Natalie Druce, Advisor & Thalassa Cox, Volunteer, ICAAD: In many countries the sentences levied for crimes involving sexual and gender-based violence (SGBV) fail to adequately reflect the severity of the offense. ICAAD, in partnership with DLA Piper, recently published a study on the existence of judicial bias in the sentencing of perpetrators of SGBV in Pacific Island Countries. The report found that offenders were four times more likely to receive non-custodial sentences than custodial sentences in cases that involved consideration of contentious factors such as gender stereotyping and customary reconciliation. Contentious factors are considered in 75% of SGBV cases in the Pacific Islands, leading to a reduction of sentences 52% of the time.
The recent sentencing of Brock Turner, a Stanford University swimmer and Olympic hopeful, for the sexual assault of an unconscious young woman behind a dumpster has served as a stark reminder that US courts are susceptible to similar criticism. In what has been dubbed the “Stanford Rape Case,” Judge Aaron Persky of the Santa Clara County Superior Court sentenced Turner to 6 months in county prison with three years probation, far below the two year minimum sentence and six years recommended by the prosecution. The judge faced harsh criticism over the leniency of the sentence, with many remarking that it was a mockery of the seriousness of sexual assault.
Brock Turner was convicted of assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. Though he stood in court with three charges of assault, only two fell within the Justice Department’s definition of rape. The 6 months county jail sentence was attached to the first charge – assault with intent to commit rape. Probation was granted for the latter two charges, by virtue of California Rules of Court that allow the statutory prohibition on probation to be overcome if it is in the interests of justice.
The light sentence imposed by the Judge reveals a tacit acceptance of the inevitability of gender-based violence and offers a bleak commentary on the role of the judiciary in countering the dominant narrative. The transcript of Judge Persky’s sentencing decision, published by the Guardian last month, reveals all the hallmarks of gender bias in judicial sentencing of SGBV offenses.
Judge Persky begins by referring to the Victim’s statement, citing a passage in which she describes the wounds inflicted upon her by the Defendant. He quotes an excerpt of the statement in which the Victim powerfully catalogues the injuries she has incurred – “you took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice.” Yet, it is this sentence that he chooses to linger over – “the damage is done” – and continues to revisit, at least thematically, throughout his reasoning. It is almost with a gesture of resignation that he goes on to describe the role of the Court at sentencing “to essentially follow the roadmap that our system of criminal justice sets out.” What follows is an artificial balancing exercise, in which he weighs various factors in order to determine whether probation should be granted.
The Judge’s reasoning is riddled with contradictory statements. Initially, he observes that he is not sure that the circumstances of this case are less serious than those typically present, but it later becomes apparent that, for Judge Persky, the Defendant’s background virtually negates the seriousness of the assault. In his assessment of the factors outlined in the Rules of Court, Judge Persky observes that “a single criteria will rarely be determinative.” Yet, he ascribes significant weight to Rule 4.413(c)(2)(c): whether the Defendant is youthful and has no significant record of prior criminal offenses, while skimming over the devastating impact the assault had on the victim and her family. He notes the vulnerability of the victim as an aggravating factor, but it is the mitigating effects of the defendant’s crime-free background, intoxication and character evidence that he stresses in determining his punishment. Despite his assertion that the Defendant’s intoxication was not to carry particular weight, the Judge returns to it three times as a factor that diminishes the moral culpability attached to the defendant.
Judge Persky’s evaluation of Turner’s level of remorse is particularly disturbing. He effectively defers to the Defendant’s contention that the sexual assault was simply a misunderstanding, stating “Mr. Turner, in his state of intoxication, sees the events in a certain way…I take him at his word that, subjectively, that’s his version of events.” In response to the Victim’s frustration regarding Turner’s refusal to admit that he raped her, the Judge declares that it would be “dishonest” if the Defendant were to pretend to acquiesce to the verdict, despite conceding that a jury of twelve peers had explicitly rejected his version of events. At no point does he reprimand the Defendant for his mistakenly held belief that intoxication is synonymous with consent, nor does he find it problematic that Turner remains incapable of taking responsibility for his crime.
The race and class dimensions of the case cannot be ignored. Judge Persky himself refers to the “fortunate circumstances” of Brock Turner’s upbringing in his reasoning. Indeed several commentators have suggested that Persky’s own academic and sporting pedigree, former captain of the lacrosse team at Stanford, as well as his identity as a white man rendered him disproportionately sympathetic to the Defendant. Judge Persky appears to acknowledge the Victim’s observation that Turner’s privilege [read: white, affluent male] should not be a determining factor, but then goes on to emphasize the “severe impact” that incarceration would have on the Defendant. A severe impact that assuredly would have remained unconsidered if Turner was poor, less educated, or from a minority community. It is precisely because Brock Turner has so much to lose that the damage done to the victim is relegated to the background.
