The Brock Turner case: Sexual assault, mob justice, and the war on “rape culture”
Note: This is a piece I originally wrote for Allthink.com in June, and which I am republishing here now that the case is in the news again.
The case of Brock Turner, the former Stanford student athlete and All-American swimmer who received just six months of jail time after being convicted on three counts of sexual assault on a severely intoxicated, unconscious woman, has become a new rallying cry for social justice advocates. It has been cited as evidence of racism and white privilege (activist and writer Shaun King has pointed to the 15-to-25 year prison sentence given for a similar crime to Vanderbilt football player Corey Bates, who is black) and, most of all, as a flagrant example of “rape culture,” male iniquity, and sexist disregard for crimes against women. The victim’s impact statement, a 7000-plus-word document first published on BuzzFeed News, has gone viral on the Internet and has been read on CNN; Vice President Joseph Biden, for whom combating violence against women has been a lifelong cause, sent her an open letter applauding her bravery. Meanwhile, the sentencing judge, Aaron Persky, is the target of a recall effort as well as death threats.
I think the victim’s statement was moving and compelling. I also understand the disgust and anger at the attitudes exhibited in the statements submitted to the court by Turner’s father (who infamously lamented that his son’s life was being ruined for “20 minutes of action”), by his friends and other character witnesses who seemed to see him as an equal victim, and by Turner himself. While his statement makes several brief references to the pain and trauma his actions caused the victim, most of is steeped in self-pity and shows little accountability; he clearly sees himself as a victim of “the party culture” at Stanford.
But I have other concerns, too. I think this case is clearly being used to whip a new moral panic about campus rape and “rape culture,” which will be used to step up the policing of consensual sex and punish innocent people (most but not all of them men). Whatever one thinks of the sentence, letting self-righteous outrage mobs and ideological zealots such as Stanford law professor Michele Dauber shape law and policy is extremely dangerous.
A few specific thoughts:
1) Could this be, as some have suggested, a “regretted drunken hookup” story? Very unlikely. Two male graduate students who spotted Turner thrusting on top of the half-naked woman outside a fraternity house while bicycling past testified that she was not moving. She was unconscious for three hours after being picked up by an ambulance and brought to the hospital. The defense theory was that the victim consented to sex and passed out at some point during the sexual activity, and presumably that Turner (who was also heavily intoxicated though not as much as the victim, with his blood alcohol level twice the legal driving limit and hers 3 times) was too out of it to notice. Is this a possibility? Phone records do indicate that the victim was conscious, though disoriented, about 15 minutes before she was found with Turner; she called her boyfriend and left an incoherent message. If Turner was too drunk to notice that she had passed out, I don’t think that absolves him of responsibility, any more than a drunk driver is absolved of responsibility if s/he is too drunk to realize s/he shouldn’t get behind the wheel. But it could make this a crime of negligence more than intent, in which case the six-month sentence seems more adequate (especially combined with additional penalties: probation, a lifelong ban from the Stanford campus, and probably lifetime sex offender registration).
On the other hand, there was also evidence contradicting Turner’s claim of initial consent, including, apparently, eyewitness testimony about his interaction with the victim at the party where they met. And Turner gave contradictory accounts, changing his story to claim the victim verbally consented to genital touching.
A Daily Mail article claims that Turner may have sent a snapshot of the victim’s bare breast to a group chat, and also that he had a prior history of drug use and had made physically aggressive unwelcome advances to other women a week before the sexual assault. The prosecutor argued that Turner’s behavior was that of a sexual predator, not a young man who goes too far in an alcohol-addled encounter. If that’s the case and he committed premeditated sexual assault and attempted rape, the sentence does seem shockingly light. However, before pronouncing judgment on that we need to see all the evidence that went into Judge Persky’s decision.
Which brings us to the next point…
2) The sentence was overly lenient, but the story is also more complex than the outrage campaign makes it out to be. For one, most of the opinions expressed on this come from people who know very little about the case. Now that the court is releasing 470 pages of documents, maybe more questions will be answered.
There are some disputed facts — for instance, whether the victim told the probation officer during a pre-sentencing interview that she did not want Turner to go to prison. In her impact statement, the victim says that her statements were oversimplified in the probation report; she acknowledges telling the officer that she did not want Turner to “rot in prison” or to feel that his life is over, but insists she did not mean to suggest that he should only get a light jail sentence. Some have speculated that the victim backpedaled from her earlier plea for leniency due to political pressure — perhaps from Dauber, the feminist law professor who played a key role in igniting the outrage over the sentence, and who is apparently a friend of the victim’s family. But it is equally possible (and the impact statement hints at this) that she changed her mind because she felt that Turner had failed to take responsibility for his actions.
By the way, the probation officer who recommended the light sentence (on the grounds of Turner’s youth, lack of criminal record, and intoxicated state at the time of the crime) is a woman. The head of the Santa Clara Public Defender’s Office, Molly O’Neal — a feminist, an openly gay woman and the mother of a college-bound daughter — has also defended the sentence as fair and not out of the ordinary given the details of this case. I still believe it was too light; however, there is clearly a legitimate, non-misogynist view that the sentence was appropriate.
