There has been a lot of discussion and shaming surrounding the Stanford rape case—of the defendant Brock Allen Turner, presiding Judge Persky, and the criminal justice system as a whole. It’s the digital world equivalent of a lot of loud yelling, fist shaking, and rotten fruit throwing. There has, however, been fewer discussions—or lesser, quieter sentiments perhaps—about reparations for the victim. It’s like we consider punishment and shaming as society’s first responsibility, greatest strength, and ultimately effective means of seeking justice. As important as the prosecution and sentencing process is in the defense of sexual assault victims, we shouldn’t rely so heavily on the perpetrator’s punishment to right their wrong, especially when many, if not most, cases of sexual assault can’t lead to prosecution, a guilty verdict, and sentencing at all.
On January 18, 2015, while bicycling through the Stanford campus, students Carl-Fredrik Ardnt and Peter Jonsson saw a young man, Brock Allen Turner, on top of a young woman on the ground behind a dumpster. The woman was not moving, and Turner was thrusting his hips into her. Ardnt and Jonsson approached and asked Turner what he was doing. Turner stood up, and Arndt and Jonsson saw that the woman still wasn’t moving and was in fact unconscious. Horrified, they called Turner out and Turner fled. Jonsson chased after him and caught him. Ardnt and Jonsson then called the police and restrained Turner until police arrived.
The victim, referred to as Emily Doe to protect her identity, woke up the next morning in the hospital with pine needles in her hair, abrasions on her extremities, and no memory of the assault. She underwent an invasive examination, resulting in the following evaluation: her anus and vagina had been exposed to the outside, her breasts had been groped, fingers dirty with pine needles and debris had been jabbed inside of her vagina, and her bare skin and head had been rubbed against the ground.
What followed was a grueling legal battle over the validity of Emily Doe’s victimhood. Turner did not recognize his criminal responsibility, blaming intoxication and claiming consent. Over the course of the trial, Emily Doe was confronted with unreasonable scrutiny and humiliating, irrelevant questioning meant to delegitimize her. As the GIRLS cast point out in their PSA video, this is often the default reaction to a victim of sexual assault: to disbelieve, silence, and shame. In response, Emily Doe found the courage to articulate her experience of absolute vulnerability with clarity and dignity.
Regardless of the circumstances that lead Turner to doing what he did, he did do it, and on March 30, 2016, he was found guilty of three felony counts—assault with the intent to commit rape of an unconscious person; sexual penetration of an unconscious person; and sexual penetration of an intoxicated person. Emily Doe was vindicated.
The Stanford rape case would likely have disappeared from current-event-consciousness into the oblivion of countless similar campus rape cases were it not for the surprising turn at Turner’s sentencing on June 2, 2016. The maximum sentence Turner faced was 14 years imprisonment. Prosecutors recommended six. Judge Aaron Persky sentenced Turner to just six months imprisonment, three year’s probation, and lifetime registration as a sex offender—what Gavin Kovite, a prosecutor friend of mine, says is akin to “a sweet plea deal,” not the sentence in a contested case where the criminal hasn’t admitted criminal responsibility or expressed remorse.
The vast majority of voices responding to Judge Persky’s sentence would have it that the term of Turner’s imprisonment and probation be much longer, to appropriately symbolize the severity of his crime and society’s absolute non-tolerance policy towards sexual assault in all its forms. This is both social and legal progress, because campus rape, like acquaintance rape, has historically been regarded as not a big deal and not prosecutable, because it’s not “rape rape”—a sodomist psychopath lurking in the bushes with a razor blade.
Within a civilized justice system, sentencing should impose the most lenient, effective punishment that neutralizes the threat of the present criminal and deters future criminals. Sentencing should not, however, seek vengeance. Perhaps Judge Persky is right, and Turner will only need to witness his reputation and future dissolve before his eyes, six month’s imprisonment, three year’s probation, and lifetime of registering as a sex offender to neutralize the threat of him re-committing sexual assault. Perhaps not. Judge Perky’s humanization of Turner-the-criminal is not abominable. However, Judge Persky’s restraint did in fact favor leniency at the expense of deterrence, and he deferred responsibility for the denunciation of the crime onto the rest of society, which, unfortunately, isn’t historically good at humanizing criminals and refraining from seeking vengeance.
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. Rather, disproportionate punishment on the light end diminishes the symbolic severity of the crime, and disproportionate punishment on the heavy end encourages perpetrators to recognize themselves first and foremost as victims. Any punishment that is purposed towards vengeance, as opposed to rehabilitation and reintegration, is doomed to failure.
The Stanford rape case is the latest example of the problems afflicting our justice system regarding, yes, the unfairness of sentencing, but also, our reliance on sentencing to do right in response to wrongdoing.
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. Fortunately, this is not the case. A sentence is not the only signal society can give that the severity and consequences of a crime matter. We can pay attention and care about the suffering of the victim, whether they are vindicated in a court of law or not. We can mandate educational programs that encourage awareness of the risk factors of campus sexual assault and rape, and educate youth on how to communicate and recognize consent. We can create safer environments for a victim to come forward and find solidarity and support, whether they can prove the assault occurred or not. We can embrace a victim through their recovery, offer them resources, give them voice, recognize their value and struggle, whether we recognize and punish the perpetrator or not.
In many, if not most, cases of sexual assault and rape, the crime is difficult to ascertain and, therefore, prosecute. While DNA testing and forensic evidence can prove sexual contact has taken place, the line between sexual contact and sexual assault is drawn by consent, the evidence of which often comes down to what he says versus what she says. In such cases, the crime cannot be determined beyond a reasonable doubt, and the justice system must rule in favor of the defendant. “It is better that ten guilty persons escape than that one innocent suffer,” states Blackstone’s ratio, one of the founding principles of our justice system, otherwise known as the presumption of innocence.
This is why it is especially important in cases of sexual assault, where, unlike any other crime, the proof is so often intangible, that we not confuse helping victims with condemning the accused without trial. It is important that society not necessarily correlate condemnation of the criminal with recognition of the victim, and in so doing deny the support and reparation a victim deserves. A better society is one that symbolizes the condemnation of a crime through the recognition and reparations to the victim more so than through reliance on the condemnation of the criminal.
Published by the West Seattle Herald 06/13/2016.