[CN: sexual assault, rape culture, victim-blaming]
If you are on social media at all, then you are likely to have run across this story in the last few days: how Brock Allen Turner, former Stanford student and competitive swimmer (now three-time convicted felon), was just awarded a slap-on-the-wrist sentence of six months in county jail, followed by probation, for the sexual assault and assault-with-intent-to-rape of an incapacitated 23yo woman, as she lay comatose on the ground behind a dumpster.
You may be wondering: why so light a sentence, given Turner’s three convictions that carried a cumulative potential for up to 14 years in prison? Especially considering the eyewitness testimony of two bicyclists, who spotted Turner thrusting on top of the motionless and mostly-naked woman and chased him off her; the victim’s blood-alcohol level of three times the legal limit (i.e., she would have barely been able to walk, let alone consent); and physical evidence that included dirt and grit in her vagina, resulting from Turner shoving his grubby, unwashed hands straight from the ground to inside her.
Well…let’s hear what the ruling judge, Aaron Persky, offered as explanation:
“A prison sentence would have a severe impact on him … I think he will not be a danger to others.”
Oh holy hells. Where to even begin.
One could start with the sheer extraordinariness of this claim, given that this young man has already been gravely dangerous to another person.
Or the overblown concern for his youthful age, considering the equivalent age of the woman he assaulted and the “severe impact” his actions have had — and will continue to have — on her. Or the long and problematic history of downplaying predatory male violence as largely harmless.
Or the fact that, regardless of one’s opinions of imprisonment as a form of rehabilitation, the system of justice we have is exactly that: the only system of justice we have — and it is one the judge has chosen to participate in. Or how even convicted rapists (especially wealthy white rapists) routinely come out pretty A-OK in the end. Or what a terrible message this sends regarding activism against sexual violence on college campuses and the chilling effect this misplaced empathy could have on other survivors coming forward.
Or I could start with the astounding, courageous, heart-wrenching, devastating, painful, and compassionate statement written by the victim herself — though I think I’ll end with that instead. [And please, if all you read on this subject is one thing: make it this young woman’s remarkable letter.]
I could write any of these.
I could write all of these.
I’ve decided to focus instead on what seems to me missing in much of both the coverage and outraged dissemination of the judge’s statements:
How much we have heard all this same crap from judges before.
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For starters, minimizing harm to victims is rampant, even from the front of our courtrooms.
“[The victim’s] behavior is not consistent with someone [who] is suffering from emotional distress.” 
One popular tactic: first reduce the definition of “danger” to the infliction of visible physical injury, then discount any injuries that are apparent as too trivial to constitute real concern.
“When we assess the central question in this case… we find it manifestly unreasonable” to conclude that the woman did not consent. “Other than her contention that she initially said no to Lewis’ attempt to kiss her, during an hour of sexual activity,” she did not cry for help or try to escape. Her “physical injuries were minor.” 
“I’m not a gynecologist, but I can tell you something. If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight.” 
However this sleight-of-hand logic is accomplished, once it is in place, punishing the rapist for such a now-trivial offense seems self-evidently lopsided.
Minimization frequently extends to a claim that the already-proven-to-be-harmful predator actually poses no risk at all. Some judges are apparently mind-readers of magical intent: if the rapist didn’t mean to rape the rape victim that he raped, then we can trust him not to rape a rape victim ever again.
“He was playing video games and she wandered into the garage. He inexplicably became sexually aroused but did not appear to consciously intend to harm [the toddler] when he sexually assaulted her… The manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case… There was no violence or callous disregard for [the victim’s] well-being.” 
“There was no sexual coercion. Her family allowed you to stay in their home. I trust you to behave yourself now.” The 12yo girl was a “willing participant” who instigated the sex. 
Concern for young people harmed is thus trivialized or dismissed entirely. And logically, if no true harm has been done in the past, there is no future danger in need of reducing.
“This is a different case than one where there is no perceived invitation. This is a case of misunderstood signals and inconsiderate behaviour… Protection of society is not advanced one iota by putting [the convicted rapist] in jail.” 
“I discovered [punishment] accomplishes nothing of value; it doesn’t make anything better; it costs us a lot of money; we create a lot of expectation, and we feed on anger.” 
Concomitant to downplaying harm to the rape victim, court statements often play up — as in Turner’s case — the risk and danger that consequences for his or her behavior pose to the perpetrator. Judges have gone so far as to suggest that the attack itself constitutes an injury committed against the rapist.
“If anything it was she who groomed you. You gave way to temptation because of problems with your wife’s pregnancy. She was intelligent and used that intelligence to manipulate people emotionally. She was very vulnerable and needy and had a troubled home life.” 
