Mimesis Law
21 August 2017

Brock Allen Turner: The Sort of Defendant Who Is Spared “Severe Impact”

June 8, 2016 (Mimesis Law) — Ten years ago my firm represented a kid on a minor drug charge. This kid played an instrument – for the sake of this story, let’s call it a xylophone. He approached the xylophone like he approached geometry, by which I mean he often showed up for it and probably wouldn’t fail it.  But by the time we were done writing about that kid in the sentencing briefs, he was the most xylophone-playing motherfucker ever to walk the Earth.  He was the YoYo Ma of xylophones, someone whose skills would make angels weep and the doors of fame and success slam open.

We didn’t do that because people who play xylophones are less criminally culpable than people who don’t. We did it because a defense attorney’s challenge is to humanize their client at sentencing. Judges process dozens of defendants a month, or a week, or even a day.  If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Empathy is a blessing.  But empathy’s not even-handed.  It’s idiosyncratic.  Judges empathize with defendants who share their life experiences – and only a narrow and privileged slice of America shares the life experiences of a judge.

That’s one reason that justice in America looks the way it does.

Last week Santa Clara County Superior Court Judge Aaron Persky sentenced Brock Allen Turner to six months in jail.  Turner will probably do half of that – about the length of a single quarter at Stanford University, where he was a student.  Most people think that was an appallingly and unjustly lenient sentence for what Turner did: brutally sexually assaulting a drunk, unconscious young woman behind a dumpster outside a party.

Judge Persky clearly empathized with Brock Allen Turner.  Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team.  Judge Persky said that sending Turner to prison would have a “severe impact” on him, that he did not believe that he would be a danger to others, and that he was young.  Turner’s victim was not spared a severe impact, despite her youth and lack of criminal record.  Her statement was harrowing. Her sentence is lifelong.

Judge Persky’s empathy fell so far into tribalism that he rendered good defense attorney practice irrelevant.  Dan Turner, the defendant’s father, offered excuses to the court that were frankly repulsive; he suggested that Turner work to warn students about the dangers of “promiscuity” and characterized the attack as “20 minutes of action.”  Turner’s friend, Leslie Rasmussen, indulged in loathsome victim-blaming, suggesting that a Stanford athlete thrusting his hand into your vagina as you sprawl passed out in an alley is the predictable and somewhat justifiable consequence of drinking, and that to pretend otherwise is an example of “PC culture.”  Under normal circumstances such letters would be potentially catastrophic for the defense, which is why careful attorneys take pains to prevent them from reaching and enraging the judge. But Judge Persky’s empathy required no caution or moderation.

Despite what Hollywood would lead you to believe, we criminal defense attorneys do not advocate lenient sentences for all wrongdoers as a matter of policy.  Many of our clients are frequently victims of crime themselves, and their lives are circumscribed by criminal environments.  We don’t believe, in the abstract, that people who tear the clothes off of young women and violate them in the dirt next to a dumpster should go free.  Our role is to stand beside our clients, no matter who they are or what they did, and be their advocates, the one person required to plead their case and argue their interests.

This is the closest our society comes to grace or humility.  It’s grace because we give this support to defendants whether they deserve it by any objective measure, and it’s humility because we know the system is so capable of grave error in accusing and punishing.  So we stand up and talk about our clients’ xylophones.  We don’t worry about whether it would be good for society if our arguments win the day, because that’s supposed to be the judge’s role.

Here’s the problem:  the judges are human, and they’re humans who have enjoyed enough good fortune to become judges.  The quality of their mercy is strained through their life experiences, which don’t resemble the life experiences of most of the defendants before them.

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Sanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.  Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships.  Most aren’t even high school graduates.  Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge.  Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?  How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one?  They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin?  Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.  No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.  Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency.  If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous.  Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

So you won’t find defense lawyers like me cheering Brock Turner’s escape from appropriate consequences.  We see it as a grim reminder of the brokenness of the system.  We recognize it as what makes the system impossible for many of our clients to trust or respect.  And we know that when there’s a backlash against mercy and lenient sentences – when cases like this or the “affluenza” kid inspire public appetite for longer sentences – it’s not the rich who pay the price.  It’s the ones who never saw much mercy to begin with.

There are two ways to see good fortune and bad fortune.  You can say “someone who has enjoyed good fortune should be held to a higher standard, and someone who has suffered bad fortune should be treated with more compassion.”  But America’s courts are more likely to say “someone who has enjoyed good fortune has more to lose, and someone who has suffered bad fortune can’t expect any better.”

Judge Persky and his ilk can’t stop being human.  But they are bound by oath to try to be fair.  When a judge says you are very fortunate and therefore it would be too cruel to interrupt that good fortune just because you committed a crime, they are not being fair.  For shame.

Ken White, who writes about free speech and criminal justice at Popehat.com, is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.

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  • The Brock Allen Turner Rape Case And The Nature of Empathy | Popehat
    8 June 2016 at 10:01 am - Reply

    […] I've got a post up over at Fault Lines about the Brock Allen Turner case. […]

  • Edward
    8 June 2016 at 10:03 am - Reply

    As a defense attorney, I would add – locking someone in a cage and making them register as a sex offender for the remainder of his life (in this person’s case, 60 years or more) is probably an appropriate sentence. However, as a society we view caging another human being as essentially nothing, and people spend life in prison for less serious acts, and spend months in jail before being convicted, that it is viewed as nothing.

    • Lokiwi
      8 June 2016 at 1:34 pm - Reply

      I don’t mean this to be a comment on the appropriateness of this sentence, but it is amazing how casually American society will shrug off a prison sentence of months or years as “light.” I’ve seen complaints about 3 to 5 years being far too light for less serious crimes. I doubt much of the public considers just what the loss of a year or more of freedom would mean to them.

      • Deirdre Saoirse Moen
        9 June 2016 at 10:57 am - Reply

        In general, I’m not a fan of mandatory minimums, nor of especially long sentences. But six months (a misdemeanor-level sentence) seems wrong. If it had been two years, I’d think it was light, but likely wouldn’t be complaining.

        I’m in favor of the lifelong registration in this case, if only because of the recent case of Charles Michael Segaloff (aka Michael Makai). He’d fallen off the sex offender registry requirements and was arrested for transporting a minor across state lines for sexual purposes. He pled out on a lesser charge, but I believe the alarm bells would have sounded earlier (in his case) had he still been forced to register.

        • ben
          9 June 2016 at 7:41 pm - Reply

          I think anecdotes about how absence of a draconian practice resulted in a crime at some point somewhere, are a weak argument in favor of said draconian practices.

          It’s the same line of argument that Trump uses to justify his plan to round up and deport tens of thousands of undocumented immigrants. “Oh look, here is an anecdote of an immigrant who committed a crime but wasn’t deported, and then he committed another crime, here are sad pictures of the victim’s family, therefore we need a Wall and a fascist police state”. No thanks.

          • Longtime_Observer
            11 June 2016 at 11:31 am -

            I would have to concur. The lust for vengeance is driving too much of this and makes for bad law instead of balanced and restorative justice. Imprisonment should be used to the extent it is needed to protect the population. Registration is far more important in protecting the population than imprisonment after he receives treatment. More important here is support for the victim for recovery.

    • LoneRanger
      11 June 2016 at 6:45 am - Reply

      Suppose while in prison the defendent undergoes a complete more and religious conversion, becoming a born-again Christian and travelling the country teaching young men how to behave morally?

      Would he still deserve to be on a public list for the rest of his life, being denied employment with most companies, not being allowed to take his children to school, not being allowed to travel outside of the US?

      • Xanthippia
        11 June 2016 at 11:01 am - Reply

        To answer your hypothetical supposition about the convicted man’s “complete” moral and religious conversion, I would point out that there are plenty of available studies to read that offer statistical analysis showing that when returned to society, people convicted of sexual offenses are far more likely to re-offend than the general population. Will the religious conversion be enough to keep him from re-offending?

        Yes, he needs to be on the list for the rest of his life — he’s a convicted sexual predator. As far as employment goes, let him find a job that keeps him physically occupied and exhausted, and preferably under close supervision if the company he works for has female employees. Further, as far as international travel goes — if I lived in a country other than the USA, I would not want my government to allow this convicted sexual predator to enter the country. I would feel his presence as unwelcome, and I would hope my government would bar his entry.

        And the final point you make, about not being allowed to take his children to school — I have to say: It beggars the imagination to think of any sane woman choosing a convicted sexual predator as an appropriate father for her children.

        You write about “the rest of his life,” meaning the convicted offender’s and nowhere in your post mention any concern for the rest of his victim’s life. His acts resulted in a life sentence for her, too.

        • um nah
          16 June 2016 at 4:15 am - Reply

          You said “there are plenty of available studies to read that offer statistical analysis showing that when returned to society, people convicted of sexual offenses are far more likely to re-offend than the general population [of convicted criminals].” (ftfy)
          cites sex offender recidivism at 12-24%, but according to , general recidivism rates are 3-6 times that—in other words. It (the former link) further notes that “When sex offenders do commit another crime, it is more often not sexual or violent”. concurs.

          In other words, sex offenders are less likely to be arrested for committing further crimes than most other convicts, and when they are re-arrested, it is typically not for sexual offenses.

          And “His acts resulted in a life sentence for her”, really? In your world, is treatable psychological trauma equivalent to irreparable physical injury or death?

          • um nah
            16 June 2016 at 4:18 am -

            Apparently this blog removes links

          • hurt4ever
            18 June 2016 at 2:07 am -

            Just to comment on your statement “In your world, is treatable psychological trauma equivalent to irreparable physical injury or death?”. Yes. I was a victim (not of rape) but of molest and I am still recovering from the trauma since 8 years ago. I am in a support group where there are rape victims who eventually committed suicide or whose studies fell through because of their trauma and depression and eventually gave up on their potentially bright academic future. In our world, yes, psychological trauma is not comparable, it’s worse. Some of us prefer to be dead.

  • Jay
    8 June 2016 at 10:27 am - Reply

    As a public defender, I find you offensive. This kids life is over. I’m sure he’d prefer the cage to his felony and being a sex offender. You’re as clueless as the mob of idiots on social media. You don’t represent me, don’t claim to be one of us.

    • Ken White
      8 June 2016 at 11:03 am - Reply

      As Marie of Romania I accept your rebuke.

      • Mike
        8 June 2016 at 12:25 pm - Reply

        But you are not Marie of Romania. Wait a minute, I get it, that means you think Jay is not a PD.. duh.. that took way too long to put together.

    • shg
      8 June 2016 at 11:20 am - Reply

      “One of us”? Your reach exceeds your grasp.

    • Eli Rabett
      8 June 2016 at 11:31 am - Reply

      As Ghandi said about Western Civilization, that would be a good thing

    • Whandall
      8 June 2016 at 11:40 am - Reply

      A public defender who is unable to separate the person from the behavior? That’s actually kind of amazing. We should have you stuffed.

      • Nop
        8 June 2016 at 7:11 pm - Reply

        Nicely put, Basil.

    • PersephoneK
      8 June 2016 at 11:44 am - Reply

      Jay, so, you think the felony conviction is too severe?

    • Ted Mielczarek
      8 June 2016 at 12:03 pm - Reply

      Shocking news: groups of people do not all share common beliefs! This kid’s life is over because he committed a crime and was convicted for it. This is how the justice system works, even if the result here is imperfect. If he didn’t want this to happen maybe he shouldn’t have committed the crime in the first place?

    • Susan
      9 June 2016 at 3:35 am - Reply

      As a rape victim, I find you offensive. This kid will SHRUG THIS OFF. He has an Ivy league education & EVERYONE HIM is BENDING OVER BACKWARDS to MAKE ALL THIS GO AWAY. Save your moral outrage for someone who isn’t a rapist.

      • David
        9 June 2016 at 1:52 pm - Reply

        Stanford isn’t in the Ivy League! Plus, he’s a Stanford dropout; he doesn’t have a Stanford education.

        And “everyone” most certainly isn’t doing anything like that.

      • The Internet
        11 June 2016 at 5:28 pm - Reply

        As a minimal consolation, he will never receive a Stanford degree in his life, as he’s been expelled and permanently banned from their campuses.

      • dc.sunsets
        12 June 2016 at 3:31 pm - Reply

        I keep hearing that men are more rational and more under control than women, especially given how “rape culture” has exploded onto the scene within the past decade. You would think that he would have known not to put himself in this position by getting drunk. He deservedly goes to prison. Lesson learned.

        I keep hearing that women are wary of “predator men” on college campuses and take the necessarily precautions, especially given how “rape culture” has exploded onto the scene within the past decade. You would think that she would have known not to put herself in this position to get drunk to the point of passing out. She deservedly will have psychological issues the rest of her life. Lesson learned.

        BOTH should take ownership of their choices.

    • Nick
      9 June 2016 at 6:01 am - Reply

      You feel like he would prefer a life sentence to being a registered sex offender and getting freedom after ~3 months? I can’t even climb the mountain of garbage this comment is to try and understand your point of view.

    • JAS
      9 June 2016 at 1:22 pm - Reply

      What about the victim’s life?

    • Oly
      10 June 2016 at 2:27 am - Reply

      His life *should* be over, he ruined someone else’s.

    • ghjk
      10 June 2016 at 11:19 pm - Reply

      His life is over? Fucking good. I hope he dies.

  • The Brock Turner Case | Transterrestrial Musings
    8 June 2016 at 11:44 am - Reply

    […] Thoughts on empathy and lenient sentencing from Ken White (a defense attorney). […]

  • Richard G. Kopf
    8 June 2016 at 11:47 am - Reply

    Ken,

    Great post. That said, given the probation officer’s recommendation of a year or less in a county jail, what sentence would you have imposed?

    All the best.

    Rich Kopf

    • Joe Dokes
      8 June 2016 at 12:03 pm - Reply

      Richard,

      You bring up an excellent point. Given the kid chose to go to trial, you’d think the prosecutor would have asked for a more serious sentence.

      So it would appear that there is plenty of shame to go around. A quick google search implies that the penalty for rape in Ca is 3,6, or 8 years. So the DA didn’t even ask for the minimum.

      • Chuck
        8 June 2016 at 12:29 pm - Reply

        The DA asked for 6 years. The probation office (which is run separately) recommended the lighter sentence.

      • anon.
        11 June 2016 at 10:55 pm - Reply

        Rape isn’t the crime he was convicted of.

    • Ken White
      8 June 2016 at 12:30 pm - Reply

      Judge Kopf,

      I would want to read the probation report before commenting on how it would impact me — the victim’s description of her interaction with probation (in the letter she wrote to the court) is disturbing. In my experience state and federal probation can be both irrationally lenient and irrationally tough.

