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June 6, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 at 05:46 PM | Permalink

Comments

I have no idea whether he deserved the sentence or not because I wasn't in the courtroom and I know nothing about the case. But what I do see is the case being framed in a way that is inherently destructive to the law itself.

"The statement, a 7,244-word cri de coeur"

Right. So one woman's emotional plea overrules all sanity and reason. There is an excellent article (FWIW, written by a minority woman) in this month's Harper's Magazine about the role of emotion, social media, and who gets selected for "compassionate use" of experimental drugs. It also features a woman who feels she has been wronged and the emotional manipulation she uses to get what she wants.

http://harpers.org/archive/2016/06/hashtag-prescription/

If the woman was raped, that was wrong, but frankly her emotions are irrelevant to his guilt and his sentence.

Posted by: Daniel | Jun 6, 2016 6:10:17 PM

Daniel, do you really consider the impact of a crime on the victim to be "irrelevant" to sentencing? I can understand why you think the victim's emotional reaction to the crime should not be the only sentencing consideration, but do you really mean to assert it should not be considered at all?

Posted by: Doug B. | Jun 6, 2016 6:17:00 PM

I'll add this too: it is interesting how all the third parties to the case frame the incident in a way that is self-serving. The woman's actual complaint is about male and class privilege. Yet the DA frames it as an issue of "campus rape" as does the editorial board of another paper, the law professor complains that the judge took into account the wrong sentencing factors, Bill O frames it as an issue about the defense bar, and even Doug B can resist exploiting the woman by framing the issue as one that both sides to the case should be allowed appeal unreasonable sentences. It's as if every commentator doesn't want to address and therefore avoids the actual substance of her complaint: male and class privilege.

Let's do it! Let's talk about the role of class privilege in the law.

Posted by: Daniel | Jun 6, 2016 6:30:09 PM

"Daniel, do you really consider the impact of a crime on the victim to be "irrelevant" to sentencing?"

No.

"I can understand why you think the victim's emotional reaction to the crime should not be the only sentencing consideration, but do you really mean to assert it should not be considered at all?"

The woman's missive is a "cry of the heart" but the substance of her complaint it about male and class prlividge. So I understand her emotional complaint to stem from the male and class privilege that she has experienced in the justice system, and not an emotional reaction to the rape itself. If that understanding is correct, then her emotions are irrelevant to his guilt and his sentence.

Posted by: Daniel | Jun 6, 2016 7:04:09 PM

The prosecutor is against the recall of the judge & one sentencing judgment should not be result in that happening. I'd want to know his whole record & the "going rate" for this type of crime (including the defendant), which appears to have aggravating factors that would not be present in some date rape scenarios (not to diminish them).

The father's statement is somewhat understandable, but it's possible to have a bit more empathy for the victim (many parents of felons have some more) and probably will do the son a bit more good in the long run. The usual "what do I know, I'm not there" caveats.

"One woman's emotional plea overrules all sanity and reason." Is there no middle ground? At this point, the question is rhetorical. I support the judgment in Booth v. Maryland so respect being wary of victim impact statements, especially using emotion to crowd out the rest. But, the plea is not just an "emotional" one -- it her personal statement of what happened to her that has emotion.

Posted by: Joe | Jun 6, 2016 7:18:52 PM

In answer to Prof. Berman's question, as a practical matter in CA state cases prosecution appeals of sentencing decisions are rare. They are virtually non-existent when the sentence is within the court's decision. In the Sixth District Court of Appeal, the idea is a non-starter.

Posted by: David | Jun 6, 2016 7:49:13 PM

Is it really male and class (where does class come into this exactly? just because he attended Stanford, on a scholarship?) privilege issue? Is it because he's a male athlete? Are we painting Stanford Swimming and Diving with the Baylor Football brush now? Is that really "fair"?

It is unfortunate that rape victims have to relive their trauma in the courtroom, but can we really ask defense lawyers to cut them some slack? There really isn't any escaping this reality, as hard as we may wish otherwise.

