Ashton Kutcher and Mila Kunis’s leniency letters submitted for Danny Masterson’s garnered a lot of public outrage. Some suggest that no letters ought to have been written for a convicted rapist who had not acknowledged guilt. Many believe that it is impossible to support and believe victims and simultaneously act for the benefit of convicted aggressors. For instance, Kathy Griffin speaks eloquently of what she views as the only defensible choice—unconditional support for victims. She cites her decision not to support her pedophile brother as well as her repeated attempts to get the police to arrest him for physically abusing his girlfriends as evidence that such a choice is possible even if it comes at a steep emotional cost.
After significant public backlash and failed efforts to disentangle his public efforts to combat child sex trafficking from what he believed would be private support for Danny Masterson, Ashton Kutcher stepped down from the board of an anti child sex trafficking organization he co-founded writing, “victims of sexual abuse have been historically silenced and the character statement I submitted is yet another painful instance of questioning victims who are brave enough to share their experiences.” This led me to wonder whether Ashton Kutcher could have written any character letter that could have argued for leniency without undermining support for victims and reinforcing harmful tropes about women who allege sex crimes?
In Part I of this post, I first explain my understanding of why character evidence is permitted in sex crimes trials. I then look back at a handful of other cases in which character evidence sparked significant public outrage to get at the flawed reasoning such character evidence belied and the evolving public sentiment about such evidence. In Part II, I will address how leniency letter writers who take #MeToo seriously might think about crafting a plea for leniency and what kinds of arguments and tropes ought to be engaged or avoided.
Good Character Evidence
Why does our criminal justice system allow character letters? Even when the federal criminal sentencing guidelines were mandatory, judges still had discretion within a sentencing range and could consider such evidence. Why? It stems from the belief in the importance of individualized sentencing. American criminal sentencing, particularly post Booker, occurs on the axis of both offense character AND offender characteristics. Since we operate in an adversarial system, we rely on each side to put the best case forward and trust the judge to take all of that information into account as appropriate when sentencing. The victim may offer a victim impact statement describing how she experienced and continues to experience the crime and she or the prosecutor may also encourage others to write letters opposing leniency and providing negative character assessments of the defendant. Relatedly, the defense has the opportunity to provide the judge with a full view of the individual subject to sentencing. That may occur through allocution and through evidence from third parties. In so doing, federal judges must consider the history and the characteristics of the defendant and under 18 U.S.C. 3661, “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” At the same time, judges ought not place too much weight on such letters nor allow them to undermine the finding of guilt. While they are part of sentencing proceeding, judges are generally not required to acknowledge them in any way when issuing a sentence, though they may choose to do so. Anecdotal evidence suggests that judges do in fact meaningfully consider such character evidence, though the effects on actual sentences are likely very modest at best in most cases.
Good Soldier Defense and Its Elimination
But if we look back at recent history, character evidence once played a much more significant role in a subset of sexual misconduct trials. As Professor Elizabeth Hillman has written about in more depth, “former Rule 404(a)(1) allowed evidence of general ‘good military character,’ as well as proof of pertinent character traits, to be admitted on the merits” in court martial proceedings. Military courts permitted such evidence to allow the inference “that because the accused is a person of good character and people of good character do not commit crimes, the accused must not have committed the crimes charged.”
In other words, military criminal defendants could rely on character witnesses who would testify that the soldier was a leader or a good employee, excelled at assigned duty, got along well with others, performed admirably in past conflicts, and/or was someone with whom they would want to go into combat. Such evidence was thought to provide compelling evidence as to lack of guilt as opposed to the simply an argument for leniency. Why? Looking back with the benefit of hindsight, such evidence seemed to rely on an unspoken and empirically unsound belief that only bad soldiers rape. Of course, the good soldier defense was available for any crime under the UCMJ, not just sex-related ones, but the assumption of a relationship between good soldiering and not raping is particularly pernicious in a system where hyper-masculine norms and extreme deference to hierarchy both make sex crimes more likely and more difficult to successfully prosecute. Moreover, court martial panel members seem particularly likely to think that those high-ranking officials who testify as to the good character of a defendant may in fact know more and better about the case than they do and thus view the testifying officials as vouching for the defendant as regards the particular crime.
