathing by unconscious persons are not signs of enjoyment. And that vomiting is not a form of orgasm, despite what Brock may have learned from his previous sexual experiences. And, oh…never mind listing all the things they would have to understand and acknowledge before I might think they should enjoy their steaks. I do believe that people can reform/transform, but these guys are too-deeply entrenched in a poisoned self-narrative for me to hope they will progress in the right direction. As Bruce Wilder points out, he may get some Zimmerman-style support of his self-delusion.

In principle, I dislike the one-size-fits-all lifetime-sex-offender-registration requirement. It assumes that sex-criminal behaviour is inherent in the convicted, does not allow judges to use their judgement to fit the facts of each case, and treats a wide range of offenses alike. In some cases, it seems excessive; in this case, I am glad it’s one-size-fits-all…because this judge can’t remove or reduce that requirement for Brock.

In principle, I also dislike the ever-lengthening nature of prison sentences in the US. US prisons do little or nothing in the way of rehabilitation; longer sentences tend to move the prisoner ever farther from rehabilitation. To satisfy my anger, desire-for-retribution, or whatever, I’ll espouse a principle of equality-in-the-eyes-of-the-law; from what I’ve read about this case, the sentence is a fraction of the shortest prison term listed in sentencing guidelines for the felonies committed. There appears to be some mansplaining that Brock got a typical sentence for the crime; remind me to commit my crimes in California, where, as a first-time offender, I can typically get about one-quarter of the guideline-minimum sentence. I suppose I have to limit myself to 3 felonies; 4 would be déclassé.

That brings me to this: There are arguments about two different things here – principles to be upheld, and the particulars of this case. Most of what appears to be disagreement is the clash between these two; I’d say that the particulars of this case violate some principles that we should uphold, and I think most of us would mostly-agree about those principles and mostly-agree about the particulars. (In this forum I do not care to address arguments about what-sort-of-liquor one drinks. Nor arguments ad Leninum.)

The principles that appear (to me) not to be upheld are presumption-of-innocence (that is, it appears to have been presumed that the rape victim was a willing participant and somehow asked for this to happen), equality-in-the-eyes-of-the-law (trumped by money and social position, as usual), and principles of sexual interaction/consent/lack-of-consent which are seriously flawed, even sociopathic, in our society.

Which brings me back to thinking we need affirmative consent standards. It’s a step in the right direction.

101

J-D 06.09.16 at 5:00 am

Alex K @74 writes ‘You seem to believe that the woman’s unconscious state proves Turner’s guilt but you have to consider the scenario in which she gave her consent and then passed out (Turner being too drunk to notice). Not a very plausible scenario – the jury must have rejected it – but I need to find out why its probability failed to clear the reasonable doubt hurdle.’

It interests me that Alex K posted this comment after previously posting a link to the criminal complaint, which conveniently identifies the exact sections of the California Penal Code under which the defendant was charged. Here are some of the ones under which he was convicted:

‘(d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
‘(e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.’

I can’t see anything there that would suggest that prior consent is treated as legally relevant. If somebody could show some modifying language elsewhere in the California statutes it might be different, but on the basis of that text it appears to me that (under California law) if the victim was passed-out drunk then two offences under California law (one under paragraph d and one under paragraph e) were committed even if she had given consent earlier. If that’s right, then it’s a mistake to think that the jury must have rejected the scenario where she gave consent and then passed out, because her consent prior to passing out would not (under California law) stop the act from being a crime.

102

bruce wilder 06.09.16 at 6:08 am

Lynne ?

As I see it, this case has become a cause célèbre because of the cultural struggle over how to respond the problem of sexual assault, particularly on college campuses where sexual promiscuity (hookup culture) and (underage) binge drinking are also widely perceived as related problems and/or alternative diagnoses entailing alternative courses of political treatment.

Consent was what was in narrow factual dispute, as I understand it, but Turner committed himself in multiple ways, inside and outside court, to narratives and a political program attacking drinking and promiscuity, while denying, even after the verdict of the jury, that he had not obtained consent. (Not plausibly one might add.)

I think the judge (and probation officer — also part of this system) was obligated to resolve that dispute between the parties as to the nature of the crime in favor of the view of the state (and the expressed view of the victim), as confirmed by the jury, and to sentence accordingly. Judge Persky said he is not convinced Turner’s “lack of complete acquiescence to the verdict should count against him.” I think he is wrong about that. He prescribed a jail sentence that makes sense in a case of drunken misdemeanor misconduct, essentially undoing the work of the jury.