By Signe Wilkinson via TruthDig
Contrast Turner’s 6 months in county prison with the 15-year sentence just handed down to Corey Batey, a former Vanderbilt football player who was found guilty of raping an unconscious woman in a college dorm. It is true that aggravating circumstances were present in Batey’s case that were not in Turner’s – Batey participated in a gang rape, urinated on the victim’s face and took video footage of the assault — but the parallels that exist between the rapes committed by him and Turner are undeniable. Both victims were unconscious, both defendants justified their behavior on the basis of intoxication, and both denied any recollection of the rape. Batey, however, is black. The disparity between Turner and Batey’s respective sentences suggests that the intersection of Brock Turner’s race and gender has further insulated him from substantive retribution.
It is evident in the way that Judge Persky frames the assault that he does not see Brock Turner’s actions as falling on the continuum of sexual violence. Rather he conceives of the assault as the one-off indiscretion of an otherwise upstanding member of the community. His emphasis on Brock Turner’s lack of prior criminal convictions, letters attesting to his good character, and depiction of the rape as an isolated incident stems from the same heartless victim-snubbing framework from which the Defendant’s father derives authority for his crude description of the assault as “20 minutes of action.” This framework rests on the assumption that sexual violence is an unfortunate by-product of modern-day party culture, that a brutal assault on a woman’s body may be dismissed as a case of poor judgment or miscommunication, and crucially that there is some distinction to be made between the assault in question and a “real rape” committed by a “real rapist.”
A brief glance at the history of sentencing in gender-based violence cases in the United States immediately refutes this assumption. In 2014, a Dallas County judge determined that a man who pleaded guilty to raping a fourteen year girl did not deserve a jail sentence time because the girl had had three other sexual partners, stating she “wasn’t the victim she claimed to be”. He was granted five years probation. A similar case tried in 2013 in Alabama, in which the defendant raped the victim three times, resulted in the defendant spending two years in a community corrections center and three years on probation. That same year, a teacher accused of raping his fourteen-year-old student received an initial custodial sentence of 31 days.
Judge Persky’s leniency is symptomatic of a much broader trend within judicial systems both in the US and around the world. While the judiciary does not bear sole responsibility for society’s attitudes towards violence against women, it certainly should not lend it legitimacy by perpetuating a culture of impunity for offenders. Despite acknowledging the devastating impact that the assault had on the Victim and her family, in practice the Judge privileged the tangible harms experienced by Turner (expulsion from Stanford, loss of his swimming career, persecution in the media) over the Victim’s injuries, which are incalculable, internal, and mostly unseen. His decision is a message to survivors of sexual assault all over the world – your pain is not our priority.
Public backlash has been immediate and severe. A recall petition has been launched by a Stanford Professor to remove Judge Persky from the bench, the Santa Clara County District Attorney is supporting the introduction of mandatory minimum sentences in sexual assault cases (although there is strong evidence to suggest that mandatory minimums disadvantage minority communities), and a photo series entitled “Dear Brock Turner” was exhibited last month offering some damning insight into victim blaming. While this may signal some kind of normative shift in attitudes towards SGBV cases, it is yet to be seen how the judiciary will respond. In the meantime, all eyes will be on the sentencing of Brandon Vandenburg, Corey Batey’s (white) co-defendant, which will take place on September 30.
In addition to calling for better support services for victims of sexual assault, it is vital to recognize that widespread acceptance of gender-based violence, reflected in sentencing leniency, is one of the broader social conditions that fosters violence against women. While there is no clear-cut solution to the prevalence of sexual violence, reducing it begins with an acknowledgment that to violate a woman’s body is a heinous crime and it should be treated as such every time.
Natalie Druce holds a Bachelor of Laws and Bachelor of International Studies from the University of New South Wales, Sydney, Australia. Anti-discrimination law has been the focus of her academic and professional pursuits. Her research has centered primarily on the existing legal mechanisms for combating discrimination, particularly at the intersection of race and gender, and states’ anti-discrimination obligations under international law.
Thalassa Cox is a Law graduate from University of London, with legal training focused on Human Rights, Public and Administrative law. She has interests in public accountability, rule of law and institutions of justice.