Mimesis Law
2 June 2020

A Typical Rape Sentencing For Brandon Vandenburg

November 9, 2016 (Fault Lines) — While some convicted college-athlete rapists may get away with what some consider an unfairly lenient sentence, Vanderbilt University football player Brandon Vandenburg got seventeen years. It’s still not enough for the victim, though, who couldn’t bear to attend after a co-defendant got a slightly lower sentence:

She wasn’t there to see a Nashville judge on Friday sentence former Vanderbilt University football player Brandon Vandenburg to 17 years in prison.

The woman who was raped more than three years ago in Vandenburg’s dorm could not go to court again. Not after a prior sentencing in the case, in which another ex-football player got the minimum 15-year prison term.

It’s clear from her letter that she wants the max for Vandenburg, just as she wanted the max for his fellow rapist.

“Please do not use my absence as an excuse for leniency, as it in no way diminishes the profound and insidious impact of Mr. Vandenburg on me and my life,” Norman read.

“I still ask that he receive the full sentence allowed under the law for orchestrating the sustained 30-minute gang rape against me, a defenseless woman who trusted him.

“The minimum sentence is not enough for what this man did to me.”

And prosecutors, of course, asked for a lot too:

Prosecutors sought the upper end of the 15- to 25-year range of possible prison time for Vandenburg’s convictions of aggravated rape, aggravated sexual battery and unlawful photography. But they did not put an exact number on how much time behind bars they believed was enough.

I’ve often thought that prosecutors can be lumped into two categories; those who just ask for the “upper end” or something like that when they think the maximum is appropriate, and those who flat out demand the highest number available. Prosecutors in the latter category often find themselves having to justify to judges why the particular defendant being sentenced is the worst example of the offense of conviction there could be, a paradigm of how to commit the crime in the worst possible way and someone without any redeeming qualities. Perhaps that’s why prosecutors in the former category exist.

Regardless, it’s odd to me that prosecutors wouldn’t be more specific. They charged the person. They’re aware of the applicable sentencing range. They should know the specific facts of the case and have at least some idea about the defendant’s personal circumstances. Accordingly, they should know the value of the case. There’s a bit of a problem when the people pursuing a conviction in the first place aren’t willing to be specific about what they want. To simply tell the judge they want something in the “upper end” of the range is punting, making the judge do the hard work. At the end, every case with a prison term comes down to a number. Before starting the case, a prosecutor should really have some idea what that number should be.

The victim, on the other hand, didn’t hesitate to ask for the maximum, which is understandable given the awful facts of the case. Unlike a prosecutor, a victim has no duty to do justice. Nobody expected the victim in Vandenburg’s case to exhibit any sort of impartiality. In fact, if she happened to be too reasonable or too detached and understanding, it might have served to make others involved with the case view the crime as less heinous than it was. She reacted exactly as most people would expect.

As is almost always the case, there was mitigation on the other side:

Nashville Criminal Court Judge Monte Watkins agreed with the state on those two points. And before he handed down the 17-year term, he also noted that 23-year-old Vandenburg had community support and seemed remorseful.

Few if any people are as bad as the worst things they’ve done. Vandenburg is young, and he’s probably got some good things going for him. At the very least, he got into a good school. People clearly care about him:

Two family friends and a jailhouse minister took the witness stand in Watkins’ fifth-floor courtroom at the Justice A.A. Birch Building in downtown Nashville. They said they believed Vandenburg was not dangerous and could be rehabilitated after prison. More than 30 letters were sent to the judge in support of Vandenburg, lawyers said.

What’s maybe harder to gauge is his remorse, and it’s good the article only noted Vandenburg “seemed” remorseful. Remorse, unlike community support, is pretty much unknowable. Most defendants say they’re sorry. While some obviously do it in a way that minimizes their actions or dodges directly accepting responsibility, far more identify what they did wrong and apologize for it. What the judge is really using as a mitigator is how well Vandenburg’s actions conform with his preconceived notion of what a remorseful person would say and how he would say it.

Vandenburg himself, a one-time top football recruit at tight end, echoed that, begging for mercy and asking the victim, whom he formerly dated, for forgiveness.

Towering at 6 feet 6 inches tall, Vandenburg addressed the judge with little emotion, flanked by his lawyers, Perez and Randall Reagan of East Tennessee.

It’s hard to say how exactly it came off, but on one hand, Vandenburg is saying the right stuff. His lack of emotion may be a problem, though. Plus, although it’s something totally beyond his control, Vandenburg’s size might make the crime come off as even worse. At least he was able to mitigate some of the offense as well:

But he also said his actions were out of character and he was an inexperienced drinker under the influence of alcohol. He said his actions ruined many lives.

“It seems inadequate to try to explain how this all happened,” he said. “I go over and over this in my mind and try and replay what could have been done to prevent the events of that night.

“I am ashamed of myself that I was so irresponsible with alcohol, which led to something tragic.”

Unfortunately, that statement was likely not that persuasive. Many judges would see that blaming alcohol is way easier than not offering an excuse at all for committing rape. Almost everyone in the system blames drugs or alcohol for their crimes. It may be true, but judges become desensitized to it. Not every inexperienced drinker has too much and organizes a gang rape, after all.

After weighing everything, the judge made sure that Vandenburg will be forty when he finally gets out. Plus, there’s more to his sentence than just the prison time:

The sentence does not include parole eligibility, meaning Vandenburg must serve all 17 years. He is already on the sex offender registry and will be there for life based on his crimes.

If true, that’s perhaps the most notable part of Vandenburg’s sentence. He will do the time. There will be no outrage when he gets out while the case is still fresh in people’s memories. Then, he’ll be on a humiliating, dehumanizing registry for the rest of his life. For the victim and the prosecutors, seventeen years plus all of that is probably too little. For Vandenburg and the people who love him, any little part of it is probably too much.

