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September 13, 2017

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence."  Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye.  While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct.  The article challenges the media for its role in inflaming public opinion about the case.  While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media.  Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk.  The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

September 13, 2017 at 10:22 AM | Permalink


They partied early. They had sex in a public place. She fell asleep after drinking too much. She had no recall of consent or of refusal. No crime even took place.

Posted by: David Behar | Sep 13, 2017 10:34:02 AM


Can't agree. The law is clear in her case. Unconscious or heavily inebriated victims, whether male or female, are still victims. While their are some gradations to consider, the actual prosecution was sound.

Having said that, Turner's lifetime registry requirement is actually FAR more detrimental and punitive than a 10-year sentence (without registration) would be. He will never have the ability to have a job without being fired because of stigma against the business, live in a neighborhood without having his house vandalized an average of twice per year, and must post an itinerary with law enforcement every time he leaves the state. All this for his entire life.

Posted by: Eric Knight | Sep 13, 2017 11:38:14 AM


Sorry, gotta agree with David on this one, as I see things if you voluntarily get drunk you invite all the bad consequences that may follow. Right down to getting sold into slavery somewhere in the mid-east.

Posted by: Soronel Haetir | Sep 13, 2017 12:02:49 PM

SH provides a possible view again that doesn't match up to the actual law.

A registration might lead many people to have problems but those with means can find a job, a home etc. all the same. People who are war criminals, known rapists, etc. have as well. This business where ten years in prison is trivialized is silly stuff, including those who will be physically attacked (in some cases raped) without (yes even if you had a red letter around your neck) be able to escape the small confined spot you are in surrounded by convicted violent criminals.

Anyway, taking everything into consideration, I did not find the sentence here clearly unjust. As I noted in the past, not just the easily targeted white male judge was involved in its creation either. A woman wrote the sentencing report (or whatever the formal name is). Some things said by the judge did upset people, perhaps correctly.

Posted by: Joe | Sep 13, 2017 1:49:00 PM

Can't agree at all about the claims of no jail, but I do think we need to understand California's weird sentencing system and how it works in practice. In practice, it's a system that results in significant jail time unless the Probation department recommends a local sentence and the Judge agrees. Typically, if they do, this Judge follows along and that's all that happened in this case.

Posted by: Erik M | Sep 13, 2017 3:47:40 PM

Eric. Being social is exhausting work for me. I have fallen asleep having sex, at3 AM, just tired. I was nudged. Was I raped?

Posted by: David Behar | Sep 13, 2017 11:06:40 PM

SH. Lady gets into limo of Mike Tyson at 3 AM. Goes up the elevator to his room, under her own power. Waits as he opens the door, enters. Now she cries, rape, most likely to get a settlement from a rich guy.

Review of the subject of implied consent and rates of false allegations of rape.


Posted by: David Behar | Sep 13, 2017 11:10:52 PM

Agree with both sides here. He broke the law but the law is stupid. Fundamental principle: a person doesn't have the right to create a bad situation and then scream they were taken advantage of. Not just rape. Applies to lots of areas of the law. Another example is environmental law. Companies create a big toxic mess, nature takes over and makes the mess worse and the companies claim don't blame us blame nature. Nope. Not buying it there either.

What happened here is like a woman who ties herself to the train tracks and then gets mad when the train runs over her instead of a Mountie riding to her rescue.

Posted by: Hold the Door | Sep 13, 2017 11:21:04 PM

The amount of arglebargle over Mr. Turner's sentence or relative lack thereof, and comparative silence when it came to his lifetime registration, indicates to me that much of the public still has no idea what the sex offender registry actually is, what it entails, and the effects that it has on people who become subject to it.

I think, were you to survey people on the registry, if they would take a 5 or even 10 year jail term, vs lifetime registration, many if not most would take the time.

Posted by: Guy | Sep 14, 2017 8:50:21 AM

I saw a news story about a police officer who was convicted of using a sex toy on two women during a traffic stop. He was put on a sex registry. The nature of those things depend on the state -- each state has different rules and then I guess there is a federal rule?

