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The pressure for tough sentences

California Judge Aaron Persky campaigns against his recall

California Judge Aaron Persky campaigns against his recall in May. Credit: AP / Jeff Chiu

A story that sparked outrage over sexism, privilege and lenient treatment of sexual violence two years ago resulted in what many consider a victory for justice and for women.

California Superior Court Judge Aaron Persky, who was excoriated for giving a six-month jail sentence to Brock Turner, a former Stanford University athlete convicted of sexually assaulting and attempting to rape an unconscious, severely intoxicated woman, was stripped of his office by a recall vote on Tuesday as a result of a campaign led by Stanford law Professor Michelle Dauber. But is this a good outcome? Some surprising voices are saying no.

Turner became a poster boy for American “rape culture” in 2016 after the media publicized the powerful impact statement by the victim. The outrage was exacerbated because Turner — who had been caught by two passers-by on top of a passed-out young woman outside a house where a party was taking place — seemed more self-pitying than remorseful, while his father infamously dismissed the crime as “20 minutes of action.”

Judge Persky was denounced for giving a privileged white male rapist a slap on the wrist. Yet the reality was rather more complicated. Persky had simply followed the recommendation of the probation officer, who felt that a light sentence was appropriate in this case given Turner’s youth, lack of criminal record and his own intoxicated state — as well as the victim’s apparent desire for leniency. That probation officer was a woman. When the story broke, Santa Clara public defender Molly O’Neal, an outspoken feminist and mother of a college-bound daughter, also defended the sentence as fair.

The Turner saga has many unanswered questions, some outlined by Julia Ioffe in a long investigative piece for the Huffington Post. Did the victim change her mind about her initial preference for a light sentence? Was her request, as she has claimed, distorted by the probation officer? Was she influenced by Dauber, with whom she has been in close contact? Meanwhile, Turner is appealing his conviction, still insisting that the incident began as a consensual drunken make-out session, and that he did not realize the victim had passed out.

Turner, who almost certainly lied about some details, is not a particularly sympathetic figure. But opponents of the recall have pointed out that his punishment was hardly insignificant. While he served only three months in jail, he will be incarcerated if he violates his probation. And he faces lifetime registration as a sex offender, affecting where he can live and the kinds of jobs he can take.

Critics warn that the pressure on judges to impose tough sentences may result in excessive harshness for minor offenders, especially those who are poor and without access to good legal counsel. Progressives who are concerned about high rates of incarceration for young minority men should be especially worried.

Meaghan Ybos, a Tennessee woman who was raped as a teenager and later founded a group called People for the Enforcement of Rape Law, is among those who opposed the Persky recall. Ybos, whose case languished for years because the police suspected her of lying (before her assailant was arrested for an attack on another woman), believes there is a serious problem with the way law enforcement and the justice system handle sexual assault. But in Turner’s case, she says, the system worked.

We don’t have to pity Turner. But the outcome of the recall — especially in conjunction with a new California law mandating a minimum three-year sentence for sexual assault cases involving intoxication — might affect young men with few resources who are found guilty under far more ambiguous circumstances.

If we value justice, we should be concerned about that.

Cathy Young is a contributing editor to Reason magazine.