Where the real problem lies isn’t in what is in her letter. It’s not as simple as that. Had Brock Turner been allowed to tell his side of the story like Doe did, there’s little doubt that it would be much different, and describe the night in terms that would very likely get quite a media response, too.
I can imagine him saying something like, you’re right. Once you were too intoxicated to consent, I was supposed to stop touching you. That’s the reasonable person standard, and every reasonable guy just like me is supposed to be able to recognize when you’ve become too drunk to know what you’re doing, even if you’re still standing next to me, walking around in the dark with me, kissing me, touching me back, or telling me to keep going.
The reasonable person standard, however, isn’t the reasonable drunk person standard, and therein lies the problem, in this situation and countless others.
It’s a problem so big that in the case of Okinawa, the military has prohibited the consumption of alcohol altogether, because the reality is, drunk people make bad choices and may not recognize that even though their partner isn’t shouting “NO, STOP” – they’re in no condition to make that decision in the same way they might if they were sober.
It’s disappointing that this case hasn’t become a catalyst for addressing the issue of alcohol intoxication by young people and all the myriad poor decisions that follow along as a result. The vilification in the media of this case should be aimed at underage drinking, irresponsible life choices, and the university or off-base party culture.
Everyone on social media seems to have graduated from law school this week and become instant experts on the California Penal Code and “minimum sentencing” for sexual felonies. As a result, they’ve donned their white sheets and started burning crosses in Judge Persky’s yard, calling for his recall from the bench and prosecution for judicial misconduct.
Without writing a dissertation on California criminal procedure, the concept is simple.
First, California like many states wanted to establish a standard that imposed similar sentencing requirements for similar crimes, and so the idea of Determinate Sentencing at the State level and the Minimum Sentencing Guideline at the Federal level was born. This was like most things – a great idea that didn’t survive first contact with the battlefield. The prison system filled up overnight, and California has suffered greatly from the overcrowding of their prisons and the resulting burden on the taxpayer.
Layer into the mix the “Three Strikes” rule and the number of incarcerated became insupportable (Dear Governor Brown, may we suggest that you actually use the death penalty? But I digress). In short, California had to implement something that still provided punishment for wrongdoing without necessarily requiring incarceration, and the Judicial Council Rules were born (my apologies to you legitimate legal scholars out there, as this is a gross but necessary oversimplification of what, 50 years of law?).
One of the solutions that resulted here was the concept of Felony Probation. Essentially, there are felonies for which probation, or a combination of incarceration and probation, can be chosen for the offender, so long as certain prerequisites are met. The Court utilizes a Probation office for this, and this person reviews the facts of the case and any aggravating or mitigating factors (such as, in this case, the lack of a prior criminal record, ties to the community, and so forth) and makes a recommendation on sentencing to the Judge. The Judge may accept, accept in part, or reject the Probation office’s recommendations. In this case, the Judge weighed all of this and arrived at a combination of incarceration and probation.
The media sells ads based on page views, and nothing drives page views harder than controversy. It became a great sound bite to rail about how unjust this is, and to make wholly unfounded allegations that the “light” sentence is payback for a bribe, or a result of the Judge being a Stanford graduate or the Judge being a former college athlete himself, or any of a number of other ridiculous, but rage-worthy, statements. There are dozens of petitions on Change.org to recall him from the bench or prosecute him for judicial misconduct.
Here are the things you need to know about Brock Turner’s sentence:
Can the DA’s office challenge the sentence?
No. Prosecutors can only challenge a sentence that is unlawful, and in this case, Judge Persky followed both the law and the recommendation of the probation department. He did not abuse his legal discretion.
Why didn’t Turner go to the State Prison?
Under a strict reading of the California Penal Code (which many have located on Google and pasted all over the internet), one of the three felonies he was convicted of – assault with intent to commit rape – is considered a “serious crime” under the PC and carries a mandatory sentence of two years in state prison when combined with the two other felony convictions.
However, the law allows a judge to deviate from the mandatory sentence for certain crimes by making a finding of “unusual circumstances.” The probation officer’s report recommended a county jail term, cited his age and high level of intoxication, and noted his lack of a criminal record. Under the law, those are legitimate grounds to support an unusual circumstances finding.
In a statement by Assistant District Attorney James Gibbons-Shapiro, the DA’s office does not believe that they have any basis to appeal, because the Judge’s decision was authorized by law and made by applying the correct standards.
It is important to note also that the probation officer is a female. In her report, she concluded that Turner was extremely remorseful and that she didn’t consider him a danger to the community.