      Ken

      • Richard G. Kopf
        8 June 2016 at 1:46 pm - Reply

        Ken,

        Fair enough. One other thing, and I’ll go back to my trial.

        Our esteemed editor once imagined The Sentence-O-Matic 1000 with fear and loathing. (See here: http://blog.simplejustice.us/2014/08/03/the-sentence-o-matic-1000/. )

        As you know, we feds use a rough equivalent called the Sentencing Guidelines.

        Perhaps The Sentence-O-Matic 1000 or its little sister the Guidelines are not such bad ideas after all. But what do I know?

        All the best.

        Rich Kopf

        PS You have generated much fascinating discussion. I sincerely admire your work.

  • Brock Turner’s Too Good Friend (Update) | Simple Justice
    8 June 2016 at 11:53 am - Reply

    […] punishment as possible, but because that’s our duty to our client. Ken White explains why at Fault Lines. We expect, hope, to get the lowest possible sentence under the […]

  • Joe Dokes
    8 June 2016 at 12:00 pm - Reply

    Jay,

    While having a felony conviction and sex offender status is a serious and lifelong consequence of his action on the night were beyond the Pale. Simply put, this man’s acts were not defensible in any way shape or form and if he’d been anyone else he’d be serving years in prison, as he should be. Prior to this event the defendant was going to have an easy life. The connections he would make at Stanford would afford him easy access to the middle class or the wealthy class. So yes, his life is going to be a lot harder, as it should be. He will not be lucky to be a member of the middle class and will have both the sex offender status and felony conviction haunt him, as it should be.

    Ken was simply pointing out that the defendant still got of light when compared to many others accused of the same crime. This is the reality of our criminal justice system. This cannot be construed as offensive.

  • Chuck
    8 June 2016 at 12:23 pm - Reply

    As you mention, the judge likely saw himself in Turner–the Stanford athlete with a bright future who would lose so much if sent to prison for years.

    I guess the question this raises for me (which is tangential to the post, admittedly) is why the Santa Clara DA doesn’t have a standard policy of papering Stanford-grad judges in criminal cases with Stanford-student defendants to prevent exactly this sort of outcome. (Unless the Santa Clara bench has so many Stanford grads that reassignment to one would be pretty likely regardless.)

  • Freyja
    8 June 2016 at 12:29 pm - Reply

    This is a very well-written and honest article; actually I am surprised that someone in the profession of law is able to step back from it far enough to see what’s actually taking place in the broken the US legal system. It’s interesting to see that some of the comments focus entirely on the ‘unfortunate boy’ in the case and completely, absolutely disregard the victim of the crime. It is a clear example of how the victim is so easily regarded as a throw-away piece of trash by the legal system when the victim is deemed ‘less valuable’ by society’s standards of value, which is based nearly exclusively on wealth and social status. It has been this way for centuries, and remains so today. The topic of the severely broken legal system does indeed need to be discussed much more, as this article points out. I do not know what the best solution would be; I have never thought about it; I am not in the legal profession, but I can say with certainty from my knowledge gained through scientific studies of human nature and human behavior, that forcing this stupid boy to register as sex offender for the remainder of his life is definitely not the solution (not only because giving him a label to bear will actually create more of the same behavior in him rather than diminish it; that’s just basic human nature that apparently the legal system is somehow ignorant of) nor is slapping him on the wrist, thereby insulting the victim even further (who is now likely to be even further damaged psychologically), essentially teaching him that his wealth and social status is his golden key to escape from pretty much anything he fancies to do at whim in life, regardless of its brutality. I am surprised that the rapist isn’t at least required to pay the victim for the long, arduous process of mental health recovery. And he certainly should spend significant time in jail, so that he can get a taste of what life is like outside of his artificial paradise.

    I am concerned at the way in which some attorneys in the comments section are attacking the author of this article; revealing how mentally disturbed that some attorneys are, and who are apparently not aware of how thoroughly broken the legal system is in the US, and with such attorneys no wonder the brokenness remains. There is another issue not being discussed: the issue of deep mental and emotional disturbance that is pervasive not only within the legal profession on all levels, but also in American society overall. I wonder what is it that has driven this affluent, over-privileged, yet clearly lost and confused boy to engage in a brutal rape; a grotesque sexual perversion? Why has he chosen to use his privileged position to engage in egotistical brutality instead of doing something good and useful in society, since he has the means?

    • David Jones
      8 June 2016 at 9:44 pm - Reply

      I agree with your post. Ken White is not your average defense attorney. His writings on Popehat.com make it one of my favorite sites. I learn a lot and come to understand the interplay between lawyers and the judiciary. He is willing to pull back the curtain and discuss the goings on behind it.

    • Restorative Justice
      9 June 2016 at 10:35 am - Reply

      The system is broken but not for the reasons you explained. The system is not because Brock had an advantage at trial and because the victim had to endure the constitutionally protected adversarial process or because the defendant’s punishment was “not enough.” I take the view that it was — punishment in the US is only measured in terms of the number of months or years to the exclusion of everything else. This defendant will pay a very serious price — a life long price. Just as she was violated from within, he will be violated from the outside in until the day he dies without any possibility of restoration to the position he was in before he committed his offense, whereas she can someday overcome the horrible nightmare she went through.

      Anyways, one of the ways to deal with this is to do away with the American approach — 100+ years of criminal justice policy that has repeatedly failed and either resulted in overly lenient sentences that favour the privileged or overly harsh sentences that have a disparate impact on minorities or mandatory sentences that simply fail everyone. There is an alternative approach in some European countries and in Australia. Its called restorative justice. It requires the consent of both parties — its like a diversion program — but the victim takes the spotlight. Its no longer an adversarial process and the victim has control at every step. Attorneys are still involved but not in the same way: their role is less adversarial and more as counsellors to fashion a sentence that all parties agree with. Instead of just reading a victim impact statement, the victim’s voice can and does also influence the sentence. But, again, it requires the consent of both parties before the process begins, and its not hounded by the media.

      And, here is something you might disagree with, the whole purpose of the process is the restore BOTH parties to the position that they would have been in before the crime. Its not just focused on the victim or the defendant. Many who have used the process, which does often lead to more lenient sentences, have called it “cathartic” and helping “them heal.” Contrast this with the majority of comments on here that seem to argue “if only Brock had gotten 6 years or 26 years or life” would the defendant have “healed.” Many defendants who also go through the process, successfully, and with the consent of the victim, after a certain number of years, have their rights restored. They are not “marked” for life.

      In Brock’s case, he will be marked for life and no one (at least on here), thinks that that is punishment.

      • Freyja
        9 June 2016 at 11:43 am - Reply

        I like the idea of ‘restorative justice’, the way you describe it, if it indeed is carried out that way without some other hidden corruptions, then I think that is a good alternative to the current American way of determining justice, because the American way is too arbitrary, so no, I don’t disagree with you about that idea; it makes a lot of sense. However, that concept would work well in application only within what maybe we could call a ‘reasonably rational’ society; a sufficiently well-educated society that is overall concerned with fairness over revenge. And American society is not that way; so I would be skeptical of how well restorative justice would work in the USA, but it certainly would be worth a try in cases like the above, and if it goes well, expand it to other kinds of crimes. But what happens when the victim of a crime cannot think of anything that would be adequately restorative; for example, what about child rape and molestation, which has life-long consequences on the victim whilst the perpetrator often does not full comprehend that something is ‘terribly wrong’ with what they have done; they are not emotionally connected to the consequences and likely don’t see them and cannot be forced to see them because they are living in their own tiny little broken world (mind) and cannot see very far outside of it.

        Restorative justice sounds great, no disagreement there; but there is one thing in your post that I do disagree with: the statement that the victim will time fully recover. You cannot know that for sure, it depends on several variables that may or may not be available to the victim in her life, so who knows when or if she will recover? The idea that women can ‘get over’ being raped in time diminishes the deep consequences of living in a society where the men rape their women. There are consequences in society overall when things like this happen; the damage does not end with the unfortunate victims. A social mindset is created, propagated, and sustained when men who rape are seen as equally victims to the women, due to having to register as a sex offender. I don’t know what the solution is, but your idea of restorative justice seems worth a try because it does no good in society to ruin two lives through a revenge or punishment attitude. In my conception of restorative justice, I would actually advocate allowing the victim to physically damage the perpetrator, under controlled conditions so that it does not go too far, of course, and the victim would not be allowed to physically damage the perpetrator worse than the physical damage done to the victim. This, I believe would allow the healing process to rapidly speed up for the victim, and it would also allow the perpetrator to know what it feels like to be violated, humiliated, shamed and whatever else is involved… Oh! but wait! there are people who enjoy being treated that way, so that may not work either if men then go out and rape women just so they can experience the restorative justice consequence because it becomes a perversion for them! Hmmm…. I don’t know; how to enforce justice? Can this question ever be satisfactorily answered? …I think life was much healthier for us all psychologically and even physically back when we lived in tribes! 🙂

        • Restorative Justice Responder
          11 June 2016 at 10:33 am - Reply

          A few responses:

          First, restorative justice requires consent of both parties, its no longer an adversarial setting. Its like a settlement conference, the statements and discussions are not admissible at trial if the process breaksdown, and it empowers the victim and also does not marginalize the defendant.

          Second, you advocate “physical damage” to Brock. An eye for an eye? She was fingered. It is not disputed that there was no penile penetration. Again, it doesn’t lessen the damage to the victim, but what would have you have her do, or have done to him? Have him fingered by her? If so, I hope he cleans himself out first, you know with an enema, otherwise she is going to be traumatized twice and have feces on her hands. And to make it “real” punishment for him, so he too gets cuts and bruises inside, she can do it for 20 minutes of action without lube. Your suggestion is simply laughable. Let’s just not go there.

          Third, you go off on tangent discussions about what some people like and don’t like in the bedroom or in their private lives. Its in irrelevant. The purpose of restorative justice is to empower the victim, give her a say and a role in the resolution of the case, more so than a victim impact statement, which usually serves more of a media purpose as opposed to an influence on the punishment (this case is a perfect example). More crucially, however, it also does not marginalize the defendant. Its purpose is to restore both parties, as far as possible, to the position they would have been in before the crime. Its not a “but” we still “have to make sure that the defendant suffers afterwards.” It has a beginning and an end, and the victim has a say, its really a negotiated settlement conference but the victim has a say.

          As for the rape culture and mindset, I am sorry to say this, but empirical evidence backs it up: criminal justice and the severity of the punishment really plays a small role in changing cultures. You don’t change a “culture” by locking up everybody, out of sight and out of mind. It starts with prevention.

          Two lives are ruined. I agree that she may never heal. But she will have the opportunity because society and the legal system will not be an obstacle in her way. He will not. Society and the legal system will forever prevent him from realizing whatever potential he may have had from living a “normal” life. She will have that opportunity. He will not. That punishment for him, is far more serious than 6 months or 6 years, its lifelong and its permanent and will carry over even if he is fortunate enough to ever have kids (which I doubt he will) — the majority of which would have been a waste of tax payer money because incapacitation is not really punishment, its more for protection of the public from an offender that is “more likely than not” (or on the balance of probabilities) likely to re-offend.

          I am truly offended by the anamilistic tendencies of some of the posters on here who advocate physical damage — an eye for an eye — but worse yet, you don’t stop at that, many of you go further, you want an eye for an eye plus cancer squared. I doubt anyone here would complain if the sentence was that he too would be “raped” (digitially penetrated) AND required to register for life as a sex offender. You all purport to occupy the moral high ground, but two wrongs don’t make a right. Enough.

      • Citogal
        10 June 2016 at 1:48 am - Reply

        @Restorative Justice – While I agree that convicts should be given a chance for redemption, the problem here is that Brock Allen Turner and his father Dan Turner do not admit guilt or any type of complicity, and sicced their mongrel lawyer on the victim for more mauling, and then the sympathetic judge piled on to discredit her further by dismissing her experience and ignored the jury verdict and the DA’s sentence recommendation – which at 6 years was midline between 3-9 years. BAT didn’t even get the minimum sentence. A poor man would most likely would have gotten the max, on all 3 counts, probably consecutively.

        No, I don’t think the purpose of the redemptive process is to restore both parties to their state before the crime. That can’t be done. Brock’s state before the crime is to be privileged and have an easy and promising life with the idea firmly in his head that he can take what he wants without consequence. That’s not redemption. That’s amnesia.

        Brock asserts he did not rape his victim, alcohol and the amorphous “promiscuity culture” did that. The victim was willing to ask for leniency in his sentencing if he took any sort of responsibility for his actions. He did not, and continues to deflect. In fact, he wants to go on tour to convince others that if in the same situation, it’s alcohol and promiscuity that is responsible, that is the danger, not that a person is responsible for not assaulting another person. In fact, he is appealing the laughably light sentence he received. That will be no deterrent to anyone else similarly privileged.

        Brock’s actions are not the actions of someone who knows he did wrong and will work his way thru his challenges to come out on the other side as part of a redemptive process. What it will take is for him to stand up and say “yes, I am a sexual offender, and my life will never be the same because I chose to do something to an innocent person, because I chose to view an innocent person as a toy and not as a human. My life *should* never be the same, but I hope by relaying this experience, my respect and grief for the victim, my sincere belief that I did wrong and cannot blame alcohol and rape or promiscuity culture, because I am a man who does not believe my actions can be excused by deflecting.” The current world disdain for Brock Allen Turner is hinging on his lack of self-awareness, that he actually committed a crime. He even says he didn’t intend to commit a crime. And yet he did, and a violent one. And he knew it, because he ran. And he changed his story.

        You also make an erroneous assumption that the victim “can someday overcome the horrible nightmare she went through.” She may *never* overcome, unless, again, amnesia. It will always tinge all of her interactions with men, and not just sexually. And your words dismiss her experience. In some respects, it’s like causing brain damage or catastrophic injury in someone when you caused an accident by drunk driving. Yes, the victim will never be the same, but since we can’t “fix” her or make her whole, shrug and move on, the victim is a lost cause, so let’s focus on the perpetrator and his trauma instead because his worth is higher.

        • Restorative Justice Responder 2
          11 June 2016 at 10:49 am - Reply

          Citogal — There was no minimum sentence. Your sources — double check them.

          The recommendation by probation was 1 year.

          The “severe impact” which the judge took into account is the following: his life is over. Period. Whether its 6 months or 6 years, its not the point. Seriously. A jail cell, probably in protective custody, is just housing. That’s it. Its the lifelong sex offender registration and felony record that is the “severe impact.”

