Last Friday, Brock Turner was released from the Santa Clara County Jail. Mr. Turner is the former Stanford undergrad convicted by a jury of sexually assaulting an unconscious woman. The prosecutor sought a prison term, but the judge sentenced Turner to six months in the county jail, followed by three years on probation. Because he behaved himself in jail, Turner was released after three months, consistent with California law.
The sentence has led to a tremendous backlash—against Turner, of course, but also against the judge, who voluntarily removed himself from hearing criminal cases and is now the subject of a vigorous recall campaign spearheaded by Michele Landis Dauber, a Stanford law professor.
But what exactly is the criticism in the Turner case? For many, the answer to this question is obvious—so obvious that they have not paused to consider the question carefully. But care is demanded, for in truth, there are two, very different complaints. Admittedly, they are related, but they reflect different criticisms about society. Observers have not paid sufficient attention to this complexity. But the solution endorsed by the State of California is likely to make one problem far worse, without making the other any better.
Certainly the most common charge is that Turner got off far too easily, and that anytime a man undresses and digitally penetrates an unconscious woman, he richly deserves to be sent to prison. U.S. Representative Eric Swalwell (D-CA), who represents the San Francisco Bay area, expressed a common sentiment: “There is no justice in the light sentence and early release of Brock Turner.”
To prevent sentences like this in the future, the California legislature changed a provision of state law that had distinguished between the forcible sexual assault of a conscious victim and the sexual assault of an unconscious victim. In the former situation, California law required a mandatory minimum prison term. But in the latter, the assault was not considered “forcible,” and a judge could order probation in lieu of prison, as the judge did in the Turner case. Under the new law, both offenses require a prison sentence, from a minimum of two years to a maximum of 14 for first-time offenders.
Supporters of the legislation are clear about its purpose: to punish offenders like Turner, certainly, but also to alter what they see as a culture of male privilege. Santa Clara County District Attorney Jeff Rosen, for instance, whose office prosecuted Turner and who sought the new legislation, asked rhetorically, “Why under the law is a sexual assault of an unconscious woman less terrible than that of a conscious woman? Is it less degrading? Is it less tragic, less traumatic?” And Assemblyman Bill Dodd (D-Napa), a co-author of the legislation, argued on the floor of the California legislature, “If we let a rapist off with probation and little jail time, we re-victimize the victim, we dissuade other victims from coming forward and we send a message that sexual assault of an incapacitated victim is just no big deal.”
Many people make a second charge—viz., that if Turner were poor, and especially poor and minority, his sentence would have been considerably more severe and he would not have escaped prison. In discussing the case in a radio interview, Professor Dauber recently railed against a double standard in criminal justice:
We have one system of justice in this country, and we need to make sure … that when an individual does perpetrate an offense, that they’re subject to the same kind of justice and to equal justice, regardless of who they are, whether they have high grades, whether they are a Stanford student or not, whether they are an excellent elite athlete or not. Everyone needs to be subject to the same standard.
Of course, I recognize that the criticisms are related. I suspect many people feel, correctly in my view, that Turner got off easily because he is not poor or a person of color. But ultimately the criticisms are not the same. Fundamentally, the former is about feminism. It says, “Men do not understand the reality of sexual assault against women, and we need to make absolutely clear that all forms of this conduct will be punished severely.” This criticism applies regardless of whether the offender is white or black, rich or poor.
In contrast, the latter criticism is fundamentally about racism and classism, and attacks a culture of white elite privilege. It says, “If rich white kids get a break, so do poor kids of color. If poor kids of color don’t get a break, neither do rich white kids. We need to make absolutely clear that justice can’t depend on the color of your skin or the size of your bank account.” It applies regardless of the offense, and regardless of whether the offender is male or female.