“I think it would have been a miscarriage of justice to sentence that man the way [prosecutors] wanted him to be sentenced. Anyone who could be so stupid to take up with this woman deserves some consideration.” 
While fearing for the effect this event may have on the offender, judges may exhort victims to learn some salutary take-away from the experience of having been raped.
“I hope you look at what you’ve been through and try to take something positive out of it… You learned a lesson about friendship and you learned a lesson about vulnerability… When you blame others, you give up your power to change.” 
One way victims nefariously trap their assailants into raping them, according to certain judges, is by disguising and exaggerating their true ages. Pity the poor sex offender, who has never seen a child before finding one pinned beneath him.
The victim seemed “older than her chronological age” of 14 years and was “as much in control of the situation” as her rapist. This wasn’t “forcible, beat-up rape.” 
The victim was “well-developed” for her age. He “could not have known” she was 13 years old. 
“It is quite clear she is a very disturbed child and a very needy child and she is a sexually precocious child. She liked to dress provocatively… Did she look like she was 10? Certainly not. She looked 16.” 
All of which leaves the impression that victims are at least as much — if not more — at fault than their assailants. Good ol’ fashioned victim-blaming never goes out of style, even from the bench.
“The girls wanted to have sex… And they had pretty miserable, fleeting sex in a freezing cold park.” 
“Why couldn’t you just keep your knees together? … Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you? … If you were frightened, you could have screamed.” Asking the accused if he had a condom leads to “an inescapable conclusion [that] if you have one I’m happy to have sex with you.” 
“I find it was a negligent act, by matter of law, that the victim was contributorily negligent by putting herself in this situation.” 
In cases where that feels a touch too on-the-nose, judges might instead blame the situation.
“This is why we shouldn’t let our kids go to Ultra [Music Festival] — right here.” 
“Blame the gays” proves to be still in vogue as recently as 2011, even when the “gay” in question is a preschooler previously victimized by his father.
The victim already had suffered “the initiation by his father into the worst of worlds, leading him to depravation” and “a precocious choice” of sexuality [ie, homosexuality]. “[A]s a result of that experience with the father, the child had showed signs of a transvestite conduct, of conduct we had to take into account.” 
When all else fails, a judge can simply evoke boogeyman versions of both victim and assailant and claim that the imaginary criteria of such platonic ideals have not been met.
“[She] wasn’t the victim she claimed to be… [He] isn’t the typical sex offender.” 
Or a judge might suggest…whatever the hell this is.
“Did you close your legs and all your female organs?” 
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Pointing out the limitations of the current system hasn’t yet led to anything better, but this fact hasn’t stopped judges from routinely refusing to fully use the system available — and in the process denying twice-traumatized victims (once by the perpetrator, again by the grueling court process) any semblance of justice at all. Which is a central point raised by Brock Allen Turner’s victim, in the eloquent and insightful statement she read to her attacker in court.
Rather than letting any of these judges have the last words on this issue today, I am going to give final say to this young woman most harmed by both Judge Persky and the rapist he chose to protect:
“And finally, to girls everywhere, I am with you. On nights when you feel alone, I am with you. When people doubt you or dismiss you, I am with you. I fought everyday for you. So never stop fighting, I believe you. As the author Anne Lamott once wrote, ‘Lighthouses don’t go running all over an island looking for boats to save; they just stand there shining.’ Although I can’t save every boat, I hope that by speaking today, you absorbed a small amount of light, a small knowing that you can’t be silenced, a small satisfaction that justice was served, a small assurance that we are getting somewhere, and a big, big knowing that you are important, unquestionably, you are untouchable, you are beautiful, you are to be valued, respected, undeniably, every minute of every day, you are powerful and nobody can take that away from you. To girls everywhere, I am with you.”†
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(† again, I want to encourage everyone to read her statement in its entirety.)
- 2016, New Orleans, LA: Criminal District Court Judge Franz Zibilich, on why he is considering throwing out a jury’s conviction of cable TV installer Ronnie Torregano, who last month was found guilty of stalking his ex-girlfriend and unauthorized entry into her home, but was acquitted of raping the woman. (Prosecutors blamed their inability to secure a rape conviction on NOPD’s botched handling of the case.) via nola.com.
- 2011, Chester County, PA: Appellate court panel, on their decision to overturn the ruling in a case of two men (ages 21 and 22) convicted of raping an 18yo woman two years prior. via Philly.com.
- 2012, Orange County, CA: Superior Court Judge Derek Johnson, on why he sentenced Metin Gurel to only 6 years, following Gurel’s conviction for rape, forcible oral copulation, domestic battery, stalking, and making threats against his former live-in girlfriend (specifically, threats to mutilate her face and genitals with a heated screwdriver). via MSNBC.