Sentencing is messy business. Had Vandenburg been looking at five to fifteen, maybe fifteen would’ve been enough for the victim and prosecutors. Had he been looking at twenty-five to life, maybe twenty-five wouldn’t have cut it. It’s impossible to say. Few outsiders will look at his sentence and rally to kick the judge off the bench for excessive leniency. They won’t make him the poster child for harsh sentencing either.

Brandon Vandenburg’s sentence was both typical and important. It was typical in that most rape cases involve someone who made a horrible decision but didn’t lead an entirely despicable life. It was also typical in that the victim and prosecutors wanted more time, the defense wanted less, and the judge struck a balance. It’s important because it shows how things really work. Every sentence, whether low or high, isn’t cause for outrage.

7 Comments on this post.

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  • Chris Halkides
    9 November 2016 at 11:14 am - Reply

    I am not an expert in sentencing or in law, but his sentence strikes me as slightly too long for a couple of reasons. One is that from what I understand, he did not actually sexually assault the victim himself but encouraged others to do so. IMO doing something is worse than encouraging others to do it. Second, a penalty for rape of 15-25 years does not leave enough space for longer sentences for even more serious crimes. Murder is obviously the most serious, but deliberately causing someone to lose a limb or lose their sight is also more serious than rape, which is serious enough. I can understand sentences of 15-25 years for causing someone grievous bodily harm, but 5-10 seems more appropriate for rape, unless there were aggravating factors. My second argument applies to Corey Batey, one of Mr. Vandenberg’s friends.

    • Greg Prickett
      9 November 2016 at 4:18 pm - Reply

      Chris, encouraging the gang rape of a passed out former girlfriend, and when the only reason that Vandenberg did not rape her too is the fact that he was unable to get an erection, is not, IMO, justification for leniency. Plus, the way I understand the Tennessee law of parties, someone who participates as an accessory is just as guilty of the primary offense as the principal.

      As a former cop, I don’t have a problem with a 17-year sentence for rape. In most cases the defendant will only serve 25-50% of the sentence anyway, although some states are more strict (like Texas).

  • stevie g
    9 November 2016 at 5:31 pm - Reply

    BV’s previous lawyer, now disbarred, thought he would get 23 years. But honestly, Judge Watkins seemed passionate at sentencing, stating that there were “no winners” in this case. He also gave Corey Batey, who actually did something, the minimum of 15 years. I think Mr. Batey’s mom helped him by testifying, and we didn’t hear from BV’s parents.

    BV had many chances to accept responsibility, but he seemed clueless about what he did wrong. He even had consensual sex with the victim the next day, in order to taint any evidence. Sadly, the victim thought she was still a virgin until that day. BV told his “girlfriend” how he had to take care of her the night before and it was horrible. It was not until detectives showed the victim pictures, that she had to admit the truth of what had happened to her.

    Had there not been a video or pics of the evidence, chances are that there would have been no provable case here. But BV was questioned without counsel and admitted there was a video. They all thought it was deleted, but the detectives flew to California and found a copy of a friend’s computer, which had synced to his phone. Again, not a good idea to talk to cops. Or cooperate or try to outsmart them. Or send or receive evidence in a criminal case.

    There are two other defendants who are still playing football at other schools. They got lawyers and cooperated with the prosecution. Only one of them testified at trial. The prosecution claims that no deal was reached (wink, wink) and that they face trial if they don’t have an agreement. In order to prevent having to turn over Brady information, the prosecution simply delayed the deal they will now make with the other two.

    So this case has a lot of the elements that Fault Lines readers will recognize, and lots of caveats.

  • Chris Halkides
    9 November 2016 at 8:36 pm - Reply

    In rereading about this case, I realized that I had forgotten how egregious it was. What about youth and lack of prior records as grounds for a modicum of leniency? The other aspect of the case that is disturbing is that at least two people who participated in the rape will probably be sentenced to much shorter periods. From what I can gather, they were dismissed from their respective football programs when this scandal broke.

  • stevie g
    10 November 2016 at 1:33 pm - Reply

    Brandon Desean Banks (born December 21, 1987) is an American Canadian football wide receiver and return specialist for the Hamilton Tiger-Cats of the Canadian Football League (CFL). He was signed by the Washington Redskins of the National Football League (NFL) as an undrafted free agent in 2010. He played college football at Bakersfield College and Kansas State.

    Unbelievably, he rejected an 8 year offer from the prosecution. He will get at least 15 years at trial.

  • Anon
    12 November 2016 at 1:33 pm - Reply

    “Seemed remorseful” / “But he also said his actions were out of character” / “didn’t lead an entirely despicable life.”

    Pro-tip: A remorseful defendant admits that he’s a shitbag, rather than trying to maintain his self-esteem with some epiphenomenal”that’s not the real me and whatever bad ‘happened,’ was the result of external influences” bit. The “real you” is despicable, Brandon, accept it.
    And seriously, “My judgment was severely impaired and I’m sad for everyone involved”? That’s how you get tonned by the judge. Who the fuck talked him through sentencing?

  • Picador
    14 November 2016 at 12:13 pm - Reply

    “Prosecutors sought the upper end of the 15- to 25-year range of possible prison time for Vandenburg’s convictions of aggravated rape, aggravated sexual battery and unlawful photography. But they did not put an exact number on how much time behind bars they believed was enough.”

    I’m a little wary about this bit of reporting. The “upper end” of a 15-25 year range is 25 years. That’s why it’s called an “end”, not a “portion” or “half” or “segment” or whatever.

    When I come to the “end” of a 5-mile run, I’ve run 5 miles, not some unspecified number of miles.