The case of Brock Turner, the former Stanford University swimmer whose 6-month jail sentence for a sexual assault on an unconscious, intoxicated young woman caused an outcry earlier this month, continues to have repercussions.
The sentencing judge, Aaron Persky, is the target of a growing recall effort led by Stanford law professor Michele Dauber; in the meantime, Persky has been removed from another sexual assault case. Meanwhile, activists and many journalists are using the case as evidence of the need to combat a “rape culture” in America — a culture that supposedly condones male sexual violence toward women.
Very few would disagree that Turner’s sentence was much too light. But the campaign against Persky has overtones of a vendetta that threatens judicial independence. And attempts to turn the justified anger over the case into a “war on rape culture” is likely to create a climate that will endanger due process.
There is no question that Persky did not handle the Turner case very well. His remarks at sentencing indicate that he credited Turner’s claim that he “subjectively” believed there was consent, even though the jury didn’t buy it. He also commented that prison time would have a “severe impact” on Turner. This understandably gave rise to claims that he was unduly sympathetic to Turner, perhaps due to his own similar background as a star athlete at Stanford.
Yet the sentence was not simply Persky’s whim. The probation department’s report — written by a female officer — recommended leniency for Turner on the grounds of youth and the lack of a criminal record, as well as his own intoxication during the offense. The head of the Santa Clara public defender’s office, Molly O’Neal — an openly gay feminist and mother of a college-bound daughter — has told the San Jose Mercury News the sentence was “totally fair, not out of line . . .” One need not agree, but it’s clearly possible to defend this outcome without being a misogynist.
Writing in The New Yorker, Harvard law professor Jeannie Suk has expressed concern that the Persky recall effort will put severe pressure on judges to take a hard line toward sex-crime defendants, whatever the merits of a specific case. While the backlash against the Turner sentence is driven partly by the perception that he benefitted from his status as an elite white athlete, Suk warns that an anti-defendant climate would affect poor and minority men the most.
Beyond Persky’s situation, the calls to combat “rape culture” often show a disturbing hostility to the rights of the accused. “Reporting a rape means proving something was done to you, instead of by you,” laments Daily Beast writer Abby Haglage. Well, yes — it’s called “innocent until proven guilty,” a principle that is the cornerstone of justice in a free society.
Turner’s conviction was secured partly because of witnesses who saw the victim unconscious and came to her rescue, as well as medical evidence of her incapacitation. Should the complainant’s word be enough to convict, even if her recollection of what happened is blurry or non-existent because of intoxication? That would create a high risk of wrongful conviction. In other cases, defendants accused of rape involving intoxication and lack of memory have been cleared when eyewitness testimony and/or video recordings showed active consent.
Of course, some victims of sexual violence get a raw deal from law enforcement and the justice system, including women who have had to fight tooth and nail just to get their rape kits tested. But advocacy for a more effective and respectful response to sex crimes should always be balanced by respect for due process.
Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.