          And, I am not making an erroneous assumption. In purporting to defend the victim, you are also depriving her of any agency. You are drawing hollow assumptions. My reference is limited to the structure of the legal system. As I said above, two lives are ruined. I agree that she may never heal. But she will have the opportunity because society and the legal system will not be an obstacle in her way. He will not. Society and the legal system will forever prevent him from realizing whatever potential he may have had from living a “normal” life. She will have that opportunity. He will not. That punishment for him, is far more serious than 6 months or 6 years, its lifelong and its permanent and will carry over even if he is fortunate enough to ever have kids (which I doubt he will) — the majority of which would have been a waste of tax payer money because incapacitation is not really punishment, its more for protection of the public from an offender that is “more likely than not” (or on the balance of probabilities) likely to re-offend.

          There are more than 1,200 collateral consequences of a felony conviction. There are perhaps triple the number of collateral consequences for a person convicted of a sex crime on the sexual offender registration. His passport will be marked a sex offender for the rest of his life even if he chooses to leave the country. When and where should his punishment end? The authority of the state to punish does not derive from the victim’s sense of vengeance. At some point, over punishment, and we have seen this, leads to recidivism in other fields — i.e. a sex offender with no job prospects and no ability to obtain legal (not societal) and with no rich family to back him up — is eventually going to, guess what, steal to eat. He wont even be able to get a job at McDonalds!!! We are shooting ourselves in the foot and we keep repeating the cycle and then we complain that we have too many people incarcerated….

          In any event, the judge took a courageous decision. I also think her victim impact statement actually helped him, not her. It probably showed the judge what awaits the defendant upon his release: a life of scorn, humiliation, devoid of any possibility of redemption. The judge could have been more articulate. And, I repeat what other posters have stated: the victim impact statement is an attack on the system — she wanted a trial where Brock admits his guilt — that’s not what happens in a trial. Its a binary process where both sides, swords drawn, play a contact sport. And even after conviction, he is going to be appealing, so to expect a confession at this point, is a non-starter. She absolutely expects things form our adversarial system that it was never designed to provide and both the prosecutor and the probation officer could have done a better job in managing expectation — both hers and the media– and its their failure. In a restorative justice system, she would get what she wants, but thats not what we have. Two lives are ruined and that’s all she’s going to get (outside of a possible book deal or movie or who knows what else).

  • Greg Z.
    8 June 2016 at 12:30 pm - Reply

    Ken,

    Why no mention of the Sam Ukwuachu case?

    http://mobile.nytimes.com/2015/09/01/opinion/joe-nocera-baylor-football-and-rape.html?_r=1&referer=https://t.co/sJJFQjmqZY

    He received the same jail sentence–180 days. The differences only make his case worse: (1) He proceeded despite the pleas & evident suffering of his wide-awake victim, (2) The act went much farther sexually, and (3) there was a prior history of incidents, which came out in testimony at trial.

    Media covered the trial, including the sentence, yet there was none of this outrage. Not even close. The sentence was just accepted, and the focus shifted to how screwed up Baylor’s process was.

    Why the different reactions? To be fair, part of the reason may have been that it was Texas, so the sentence was issued by a collaborating jury, rather than a single arbitrary judge. So, not as scandalous. Also, people trust Texas to be tough, especially towards a black man, so if they only gave him 6 months in addition to lifetime registry, then it’s probably a fair sentence.

    But if we’re being honest, I think we also have to acknowledge another critical distinction that drives the disparate reactions. Brock Turner perfectly meets the stereotype of a “Douche”–a white-privileged college bro, anointed for success from birth. The name itself–“Brock”–screams douche.

    Just as a white judge in our system may be likely to overly humanize a douche who preys on others, the dominant SJW zeitgeist is prone to the opposite: the dehumanizion of douches. Brock Turner is instinctively seen as a selfish, conniving brat, whose character it is to prey on others without remorse, rather than a *teenager* who was acting from of a totally intoxicated state of mind, and who might otherwise have never been OK with causing such pain to another.

    With Sam Ukwuachu, things get a bit trickier for the SJW. He’s black, presumably poor, with a wonderful opportunity to get a good education and overcome inherited disadvantage. We root for him to succeed, and feel some sadness to see his life take such an unnecessary and irreversible turn into the system, alongside the greater sadness for the victim.

    Part of the problem with rape is that the punishment decisions are arbitrary. There’s no easy symmetry or proportionality to appeal to. With murder, the answer is simple: you willingly ended a life, so your life ends (via LWOP or DP). That fits.

    How are we to do that with rape? In addition to sex offender registry, the judge can give Turner 6 months. The prosecutors can just as easily ask for six years. Or 2 years. Or 20 years. And if the law allowed it, life–which is what a black rapist might get, say, in Louisiana. What is the basis for any of these punishments? They are all arbitrary, just expressions of anger that get quenched at some arbitrary point. Either that, or they are appeals to past arbitrary punishments that others received, and so on.

    If we are looking for symmetry and proportionality in the pain our punishments inflict, then it’s not clear that this sentence was unjust, or that a harsher sentence is warranted. Over the course of her life, the victim will face some total amount of suffering from the crime–the intensity of which will hopefully ease as time passes and healing takes place. But it may well be the case that 6 yrs for a soft and highly-vulnerable inmate in Cal state prison, plus lifetime sex offender status, will entail *more* cumulative suffering–maybe much more. People can’t say this without triggering ire, but it may be the case that if given the option, Brock Turner would gladly accept being raped himself, in a simple one-time eye-for-eye retribution, to avoid that plight, which is a plight that those unfamiliar with the system severely underappreciate.

    • Chris
      8 June 2016 at 12:57 pm - Reply

      Greg, I have to say your response is one of the most balanced I have yet read on this issue, especially with regards to the disparate scrutiny given this case and punishment. I don’t do crim law, but I have volunteered my time with defendants, sometimes those who are registered sex offenders. I can say that I have occasionally heard them say that they would do another decade rather than be punished with sex offender registration. The severity of registration is something very few can fathom. But in our society, to consider such thoughts on behalf of a defendant triggers condemnation and disgust.

    • mizzemm
      8 June 2016 at 6:59 pm - Reply

      “…Brock Turner would gladly accept being raped himself, in a simple one-time eye-for-eye retribution, to avoid that plight, which is a plight that those unfamiliar with the system severely underappreciate.”

      You know what else is severely underappreciated, just maybe? The experience of being raped. Your post is ignorant bro talk disguised as an authentic attempt to strike balance.

      The problem is multifaceted. Not strictly black and white, no – although, were one to compile comparable cases and tally up the average sentences by race, you must know you would not win on this argument – but as always, a complex mix of race, class, gender and cultural biases. Merica loves his sports. Sports teams notoriously cover for their athletes. I don’t know what class background Ukwuachu comes from – you seem to assume poor (because he’s black?) but for all I know he too had privilege on his side. Seems like Starr and Baylor did a better job of keeping things under wraps. Also, yes, America just might be at its tipping point with douchey white kids getting away with literal murder and rape for centuries now…you seem to believe that drunkenness makes his rape more excusable than Ukwuachu’s – I’ll admit to you that I have had some drunken nights for the books, thankfully BSP (before smart phones) but as out of hand as they ever got, I have never wanted to rape someone simply because I was drunk. I have a temper, so I’ve started stupid fights, I’ve said things I regret…I’ve even vomited in a couple of very embarrassing places. Being drunk does make us do stupid, regrettable things for sure – things we wake up the next day feeling like our life is over because of even. But – and this is really important to grasp – it does not make us rape someone. You have to want to do that sober, to do it drunk.

    • Joe in Waco
      8 June 2016 at 8:00 pm - Reply

      Yes, there damned well was outrage at the sentence, and much of it came from your “SJWs.” The Ukwuachu case was one of the precipitating incidents that led ultimately to Baylor’s firing of Art Briles and Ken Starr, and the resignation of Ian McCaw as athletic director. Not precisely shoved under the rug.

    • andy
      9 June 2016 at 4:39 pm - Reply

      “a *teenager* who was acting from of a totally intoxicated state of mind, and who might otherwise have never been OK with causing such pain to another.”

      He is an adult, that is the first thing. Low income kids are tried as adults for less then rape for christ sake.

      Also, most teenagers drink and they don’t rape. Really. I give you that being intoxicated is partly an explanation of bad behavior, but his behavior is far cry from normal intoxicated teenager behavior. Characterizing this event as lightly is still absurd. That has nothing to do with SJWs.

      I give you that public sex registry is wrong on itself, prevents reintegration and all that jazz. I am ok with making it more sane for all across the board. It just so happen that ugly loner low income boy would get both longer sentence and sex registry – while not having family that could help him financially. Your victim suffering vs his suffering calculation might work if it would be applied the same way to that one too. That has nothing to do with SJWs either.

      His behavior in court makes me think of somebody who might not be ok with risking arrest without alcohol, but who is perfectly fine with causing pain. SJWs hate rich bros primary, because SJWs tend to be rich and thus rich bros are their social circle.

      While SJWs are part of outrage, the other larger par of outrage are people who just know they would not get similar break from a judge, ever, not even as minors who actually made an actual naive mistake – and taking cloth out of someone and fingering is hardly one.

  • Dawgzy
    8 June 2016 at 12:31 pm - Reply

    Does the Judge have a sentencing record for rape convictions? Who was the probation officer who distorted the victim’s opinion in a pre-sentencing report; what weight might that have carried in the sentence? What would be the typical sentence for a non- Stanford student who raped someone in the university’s environs? This is about social class.

  • Chris
    8 June 2016 at 12:32 pm - Reply

    Without knowing more about the recommendation from the probation office, I think it is a stretch to accuse the judge of personal bias to this degree. Persky was formerly a sex crimes prosecutor, and worked as a battered womens’ advocate. In this debacle he has had very strong backing from the criminal defense community, especially the county public defender’s office. I have friends in that office who have noted that he is considered among the most well respected judges in their office. This is no small thing – something like >90% of the clients who work with the office of the public defender are low income people of color, and when many of them state that they respect the judge’s sense of judgement, they are factoring in issues such as privilege and bias. Many of them have stated they do not believe any other client of theirs would have been treated differently by the judge.

    There are many, many facts that have yet to be disclosed. One of my friends, a county PD, has voiced frustration that Perfsky is one of the judges who is most even-handed, and despite his background, is not avidly pro-prosecution. As you mentioned, cases like this make it even harder for criminal defense. This friend also is highly suspicious of what she feels is an underhanded a campaign by a Stanford professor to attack the judge with selectively released and edited information. For example, perhaps it will turn out to be a rumor, but I have it on good authority that the victim in this case stated she wanted the judge to err on the side of leniency, which was one of the factors the probation office used determining its recommendation. This by no means should minimize a sentence beyond the recommended duration, but it is a factor. Until we know the full facts of the case, it is too easy to pile on the condemnation.

    • Citogal
      10 June 2016 at 2:02 am - Reply

      It’s not a rumor. The victim stated in her letter read in court that she would have asked for sentencing leniency – if Brock Allen Turner admitted his culpability and regret. He did not, and he continues to deflect – blaming alcohol and promiscuity culture and not his own actions as an adult. And his father did him no favors by reducing the victim to “20 minutes of action.” It hasn’t escaped any rational and educated person that the term “action” has is another slang for sex. Kid got some action, how bad could that be?

      • Chris
        10 June 2016 at 3:46 pm - Reply

        Citogal – you don’t appear to be aware of how the appeals process goes. If appealing a decision, the defendant’s statements must not go beyond what is contested in the case. Thus they have to be curtailed to a very large extent. You would have a defendant just state that everything the prosecutor claims is true, before you goes through the appeals process? What is the purpose of the court then, but to be a rubber stamp for the prosecutor? In no way would Turner be allowed to fully express what he wants to say. I’ve just read the defendant’s statement. With these restraints in mind, and it being a subjective reading, he goes as far as to renounce all of his decisions including swimming, which for someone his age, has been the entirety of his life. I get the sense that the public would be satisfied with nothing less than a public performance of self-flagellation.

        • Freeman
          11 June 2016 at 8:27 am - Reply

          Chris – you don’t seem to understand how the contrition process goes.

          If contrite, the defendant’s statements must express full acceptance of responsibility for their actions, nothing less. You would have a defendant attempt to express contrition while simultaneously trying to cover their butt with an eye toward avoiding responsibility through an appeals process? What is the purpose of the court then, but to be a rubber stamp for privileged avoidance of responsibility?

          Let us not ignore the fact that there is no doubt as to the defendant’s guilt. Had he expressed sincere contrition, pretty much everyone would have found it less difficult to accept the court’s sentence, evidently including the victim. They way things turned out, not so much. The idea that the defendant would even consider taking further advantage of his privileged position by appealing the sentence he got is only adding to the public’s disgust.

          So let’s review, shall we?
          The Responsible Adult Way: more acceptance by the public (and more importantly, the victim) of a light sentence, less ill will toward defendant, court, judge, defense lawyers, justice system in general. And who will seriously argue that the sentence would have been less lenient?
          The Brock / Chris Way: what we got.

          I think most of us would have preferred the other outcome.

          • Sok Puppette
            11 June 2016 at 1:36 pm -

            Or the third way: fix the system and don’t consider “contrition” at all.

            Why would anybody expect that defendants in general would write sincere statements? Maybe their best strategy is to play it cagey for appeals. Maybe their best strategy is to write some BS about how guilty they feel in the hope of getting credit for their “contrition”… regardless of whether it’s sincere or not.

            But their best strategy is NEVER going to be to be completely sincere. That’s just a non-strategy. Nobody’s actually sincere statement is going to sound as good as one carefully crafted without regard for the truth. Telling the truth is never going to get you a better sentence and is usually going to get you a worse one.

            And the idea that a judge can reliably detect contrition in person is almost as stupid as the idea that they can detect it from a written statement.

            AND the idea that contrition is a lasting state or has a lot of effect on future behavior sounds pretty darned shakey.

            Not to mention the fact that coercing statements of contrition out of people is pretty gross just to think about.

            The whole thing seems to be a system for rewarding psychopathic liars.

            Sincerity. OK, I can fake that.

  • JoAnne Musick
    8 June 2016 at 1:15 pm - Reply

    Amazing perspective. While it is not what I was expecting to read, I found myself enthralled. You are honest and correct in your assessment. It does say more about a broken system; a system that gives some people an advantage over others. It’s not supposed to be that way, yet it is. Perhaps a few judges will read and learn from your story.