“During the pre-sentence interview, the defendant demonstrated a comprehension that the victim, in her state, was unable to make an informed decision, and in that moment, he had a moral responsibility to act in her best interest, which he failed to do.”
Will Judge Persky be removed from the bench?
While online petitions all over the world have collected in excess of 500,000 signatures, only signatures of registered Santa Clara County voters count in order to force a special recall election – which wouldn’t happen until next year. Michele Dauber is leading the effort with the “Progressive Women of Silicon Valley” PAC to gather the 58,000 signatures required to force this election.
Other efforts to recall judges in the face of an unpopular verdict or sentence have historically fared poorly.
Finally, incarceration itself neither heals a victim’s trauma nor rehabilitates an offender. That is not the purpose of incarceration. Imprisoning someone deprives them of liberty and is intended to be a punishment. Let’s not forget that Brock Turner’s punishment neither starts nor ends with his time in Santa Clara’s Department of Corrections.
In fact, let’s recite some of the other punishments Brock Turner is or has received thus far.
Brock Turner was expelled from Stanford – which Michele Dauber didn’t even do to the student who raped Leah Francis, and that guy actually, legitimately, under-the-actual-definition-of-rape raped her. She had to see him crossing her campus for at least another whole year, AFTER he violated her.
Brock Turner is a convicted felon. Every time he applies for a job, a loan, a house, a credit card, to enroll in college again, or to vote in an election, Brock Turner has to mark the “FELON” box. Brock can never own a firearm. Brock can’t join the military. Depending on which state he ends up living in, Turner may not even be allowed to vote. Under the Three Strikes law, this conviction counts as one strike.
Not only is he a convicted felon, Brock Turner is a convicted sex offender. Everywhere he goes, he has to register his address. Every year. Forever. Known as “Megan’s Law,” the Federal government requires that each state maintain a publicly available system identifying convicted sexual offenders in that state. Under California’s version of Megan’s Law, Turner will be required to register within 30 days following his conviction. So long as Turner is in California, whether as a student or resident, even if temporarily in California for work, he will be required to register and re-register on an annual basis. Ohio also requires those convicted of sexually oriented crimes, whether in Ohio or other states, to register as a sex offender. Under Ohio’s laws, local sheriff’s offices are vested with broad authority to verify the information the offender provides to the registry and, in some circumstances, may even be required to send out written notices to the offender’s neighbors and colleagues.
The conditions of his probation ban Brock from possessing or consuming alcohol, or going to places where he knows alcohol is the primary item of sale, for three years. He has to submit to chemical tests for drugs or alcohol at any time. As a condition of his eventual release, this will be his reality.
It’s a tough sell to say that Brock Turner hasn’t been punished enough.
On the other hand, what exactly are we as a society doing to ensure that he’s appropriately and adequately rehabilitated?
Ladies and gentlemen, I submit to you that Brock Turner is 20 years old, and while this will follow him all the rest of his life, he is going to HAVE a life, and don’t we want to make sure he can be a functional and productive member of society? How can he have any hope of getting there when every news station, social media site, and Facebook timeline have his face plastered all over it with the slogan “I AM A RAPIST” underneath?
Remember Scott Petersen, who murdered his pregnant wife Lacey? Sure you do. Remember this level of vitriol for what he did? No? Didn’t think so. Ponder that for a moment. Let it really sink in, what you’re doing here.
Let me offer a more productive alternative to the continued vilification of Mr. Turner.
You want to be angry? Righteously indignant? Great! It’s good energy, use it to rally people to a meaningful cause to support rape survivors and prevent the ongoing sexual assaults so prevalent on college campuses. Rally people to demand that we educate students about responsible adulting, before we actually throw them into society and make them adult.
Be royally and flamboyantly pissed at Stanford University.
Rage on behalf of the thirty – YES THIRTY – people who reported being sexually assaulted on that campus in 2014 alone.
Rage against the FACT that although Kappa Alpha had a party at their house, with alcohol and underage drinking and girls getting assaulted, there were exactly ZERO repercussions, not for Stanford, not for Kappa Alpha, and not for Michele Dauber, whose program is an abject and utter failure. That’s right, no punishment, no sanctions, no revocation of privileges, nothing. Nada.
Rage against the countless other failures across both the university and the Greek systems until they get drinking, hazing and sexual assaults under control.
Rage against these things, and these things only, because folks, you’ve raged against Brock and Dan Turner and Judge Persky quite enough.
© 2020 The Havok Journal