So, I think it perfectly appropriate to try to recall the judge, or just to draw attention the victim’s remarkably well-crafted statement as a part of political and culture reform aimed at addressing the epidemic of sexual assault.

That said, I would never suggest that Turner’s life or person should be disregarded. The judge’s job is a balancing act and Turner has a life.

103

RichieRich 06.09.16 at 6:27 am

J-D@103

Alex K @74 writes

You seem to believe that the woman’s unconscious state proves Turner’s guilt but you have to consider the scenario in which she gave her consent and then passed out (Turner being too drunk to notice).

Para (d) states

Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years.

If I understand para (d) correctly then, if the victim consented whilst conscious and then became unconscious and Turner didn’t notice she’d become unconscious, the para doesn’t apply.

104

J-D 06.09.16 at 7:07 am

RichieRich @105

It appears to me that the issue raised by the words you draw attention to in paragraph (d) is not the one mentioned by Alex K of prior consent, but the issue ‘did he know that she had passed out?’ If the defendant didn’t know that the victim had passed out, it appears to me that the conditions of paragraph (d) would not be met independently of the issue of prior consent.

I don’t know enough about California law to know whether a conviction under paragraph (d) requires the prosecution to prove that the defendant was not aware of the victim’s condition, or whether, once the prosecution has proved the victim’s condition, the onus shifts to the defence to prove that the defendant was not aware of it.

105

J-D 06.09.16 at 7:09 am

Further to my last comment: I don’t know the totality of the evidence presented, but if two people cycling past could tell that she had passed out, I think that would be strong evidence that somebody lying on top of her must also have known.

106

Alex K--- 06.09.16 at 7:31 am

@103: Good point. A literal reading of the law supports your view that prior consent is irrelevant if the victim passes out. However, my parenthetical “Turner being too drunk to notice” corresponds to the second part of “the victim is at the time unconscious of the nature of the act and this is known to the person committing the act.” This said, I don’t know if Turner was supposed to make sure the victim was responsive at all times.

Also, if the defendant believed in good faith that consent had been given, it’s a valid defense to rape. On the other hand, “drunk consent” does not count in California: the burden is on the male to ensure the female is competent to give consent. “Yes” does not mean “yes” if she’s obviously too drunk to understand what she’s doing. (As the victim’s voice message to her boyfriend seemed to indicate.) If the man was too drunk to figure out she was too drunk, it’s no defense.

To be sure we understand the law correctly, I wish someone could explain how Californian courts have interpreted/applied the statute in the past.

I stand behind my general point, however: it is wrong to draw conclusions from a felony complaint without looking closely at what transpired at the trial. On close examination, “facts” in a complaint can fall apart. Sometimes what sounded like a good case ends up exposed as fiction at trial.

107

Collin Street 06.09.16 at 8:41 am

I’m sorry, people, but I really think that a person like Alex K who thinks that talking about “good case[s]” that end up “exposed at fiction at trial” in reference to a trial that ended in a conviction shouldn’t be engaged with except by properly-qualified professionals.

108

Alex K--- 06.09.16 at 9:39 am

@111: Well said! Because wrongful convictions don’t happen.

109

TM 06.09.16 at 11:00 am

I can’t believe this. I totally can’t believe this. It’s beyond imagination. A woman was filmed being raped – saying repeatedly “stop it” in the video, the rapists put the video online, the court saw no rape happening (“stop it” doesn’t necessarily indicate missing consent now, does it?) and the prosecutors have indicted the victim for false accusation.

Where this that happen in 2016? Germany.

Chronik einer angekündigten Schändung
Die Ex-GNTM-Kandidatin Gina-Lisa Lohfink wurde das Opfer zweier Männer. Bestraft wurde jedoch sie selbst – vom Gericht, aber auch von einer Gesellschaft, die beim Vorwurf sexueller Gewalt mit zweierlei Maß misst.
http://www.stern.de/lifestyle/leute/gina-lisa-lohfink–chronik-einer-angekuendigten-schaendung-6888744.html

I can’t find this mentioned in international news yet but I’m sure it will soon.

110

Saurs 06.09.16 at 11:49 am

As I see it, this case has become a cause célèbre because of the cultural struggle over how to respond the problem of sexual assault, particularly on college campuses where sexual promiscuity (hookup culture) and (underage) binge drinking are also widely perceived as related problems and/or alternative diagnoses entailing alternative courses of political treatment.