    • TrumptMeNot2
      9 June 2016 at 8:33 am - Reply

      Joanne:

      It is supposed to be that way. If it were any other way, the defendant would lose any shot at a fair trial. It is called an adversarial system for a reason. The presumption of innocence does not give defendants any “advantage.” Read Judge Kozinski’s Law Review article from last year where he concludes that the notion that most defendant’s get a fair shake in the criminal justice system is just an illusion. This kid’s life is over. Everyone glosses over that and just seems to think that 6 months is all that his punishment will amount to. To a certain degree, the judge’s action in considering the impact on the kid was courageous but very inarticulate. (Not one poster on here has explained what, other than a better headline, a longer sentence would have achieved.)

      We have a prison culture in the United States that expects all moral problems to be fixed through prison, yet its not a solution and the victim’s impact statement proves she expects things that the criminal justice system and prison was never designed to offer: closure and understanding. That’s a restorative justice system. In Australia and in some European countries, they offer small versions of exactly what would have satisfied this victim based on a restorative justice model. Instead of a trial and adversarial sentencing hearing, the victim and defendant meet in a supervised fashion, outside of the reach of cameras, but with attorneys and the judge. The defendant usually apologizes. She discusses it with him to get him to understand. She plays a role in his sentencing and treatment. The point is for both parties to be restored to the position they were in before the event. There is not always a sex offender registration and there is no outrage over the prison sentence. But, hey, this would never work in the US because the media wanted this guy to be punished to send out a message, that the US is tough on crime, especially, rape, because you know, sending out messages and showing our obvious disapproval of such disgusting conduct as rape really helps: it makes sure that victims heal, that future rapes are prevented, and that the offender is rehabilitated. You would have to be on crack to believe that. A tough sentence gets a good newspaper headline. The victim never heals because the invasion of privacy, security and safety is not really “restored” by the offender being locked up forever in the physical sense. Most ex-offenders released after prison and placed on the sex-offender registry will also re-offend, albeit not necessarily for a sex crime but because they are completely excluded from the job market (a key necessity that prevents people from actually committing most other offenses). Overall, its a sad ending for everyone.

      • Citogal
        10 June 2016 at 2:09 am - Reply

        TrumptMeNot2 – the victim’s impact statement indicated she would ask for leniency at sentencing if he admitted his guilt. He did not, and he still has not, and he does not intend to as his new “action” plan is to teach others that they should be wary of alcohol and promiscuity culture, not that they need to take responsibility for their actions.

        The disdain of the world is not necessarily based on the light sentence. It’s the light sentence in the face of lack of proper respect for the victim and regret for his criminal action. I think the world is ready for headlines where a criminal takes responsibility and sets himself on the path of redemption, regardless of whether the victim is a part of that.

        • TrumptMeNot2
          11 June 2016 at 2:14 pm - Reply

          Citogal — there are such criminals who take responsibility and throw themselves at the mercy of the court and the victim and it makes no difference. There have been surveys done in the federal judiciary of sitting federal judges and a significant majority of the judges stated that an apologetic statement rarely, if ever, has an impact on the ultimate sentence they pass.

          Also, the guy is appealing his conviction — not just his sentence — so any admission by him would have doomed his appeal. Frankly, I hope he wins on appeal and goes on a defamation lawsuit rampage against anyone and everyone with deep enough pockets.

          Third, there is no redemption. What redemption do you speak of? He is/will be on the sex offender registry for life — no one disputes that there is no redemption once on that list.

          Fourth, there is a drinking and promiscuity culture on college campuses. You don’t change that through criminal justice processes. If so, she should be charged with public intoxication, disorderly conduct and whatever else because you know accountability should cut both ways. No ifs ands or buts right?

  • Ellie
    8 June 2016 at 1:50 pm - Reply

    I’m in higher ed in the bay area (although not at Stanford), and have been following this case since the incident was first reported. This is the most well-reasoned piece of writing I’ve read on this verdict. Thank you.

  • NickM
    8 June 2016 at 1:52 pm - Reply

    It also matters that the Probation Department, according to multiple media sources, recommended the 6-month sentence.
    Judges aren’t the only actors in the system who can have poorly-placed empathy.

  • Zig
    8 June 2016 at 2:13 pm - Reply

    I loved the piece, but I wish you would learn to use the pluperfect.

    “Turner was a championship swimmer and a Stanford student; Judge Persky was a Stanford student and the captain of the lacrosse team.” means something quite different than “Turner was a championship swimmer and a Stanford student; Judge Persky HAD BEEN a Stanford student and the captain of the lacrosse team.” Presumably Judge Persky is not still attending Stanford today.

    • Citogal
      10 June 2016 at 2:12 am - Reply

      Nize red pen, Zig. You understood what Ken was saying, as did most others. Let it go as idiomatic.

  • Micheal Bobrovsky
    8 June 2016 at 2:30 pm - Reply

    instead of bemoaning how broken the system is, people like you are in a position to change and fix it. Maybe instead of lining your pockets with even more money, you could fight to correct all that is wrong in America’s Revenge System, oops sorry Justice System.

    • Evan Þ
      8 June 2016 at 3:19 pm - Reply

      How do you think Ken could change and fix the system? He’s been fighting for years to correct other problems in the system and defend free speech; he’s had several victories, but things are still bad. I’m sure he’d do more if he could.

    • Ken White
      8 June 2016 at 4:45 pm - Reply

      I’ll cancel my lunch and get right on that.

    • Citogal
      10 June 2016 at 2:13 am - Reply

      Instead of bemoaning others not working to change a system, how about you jump right in and help with that.

  • Sok Puppette
    8 June 2016 at 3:47 pm - Reply

    I don’t know anything about Judge Persky, or what motivated him, or whether this is out of line with the sentence he might have given a different person who did the same thing.

    I do know that it bothers me to hear any prison sentence, for anybody, for any offense, called “appallingly and unjustly lenient”. If Turner got a lighter sentence than others, then perhaps that means the others shouldn’t have been sentenced so heavily.

    Yes, I know. The victim suffered and will continue to suffer. For a long time, and maybe for life. But she will suffer regardless of what happens to him. There is no balancing here. Retribution is simply more harm, and a culture that teaches that it is somehow “justice” owed to any victim invites a descent into barbarism.

    Rehabilitation? I don’t think many people still seriously believe the ridiculous 18th century idea that prison will somehow make anybody a better person… even though that idea is what originally made imprisonment “popular” as a punishment. There is no real opportunity for punitive rehabilitation.

    The only proper purpose of punishment is deterrence. And it seems that deterrence really is needed. Without real consequences, many people will act badly.

    But I do not believe that there’s any evidence that long custodial sentences have much more deterrent value than shorter ones. Or indeed that the extended torture of prison is either less harsh or more effective than, say, whipping or the stocks. I’m not saying that as some hyperbolic way of mocking prison; I sincerely wonder if it might be both more humane and more effective to return to corporal punishment.

    Even without such a fundamental change in modes of punishment, 6 months or even 3 months in prison remains a serious, torturous experience with lifelong effects. And 6 years may be enough to permanently remake a person… but not in a good way.

    • Peter Sutton
      10 June 2016 at 10:54 am - Reply

      Sok,

      “The only proper purpose of punishment is deterrence”

      My goodness. What a horrible idea. The ONLY reason to punish me is that it will deter others (or possibly my future self) from committing the crime? If there’s nothing intrinsic to me and my actions that counts as a reason to punish me, then why bother punishing only those who are guilty?

      It seems intuitive to me that if X is innocent, and the judge and jury have reason to believe that X is innocent, then it is unjust to punish X, even if punishing X would deter 10,000 people from committing a similar crime.

      Further, it seems intuitive to me that if X is guilty, and the judge and jury know it for sure, then it is right to punish X (to at least some extent), even if the punishment won’t deter anybody else (or even the offender) from committing a similar crime.

      Maybe my intuitions are wrong here. But if I’m right, then deterrence cannot be the ONLY purpose of justice. The guilty person DESERVES punishment in a way that the innocent does not. The very fact that a person is a (known) criminal makes it more okay to hurt them, regardless of the external effects of that harm. Is this revenge? Retribution? Rehabilitation? I don’t know. But it can’t be just deterrence.

      Another thought experiment, then I’m done: Suppose I’m an unknown, unattached drifter who kills another unknown, unattached drifter because he was my father, who abandoned me as a child. Should I be punished? Of course! Will my punishment deter ANY future crimes by me or anybody else? Almost certainly not. Few people will ever even know about it, and I don’t have any more fathers to kill, so it won’t even deter me.

      • Sok Puppette
        10 June 2016 at 12:42 pm - Reply

        Funny… I tend to think that hurting people because they “deserve” it is the horrible idea. There are lots of elaborate attempts to justify it philosophically (no, Kant did not succeed), but in the end it leads to the world containing more misery. End of story.

        I’m not very happy about hurting people to deter others, but it seems to be a practical necessity given the way people are wired. In fact, that practical necessity may very well be the evolutionary REASON for the common human intuition that “Bad people deserve to be hurt”.

        I don’t like the “punishing an innocent to deter others” idea, either. Luckily it’s almost completely counterfactual. Obviously there’s no deterrent value in punishing anybody that everybody KNOWS is innocent. That just says that your chance of punishment has nothing to do with your actions, so you should just go ahead and do whatever you want. And if innocents get punished on a regular basis, everybody WILL in fact know.

        In your other example, the reason for punishing the drifter is that there’s a very strong deterrent effect from creating a general belief that killing people will be punished IN ALL CASES. You don’t want people thinking “Nobody’s going to notice this murder, so I won’t be punished”. That would tend to lead to a lot more total murder. People may not know about a particular case, but people WILL notice if random killings of un-noticeable people in general get ignored[*]. They will naturally conclude that they can kill un-noticeable people without repercussion.

        [*]Well, I mean some people will notice. They DO often come a lot closer to being totally ignored than you’d like to hope…

        • Peter Sutton
          10 June 2016 at 9:05 pm - Reply

          First, regarding your asterisk, I agree. Thousands of Americans are gunned down on the streets every year. Often their killers are punished, but I doubt if many of those cases have any particular deterrent effect because as a society we ignore them. The killers and victims are usually poor, and often oppressed minorities. We notice the mass shootings, but those are insignificant compared to the everyday shootings that we don’t notice. But that’s a whole ‘nuther can of worms.

          On to your main point: So you’re a pure utilitarian about punishment? There is no intrinsic fact about the criminal or the criminal’s actions that makes him or her a better target for punishment than anybody else? It seems repugnant to me that how I should be treated by my government depends entirely upon how the treatment will be viewed by others. I grant that my hypotheticals are unlikely (though I won’t say unrealistic), so let me push back with a more realistic case.

          Suppose there were two marathon runners: one who plays by the rules and one who cheats and takes shortcuts by cutting across the bends in the road. But the cheater has great PR, so everybody loves him. When he wins his races, he inspires millions to work hard etc., etc. The honest runner is ugly and has a boring backstory, so inspires fewer people. I know you will say that the cheater doesn’t deserve to be punished for his actions, but doesn’t that amount to saying that the honest player doesn’t deserve the medals and awards that were taken from him? If we don’t deserve punishment, then presumably we don’t deserve honor either.

          Okay, that’s not much more of a bullet than you’ve already bitten. But now suppose that a journalist is assigned to investigate the runners using her discretion. By your arguments above, wouldn’t it be pointless to investigate the popular runner’s actions? It could only bring about more harm than good if he were exposed, so should she just not bother? Unlike the murder case above, it’s very realistic that nobody would ever know about your choice. As for how realistic the case itself is, many journalists were almost certainly faced with this decision in the Lance Armstrong case, and I’m glad they chose the non-utilitarian option. Sometimes the truth hurts, but it’s still worth having.

          My worry is that when we start down the utilitarian path, all of our values (justice, honesty, truth-seeking) will have to take a back seat to consequences.

          • Sok Puppette
            11 June 2016 at 1:11 pm -

            I am a consequentialist and I meet some definitions of “utilitarian”.

            Some classical utilitarian systems suggest that you should maximize “total utility” or “average utility” over all people (or sometimes over all *potential* people). That necessarily assumes that you can somehow reach inside people’s minds and not only compare how happy they are, but actually get numbers or number-like values that can be added or averaged meaningfully across multiple people.

            I don’t believe that makes any sense. I might be willing to accept, in some relatively specific case, that some experience that’s widely accepted as being intense outweights some other experience that’s widely accepted as being mild… but I think it steps beyond sanity to try to do it over a whole population and every possible experience. Not to mention the fact that the information isn’t available and the combinatorics explode, so you couldn’t do the computation in the first place. AND I know that I and everybody else have cognitive biases that are pretty much guaranteed to screw up the process.

            So I’m not that kind of utilitarian.

            That leaves me with cases where I have to use heuristics or quasi-deontological rules to make actual decisions, when Jeremy Bentham would tell me to just add and compare.

            I also part with the classic utilitarian view in that I’m not sure that “utility” is as simple as “hedonic experience”. Some people demonstrably suffer pain or forego pleasure voluntarily, because they value other things, and I’m not so sure I want to be the one to tell them that their stated and demonstrated preferences are wrong.

            There might be a space there for your “honesty and truth-seeking”, even in cases where the truth wasn’t the most pleasant… and even in hypotheticals where you knew you truly could hide the truth. I’m not sure about “justice”, because I think the meaning of that word is what we’re arguing about. If you mean “retributive justice”, well, I suppose that my direct rejection of it does kind of devalue it. 🙂

            Anyhow, no matter how you slice it, I am definitely not interested in punishing anybody unless it produces some benefit for somebody. Preferably a lot of very clear benefit. Those quasi-deontological heuristics say that you should probably leave a situation alone if you’re not very, very sure you can improve it.

            Furthermore, I think that in choosing a social system, it’s wise to put a low value on the admittedly real hedonic benefit of receiving, observing, or helping to provide vengeance, retribution, or any form of “justice” that amounts to a prettied-up version of those.

            That’s because although those desires *are* built into people, and will *never* be completely eliminated, they *are* subject to cultural modification. You don’t want the desire to receive vengeance running amok, because “an eye for an eye leaves the whole world blind”. And you don’t want the desire to observe or provide vengeance running amok, because bloodthirsty mobs can be very annoying, and institutions are limited in their ability to restrain them.

            It seems best to try for a society where that’s not the expected kind of closure for victims or observers, especially if other kinds of closure may be available.

            On the example: by “punishing” the marathon cheater, I assume you mean stripping him of the wins in the record books, telling the fans, and maybe banning him because you have no way to be sure he’ll behave properly in future races. And I guess giving the people who’ve paid for endorsements their money back. I *definitely* wouldn’t do more than that.