And I find it morbidly hilarious that we sit here and laud the federal judge who recently sentenced a drug defendant to no incarceration due to collateral consequences, while it seems that the main reason for the "lenient" sentence here is collateral consequences.

Posted by: Fat Bastard | Jun 6, 2016 7:53:10 PM

I frankly don't understand why this sentence is necessarily inappropriate The defendant seems like any otherwise decent young man who made a serious mistake. But is society really better off having a young man who is talented enough to attend one of the most elite universities in the world stuck in prison for years? What is the point? It is just a waste of talent. He has learned a serious lesson, and should be allowed to go on with his life. Lifetime sex offender registration is also incredibly unreasonably in this case and very hard to justify. Does anyone really think that is appropriate. Seems to me people get emotionally wrapped up about an incident that while incredibly unfortunate and undoubtedly serious is hardly grounds to ruin the life of a young man with this sort of talent.

And Professor Berman, I respect your views enormously. But isn't giving too much weight to what victim's think a major reason for over-incarceration in this country. Sentencing should be rational and not driven by emotion. A perfect example are drunk driving deaths. If someone is killed through consequences of behavior that is irresponsible but common, and not intended to kill, why should the perpetrator spend years (or even decades) in prison. It is not like that brings the victim back. To be blunt, the death is essentially a sunk cost. Seems to me too much regard for victims' or their families' leads to a lot of deviation from rationality.

Posted by: Mark | Jun 6, 2016 8:18:32 PM

Take into account the whole story. If it wasn't for the 2 Swedish guys that happened to be riding by on bikes who chased him down, caught and held him for the cops after they interrupted him in the middle of the rape, he might have gotten completely away or worse yet killed her. This guy sure doesn't sound like he should have gotten any breaks after what he did. As far as the old man's statement, I can understand how he might feel but let's face it, it wasn't just a run of the mill robbery it was a violent rape and even though this kid may have had a privileged background it sure didn't stop him from taking advantage of this women's intoxicated state behind a dumpster. No one deserves that. Even underage porn viewers get more time than what this kid got and his was a was hands on crime. At least the judge mandated he register as a violent sex offender.

Posted by: Dan | Jun 6, 2016 8:28:10 PM

@fat Bastard

"It is unfortunate that rape victims have to relive their trauma in the courtroom"

She is bitching about the way she was treated by the justice system, not the way she was treated by the rapist.

"Is it really male and class (where does class come into this exactly? just because he attended Stanford, on a scholarship?)"

Does it matter? If we see the issue through the prism of victim's rights then it is enough that she perceives herself to be a victim of class struggle.

Posted by: Daniel | Jun 6, 2016 8:56:44 PM

Lots of useful comments here, folks, but my concerns with the short prison sentence are driven in large part by (1) this seemed to be a pretty ugly case of sexual assault -- e.g., significant sexual abuse of an unconscious victim, (2) the fact that the offender has apparently shown no remorse and may have perjured himself at trial in an effort to escape conviction for a serious sexual assault, and (3) my belief that, due to overcrowded jails, a six-month-in-jail sentence in California might be completed in a few weekends.

That all said, I think Fat Bastard really nails the sentencing story here: I suspect the judge was prompted to give this offender a lenient jail term because he may have thought the defendant was already being "punished enough" (or even too much) by the fact that he will have essentially a life sentence on the sex offender registry. But, again, I wonder if the offender might have had some way to avoid this outcome had he admitted guilt, shown remorse, and found a way to plead guilty to lesser charges.

The failure of the offender to admitt guilt or show remorse is the main theme and concern of the victim's letter (which everyone should read to get a fuller understanding of her perspective). Indeed, the letter is really not all that emotional or all about class and privilege, but rather about the failure of a guilty defendant being unwilling to face up to what his criminal activity. Here are some key passages from the victim's letter to this end:

"My life has been on hold for over a year, a year of anger, anguish and uncertainty, until a jury of my peers rendered a judgment that validated the injustices I had endured. Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public. He pushed me and my family through a year of inexplicable, unnecessary suffering, and should face the consequences of challenging his crime, of putting my pain into question, of making us wait so long for justice.