3) The attempt to oust Judge Persky, led by Michele Dauber, is a deplorable attack on judicial independence. This has been acknowledged even by harsh critics of the sentence, such as Slate columnist Mark Joseph Stern and Roll Call editor-in-chief Melinda Hennenberger.
4) Is the treatment of Turner “racist” or “sexist”? Not necessarily. While I think there’s elite college athlete privilege at work, Baylor University football player Sam Ukwuachu, who is black, was given a 6-month jail sentence and 10 years’ probation last year after being convicted of sexually assaulting a female former Baylor soccer player. (An ex-girlfriend also testified that Ukwuachu had battered and choked her.) Obviously, a single case does not prove a pattern. But one may legitimately wonder if a black defendant would have been picked as the “face of campus sexual assault,” the way Turner was.
As for sexism, last year in Homer, Alaska, 22-year-old Anthony Resetarits received a 75-day jail sentence, with probation and community service, after pleading guilty to “harassment” in a 2012 assault in which a 17-year-old boy passed out at a party was stripped from the waist down and anally penetrated with a beer bottle for the crowd’s entertainment — leaving him with injuries requiring hospitalization. Resetarits, who had been originally charged with second-degree sexual assault, received considerable support in the community, with people writing letters to the court advocating leniency so that he would not be denied a chance to go to medical school. The case also received zero national publicity, though it’s hard to tell whether that had to do with the victim’s gender, the location, or just random differences in the amount of attention different local news stories get.
5) Turner’s crime should not be reduced to a confused drunken hookup — but, by the same token, confused drunken hookups should not be reclassified as sexual assault. While the Turner case did involve an incapacitated victim, many other recent cases in which young men (and in at least one case, a young woman) got expelled from college for sexual misconduct involved “victims” who were able to walk, procure condoms, text friends, and engage in other activities despite being intoxicated. Lena Dunham, who dedicated a sexual assault PSA to the Stanford victim, went public in 2014 with a story of supposed rape by a fellow student while she attended Oberlin. By her own account in her controversial memoir, Not That Kind of Girl, Dunham voluntarily took her purported rapist home from a party while lonely, drunk, and high on Xanax and cocaine (angrily rebuffing a male friend’s attempt to stop her). She admits that she was an active participant in the encounter and gave the man verbal encouragement; when she noticed that he had apparently removed the condom, she had sufficient presence of mind to kick him out. She also admits that when she told a friend about the encounter and her friend blurted out “You were raped,” her first reaction was to laugh. Yet somehow Dunham has concluded that she was initially in denial and that it was indeed a rape, for reasons she never quite explains clearly: perhaps because the intercourse was too aggressive (she was in pain for some time afterward) and she hadn’t consented to being handled so roughly, or perhaps because the man penetrated her without a condom at one point. Ultimately, it all comes down to her feeling that “it didn’t feel like a choice at all.” Incidentally, her partner was so drunk that he had only a dim memory of the encounter the next day and had no idea with whom he had been. [Note: The summary of Dunham’s story has been edited to clarify some details and correct a minor error, following suggestions from Barry Deutsch (@barrydeutsch) on Twitter.]
When such accounts are hailed as brave truth-telling about rape, this inevitably trivializes the real thing — including incapacitated rape. Yet even the prosecutor in the Stanford case contributed to muddying the waters, saying that one of the lessons of this case is that “drunk means no.” But if any level of drunkenness (not just unconsciousness or severe disorientation) negates consent, the question some people have raised about double standards — why doesn’t it also negate responsibility for Turner? — are entirely legitimate.
6) The Turner case should not become a political vehicle for curtailing the rights of the accused or boosting campus kangaroo courts. The people driving this crusade, such as Dauber, are quite explicit about holding the rights of the accused in extremely low regard. (Several people who attended a recent Stanford seminar on campus rape have told me that Dauber’s demeanor during a talk by attorney Andrew Miltenberg, who represents students accused of sexual misconduct in campus cases, was so openly contemptuous — with conspicuous eye-rolling and grimacing — as to be unprofessional.) Dauber is also a strong proponent of having sexual assault cases handled by campus tribunals, which, despite the light sentence, would have served the victim in this case far worse than the real justice system did.
Another feminist Stanford professor, Estelle Freedman, has written in the New York Timesthat “the energies unleashed by this case present a potential to reframe the issue of rape.” That should raise all sorts of red flags, since the “reframing” proposed by feminists is usually along the lines of gutting the presumption of innocence and rewriting the definition of consent so that virtually every sexual act becomes a potential sexual assault if regretted.
As Emily Bazelon argues in the New York Times magazine, Brock Turner’s conviction and punishment actually represents undeniable progress in the way we treat sexual assault. But in many cases, the pendulum has already swung too far toward trampling on the rights of accused men and infantilizing adult women. We desperately need clear thinking, not outrage politics.