            My first reaction to your coverup question is that you can’t think of what’s practical just in terms of a single race or a single pair of runners. Whatever you choose to do in *this* case, you’ll presumably choose to do in every sufficiently similar case. Why wouldn’t you?

            I think that means that your scenario isn’t actually realistic at all[1].

            But I accept that you might be able to construct some hypothetical where I knew for *sure* that the fans would *never* find out if I covered up some particular instance of cheating. Maybe the honest runner would never know either. And the cheating runner has retired. And I came across the only evidence by some fluke, and I could destroy the only copy. And I’m not a journalist; I’m just some random person and nobody would particularly expect anything from me. And I’m guaranteed no effect on my own future effectiveness (which includes my reputation as well as my own self-discipline). And I’m unlikely to ever have to make the same decision again. And whatever; you can keep tipping the scales.

            You see that sort of scenario in fiction sometimes (not usually about sports); a character makes a decision to “let the people have their legend”. I never expect to actually encounter such a thing, and I don’t expect a significant number of others to either, but let’s go with it.

            In that case I might go with the coverup.

            … but I might not, too. Again, I’m not convinced that utility is just hedonic experience. Perhaps it’s more like desired-state-of-the-world. I’ve never had to work all that out, and in the hypothetical case I might have to do so.

            If the fans found out about the whole thing, it seems pretty likely to me that they’d be much more furious about being deceived than about losing their illusions. I have an unformalized intuition that that should say something about the real utility they’re getting even when they *don’t* find out. That means maybe I *wouldn’t* go with the coverup.

            Anyway, I’m not worried about actually having to make that decision in real life.

            Here’s a an intuition question for *you*. It’s also very far-fetched, but I’m interested in how your intuition views it.

            It’s many years later. The fans have forgotten both runners. The league has folded; all the action is elsewhere. Marathons aren’t very popular any more anyway. The honest runner is dead. Nobody remembers him; he was boring and ugly and believed to be a loser, and he had no children or even close friends. Current runners are way faster than either of them and have been for a long time. Technology has made cheating basically impossible; it’s just not a factor nowadays.

            The cheater cheated at running right up until he retired, and he cheated at cards right up until couldn’t play any more, and he got away with it. It was like breathing for him. But now he’s very old and not a little demented. He’s broke and living on the same public pension everybody else gets. He doesn’t remember that he cheated. He put that out of his mind the minute he could, and, being a narcissist, he did a good job of it.

            He *does* remember that he won; he’s reminded by the plated zinc medals on the wall. He’s convinced he won them honestly.

            He has two real pleasures left in life, though neither of them is very great. One is reminiscing over those medals. The other is visits from his grandchildren and their kids, who are proud of his wins and find that talking about them cheers him up.

            His great grandson was crashing in school until his parents inspired him with tales of the cheater’s hard work and determination. He’s doing OK now. And when great granddad dies, those medals are going on his wall. He worships that cheater with all his heart. And he’s a good, honest kid.

            The league office is abandoned. You work for the landlord, and your job is to clean it out for the new tenants. You idly grab an ancient course camera video from a stack of hundreds in a trash bin, mostly to see if media that old can still be read. The video shows him obviously cheating.

            You know who he is. Because you happen to live upstairs from his great grandson and family. They have a picture of him on the wall, from that very race. His “greatest” race.

            Do you punish him? Do you tell his family? Do you try to get somebody to take the medals away? Do you try to get the press interested?

            If not, when did he stop deserving it?

            [1] You might indeed be able to hide cheating on a one-off basis. It’s plausible. But if you keep doing it, something will slip, or somebody else will find out the same way you would. You even speculated that “many journalists” were probably involved in the Lance Armstrong case. If I were one of them, and I wanted to cover up the case, I would have to expect that all of the others would do the same. That’s very unlikely. All that would really happen would be that I’d get scooped, not that I’d hide anything.

            When one case comes out, people will look harder at other cases. If a pattern of coverups has been built built up, the whole pattern will probably get exposed. Then the fans are going to lose their trust in *any* race, and that inspired feeling is going to be *permanently* less available to them. They’ll lose all their utility from the whole sport, maybe from all sports.

            Not only that, but in your example you’re a journalist. You presumably cover more than just these races. If you keep covering things up, or even not executing your assignments in a meaningful way, *you* will eventually get caught. People will see you as dishonest and/or lazy, your credibility will be blown, and you won’t get to expose things that *do* need to be exposed.

            And of course there’s the honest runner’s experience to consider.

            If you’re a consequentialist who doesn’t agree with me about the value of discouraging vengeance, you also get to to factor in the fans’ very real pleasure in seeing their righteous indignation satisified when the cheater gets tossed. I don’t want to do that, but somebody might.

            So I have trouble seeing any *real* situation in which, from a purely consequentialist view, exposing the matter wouldn’t be the right action for the journalist, or kicking the cheater to the curb wouldn’t be the right answer for the league. The overall value of the sport relies on the expectation that that will happen, and it’s not actually possible to maintain that expectation without actively working to meet it.

  • Hunt
    8 June 2016 at 4:26 pm - Reply

    The system decided Turner’s guilt long before the jurors did. The girl signed a “Rape Statement” before hapless Brock had even sobered up, and the hospital staff told her she had been assaulted, and so the trauma begins. She was as much a victim of campus rape hysteria and coached victimhood as drunken indiscretion, and it is still unclear to me why Turner’s version of the story is not reasonable doubt. The jurors have some ‘splaining to do. The crime here is isolated to between the time the girl went unconscious and when the Swedes arrived, which could have been anywhere between twenty and zero minutes. That he was found guilty means that either the jurors know something significant that we don’t, in which case I don’t see how that wasn’t included in the girl’s manifesto (which included everything else but the kitchen sink, included the word “dick” which I find incredible) or they are stupid.

    • Joeff
      8 June 2016 at 11:27 pm - Reply

      You’re joking, right? Pro beyond a reasonable doubt? Unanimous jury? High-priced defense? No confession – in fact he denied everything. Ran away from the scene when caution, had to be chased down. Yet he claimed consent. The poor girl was unconscious, for gods sake.

    • Susan
      9 June 2016 at 3:42 am - Reply

      What you miss in your disgusting diatribe is that THERE WERE WITNESSES, and the RAPIST RAN when they caught him. And the fact that you could have read the victim impact statement and ALL you can find in it is to be offended by the word “dick” tells me that you ARE one.

      • ben
        9 June 2016 at 2:38 pm - Reply

        > THERE WERE WITNESSES

        Witnesses arrived at the scene and intervened.
        But they didn’t witness what happened before that – for example, when exactly she fell unconscious.

        What if the two started having consensual drunken sex while both were still conscious (and equally drunk), and then she fell unconscious but he was too drunk to notice that and just continued?

        > RAN when they caught him

        This would be the natural instinct/panic response if the aforementioned scenario were true.
        Imagine: At one moment thoughtlessly engaged in drunken sex, the next “awakened” by the witnesses shouting at him and coming for him, and at that point noticing that the girl wasn’t moving. Everyone would panic like hell in that situation.

        Hunt is right, either the jury had additional non-public information which ruled out this scenario beyond a reasonable doubt, or their verdict was unjust.

        • Chris
          10 June 2016 at 3:52 pm - Reply

          ben, it is difficult for people to do these types of thought-experiments. As you said, the witnesses in this case only saw Turner begin to leave and then chased him. The victim here did not remember any of the events. What people do not seem to realize is that everyone’s stories here can indeed be true. If I were giving the defendant the benefit of the doubt and believed the entirely of his story, then his claims could all be true, and it would still comport with the victims and witnesses stories. Yet because the victim was found to be unconscious, and there is no evidence such as a recording of the events preceeding the witnesses’ arrival, there is little exculpatory evidence for the defendant to rely on.

    • Citogal
      10 June 2016 at 2:25 am - Reply

      Um, Turner’s statement was changed – he made a statement initially when arrested, but when his defense team found out she didn’t remember the assault, his story was completely different. Your comment about campus rape hysteria might hold water if there were no witnesses. Because it’s likely he would have just left her there, unconscious and sprawled undignified, and just because it had not progressed to actual penetration with penis doesn’t mean that wasn’t about to commence. And she might never have known who assaulted her.

      However, what we do have are witness statements and action. Witnesses came upon the assault, the perp ran, had to be detained, and the unconscious body of the victim was so horrifically exposed that they thought she was dead and it made at least one of them cry. Those witnesses were fellow Stanford students. And they were young men. How are they part of the campus rape hysteria machine?

    • Laura
      11 June 2016 at 7:31 am - Reply

      Hunt, I agree. As soon as he was noticed by the Swedes and the police were called, it was “framed” as rape. She woke up in the hospital and she was effectively told, when she was in a very vulnerable state, that she had been raped or sexually assaulted. Since she doesn’t remember it, the events were “framed” for her as rape. Every woman’s nightmare. She was subjected to a long, unpleasant and very intrusive examination at the hospital.
      She said that her experience with Brock Turner wasn’t consensual because she wouldn’t have consented to such a thing. But, that was after the police had defined it as non-consensual. And, that was what she thought when she was sober. When she was drunk, she might have felt differently. Getting drunk changes people’s attitudes. That’s why people get drunk.
      Suppose the circumstances had been different. Say she had gone off from a party very drunk, with a drunk guy, drunkenly making out with him. Say she passed out in a wooded area, not behind a dumpster, so it’s less humiliating. He goes to sleep after fingering her. Later, she wakes up, partly undressed and it’s clear that something sexual happened, but she doesn’t remember anything and she doesn’t recognize him. But he’s friendly, if hungover. They’re both hungover, and they stumble out of the woods and back into their separate lives.
      She might remember it as an amusing adventure later. She might not think of it as rape at all.
      It might have been like that, if they hadn’t been observed, if he hadn’t been caught up in the criminal justice system.
      I don’t know that it *was* like that. She did call her boyfriend sometime in the evening, maybe because she was so drunk and she was feeling threatened by this guy. People said he was approaching a lot of women who hadn’t shown any interest in him, kissing them and touching them.
      He was doing sexual things with her after she became unconscious, but who knows how long she was unconscious and whether he knew it, since he was so drunk himself.
      If he was being a predator, he was a very hapless predator – humping her in a place where he was visible to people walking by. It suggests that he’s telling the truth when he says he perceived it as consensual and didn’t feel like a rapist. Only after the Swedes started accusing him did he run away, playing the role of the guilty person. Sexual predators usually arrange things so they don’t have to face the consequences.
      The woman’s statement has gotten so much attention, it might lock her into that persona of the brave rape victim.
      One defense attorney I read, said that his sentence was light because the case against him was weak, because she doesn’t remember.

  • Sarah
    8 June 2016 at 5:33 pm - Reply

    The defendant is no longer a Stanford student, nor was he at the time of sentencing, so the use of tense is correct.

  • Thomas
    8 June 2016 at 5:40 pm - Reply

    Nice Merchant of Venice reference

  • Jamie
    8 June 2016 at 6:16 pm - Reply

    Michael,

    Instead of bemoaning lawyers who are obviously only moneygrubbing profiteers, you are in a position to do more.

    Why don’t you ask politicians how they’ll fix this, volunteer in reentry programs to help mitigate the damage, start educational and political organizations to push for change… I could go on.

    Please feel free to brag about your efforts in your next response.

  • Aussie Down Under
    8 June 2016 at 6:40 pm - Reply

    There are two points missing in your article:

    1. You state that the “victim’s sentence is lifelong.”

    This is true. But you gloss over the potential lifelong consequences — the civil death and many other consequences — that Mr. Brock Allen Turner will suffer. Your complaint seems to be more about the judge’s dumb comments than the length of the punishment. Brock’s punishment won’t be six months or six years. It will be lifelong and there will not be any “healing” for him. There is no redemption — I hate how many people, lawyers, included think that there is redemption. Where do you get this from? From anecdotes? From seeing some clients (a minority) succeed after a felony and thus assuming they have found redemption? He will be called a felon for the rest of his life. More importantly, he will be on the sex offender registry for the rest of his life. There are many successful ex-cons turned law abiding citizens, although statisticaly they are a minority, but there are very few ex-cons turned law abiding citizens on the sex offender registry.

    Brock’s sentence will not be six months. It will not be six years. It will be lifelong. I need not and won’t list each of the consequences, but his life, just like the victim’s will never be the same again. Completing school? Unless its distance learning, he doesn’t have a shot at attending (let alone getting accepted) because he will be on the registry. If he changes his address, even to the house across the street, he has to notify the police or face another criminal charge. If he moves to another state, and fails to promptly register, he can be federally charged. If Brock ever attempts to move overseas, this crime will follow him because due to recent legislation, his passport will be marked as a sex offender. Jobs — it is hard enough as a felon, it is impossible as a convicted sex offender on the sex offender registry. In some states, he may even be deemed a risk to his own kids one day. You say he will find redemption? Come on now. The math just doesn’t add up.

    Unfortunately, there is no sentence that would have made this outcome satisfactory to the victim, to the media, and to the defendant. It is very hard to come up with a proportional sentence for rape, so whatever the ultimate number, it is arbitrary.

    In my view, viewed as a whole, Brock’s punishment is disproportionate — no not because of the 6 months, but because there is no chance for redemption or healing for him, whereas the victim will have that opportunity.

    2. On SimpleJustice, Scott recently pointed out the following:

    In an interview for the probation report last month, the victim herself said: “I want him to be punished, but as a human I just want him to get better… He doesn’t need to be behind bars.”

    Having read her 7,000 word impact statement, it is more an attack on the criminal justice system than the offender. She is livid that the defendant exercised his constitutional right to trial rather than immediately confessing his sins. She is livid that he doesn’t understand, even after conviction, that what he did rape (not just the getting drunk part) was absolutely wrong. And she is right. But the criminal justice system in the United States has never been (and if so, its really failed at it), to get defendants’ to “understand” the wrongful nature of their conduct (a restorative justice system would do that). Criminal trials and the criminal process is too blunt an instrument to teach anyone a lesson. Its like firing a gun at a person, even a guilt admitting remorseful person is going to try to duck that bullet.

    Brock got a fair sentence (not lenient because it will follow him for the rest of his life) and if it were any body else from a non-privileged background, the judge would have received praise. That’s the real shame.

    • Susan
      9 June 2016 at 3:48 am - Reply

      For you to moan that “oh, he got a life sentence” is for you to ignore that HE ACTUALLY DID SOMETHING TO EARN IT, but also that he lives in a world where people bend over backward to mitigate this for him. When he is forced to tell anyone that he is a registered sex offender, you can bet he will whimper & whine about how it was “really nothing, but he was found guilty.” & he got as lenient a sentence he did because he was privileged. But the real shame is how many men are lining up to defend both him & the judge.