"I told the probation officer I do not want Brock to rot away in prison. I did not say he does not deserve to be behind bars. The probation officer’s recommendation of a year or less in county jail is a soft time­out, a mockery of the seriousness of his assaults, an insult to me and all women. It gives the message that a stranger can be inside you without proper consent and he will receive less than what has been defined as the minimum sentence. Probation should be denied. I also told the probation officer that what I truly wanted was for Brock to get it, to understand and admit to his wrongdoing.

"Unfortunately, after reading the defendant’s report, I am severely disappointed and feel that he has failed to exhibit sincere remorse or responsibility for his conduct. I fully respected his right to a trial, but even after twelve jurors unanimously convicted him guilty of three felonies, all he has admitted to doing is ingesting alcohol. Someone who cannot take full accountability for his actions does not deserve a mitigating sentence. It is deeply offensive that he would try and dilute rape with a suggestion of “promiscuity”. By definition rape is not the absence of promiscuity, rape is the absence of consent, and it perturbs me deeply that he can’t even see that distinction....

"As this is a first offence I can see where leniency would beckon. On the other hand, as a society, we cannot forgive everyone’s first sexual assault or digital rape. It doesn’t make sense. The seriousness of rape has to be communicated clearly, we should not create a culture that suggests we learn that rape is wrong through trial and error. 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....

"What has he done to demonstrate that he deserves a break? He has only apologized for drinking and has yet to define what he did to me as sexual assault, he has revictimized me continually, relentlessly. He has been found guilty of three serious felonies and it is time for him to accept the consequences of his actions. He will not be quietly excused."

I find this very last quote line having some extra irony in light of the controversy over the lenient sentence. Had the offender gotten, say, a two-year prison term, this case may not have garnered continue media attention. But the lenient sentence will all but ensure the offender will not for quite a long time be able to quiet the clamor or find an excuse for his crime and punishment.

Posted by: Doug B. | Jun 6, 2016 9:14:50 PM

Very useful comments, Professor Berman. And the victim's letter is very compelling and thoughtful. There is a lot to what you say about the two-year prison term. Maybe that would have been the right result.

But what about the lifetime sex offender registration? Is that really something that a civilized society should impose? Isn't it an incredibly vicious, vindictive, and cynical requirement that speaks poorly of our system? Is there anything good to be said for it, at least where the registration system that does not give a person a chance to get removed if they have truly turned themselves around? Why are more professors and other experts not speaking out more loudly against registration systems? My sense is that experts agree that they are poorly thought out and probably counterproductive, but they do not seem to receive as much attention as other criminal justice issues. I don't believe peer countries have these requirements.

Thank you.

Posted by: Mark | Jun 6, 2016 10:38:42 PM

A lot of academics have written critically about registration systems and I have, inter alia, submitted amicus briefs in a couple of cases seeking to limit their reach. I share your view, Mark, that lifetime registration requirements are especially troublesome, and these have been struck down in a few cases when applied to juve offenders.

Posted by: Doug B. | Jun 6, 2016 10:50:45 PM

@Doug

In the case of CA it is not possible to separate the sentencing angle from the victim's right's angle due to the existence of Proposition 9 (CCVR). Let's walk back a moment and realize that the victim expressing herself in this case is the direct counterpart to the rape victim in the Roman Polanski case. Indeed, in both this case and the Polanski case the victim is bitching about the fact that their needs are being ignored--the difference is that in the Polanski case the victim doesn't want any more punishment and in this case the victim does.


Doug writes, "I suspect the judge was prompted to give this offender a lenient jail term because he may have thought the defendant was already being "punished enough" (or even too much) by the fact that he will have essentially a life sentence on the sex offender registry."

Well, the victim doesn't think that. She doesn't blame the judge, she blames the PSR--"The probation officer’s recommendation of a year or less in county jail is a soft time­out." And the judge has no input into the PSR.

So once again, as I keep insisting, her emotional perspective is not about the rape, it is about the way she feels that the criminal justice system has failed to deliver what she thinks is justice. A legal prerogative that doesn't exist in most states because most states don't have a CCVA in their Constitution.