I feel strongly that both problems—which we might shorten as male privilege and white privilege—are unpardonably severe in contemporary society. But observers have generally neglected how these two complaints interact in this particular case. Turner’s victim was a fellow Stanford undergrad. She read an extraordinarily eloquent and articulate statement in court that described in aching detail how Turner’s assault had affected her. The statement is available online and has apparently been downloaded more than a million times. No one doubts its enormous impact on the debate surrounding the Turner case, nor should they.
Yet the very power of the victim’s statement forces us to consider whether the mainstream feminist critique—as applied to this case—obscures the race and class critique. That is, I wonder whether we are appalled at Brock Turner’s treatment precisely because his victim expressed herself so beautifully. We recognize her as one of the “good” people, which makes me wonder whether we would see and hear the same reaction if the victim had been an uneducated woman of color. As Mr. Rosen asked, is her suffering less tragic, less traumatic? If it is the same—and of course it is—we have to ask why it took this particular case to produce a change in the law.
So we are presented with a situation in which the feminist critique emerges because of the problems of race and class presented by Turner’s sentence. We feel compelled to protect women as a group, at least in part, because this woman in particular was not an uneducated woman of color.
In fact, what gives us any confidence that a newly minted mandatory minimum will be used against the next Brock Turner? Isn’t it at least equally likely, given what we know about race and the criminal justice system, that when we create more carceral weapons, they will most likely be used against people of color?
Indeed, recent research shows this may be particularly true in the prosecution of sex offenses. For instance, roughly 750,000 people in the United States are registered sex offenders, two-thirds of whom are white men. Yet the sex offender registration rate for blacks is twice that of whites. The fact is that creating a mandatory minimum for a specific crime will not reduce white privilege when there are so many ways for white defendants to avoid the most draconian consequences of the carceral state.
Brock Turner’s sentence exposes two, ugly aspects of American society: White men get a break when they mistreat women, and whites get breaks that people of color do not. But the response to Turner’s sentence threatens to exacerbate one to ameliorate the other. If that is our choice, we should at least be explicit about it.
“White men get a break when they mistreat women, and whites get breaks that people of color do not.”
I’m sure all things being equal that this is true to an extent but also sure many black women will speak of “breaks” that black abusers received too.
Brock Turner received if anything a bit more than the woman who wrote the probation report to the judge recommended. Defense attorneys, I have seen this, defended the sentence. Said it was in effect the “going rate,” reasonable. The essay here also does something I saw argued — that more strict applications of the law will in practice disproportionately effect minorities. But, the essay only goes half-way on the overall subject. Not sure if that is backed up.
Maybe the fact that there were pine needles and other debris found inside her vagina is proof enough? The items found would have to be inserted or impacted through a penetration incident.
I do not believe that your statement is correct. From what I can gather pine needles were found in her hair. However, my understanding is that Mr. Turner acknowledged the digital penetration.
If you’re going to write articles like this, you need to get your facts straight. The victim was not a fellow Stanford student. Had you read the victim’s statement, you would have known that.
I don’t recall seeing the victim’s university affiliation in her statement, but it is in trial testimony, which Huffington Post uploaded to DocumentCloud in July (in two parts, 48+20 pages). I know the school, but in the trial transcript, it’s redacted, but clear that it was not Stanford.
You say that “Turner’s victim was a fellow Stanford undergrad.” This is not correct. She had already graduated from college — a different college — while he was a Stanford freshman. The facts in any case are important, of course, but particularly in this one, wreathed as it is in perfervid bloviations. I might have hoped for a little more care from a law professor.
On the question of privilege: the Turners appear to be lower-upper-middle class people, not rich people, certainly not powerful people. The father is an engineer of some kind. If there is true privilege, it belongs to the “victim,” Emily Doe. According to the court documents, she belongs to a powerful and wealthy — though unnamed — family in the Palo Alto area. The media has said not a word about this, nor about possible behind-the-scenes influence exerted on her behalf.