      • Aussie
        9 June 2016 at 8:02 am - Reply

        I am sorry but I have an problem with driving victimhood to the ends of the earth. She wrote a dissertation, not a victim impact statement. She wants things from the criminal justice system that it was never designed to offer her.

        I am not bending over backwards for the guy. He did wrong. He will be punished but he did not “earn” a life sentence. Period. Proportionality is something that is so completely lost in America that a yell or a scream immediately or a PC subject immediately skews the results.

        She will eventually heal. She will get to work. She can live where ever she wants. She will be able to move. She will be able to get an education. She can eventually have kids. She can and will do anything she wants the rest of her life. He cannot do any of those things. Ever. Meaning not when he is 25 and not when he is 85. His life is effectively over. You think that is proportionality? In many European countries where criminal justice is not politicized and splashed across every newspaper front page to rile the public, his sentence would be held to be a breach of human rights. Most focus on the 6 month term, you think lifetime sex offender registration is just nothing, its a drop in the bucket, its earned? And yet people go on about how he can one day earn redemption and his life will be okay. No. There is no redemption. Period. Where do people get this non-sense from, Disney movies? His life is over — you have no idea how many structural limitations have been placed on him for the rest of his life. The only chance he has at leading Period.

        • Marc Whipple
          9 June 2016 at 10:34 am - Reply

          “She will eventually heal. She will get to work. She can live where ever she wants. She will be able to move. She will be able to get an education. She can eventually have kids. She can and will do anything she wants the rest of her life.”

          With luck and courage, this may be true. I hope it is. But it is not a given, at all. Some people bounce back quickly, some slowly, and some not at all. In law the wrongdoer must take the victim as they find them. So we can either do continuous monitoring of each victim and make the punishment dynamic as they progress* (or fail to) or we can do something else to reflect the *potential* harm. Which of these are you advocating, and if the latter, what is something else?

          *While a lot of delayed PTSD is Lifetime-movie crap, it is a real thing which can take years, or *decades,* to manifest. If that happens, should we haul the perpetrator back into the dock to reevaluate their sentence, since the amount of harm they caused was undervalued until then?

          • Restorative Justice Responder 4
            11 June 2016 at 11:02 am -

            Whipple:

            She is a victim of a digital penetration rape. She is not a rabbit lacking arms, legs, or mentally ill. She is not a parapalegic woman. She is not a woman turned into a turtle who can’t move. She is a woman who was violated. She has a period of healing to go through and it may never happen, but she will have the opportunity to heal. Yes, it will take some luck, courage and effort on her part. Nothing in life, including healing for victims, is an entitlement. Life is not fair even to victims. But, she MAY heal. She will have the opportunity because society and the legal system will not be an obstacle in her way. He will not, ever. Period. Society and the legal system will forever prevent him from realizing whatever potential he may have had from living a “normal” life. That punishment for him, is far more serious than 6 months or 6 years, its lifelong and its permanent and will carry over even if he is fortunate enough to ever have kids (which I doubt he will).

            There are more than 1,200 collateral consequences of a felony conviction. There are perhaps triple the number of collateral consequences for a person convicted of a sex crime on the sexual offender registration. His passport will be marked a sex offender for the rest of his life even if he chooses to leave the country. When and where should his punishment end? When the victim heals? The purpose of punishment and the authority of the state to punish is not to achieve vengeance. It will never end for him. Again, she will have the opportunity to heal, he will not. That is disproportinate punishment. His life is ruined. Period. Its not going to improve today, tomorrow or in 50 years. Its done.

    • Chris
      9 June 2016 at 8:36 pm - Reply

      Although it is an ancillary issue related to the topic, I do have to agree with Aussie’s thoughts on the sex offender registry as being a far harsher, more egregious form of punishment than jail. I have a background in psychiatry and am an attorney who has done work primarily in legal aid (victims of domestic violence). I have also volunteered with prisoners. This has given me a perspective on these issues that’s evolved with time. A younger me would have cared only for the victim but having delved into more than one side of the issue over the years, I’ve come to see that this is not a zero-sum game. Contrary to this, I find that in popular culture, the suffering of the victim vs. defendant is seen as a competition where people are “keeping score.” I often find that my interest in considering the effects on the defendant is an aberration.

      There is of course no definitive healing period for victims and there is a knee-jerk reaction to treat all cases in a cookie-cutter fashion. There is also a disturbing tendency to tell victims that there is one prescribed way to deal with such trauma, that you must intensely dwell, suffer and rage. This is exactly at odds with what psychiatry advises but is prevalent in popular discourse.

      The process as it is does not encourage healing on the part of the victim. It most definitely does not care for redemption or healing on the part of the defendant. I find it interesting that previous comments mention systems like restorative justice, which in the limited cases I’ve seen, have allowed the victim to participate and become a part of their own solution. Those I have worked with also have mentioned that it has given them a sense that they have positively changed another person’s life while healing themselves and overcoming trauma.

      Likewise, having worked with some prisoners who are registered sex offenders, I have more closely seen that the offender is punished until death long after having “served” his time, offering no chance at any redemption. Sex offender registry is psychologically destructive in a way that is repetitive and lifelong. The comments by Aussie have noted some of the egregious restrictions, but others include being separated from one’s underage siblings, underage children, inability to even do certain activities like play online video games or forums, disqualification from virtually all professional level employment and education, etc. None of these things has any bearing on the actual crime, and well-designed studies have shown sex offender registries actually significantly increase the risk of re-offense. The equivalent does not exist for any other crime. Nonetheless the reasoning behind them has nothing to do with evidence and everything to do with our society’s focus on retribution as the purpose of our criminal justice system. Some felons I have worked with have stated they would have rather be incarcerated for longer, or even be physically assaulted (e.g. rape, etc.), rather than be put on the registry. Years before exposing myself to these issues, I would have been like the majority, thinking sex offender registration wasn’t even a real form of punishment.

      When looking at the sentence I am very conflicted. On one hand I think the sentence was far too short, but on the other hand, knowing what I know from working with some sex offenders and the perpetual and repeated lifelong consequences of the registry, I am caught thinking it is too harsh. As it is, I can only conclude that our system of punishment is purely retribution focused – it’s there to satisfy the public, no one truly wins.

  • Wandering Clerk
    8 June 2016 at 7:09 pm - Reply

    Becareful everyone! You all bemoan this purportedly “lenient” sentence, but you all know what this leading to: legislation stripping sentencing discretion away from judges and replacing this “discretion” with mandatory minimums or “guidelines.” Haven’t we been down this path before? For those advocating guidelines or mandatory minimum, that makes judges’ job easy, their role at sentencing becomes nothing more than a rubber stamp and its hard to criticize them. For anyone that’s interested, just go look up what his potential sentence would have been had he been charged in federal court for a related crime (there is no federal equivalent so related). His sentence could have easily been life…

    This judge carefully weighed everything and while he could have been more articulate at sentencing, there is nothing in this sentence that is wrong.

    As for the victim, I appreciate her status as a victim, but her dissertation shows more of an interest in “owning” the moment and “empowering” herself. Much of it is a rant and she expects things from the criminal justice system that it was never designed to provide. She has my sympathy for what happened to her, it was terrible, disgusting, and wrong. Period. She does not have my sympathy for her dissertation aka victim impact statement.

    • Michael S Goodman
      8 June 2016 at 11:21 pm - Reply

      Nothing wrong with the sentence? 6 mos. in jail for three FELONIES?

      That is far less than the legal minimum sanction for that type of offense in CA !

      • Morgan Stanley
        9 June 2016 at 8:11 am - Reply

        3 Felonies to you means life + cancer squared?

        That is far less than the legal minimum sanction for that type of offense in CA ! No, there is no “legal minimum.” Come one now, this is a legal site, not a buzzfeed commentary, you know there was no legal mandatory minimum or “legal minimum.”

        What that man did was horrible, disgusting and wrong. But, on a side note, I love how everyone absolves the woman of any responsibility because it would be victim blaming. When you go out in a car and you speed, you don’t wear a seatbelt, you swerve lanes and you get hit by a drunk driver, do you only blame the drunk driver? Or do you also point out that she should driven more carefully and also should have worn a seatbelt. Its both. They are both contributing factors.

        She was competely drunk. She went to a frat part, not a bible study group. What did she ever expect to happen? If it was not behind a refuse bin, it could have been behind a couch. Its a frat party. If you have no self-control, get so absolutely drunk that you pass out, knowing that its in a hormone filled environment, do you just get to yell and scream , “why, why, why poor me?” I did nothing wrong. Yes, her drunkeness does not justify her being raped, but wouldn’t a good parent or someone or anyone also counsel women to just take some precautions, just like we tell people to wear seatbelts. For women who call this victim blaming, would you respond any differently if this were two gay males? Prevention is better than figuring out what punishment works and prevention means that everyone, to some small measure, take responsibility and avoid putting themselves in a position where dumb kids with erections are having alcohol fueled parties.

        • Lagaya1
          9 June 2016 at 1:33 pm - Reply

          If I was a man, I’d be really insulted by your comment. Because she got drunk and was around men, she should have expected this to happen? What kind of men do you hang around with that this seems like the expected result? What kind of man are you?

        • andy
          9 June 2016 at 4:55 pm - Reply

          “She was competely drunk. She went to a frat part, not a bible study group. What did she ever expect to happen? If it was not behind a refuse bin, it could have been behind a couch. Its a frat party.”

          Maybe they should close frats then. If this is to be expected as normal there, it would be only reasonable for university to stop supporting them and closing them all down. Until it happens, cops patrolling street every evening and doing random checks in frat house (with university permission).

          Moreover, if those guys are really that hormones filled that rape is something girls around should count with, those guys don’t belong to university – just like people with history of violence are not or people with mental problems.

          “Prevention is better than figuring out what punishment works and prevention means that everyone, to some small measure, take responsibility and avoid putting themselves in a position where dumb kids with erections are having alcohol fueled parties”

          He is not dumb kid, he is adult who knew he should not do it. The prevention might be him not drinking and taking counseling if he cant control his erection.

          As long as people around him are supposed to take steps to prevent rape or violence, he is dangerous and should be locked out. That is where it breaks. If I take your theory by word, he should be in prison much longer, until the people around him are not in danger. Not because of punishment, but because of safety.

          And yes, of course if he raped men the same apply. Why would not it?

          • Morgan Stanley
            11 June 2016 at 11:12 am -

            This type of stuff does happen at Frats and quite regularly. Some are reported, some are not. But why stop with closing down frats or patrolling cops? Lets take it a step further.

            If prevention is our goal, all teenagers after puberty and until age 27 or whatever the age is that their brains have reached full maturity should have their genitals tagged and a small little camera affixed to their head to insure that any sexual contact that they have is consensual. Better yet, sex should be turned into a contract. Because teenagers and young adults are very mature, lets impose contractual terms on them? Before they copulate or digitally penetrate, they should each whip out their contracts, negotiate some clauses and then after using protection of course get on with their deeds.

            Here is a sample:

            Whereas, each party hereto represent that:

            1. they are of age;

            2. they are not intoxicated and able to consent to sexual intercourse (insert any limitations here for what is permissible and not permissible during sex to avoid confusion);

            3. each party hereto has sought the advice of an independent licensed attorney….

            Ridiculous.

            He was a dumb kid. Prevention applies to all kids and young adults. Men should avoid situations where there is any gray area about whether the women can provide valid consent. Women, just because they are women, should not be deprived of any agency or responsibility, because it is politically incorrect: you don’t go to a hormone filled party and drink so much that you pass out. She should have been charged with public intoxication and/or disorderly conduct or being a danger to herself. Seriously, drinking so much that you pass out? Is that good for anyone or does she get a pass because she got digitally raped. What happened to her is horrible, but come on, she is a little kid.

        • Michael S Goodman
          13 June 2016 at 11:14 am - Reply

          True, I am not an authority on CA sentencing procedures.

          Also, like you, I do have concerns about the behaviour of the victim, and the fact that so little information about her and her background has been discussed. Clearly, she is not entirely blameless in this affair.

  • smtddr
    8 June 2016 at 7:14 pm - Reply

    This is the best comment here.

  • Katie
    8 June 2016 at 9:18 pm - Reply

    Thank you for publishing your thoughts. Undoubtedly, the reason rape isn’t seen as a big deal is because the punishment often isn’t. If every man, regardless of race or status was given the same harsh sentence for sexual assault, it would be a step in the right direction of ending it. This is so ingrained in our culture it’s terrifying.

    • Aussie
      9 June 2016 at 7:54 am - Reply

      Katie:

      You are correct in identifying the problem: there is a terrible cultural phenomenon on campuses and in young males, generally. Your solution to impose harsh sentences completely misses the salient comments made by some of the more astute observers. First, whether its 6 months or 60 years, it is not going to stop or change the phenomenon. It might make you feel better and it would have gotten better headlines but that’s not how you change people. In the federal system, for the most part, sentences for child porn, and sexual abuse have been measured in decades not months, yet it still continues. Second, the punishment this idiot boy will receive is the lifetime sex offender registration. It will impact him at every point in his life. There will be no healing for him. There will not be any support group for him. There will be nothing. Thus, your “step in the right direction” comment is nothing but populism, its not a solution.

  • Michael S Goodman
    8 June 2016 at 11:12 pm - Reply

    Unfortunately, Mr. Turner chose an instrument other than the xylophone to “play” with!

  • Joeff
    8 June 2016 at 11:16 pm - Reply

    That may be the best thing about criminal law I have ever read. Thank you.

  • Brock Allen Turner: The Sort of Defendant Who is Spared “Severe Impact” | Ordinary Times
    9 June 2016 at 1:32 am - Reply

    […] Brock Allen Turner: The Sort of Defendant Who is Spared “Severe Impact” […]

  • Meredith
    9 June 2016 at 3:46 am - Reply

    Thanks for this article. I’m a Stanford alum and when I read that Mike Armstrong was the defense attorney, my heart sank, as I knew Mike during my time at the University and saw him at an alumni event not long ago. Nice guy.

    While I’m well aware of the noble tradition, everyone deserves a defense, I could help feeling “Mike, did you really need to take THIS case?” (I imagine all the lawyers here will chorus: Yes.)

    The usual dissection of the victim took place on the stand, which is such a sickening technique–and he did it effectively apparently.

    For me, having a white Stanford male defended by a white Stanford male alum in front of a white Stanford male alum judge is disturbing. Too cosy–and the results show how the system was stacked against the victim getting justice.