Not quite. It’s attracted so much ire and frustration because those are the exceedingly well-worned rape apologist tropes Turner’s lawyers, his father, and his defenders employed to explain away his crime as something abstract, something that happened to him (he was, woe betide, laid low by “promiscuity,” which is a sin only women ever seem to commit), much as affluenza made that one young man a victim. And yet we now know the jury never got to see evidence that, contrary to what his lawyers told the court, Turner drank and used drugs for many years before ever stepping foot on campus, was not overwhelmed by any drinking or “hook-up” culture. And, of course, the woman was drugged and was not a student at all and this was not an innocent and mutual “hook-up” gone wrong but something that could and does happen anywhere.

TM, that reminds me of the first of two trials out of Orange County more than a decade ago, in which a teenager was gang-raped on film and the defense argued that she was “feigning” unconsciousness because she aspired to be a pornstar. Luckily for her, she was never charged for lying, which has ended badly for other victims.

111

Lynne 06.09.16 at 1:17 pm

I’ve posted this link before but it’s a brilliant comparison of drinking tea to consenting to sex, so here it is again.

http://metro.co.uk/2015/10/28/this-new-sexual-consent-and-tea-video-from-the-police-is-brilliant-5466392/#4583678641001#4583678641001

112

Eszter Hargittai 06.09.16 at 1:36 pm

Lynne, thanks, I was about to go look for that based on some comments above.

Here is more on the case if you thought it couldn’t get any more outrageous:
http://www.mercurynews.com/crime-courts/ci_29988209/excerpts-from-stanford-sex-offender-brock-turners-court

Brock Turner had quite a background with drugs and alcohol. Also, more really offensive comments by his friends and family about how the poor guy has already suffered enough.

Saurs, whoa, that’s quite a story you link to at the end, thanks.

113

Alex K--- 06.09.16 at 2:22 pm

@113: An interesting discussion of why it’s difficult to obtain a rape conviction in Germany. Courts just don’t accept that if a woman says “no” and the man goes ahead, it’s rape. They require the woman to physically resist or the man to have her “at his mercy” or threaten her. Even when she’s on camera screaming “no, no” but does not try to get up and walk out, courts say it’s not rape and she gets fined for filing a false complaint. That’s my understanding. The legal definition of rape is going to be widened at last, but it’s not clear when.

114

Kiwanda 06.09.16 at 3:11 pm

Ken White on this case and the effect of a judge’s life experience on sentencing.

At the end: “And we know that when there’s a backlash against mercy and lenient sentences – when cases like this or the “affluenza” kid inspire public appetite for longer sentences – it’s not the rich who pay the price. It’s the ones who never saw much mercy to begin with.”

115

RNB 06.09.16 at 3:25 pm

@116 I have a hard time imaging a Judge not going nuts about a convicted rapist who lied about not having a past of heavy drug use if that felon were a HS-educated only, poor, minority man. Shocking that Brock Turner was able to get away with it. And it was an important part of his defense–that he was inexperienced with drugs and did not know how they would affect him. So this wasn’t lying about trivial matters. It was a lie that went to the heart of the defense. Thanks for the link, EH.

116

RNB 06.09.16 at 3:30 pm

Feeling a bit concerned here that we are too focused on the problem of differential and fair sentencing; that brings the discussion back to Brock Turner rather than the victim of his assault and the incredible statement that she wrote.

117

TM 06.09.16 at 3:36 pm

117: That is how the law is written, although the “helpless in his power” clause should have applied. I suspect there is more in this case. the victim is a model and TV starlet and she had consensual sex with one of the rapists the night before. It was easy to put her into the “slut who had it coming” category and apparently German courts still think in those terms about rape victims. It’s beyond outrageous, although there doesn’t seem to be a lot of outrage yet. Depressing.

118

RichieRich 06.09.16 at 4:14 pm

Lynne @ 115

A riposte to “Consent: it’s as simple as tea”. This one’s called “Consent: it’s a piece of cake”!

119

Alex K--- 06.09.16 at 4:15 pm

@118: Judges should be taught empathy, literally, or at least understanding: they should receive professional training to make them grasp the experience of people from different social groups. Also, they should be made to serve some time in jail or prison if they want to try criminal cases. It’s utopian and I don’t know how to achieve that, but I feel that if you’re locking up a person, you should fully understand, with all your body, mind and soul, what it means and how it feels. From the moment you’re stripped and made to squat and cough and display your orifices, and so on.

Ken White thinks that Persky wouldn’t have empathized with poor minority defendants. What makes him think so? He doesn’t know the man. Public defender Andy Gutierrez does: “where most of my clients are from poor socioeconomic backgrounds and from communities of color, Judge Persky has been a fair and decent man.”