Posted by: Daniel | Jun 6, 2016 11:21:09 PM

Actually, Daniel, I believe most states do have some kind of victim rights provision in their constitution or in statutory law; in the federal system it is in statutory law. And the reason the victim's letter focuses on the PSR and not the judge's decision is because the letter was written before the judge made his sentencing decision.

I agree that the victim is not content with the lifetime registration requirement, but I continue to maintain that what is of greatest concern to this victim isnot "the system" but rather the defendant's failure to own up to his criminal abuse of her: "Someone who cannot take full accountability for his actions does not deserve a mitigating sentence. It is deeply offensive that he would try and dilute rape with a suggestion of 'promiscuity'."

Posted by: Doug B. | Jun 7, 2016 8:59:31 AM

Thanks for adding some more details.

Posted by: Joe | Jun 7, 2016 9:41:55 AM

For his violent contact rape, he got 6 months in jail, 3 months probation and a lifetime on the registry ! What the Hell?.
What about all those guys in prison for first-time, non-contact, non violent CP crimes who end up with 5-10 years in prison, 5-10 years supervision and a lifetime on the registry?
This country's legal system sucks.

Posted by: kat | Jun 7, 2016 10:05:49 AM

@ Doug

"but I continue to maintain that what is of greatest concern to this victim isnot "the system" but rather the defendant's failure to own up to his criminal abuse of her"

Her personal gripe with him is intrinsically intertwined with her complaint about the system. This is from her letter, which you conveniently don't quote: "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".

His unwillingness to own up to his abuse is attributable not to any personal failing on his part but a culture that enables such behavior. His lenient sentence isn't an aberration in her mind, it is an exemplar of the underlying problem viz. that people of a certain class think they can get away with it. She can rightfully look at the letter she wrote before the sentence, look at the sentence he got, and say "told you so!"

(1) He doesn't own up to his crime
(2) The PSR produces a "soft timeout"
(3) The judge lets him off with what she perceives to be a slap on the wrist.

In her mind those aren't separate realities--they are each an example of the class prlivige underlying our legal system.

Posted by: Daniel | Jun 7, 2016 11:20:03 AM

In Oregon, the defendant would have faced mandatory a minimum penalty of at least six years.
It is these kinds of cases that give strong ammunition to proponents of mandatory minimums.

Posted by: Michael R. Levine | Jun 7, 2016 1:36:55 PM

CA Penal Code Section 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.

Posted by: Chris | Jun 7, 2016 1:51:33 PM

Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.


Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.

Posted by: Joe R | Jun 7, 2016 4:20:15 PM

Joe R

How can that be? Don't you know that the Supreme Court has rule that the SOR in not punitive.

I'm calling shenanigans. What a crock of BS. How stupid does the government think we are?

THIS is what causes disrespect for the LAW, one size fits all punishments and not this supposedly "mild" sentence. I wish all the population would spend one week in jail and tell me that 6 months is nothing.

I think that the 7,000 plus word diatribe is mostly SJW BS. The nuggets of truth are buried under mountains of crap.

Posted by: albeed | Jun 8, 2016 6:44:06 AM

If the defendant had been a 19-year-old inner-city kids who had wondered onto campus, would he still have gotten six months? Would we still be bemoaning the fact that his life is over?

If not, then, yes, there certainly was some class privilege here.

Posted by: A DC Wonk | Jun 8, 2016 10:25:12 AM

Agreed with A DC Wonk completely -- it's interesting how many people, both in this thread and the national conversation, suddenly seem so concerned with the impact of a prison term when it's a defendant like Brock Turner. That's not to say we shouldn't always be concerned, of course -- only that it's telling that it comes up now. Also, not to get too language-police on you, Daniel, but you might consider avoiding "bitching" when referring to the woman's letter, or the complaints of women in general. In addition to diminishing the content (which I know from the rest of your comments you are not doing), it's just sexist.

Posted by: Ain't Nick | Jun 10, 2016 3:59:02 PM

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