The Supreme Court decided a year or so back that you need not be left on and tracked in another country. Once they are able to travel, that is one more thing someone with means (and some without much means) can do -- they can leave the country -- that someone in prison for ten years can not do.

It's guesswork in the extreme to determine what the range of sex offenders on some sort of registry rather do but I remain pretty sure many rather be on one than get 10 years in prison.

Posted by: Joe | Sep 14, 2017 1:44:09 PM

"Sorry, gotta agree with David on this one, as I see things if you voluntarily get drunk you invite all the bad consequences that may follow. Right down to getting sold into slavery somewhere in the mid-east."

That is one of the most appalling lines of thinking I have ever heard. It goes right along with, "If you do something that gets you put in jail, you invite all the bad consequences that may follow. Right down to being assaulted, raped, and brutally tortured and murdered." That anyone thinks this way is sickening.

Posted by: Kirsten Tynan | Sep 14, 2017 11:11:37 PM

Hi, Kirsten. Here is a review of implied consent.


Do you oppose it in total, or selectively?

You climb over a tall fence. You cross a wide moat. You are in the lion's den. You get scratched and bitten. Whose fault?

You get into the limousine of Mike Tyson at 3 AM. You go to his hotel room, on an elevator. You enter the room. You resist his advances. Whose fault?

The irony and stupidity of the legal system. Mike Tyson committed 100's of crimes without prosecution. He offends some feminist, he does years in prison for a rape he did not commit.

Here is the answer for you. Mirandize the sexual encounter. Have everyone who wants to have sex, read a card out loud, and get a signature that they have heard the content. Then, have an 18 page informed consent form, where every paragraph must be initialed. It should then be notarized. I suggest that each party have a 3 day review period, during which licensed lawyers explain the consents. Perhaps, lawyers should be present during the sex act, as they must be during a police interrogation. They may then sign an attestation that all parts of the sex act took place with consent.

Posted by: David Behar | Sep 15, 2017 6:56:25 AM

"Guy | Sep 14, 2017 8:50:21 AM" said, "I think, were you to survey people on the registry, if they would take a 5 or even 10 year jail term, vs lifetime registration, many if not most would take the time."

I have been listed on the BS S*x Offender Registries (SORs) for a couple of decades. I was offered a plea deal with no jail time but ultimately was forced to take a deal where I pleaded to something more serious than what I actually did and also had to spend a couple of months in jail. When I took the deal, the Registries were nothing. Nobody knew anything about them. But obviously the ex-post facto punishment since has gone through the roof and is immoral and unacceptable.

In retrospect, I would trade the Registration for up to 4 years in jail back at that time. But in the couple of decades since I have become too successful to take any continuous jail time at all right now. I would trade Registration for weekends in jail for up to 1 year. But the biggest problem would be that when I got out, I would really, really have to retaliate for it and that would require something very drastic. It could be catastrophic for my life even. So it might not be a good thing overall.

I've neutralized the SORs for the most part. They certainly aren't protecting anyone from me so that's been completely negated. But the SORs still harass my family and interfere with our lives. And I have a moral obligation to constantly retaliate, every day, for the SORs. I don't particularly want to live that way but I must. So the SORs are a constant problem. But the hatred that they've created has also driven me to succeed.

The SORs are an act of war. I've won it already but I'll keep delivering consequences to the losers until they stop attacking.

Posted by: FRegistryTerrorists | Sep 15, 2017 10:04:22 AM

FRT. You may have missed my comment about China.

China has huge screens in the street. On them, they put up the faces, names and addresses of jay walkers.

Facial recognition has identified people who have used more than a yard of toilet paper in the park toilets. Upon returning, the toilet paper dispenser knows who they are, and locks. I do not know if this is facial recognition technology or butt recognition technology.

We jaywalkers will soon be joining you.

Posted by: David Behar | Sep 15, 2017 12:53:55 PM

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