I can agree with White that this recall campaign won’t help his clients. It will only intimidate the more liberal judges. But Prof. Dauber doesn’t give a damn.

120

Ogden Wernstrom 06.09.16 at 4:22 pm

@87 PGD 06.08.16 at 7:38 pm:

He will be vigorously supervised by a probation officer.

“vigorously” Pull the other one!

Sorry about that. For a moment I thought this could not be serious. It’s good to hear that California finally got the probation-officer funding needed for vigorous supervision. It seems not long ago that I had read that their workloads commonly consisted of two to four times as many offenders per probation officer as state guidelines recommend.

121

RNB 06.09.16 at 4:42 pm

‘Public defender Andy Gutierrez does: “where most of my clients are from poor socioeconomic backgrounds and from communities of color, Judge Persky has been a fair and decent man.”’

Alex, doesn’t this read to you as an attempt by a vigorous public defender to curry favor with this Judge and to make this Judge use his lenient sentence for a fellow white male Stanford athlete as a benchmark for the future sentencing of the PD’s clients who seem to be disproportionately poor, and minority?

122

Lynne 06.09.16 at 5:34 pm

RichieRich, did it need a riposte?

123

bruce wilder 06.09.16 at 8:55 pm

Alex K— I don’t know if Turner was supposed to make sure the victim was responsive at all times.

Apparently, Alex is unacquainted with the nature of healthy sexual intercourse, where the state of one’s partner’s consciousness, aka experience, is actually the thing one is most focused upon.

124

Lynne 06.09.16 at 9:02 pm

Bruce Wilder @ 127, When you’re right, you’re right. Thank you.

I mean, should we laugh or cry at Alex K not being sure one needs to know whether one’s sexual partner is conscious?

125

Collin Street 06.09.16 at 9:09 pm

I mean, should we laugh or cry at Alex K not being sure one needs to know whether one’s sexual partner is conscious?

Mental problems, like I said. I mean
A: “cases can collapse!”
C: “this ended in a conviction, so it didn’t collapse now did it?”
A: “wrongful conviction!”

… that sort of switch really can’t come out of a consistent understanding of the situation, can it?

126

RNB 06.10.16 at 1:55 am

127

RNB 06.10.16 at 2:02 am

From above interview, I get the sense that Dauber thinks that Persky’s sentence for sexual assault was not unusually lenient for him. She suggests that Persky’s problem is not discrimination among those who commit sexual assault but a general leniency towards those kinds of felons, regardless of their ascriptive characteristics.

128

J-D 06.11.16 at 3:11 am

Brock Turner’s father, and some other people, are arguing for leniency in this case.

There are some things they are not arguing.

They are not arguing (anywhere that I have seen) that, when the evidence and the law are properly considered, the verdict can be seen to be erroneous, a miscarriage of justice which should be overturned on appeal by a higher court. That’s why appellate courts exist after all, as an acknowledgement that lower courts can err and there needs to be a mechanism for correcting them. But people are arguing for leniency without disputing the verdict. Perhaps they are thinking privately that the verdict was mistaken, but that’s not the case they’re arguing.

They are not arguing (anywhere that I have seen) that the whole system of criminal penalties is too severe, that convicted defendants in general are treated too harshly, that there needs to be a complete rethink. Perhaps that is what they’re thinking privately, but they’re certainly not arguing it publicly. Indeed, they seem to be basing their arguments at least in part on implicit contrasts between Brock Turner and other defendants, which in turn suggests that they don’t want to challenge the whole system.

If you put forward an argument which is not based on saying that the whole system is too severe, and is not based on saying that the guilty verdict was erroneous, but you still argue for leniency in this particular case, your position can only mean that with these particular facts (as determined by the verdict) in these particular circumstances, we are not discussing a serious offence.

I don’t know how to decide what is a just penalty for any offence, serious or otherwise; that seems to me an extraordinarily hard question. But when I perceive people arguing (in effect, because what else can their argument be?) that — not always, but in some particular circumstances — trying to have sex with somebody who is passed-out drunk is not a serious offence, then it’s clear to me that they must be wrong. There are no circumstances in which trying to have sex with somebody who is passed-out drunk is not a serious offence. What I want to know is how anybody can think that there could be.

129

Barry Freed 06.11.16 at 6:21 am

I’m even agnostic about Turner’s actual guilt or innocence.

But of course you are.

you have to consider the scenario in which she gave her consent and then passed out…

Wow.

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