    I would like to know if lawyers ever decline cases because on the preponderance of evidence before them, they realize the accused is probably guilty and the nature of the crime is such that they don’t wish to put their time, energy and talent into defending that accused?

    My ex-husband was a time an assistant U.S. attorney in the Southern District of New York and I asked him about the ethics of all this. He replied:

    “I declined to be in the Criminal Division of the U.S. Attorney’s Office because I thought it would lead inexorably to my defending people who were, for the most part, guilty – but that was my personal choice. Our system of justice depends on every defendant (in theory) having able representation — the trier of fact (jury or judge) has to determine guilt or innocence, not the lawyer before any witnesses are heard or other facts presented. The fact that poor defendants too often do NOT get able representation is tragic but does not justify depriving others of counsel of their choosing.”

    Brock Turner’s family have the money to find him an attorney–so he would always end up with good representation.

  • PMcI26
    9 June 2016 at 4:12 am - Reply

    Well, for me it’s only a relative matter. My personal preference with regard to our justice system would be something of a teardown. I’m no proponent of prison. But as people are in fact being sent to prison every day, it is still an insult to watch who gets the least of it and what kind of vile comments are handed down from on high to justify that preferential treatment (and not only by the judge in this case, for the record).
    On the other hand, I wearily remind myself, at least this guy was convicted. Most rapists don’t even face that.

  • Officer Kyle Baars, Mercy for Me, Justice for Thee
    9 June 2016 at 7:13 am - Reply

    […] know, right? After all, if Brock Turner deserves his “20 minutes of action,” isn’t Baars entitled to his one free evidence […]

  • Need to Know: Brace now, the super commodities cycle is gathering steam | Stock Transcript
    9 June 2016 at 7:36 am - Reply

    […] White, criminal defense attorney and civil litigator at Brown White & Osborn in Los Angeles, on the Stanford rape case. Meanwhile, the judge in that case has been getting death […]

  • Scot
    9 June 2016 at 10:05 am - Reply

    Is there any chance that the light sentence included other details like not speaking about the case or naming the victim? Only thing i can think of is that he could walk out of prison and out her and attack her as being the drunk slut who ruined his life after she said yes and then passed out and had regrets… not that i (a) think that happened or (b) think it justifies it, i can certainly see someone who feels wronged by a “false accuser” of going after the victim. And I haven’t seen the name of the victim anywhere which in these “Find anything on google” days seems odd.

  • Jeff
    9 June 2016 at 1:22 pm - Reply

    I find it troubling that many people feel a white, male, athletic, well-educated (which seems to be equated with affluent), judge is considered incapable of fairly judging a defendant that shares some or all of the same demographic characteristics, while on the other hand, for decades, we’ve had the same people clamoring that these same judges can’t possibly relate to and fairly judge poor, under-educated, people of color. This sounds racist. With this logic, vast swathes of our judicial and legislative branches are not qualified to perform their duties. What do you want? Panels of judges? How many judges of differing composition do you want on the panels? When will you be satisfied that your panel has a fair mix of demographics for each particular plaintiff AND defendant? Will you only be happy when the voir dire jury selection process is applied to your panel of judges? If you think our justice system is overburdened now, see what happens when we start trotting down this path. Is the current system biased? Of course. The path to becoming a judge starts before law school, and we all know what it takes to become a judge, so, yes, most judges tend to be successful, highly educated, individuals.

    What I find particularly amazing, especially coming from many lawyers and legal pundits, is how everybody is second-guessing this judge, who was privy to every single scrap of testimony and evidence. This news of this case has gone viral, and all anybody seems to be able to focus on is “rape” and “20 minutes of action.” You’d think Brock Turner was fornicating with the unconscious body of his victim for twenty minutes. Well, here is the inconvenient truth: there was no rape. Brock Turner was clothed. Forensics didn’t find any evidence of rape. Rape is defined by California Penal Code as sexual intercourse. The defendant digitally penetrated an intoxicated and unconscious woman, and that is what he was charged and convicted of. No intercourse, no rape. However, most journalists, writers, and bloggers apparently find it too boring or tedious to type “sexual assault.”

    Seen in this light, the judge may well have formed the opinion that Turner had not committed rape, had no prior record, was not a lingering danger to society, and had made a very stupid, drunken decision to become sexually active with an extremely intoxicated woman who eventually passed out. As it is, Turner’s punishment (besides losing his opportunity for a Stanford degree and a shot at the Olympics) is incarceration for six months, life-long registration as a sex offender, and the knowledge that he has been globally shamed and branded (arguably libelously) as a “rapist.”

    If you are truly outraged, then crusade against the narrow legal definition of rape, the sentencing guidelines for sexual assault, and the weight a probation report carries in sentencing. Ask why there is an epidemic of “rape culture” on college campuses and ask why universities can manage to operate huge sports franchises but can’t seem to muster the resources to police their property and curb under-age and binge drinking. If it makes you feel better, work to eliminate inherent bias (as you see it) in the legal education system and our methodology for creating/selecting judges. Lastly, for the sake of all that is good in our democracy, fight against the knee-jerk reactions to interfere with an independent judiciary and our Rule of Law.

    • Chris
      9 June 2016 at 4:46 pm - Reply

      Jeff, I tend to agree with you on this point. As much as I respect and love to read this blog, I find this article lacking in depth and sensationalistic. I am biased however, since my friends (both criminal defense and prosecutors) have known the judge for years and all have come to his defense. This is not necessarily because they feel the sentence was totally appropriate (they differ in regards to length). Their consensus is that his decision was not influenced by privilege. As I noted elsewhere, this is a judge who is held in high regard by many people in the criminal defense community, and specifically with the office of the public defender. This is exceedingly rare. The demographics of the defendants with this office are starkly “un-privileged” – poor and overwhelmingly people of color. Yet somehow this decision does not seem abnormal to the ones I have spoken to, which suggests that he is perceived of as being fair and not leaning on “privilege” in this case. I have been told by public defenders that they do not believe their clients would be treated differently by this judge. To have an allegation of privilege stick, you would need to look at the judges sentencing history, what considerations he reviews, the weight he has given to the probation office’s recommendations in past cases, variance from the prosecutor’s requests, etc. Yet we have none of this. All we have are superficial similarities, which while being “juicy,” do not provide evidence for an actual case analysis.

  • Gaylon Vickers
    9 June 2016 at 2:46 pm - Reply

    Mr. White: I read in second day coverage of the sentencing of Turner that the probation office recommended a six month sentence for Turner. Is that right? If so, do judges often accept the recommendation of the probation office?

    You are in a very good position to answer this, so I wish you would. It has been troubling me, as is the fact that I haven’t seen the probation report printed yet. Is it excluded from public records?

    Thank you for your time.

  • Johnny
    9 June 2016 at 6:44 pm - Reply

    Had this boy (men wouldn’t do this) been of any lower socioeconomic class or skin colour, he would have had the book thrown at him. Anyone who says white male privilege isn’t a thing is living that white male privilege. By the way, it’s quite interesting that all of those people that cried out against trans people using the restroom of the gender they identify with? Remember them? Saying we had to protect the women and children from those that would assault them in a restroom….where are they now?

  • Tom
    10 June 2016 at 4:39 am - Reply

    I think I will comment this one last time since I think it is still being overlooked:

    I just thought I would share an opinion and perspective that I perhaps think has been overlooked in regards to this case.

    As a victim of sexual abuse myself, I have this to say:

    I’ve been trying to spread a bit of awareness here on this case, as it seems everyone is just gobbling down what the media is telling them and doing no investigational research on the matter on their own.

    I went through and read the 56 page police report as well as the case files and made a deduction that the jury themselves made a knee-jerk reaction verdict, based on the facts of the case it is impossible to say conclusively that he raped her (and no, I am not just defending this guy because at first I made a post about how disgusting this was and how he should be punished more than six months, until I read the case files and police report and started to think about it objectively)

    1. The victim does not remember anything. So how can she claim she did not consent if she doesn’t remember?

    2. They were both intoxicated. If they are both intoxicated and she consented, I don’t consider that rape. Irresponsible on both parts, yes, but not rape.

    3. The victim stated that she has gotten black out drunk before, but she is always able to make it home (meaning she is capable of complex things like finding her way home after a party and having no recollection of it) so it is highly possible she consented to the sexual act and engaged in the sexual act and then passed out during and he was not aware she passed out

    4. The victim claims she drank about 6 shots in a four hour period, and this is enough to get blackout drunk? I believe the victim is either confused or lied about her alcohol intake. It is indeed possible to get blackout drunk off of six shots depending on weight, size, what you have eaten ect. So it is possible, but personally I think she drank more than that.

    5. The victim has a boyfriend. Giving her possible motive to lie if she had given consent.

    6. Sex in public is an arrestable offense, giving him motive to get up and run when the individuals on the bikes came up, being campus security often ride around on bycicles

    7. No one has discerned if she was awake at the time the sexual interaction began.

    And just to add, personal opinion, she had a boyfriend and went to a frat party where guys were randomly kissing girls and she didn’t leave?

    I wouldn’t go to a sorority party without my girlfriend. Hell no. I definitely wouldn’t stay at a party where girls were randomly attempting to kiss guys. For me that’s a safety issue.

    I am not saying for sure that he is guilty. I am not saying for sure he is innocent.

    What I am saying is that with the evidence presented he was not proven guilty beyond a shadow of a doubt. His guilt was assumed.

    My guess is the judge felt the same way but didn’t want the backlash from throwing out the juries verdict entirely.

    People should make an informed decision before having a knee jerk reaction based off of sensationalized media.

    (Also the foreign objects he penetrated her with were his fingers. Not sure why the media didn’t just say that. I heard someone say yesterday he raped her with a tree branch. So please people, do your research)

    • Meredith
      10 June 2016 at 8:56 am - Reply

      Tom–You make some interesting points and claim to have done considerable homework on the story. But you don’t seem to know that the victim said she went to the Frat party with her sister–so she wasn’t alone, and she was accompanying a family member whom she apparently rarely had a chance to see on an outing proposed by the sister:

      “…it was a quiet Saturday night at home. My dad made some dinner and I sat at the table with my younger sister who was visiting for the weekend. I was working full time and it was approaching my bed time. I planned to stay at home by myself, watch some TV and read, while she went to a party with her friends. Then, I decided it was my only night with her, I had nothing better to do, so why not, there’s a dumb party ten minutes from my house, I would go, dance like a fool, and embarrass my younger sister. On the way there, I joked that undergrad guys would have braces. My sister teased me for wearing a beige cardigan to a frat party like a librarian. I called myself “big mama”, because I knew I’d be the oldest one there. I made silly faces, let my guard down, and drank liquor too fast not factoring in that my tolerance had significantly lowered since college.”

      [Excerpt from her full statement as published online: https://www.buzzfeed.com/katiejmbaker/heres-the-powerful-letter-the-stanford-victim-read-to-her-ra?utm_term=.hebbGX8GG#.eiEOXV7XX/%5D

      I agree she was unwise to drink to the point of blackout, but he was not so intoxicated that he couldn’t attempt to flee the scene. Since the two Swedish witnesses (and heroes, modeling a different kind of man) say she was inert while he appeared to be thrusting into her, we can deduce that he was assaulting an unconscious woman–which surely is indefensible. I believe the “no means NO” law of California also specifically says in cases where one of the parties is incapacitated by drink or drugs, sexual contact is wrong.

    • Dave
      10 June 2016 at 10:47 am - Reply

      “7. No one has discerned if she was awake at the time the sexual interaction began.”

      But it’s pretty certain she was not awake when the bicyclists saw him. It’s possible that she was only unconscious for 30 seconds -or less. If the woman consents and then passes out during sex how long does a guy have to stop before it is considered rape? I have no idea.

      Incidentally I brought up the same points that you did Tom in an anxiety support group and received hate mails and replies from women, saying I didn’t believe that rape existed and that they felt sorry for any women who had to be around me.

    • Jerri Lynn
      10 June 2016 at 6:05 pm - Reply

      Tom, can you tell me how to get hold of those documents? All the heat about this as well as the very serious accusations against a judge who, by the accounts I’ve seen, is well respected has raised my skepticism radar.

      • Dave
        11 June 2016 at 11:54 am - Reply
      • Freeman
        11 June 2016 at 1:46 pm - Reply

        I found them at http://documents.latimes.com/stanford-brock-turner/

        Not finished looking them over so I’ll reserve opinion for now, except to say that I’m having difficulty with all this talk of consent in this context, as if any self-respecting person would think it’s alright to take advantage of the “consent” of a clearly incapacitated stranger.

  • History0000
    10 June 2016 at 5:13 am - Reply

    It would seem that the Sentence o matic 1000 was already tried
    With the 3 strikes mandatory sentencing laws that produced many, arguably, shockingly unjust outcomes.
    As someone who is “inside the system”
    Perhaps, you can see/identify/propose workable reforms that may result in better outcomes?!

  • Horace Rumpole
    10 June 2016 at 6:02 am - Reply

    I love this article! My favorite line: “… by the time we were done writing about that kid in the sentencing briefs, he was the most xylophone-playing motherfucker ever to walk the Earth. He was the YoYo Ma of xylophones, someone whose skills would make angels weep …”

  • Brock Turner’s rape sentence proves the US justice system is broken, but judge Aaron Persky is only part of the problem — Quartz
    10 June 2016 at 8:37 am - Reply

    […] There are many reasons why Persky’s sentence of Turner has infuriated so many. One is that Turner is a white, wealthy kid whose relatively light punishment seems directly tied to his privilege. A rapist who is smart or a rapist who is a good swimmer should not be punished differently than a rapist who is poor, uneducated, or a person of color. As Ken White wrote recently for Mimesis Law: […]

  • Scot
    10 June 2016 at 9:27 am - Reply

    All the outrage at the sentence and “rape culture” but you turn on the radio and hear this…

    “She say she won’t, but I bet she will, timber” ~ Pitbull

    So why cry about the culture you tolerate (and often contribute to) after you don’t like the consequences?

    You can’t expect teens to listen to that on the radio, riding in the car with their parents, and think that it isn’t cool… I had to turn the station every time that song came on after listening to my son sing along to that, and had to explain why i was offended by it.

    How many other parents did that? That’s the problem… we tolerate things like that in pop culture and then complain when things like that happen in real life. Art mimics life, but life mimics art too.

    Still waiting for a reply from anyone with any legal expertise on if the light sentence could have included a gag order preventing him from talking about the victim or profiting from the experience.