It took at least two high-profile cases to help prompt Congress’s elimination of the good soldier defense as applies to sex crimes. In 1998, relying on extensive character testimony about the defendant’s “good military character,” a court martial acquitted Sergeant Major Gene McKinney on numerous charges of sexual misconduct against six women. The defense counsel correctly noted that “in military law, character does count, and character alone may be enough to cause reasonable doubt.” McKinney, as a high-ranking member of the military was well positioned to take advantage of such a defense and had numerous other high-ranking individuals testify on his behalf including a four-star general. Given the strong evidence of McKinney’s guilt, the case garnered some negative national attention and calls for reform. The second case involved the 2013 dismissal of Lieutenant Colonel James Wilkerson’s court martial conviction for rape. In that case, Lieutenant General Craig Franklin relied at least in part on good military character evidence that came in after the sentence to dismiss the court martial panel’s verdict concluding that Wilkerson did not in fact commit a sex crime. The outcry surrounding these cases and others like them prompted Congress to both eliminate the good military character defense as relates to sexual misconduct charges and the commander’s discretion to overturn verdicts and reduce sentences. While this brought the military more in line with civilian courts on these issues, both military and civilian courts may consider character evidence for purposes of sentencing.
Character Evidence in the Brock Turner Rape Trial
So how might character evidence be considered for sentencing purposes in sex crime trials? I think it is helpful to look at the Brock Turner trial. This is not a claim that how the character letters affected Turner’s sentencing was necessarily typical, but rather a claim that the letters are typical in reinforcing certain tropes as relate to persons accused of rape.
By way of background, after a widely publicized trial, a jury convicted Brock Turner of numerous sex crimes. Judge Aaron Persky handed down a six-month sentence with three years’ probation. Judge Persky referenced the character letters written on Turner’s behalf numerous times. First, as evidence of “a period of, essentially, good behavior.” Second, he found them to be compelling evidence of the collateral consequences of imprisonment, noting “I think you have to take the whole picture in terms of what impact imprisonment has on a specific individual’s life. And the impact statements that have been—or the, really, character letters that have been submitted do show a huge collateral consequence for Mr. Turner based on the conviction.” And lastly, he noted the letters showed that the defendant’s character had been positive until that night, quoting a friend who wrote, “If I had to choose one kid I graduated with to be in the position Brock is, it would never have been him. I could name off five others that I wouldn’t be surprised about.” Based on this and other similar letters, Judge Persky concluded, “to me, that just rings true as to—it sort of corroborates the evidence of his character up until the night of this incident, which has been positive.”
The letters demonstrate a number of problematic rape tropes. First, many letter writers reference Brock Turner’s dedication as a swimmer or as a friend as evidence of innocence rather than reasons for leniency after considering the whole of a person. Comments like “Though the jury found him guilty of assault with intent to commit rape, I know that Brock would never knowingly and purposefully commit rape.” In addition, Professor Jo Anne Sweeny identified several rape myths that appeared in Brock Turner’s letters, myths that I will discuss in Part II as also present in letters for Danny Masterson or other post-#MeToo trials. These include the good guy/monster myth in which rapists are only “subhuman-looking stranger, violent, mentally deranged, impulsive [individuals] with no access to consensual sex” and conversely, rapes are never committed by good guys against people they know. This myth also implicitly signals that rapes are rare rather than frequent and thus a rape in this particular case would be unlikely. Another common myth is the “miscommunication/ both [parties were] drunk myth” in which “acquaintance rape is understood as an (albeit extreme) instance of miscommunication, where both man and woman fail to interpret the other’s verbal and non-verbal cues, with the resulting communication failure ending in rape.”
In the follow-up post, I hope to address how one could write leniency letters that acknowledge the insights of the #MeToo movement, respect victims, and provide a helpful glimpse into the offender’s character. In so doing, I want to think through what my co-Justia colleague Joe Margulies’s social forgiveness might mean in a #MeToo setting.
 While I write a lot about #MeToo, I am not a criminal law expert, so I bounced my thoughts off my much better informed colleague Margareth Etienne.