I have two issues with this article. One, former Baylor football player Sam Ukwuachu received virtually the same sentence as Brock Turner for a sexual assault that was arguably more violent. This example puts a dent in the notion that Mr. Turner’s race led to a lenient sentence. Two is that Michele Dauber herself does not entirely believe in equality before the law. In her letter to the court she said, “He has a loving and supportive family; it is these are not advantages that justify leniency. If anything, they suggest that he is entitled to less latitude than someone who was born into poverty, gangs, and drugs and had little choice but to participate in crime in order to survive.” Professor Dauber’s remarks are problematic: She almost makes it sound as if the support that Turner received from his family should count against him. One wonders what her reaction would have been if his family had been less generous. Her argument has other flaws: I could understand leniency for burglary if someone were poor, but I don’t see how poverty is related to sexual assault, one way or the other.
The victim says she didn’t think he should “rot away in prison,” not that he should go free. The sentencing range for attempted rape is 2-6 years, and for each count of sexual assault, 3-8 years, which is incidentally the same range for rape, the difference apparently being that with an unconscious victim, the judge has latitude to go below minimum sentencing laws in “unusual circumstances.”
I doubt that the victim realized that a sentence less than 2-3 years was even possible. The PO and Persky saw “unusual circumstances” in Turner’s lack of major priors, his youthful age, and promising future. Trouble is, Persky’s “unusual circumstances” would have every campus assault be the exception to minimum sentencing. Assault victims would get no justice on CA college campuses.
One more thing went into consideration, and that was Turner’s expression of remorse, which was profuse in the PO’s interview, and noticeably absent before or after that. Eagerness to make restitution, that must have impressed, too. Well, I suspect Brock was coached, and the PO was snowed by a whopper of an example of more Privilege. Margaret Quinn, character witness letter writer who described herself as “retired” (she said that twice) former prosecutor, family friend and neighbor, is actually a sitting judge in Oakwood. When Quinn said she “met” with the Turners the week before April 28, that rang some bells. “Met” stuck out as odd term, as friends usually “visit”. Brock’s interview with his PO, with many of the same points mentioned, was May 9. Reading the PO’s report after Quinn’s letter, I was struck by the echo in the room. Quinn did a lot of reframing. She avoided the problem of sexual assault, and focused on “campus sexual misconduct” which she would fix with communication. What Brock did was a mistake, an unfortunate chain of events.
No doubt, the PO was impressed with how far along Turner was in rehab, with a plan for the future (EE degree), expressing unbearable remorse, and his eagerness to make restitution, even taking the initiative to meet with a judge (!!) to pursue his goal of speaking on campus to students about the dangers of alcohol/promiscuity. Yep, what Judge Quinn said, making a positive difference by mentoring students on alcohol/promiscuity — in lieu of incarceration.
Local reporters interviewed Quinn about the conflict (judges can’t write letters of recommendation, unless subpoenaed). Quinn saw no conflict because she didn’t use her judge status. But IMO that omission is a serious problem. If the PO and Judge knew she was a judge, what Turner said about meeting with a judge may have raised flags, and they may have investigated whether Turner was as far along in rehab as he seemed, or parroting Quinn. They may have also taken a second look at the prosecution’s argument that Turner lied about drug/alcohol use in high school. Those emails show it wasn’t just a weekend thing!
Quinn/Turner weren’t the only “strikingly similar” terms/themes in those 39 letters, but that’s another topic. Conspiracy theory: an organized effort of rhetorical persuasion.
Professor Margulies paraphrased the feminist critique: “Men do not understand the reality of sexual assault against women, and we need to make absolutely clear that all forms of this conduct will be punished severely.” Amanda Knox wrote about this case: “It would indeed be an important reparation to Emily Doe if somehow society were able to make Turner recognize his wrongdoing. But there is no way to do that. No amount or form of punishment will necessarily make a perpetrator in denial recognize their fault…If it were true that the only way to address the suffering of a victim were through the punishment of the perpetrator, then it would indeed be a travesty whenever leniency was shown.”