  • Marshal
    10 June 2016 at 9:47 am - Reply

    Most people think that was an appallingly and unjustly lenient sentence for what Turner did

    This argument would be more compelling if anyone presented evidence of what sentences people typically do receive in these circumstances. Note Ken, not the NYT, not the San Jose or San Francisco newspapers. No one. Why not?

  • Elizabeth Moon
    10 June 2016 at 11:09 am - Reply

    In these sorts of cases, much is always made of the offender’s current reputation (promising student, promising athlete, nice guy up to now) and future–his potential, his value, and the harm that punishment will do to him. Much is always made of the victim’s past–anything that could be used to explain or exonerate the offender’s behavior, make it “understandable” or “forgiveable” (her looks, her past behavior, her previous sexual behavior, if any. Basically, women are shown to have “a past” (a past suggesting their contribution to the crime) and men are shown to have “a future”–a bright future, if only they aren’t derailed by this bad person with a bad past. Yet offenders also have a past (sometimes ruled out of court by a judge at a defense attorney’s request) and victims also had a reputation (eagerly damaged by media and the defense) and a future that was already derailed by the offender’s behavior and is hardly ever mentioned.

    The offender plays with a ManCard that can be loaded with extra points for each of the following: white, affluent, “good” family, high College Board scores, scholarship winner, good GPA, athlete, no prior convictions, prior awards (any type), high probability of certain future occupations (pro athlete, law school, medical school–and if beyond college, employment in a prestigious field: athlete, law, medicine, academia, science), volunteer work.

    The victim plays with a WomanCard where those same things bring fewer or no points. She may get a half point for being white if the offender is a person of color (maybe), and a half point if the right level of affluence (rich victims can be portrayed as bad just for being rich–“everybody knows how THEY party.”) But she gets no points for coming from a good family or for her prior achievements: her GPA, her HS records, her no prior convictions, her College Boards, being an athlete, her awards, her probability of achieving a high-status occupation, her volunteer work. None of her past matters in the “game” except every mistake she ever made or non-mistakes that can be made to look incriminating.

    Both offender and victim can *lose* points from their cards for background information the judge allows the jury to know about, and this bears heavily on those with the fewest or no extra points: race other than white is a negative point but can be outweighed (especially for the offender) by the possibility of picking up those extra points that are not available to victims. So the poor man of color, whose school record is poor, wasn’t an athlete, who very likely has had something on the police blotter (a parking ticket, even minor traffic violation), who may be unemployed or employed in a non-prestigious job, etc., ever used drugs, drinks, and so on, will lose point after point–his perceived future “worth” is less. But the same point losses hit women: race other than white, bad school record, dropout, ever took drugs, drinks, visits bars, unemployed or works a low-prestige job, wears (or ever wore) clothes the judge considers flashy or sexy, has had multiple boyfriends, not a church member–anything an attorney or judge can consider less than perfection. For women, any prior sexual activity other than being in a monogamous marriage and assaulted in a situation that makes it clear it wasn’t consensual, is a lost point, one per relationship. Women are inherently valued less–their futures, however bright, devalued–in these cases.

    • Chris
      10 June 2016 at 4:02 pm - Reply

      It’s notable that the county Public Defender has now on gone on record defending the judge’s decision as being fair. This coming from an office where all of the clients are minorities and poor (decidedly not remotely privileged), raises a key question as to whether privilege actually played any part on the judge’s part.

    • Kate
      11 June 2016 at 12:43 pm - Reply

      Terrific comment!! I never thought of it, but you are right that in rape trials it is all about the man’s future and the woman’s past. The fact that her bright future was likely ruined didn’t interest the judge in the least. The fact that Turner partied, got drunk and did drugs in high school, information that has since come out, made no difference either.

      This disparity is obvious simply in how their consumption of alcohol is treated – her over consumption is a character ruining negative while his is a “get out of jail free” card.

  • Lady Red
    10 June 2016 at 1:02 pm - Reply

    Someone better pop a cap in they ass!

  • ghjk
    10 June 2016 at 11:20 pm - Reply

    And yet conservatives constanty whine and moan about how white priviledge “doesn’t exist”. Fuck this shitty country

    • ghjk2
      11 June 2016 at 10:45 am - Reply

      @ghjk

      Great, not get out…

  • Carole Myall
    11 June 2016 at 1:14 am - Reply

    Now his face and name are across social media he is sentenced never to have any girl friends

    • LoneRanger
      11 June 2016 at 6:38 am - Reply

      How does that actually help someone if the goal is to try to rehabilitate them into society?

  • PeterPiper
    11 June 2016 at 6:37 am - Reply

    The sentence seems adequate in view of the fact that no actual rape was involved.

    • Certain Mindset
      11 June 2016 at 2:32 pm - Reply

      Shall we meet behind the dumpster for drinks, and then perhaps we can explore the parameters involving “actual rape”?

  • Kate
    11 June 2016 at 12:32 pm - Reply

    Thank you for the best article I have read on this case.

    The other issue I’d love to read about is how could people be dumb enough to send the idiotic letters of support, such as the one by Turner’s father. These letters break every rule in your April posting. Could the letters have been sent without the defense lawyer’s approval? Was the defense lawyer so awful he didn’t understand the harm from these letters? Or, did he most likely know the judge and approve the letters in an attempt to “tap into” the judge’s tribalism? Or, perhaps the lawyer, himself from Palo Alto I believe, was equally tribal?

    I understand you may not know or be able to comment on another lawyer’s actions, but I am curious about how these letters are usually solicited and sent and your guess as to what might have been going on in this case. I was so appalled by the letters that I couldn’t imagine allowing someone to send them. The fact that the judge handed down a ridiculously lenient sentence even after reading these self absorbed letters is ghastly,

    It seems to me that in earlier decades, there was more victim blaming. I wonder if the lawyer and judge weren’t also “old school” victim blamers who didn’t realize that the public’s view if rape is now far different. I guess the one good thing about this case is that people are overwhelmingly taking the victim’s side/

  • Bleeding Heartland
    12 June 2016 at 8:44 am - Reply

    […] wealthy white male defendants. One of the best commentaries I’ve read on the sentencing was by California defense attorney Ken White. He explained why Turner is the "sort of defendant who is spared ‘severe […]

  • Erick
    12 June 2016 at 11:59 am - Reply

    “Sex offender” is far too broad a concept to make such a facile statement. One can be made to register as a sex offender here in California just for urinating in public. I think the reality is that harsh punishment, though often sold to is through utilitarian rationale, is more often the result of a desire for retribution — that the criminal ought to reflect and atone for what they did or simply just to stick it to them to satiate a sense of vengeance.

  • JCS
    12 June 2016 at 10:53 pm - Reply

    There was a witness BEFORE the Swedes, who saw her passed out cold WITH BROCK TAKING PHOTOS OF HER NUDE BODY (which we later learned he texted to his buddies). He left briefly and came back and assaulted her, being caught by the Swedes. She did NOT pass out 30 seconds after getting consent. Read the police reports again!! It isn’t a gray area AT ALL.

  • Sarah
    13 June 2016 at 2:45 am - Reply

    Yes. Absolutely. His redemption is not in this life and not from human hands. Registration forever.

  • David
    13 June 2016 at 2:49 am - Reply

    As politically incorrect as it may be to say so, I would posit that there is an angle that Ken isn’t willing to really consider, in a generally well-written article. Does any given punishment necessarily have an equal impact on two very different defendants? If someone who – were it not for their crime – would likely end up living a highly affluent, professionally and socially successful life, receives a sentence which effectively puts an end to all such prospects, is that effectively a harsher sentence than the same sentence handed to a person who would otherwise be living on the streets?

    I once had the eye-opening experience of spending one night in jail (with thanks to the overzealous attorney for my ex-wife during a rather spectacular divorce process). I did learn a lot from the experience of speaking with a number of fellow inmates – with two big thoughts that I took away. One was that a very high percentage of the inmates had no business being there and we stuck in a ridiculous debtor’s prison Catch-22 cycle of contempt that screams for reform. The other, more relevant to the topic at hand – was that several of those prisoners, who had come from circumstances less favorable than mine, actually seemed to be quite happy to be there. They had formed stronger friendships in prison than they had on the outside, they were better fed than they were used to being, some were even keen on the work skills they believed they were acquiring through helping out in the kitchens, etc. which they believed would help them in the labor market once they were released.

    Might it not be legitimate for a judge in sentencing to consider just how far a “fall” that sentence would represent for a given defendant?

  • J Mann
    13 June 2016 at 10:01 am - Reply

    Is there any systematic way of determining whether this sentence is out of the ordinary? The Stuebenville kids got sentences of 12 and 24 months after a gang rape that they filmed and published, and will be able to get off the registry with good behavior, but were minors, so it’s hard to compare.

  • Extenuating Circumstances? No Mercy! : The Other McCain
    13 June 2016 at 11:08 am - Reply

    […] criminals who think they can get with their crimes, but then expect mercy when they get caught. (Ken White’s commentary about the Brock Turner case at Stanford is enlightening in this regard.) Well, what shall we do with the police officers who think they can […]

  • Jorge Alvarez
    13 June 2016 at 3:21 pm - Reply

    This comment thread is awesome.
    Finally something worth reading about vis a vis this case.

  • Jorge Alvarez
    13 June 2016 at 3:30 pm - Reply

    Brock Turner was 18. I doubt the psychological maturity between a 17 year old and an 18 year old is disnguishable.

    This sentence is not out of the ordinary for the crimes of which he was convicted, his being a first time offender with no history of antisocial behaviour, and the mitigating circumstances. You can argue whether or not certain things were actually mitigating but that is the judge’s discretion and I think his reasons were valid.

  • Johnno
    13 June 2016 at 3:32 pm - Reply

    Well someone needs a nice hot steaming mug of CTFO! That was an eloquent and sensationalist letter from the victim. She got drunk finger-banged, not raped and murdered! Typical millennial drama over nothing. I’m surprised she hasn’t made a Kickstarter for finger-bang victims and developed an app with a snazzy logo that does fcuk all

  • Implicit racial biases are the cracks in the criminal justice system | CT criminal law
    15 June 2016 at 8:30 am - Reply

    […] Stanford sexual assault case. While the 6-month sentence for raping an unconscious young woman strikes many as unconscionable, when you compare the judge to the defendant, you get an insight into the rationale. Both the judge […]

  • Dam Stewart
    16 June 2016 at 11:06 am - Reply

    When was the last time a petition was circulated to remove a judge because they handed down too harsh of a sentence?

  • Fault Lines Friday Fail
    17 June 2016 at 12:50 pm - Reply

    […] Allen Turner rapes a girl, gets six months since more time is a “severe […]

  • If Judge Persky Was Wrong, What’s Right? | Simple Justice
    19 June 2016 at 8:47 am - Reply

    […] upon millions of people have opined that Judge Persky was wrong to sentence Brock Turner to 6 months incarceration.  Many have called for his removal from the bench because they found this sentence […]

  • Brown White & Osborn LLP Published In Los Angeles Times, Reason Magazine, FaultLines | Brown, White & Osborn
    23 June 2016 at 10:42 am - Reply

    […] Brock Turner: The Sort of Defendant Who Is Spared “Severe Impact,” at the FaultLines Blog, discussing how judicial experience impacts how criminal defendants are treated. […]

  • Boz Bozi
    10 July 2016 at 12:00 am - Reply

    i respect Mr White’s keen mind and knowledge on many issues but i have to raise an issue in this case, just a simple question when two drunk people have sex which one should be held criminally responsible?

    • Meredith
      10 July 2016 at 5:23 am - Reply

      Mr. Boz Bozi: Without having attended Stanford Law School, nonetheless I’ll go out on a limb and suggest that the participant who is unconscious during the encounter is not criminally responsible. The one who penetrates the unconscious person, takes photos of her naked torso and shares them with his friends and then tries to flee the scene when two passing eye witnesses question the situation is the one who is probably criminally responsible. It’s not rocket science, is it?

      • Boz Bozi
        10 July 2016 at 9:48 am - Reply

        Thanks Meredith for the clarification of the very specific case you mentioned.

        but if you’re slyly referring to this case might i ask how do you know the intercourse was not initiated by consent? or that the pics were taken and sent by Mr Turner(see absent of evidence in the case)? also would you consider a person (drunk mind you) running away from yelling approaching (non-police) individuals an admission of guilt?! don’t tell that to BLM.

        most of us do not possess the capability to know what happened at a time and location we were not present (and at those times that we are, witness recollection of events is notoriously … easily manipulated let’s say) that is why i would (for myself) prefer sticking to the facts, just like rocket science!

        ps i hope i was able to convey my point from that general question i made which was about the murkiness of the situation when two drunk people are involved.

        • Meredith
          10 July 2016 at 10:05 am - Reply

          Two Stanford graduate students were witness to the fact and testified the victim was unconscious when Brock Turner was “thrusting” into her inert body. One of the witnesses was in tears telling this to the police. I don’t find that murky.

          Perhaps you yourself have found yourself drunk with another person and acted in some way that is haunting you? You sound like you’re trying to convince yourself sex with an unconscious person is ok?

          • Boz Bozi
            10 July 2016 at 10:48 am -

            projection too much?! but seriously how did you know?! it’s your amazing divine powers of observation and logical thinking i guess.
            when you can’t make an argument you make personal attacks, congratulations Meredith you are a troll.

  • Leave Ryan Lochte Alone
    19 August 2016 at 12:20 pm - Reply

    […] They’re Olympic swimmers, and barring them from their chosen sport would certainly cause a “severe impact” on the rest of their lives and careers. Besides, even if the story is a complete fabrication, it […]

  • Disingenuous Dauber | Simple Justice
    13 September 2016 at 7:19 pm - Reply

    […] Well, that’s rather harmless. After all, I thought it was too lenient. Ken White thought it was too lenient.  Michelle Dauber? She wanted him executed, then castrated, then executed again, this time with […]

  • Sentenced In The Court Of Sad Feelz | Simple Justice
    11 October 2016 at 6:01 am - Reply

    […] take it. It’s not that the sentence wasn’t peculiarly light. Neither all men, nor even all criminal defense lawyers, agreed with the sentence. But just as we’ve criticized unduly harsh sentences, it reflects a […]

  • A Typical Rape Sentencing For Brandon Vandenburg
    9 November 2016 at 7:46 am - Reply

    […] 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 […]

  • Dylan Schumaker: Reasonable Lenity or White Privilege?
    28 February 2017 at 8:57 am - Reply

    […] 28, 2017 (Fault Lines) — Fault Lines contributors have previously discussed the need for criminal defendants to develop a rapport with the trier of fact at sentencing. That […]