Brock Turner, And The Difficult Job Of Reforming Rape Law

The case of former Sanford swimmer Brock Turner raping sexually assaulting one Emily Doe is by now well-documented: on January 17, 2015, she went to a frat party, and got blackout drunk. She awoke in a hospital to find police and medical personnel attending to her, whereupon they informed her she had been raped behind a dumpster. (Her attacker had been driven off when, by chance, two Swedish students encountered Turner and Doe, and pinned Turner until authorities could arrive.)

The original complaint contained five charges, three of sexual assault and two of rape, but the prosecuting attorney dropped the latter at a preliminary hearing in January. This is curious given that California rape statutes contain the following:

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(3) Where a person 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.

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

(A) Was unconscious or asleep.

263. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.

That would appear to be pretty open-and-shut, at least for rape, especially since "sexual intercourse" is left undefined. (Turner was initially charged under 261(a)(3) and 261(a)(4).) Turner lately received a smack on the wrist of a mere six month sentence, of which he is likely to only serve three, and that in the county jail, not the state penitentiary. Such a light sentence has naturally yielded a torrent of vituperation aimed at the judge, including death threats and other vulgarities.

The obvious problems of race, and perhaps more, personal affiliation did not escape the eye of the New York Post's Shaun King, who was rightly dismayed at the injustice of Turner's sentence versus what routinely gets thrown at blacks:

Do you know how many young black boys and girls, sometimes as young as 13 and 14 years old, are tried as adults in court rooms all across America and given mandatory minimums of 10 years and 20 years and even life in prison? Thousands. Tens of thousands.

In a more recent column, King pointed out the 15-to-25 year sentence handed down to football player Corey Batey at Vanderbilt for a similar rape as a very particular example.  But white skin isn't the only difference, given Turner and the judge both attended Stanford. One gets the real sense that some ring-knocking is going on here, and so, the discussion necessarily turns to reforming the system, and thither to Robby Soave's remarks at Reason.

Turner's victim did not get as much justice as she deserves, and the process was, in her own words, re-traumatizing. She's very brave for sticking with it—she provided a public service by drawing attention to Turner's criminal behavior. Her case shows that the criminal justice system is in need of reform. But it's still the best vehicle for the adjudication of violent crime.

But what reforms? He doesn't say, and it seems to me fairly obvious in cases like this that the answer, at least, ought to contain something like

1. Questions about victim dress and promiscuity, however veiled, should be off the table at any phase of the trial.
2. California statutes need to clarify that rape does not exclusively consist of sexual intercourse.

Cases like Turner's are comparatively rare; the gauntlet of torturous questions asked of most rape victims will necessarily be broad, and frequently unpleasant, especially given the difficulties outsiders have in reading consent after the fact. But the problem, of course, will be that the proposals above will likely have no takers, and will further be seen as wildly inadequate; the convict-on-accusation crowd will demand no less. But surely, we can agree that the judge deserves censure. As Popehat founder Ken White wrote,

There are two ways to see good fortunate [sic] and bad fortune.  You can say “someone who has enjoyed good fortune should be held to a higher standard, and someone who has suffered bad fortune should be treated with more compassion.”  But America’s courts are more likely to say “someone who has enjoyed good fortunate has more to lose, and someone who has suffered bad fortune can’t expect any better.”

Judge Persky and his ilk can’t stop being human.  But they are bound by oath to try to be fair.  When a judge says you are very fortunate and therefore it would be too cruel to interrupt that good fortunate just because you committed a crime, they are not being fair.  For shame.