- 2015, Orange County, CA: Judge M. Marc Kelly, on why he reduced to 10 years the mandatory minimum sentence of 25 years-to-life in prison for Kevin Jonas Rojano-Nieto, 20, convicted of sodomizing a 3yo relative. via The Washington Post.
- 2004, Bristol, UK: Judge Michael Roach, on why he ordered the release of Michael Barrett, 20, who admitted to having intercourse twice with a 12yo girl he met in an internet chatroom. via The Guardian.
- 2011, Manitoba, Canada: Queen’s Bench Justice Robert Dewar, on his decision to sentence Kenneth Rhodes to a two-year conditional sentence for raping a 26yo woman after meeting her at a bar. Dewar also ordered Rhodes to write his victim a letter of apology. via The Brandon Sun.
- 2005, Burlington, VT: Judge Edward Cashman, explaining why he sentenced Mark Hulett, 34, to only 60 days in jail (to be followed by sex offender treatment) for sexually abusing and repeatedly raping a girl from the ages of 7 to 10. via WCAX.com.
- 2015, London, UK: Judge Joanna Greenberg QC, on her decision to give an 18-month suspended sentence to Stuart Kerner, 44, for multiple acts of sexual intercourse with a 16yo former student at the school where Kerner had been vice-principal and a religious studies teacher. via The Guardian.
- 1990, Sanford, FL: Circuit Judge Kenneth Leffler, in rejecting the plea agreement for Mark Edward McCulloch to serve 4 1/2 years in prison and 10 years probation for the rape of a woman whose divorce the judge had handled several years prior, ordering instead that McCulloch be immediately freed and given only 2 years probation. via Gainesville Sun.
- 2012, Coconino County, AZ: Superior Court Judge Jacqueline Hatch, lecturing the victim, who was groped by a drunk police officer at a bar, before sentencing Officer Robb Gary Evans to 2 years probation. via AZ Daily Sun.
- 2013, Billings, MT: Judge Todd Baugh, commenting on why he reduced the parole violation sentence from 15 years to 30 days for 47 yo Stacey Rambold, a teacher convicted for raping Cherice Moralez, his 14yo student, 4 years prior. (The terms of his original 2010 sentencing permitted Rambold to be released upon his victim’s death; Moralez committed suicide before her 18th birthday.) via Jezebel.
- 2015, Sweden: Swedish court, dismissing charges against a 27yo man for raping a 13yo girl. via The Daily Beast.
- 2007, South Oxfordshire, UK: Judge Julian Hall, explaining his decision to give light sentences (amounting to less than a year in prison each) to Keith Fenn, 24, and his Darren Wright, 34, for the rape and sexual assault of a 10yo girl. via Shakesville.
- 2011, UK: Lord Justice Moses, speaking on behalf of the appeals court that overturned the sentencing of six British soccer players who had confessed to gang-raping two 12yo girls. via Ms. Magazine.
- 2015, Calgary, Canada: Federal Court Justice Robin Camp, questioning the behavior of a 19yo homeless rape victim during the trial of her alleged attacker, Alexander Scott Wagar, whom the judge acquitted. via Calgary Herald.
- 1993, Baltimore, MD: Judge Thomas J. Bollinger Sr., sentencing 44yo Lawrence Allen Gillette to 6-months home detention and 5-years probation for having intercourse with an unconscious 17yo girl who worked for him, after she got drunk at a bar with friends and Gillette, who then brought her house back to where she passed out. via The Washington Post.
- 2016, Miami, FL: Judge Nushin Sayfie, placing blame on a local festival for the actions of transit supervisor Carl Lee Wilt, 41, who raped a 25yo woman until she defecated on herself, after first carrying the unconscious woman into a utility room. via Local10 ABC News.
- 2014, Buenos Aires, Argentina: Judge Horacio Piombo and Judge Benjamin Ramon Sal Llargues, on their decision to reduce sports-club vice-president Mario Tolosa’s sentence for raping a child from 6 years to 38 months, on the grounds that the 6yo boy was gay. via KRON4.com.
- 2014, Dallas, TX: District Judge Jeanine Howard, defending her decision to reduce 18yo Sir Young’s sentence for raping a 14yo classmate to deferred probation and 250 hours community service in a rape crisis center. via The Dallas Morning News.
- 2016, Vitoria, Spain: Judge Maria del Carmen Molina Mansilla, repeatedly questioning a woman seeking protection from a man she described as physically and sexually abusing her. via The Independent.