Published 28 June 201629 July 2016 · The law / Sexual violence Persky, prison, punishment, and the sentencing of Brock Turner Russell Marks The sentencing of Brock Allen Turner, an elite swimmer and Stanford University student convicted of three counts of sexual assault earlier this month, hardly needs an introduction. So manifestly inadequate was the sentence, according to Stanford professor of law and sociology Michelle Dauber, that she launched a petition to recall the judge. The petition immediately went viral, and thus far has attracted well over a million signatures, including thousands from within Australia. The basis of the Dauber petition is that the Santa Clara County superior court judge who made the order, Aaron Persky, does not understand the consequences of violence against women, and is therefore himself a danger to women and unfit to sit on the bench. Dauber makes a number of specific complaints about Persky’s sentence. First, Persky ignored the statutory minimum prison sentence set by California’s legislators. Second, Persky referred to Turner’s social status – as an elite athlete at an Ivy League university – to justify the comparatively light sentence. Third, Persky placed greater emphasis on the sentence’s impact on Turner than on his victim. Fourth, Persky said that Turner’s intoxication meant that he was less culpable than he would have been otherwise. Fifth, Persky relied on evidence – including witness statements – of Turner’s good character. And sixth, Persky implied that a rape on an Ivy League campus by a high-performance athlete is not a real rape. There are significant problems with Dauber’s claims. Turner was not in fact convicted of rape, which under Californian law is defined as penetration by the penis of the vagina. The absence of evidence proving this kind of penetration meant that prosecutors had dropped the rape charges at the preliminary hearing. Rather, Turner was convicted of what Californian law defines as the comparatively lesser crimes of assault with intent to rape, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. (The ‘foreign objects’ were Turner’s fingers.) The distinctions between these crimes are unfamiliar to Australians, where parliaments have modernised the definition of rape to include all of the above and more. Dauber’s problem, here, is the definition of rape established by California’s legislature. Persky had no choice but to apply it. Persky did not ignore the minimum two-year prison sentence: he used another part of Californian law that allowed Turner’s offence to be sentenced by way of what the criminal code calls ‘probation’ instead of imprisonment in a state prison. Probation is available where a defendant – as Turner is in this case – is young and has no significant record of prior criminal offences. Persky did have discretion on this point, and he decided that Turner’s youth and his prospects for rehabilitation meant that two years in a state prison was not in the interests of justice. Instead, Persky sentenced Turner to three years’ probation, which also allowed him to impose conditions. One of those conditions was 6 months in a county jail. Dauber’s petition ignores all this. Persky did refer to Turner’s social status in his sentencing, and he did use Turner’s status as a champion swimmer and a Stanford student as a reason to keep him out of state prison. Again, Persky was applying the law as established by California’s legislature. This aspect of sentencing law – that a criminal sentence must take into account the defendant’s past behaviour and the probability of his future reoffending – is common across the western world, and Dauber is either ignorant or disingenuous when she expresses shock and outrage at it. I suspect Dauber is actually shocked and outraged at the social implications of this sentencing law – where privileged, white, Ivy League kids get off lightly while black kids from the projects cop lengthy prison terms – but again, her argument here is with the legislature, not with an individual judge. Persky did refer to the impact prison is likely to have on Turner. Again, this is what judges are required to do in most western jurisdictions. Californian law also allows judges to take into account the victim’s views. But as the sentence is enacted on the defendant and not the victim, it is the impact on the defendant that is most significant for sentencing purposes. Dauber presumably knows this. But Dauber wanted Persky to prioritise the experience of the victim over the likelihood of rehabilitation for Turner. Her expression of outrage on behalf of the victim here is understandable, but it doesn’t form the basis for effective sentencing policy. Persky did use Turner’s voluntary intoxication as a factor that mitigated his sentence. Legally speaking, this is the most controversial part of the judgement. In Australia, parliaments have long since established the principle that if a person voluntarily makes himself drunk and then commits a crime in part because he is drunk, then that person is actually more, rather than less, culpable. But Californian law is not so simple on this point. In fact it’s so complicated as to be incomprehensible. In the absence of guidance from legislatures, judges must follow the common law – which for centuries has been clear that intoxication is a mitigating factor. Again, Persky was applying the law here. Again, Dauber’s argument is with California’s legislature, and not with an individual judge. Finally, Persky did refer to a number of statements made by Turner’s family and friends as regards his character, and to the fact that Turner appeared to show little remorse. Dauber professed more outrage on these points, and clearly believes that these statements amount to little more than excuses for inexcusable conduct. But Dauber omits the key legal points – that everyone accused of a crime is entitled to a defence, and that Turner in fact pleaded not guilty and intends to appeal against his conviction. Turner’s case was that he believed the sexual activity was consensual. His defence – including the character testimony – proceeded on that basis. It seems that Dauber wanted the defendant to accept and internalise the prosecution’s case, despite knowing that he faced up to 15 years in a state prison if he did so. * All sentencing judges must make choices. They must formulate a sentence that aligns with the law established by legislators, and that is most likely to give effect to the sentencing aims: general and specific deterrence and rehabilitation. But the biggest choice they must make is the one between punishment and problem-solving. Had Aaron Persky wanted to merely punish Brock Turner, the law gave him ample opportunity to do so. But Persky has a reputation as a more thoughtful judge. Mere punishment doesn’t solve many problems, especially when it involves imprisonment. All other things being equal, prison does two things to an offender: it makes it more difficult for him to commit crimes while inside; and it makes it slightly more likely he’ll commit crimes after he’s released. If that is surprising, it shouldn’t be. Prisons are highly authoritarian environments where violence – or its threat – is constant, and where the only available peer support is among convicted felons. At their worst, prisons transform petty or first-time offenders into career criminals. It’s extraordinarily difficult to readapt to civil society after spending long periods of time in prison. Friends withdraw, employers stay away, and often a person’s only support network is among ex-convicts. Many former prisoners find that their lawful options are so limited they need to resort to criminal activity just to survive. There is no evidence that Turner is a serial rapist, that he makes a habit of sexually assaulting women. He had already lost his swimming career and his position at Stanford – both the university and Swimming USA have banned him for life. So in sentencing him, Persky presumably didn’t want to risk limiting his future options so severely that future criminal activity looks attractive. A lengthy probation period allows the justice system time to supervise Turner’s behaviour, and also allows Turner time to engage with relevant rehabilitation programs. Turner will need to reinvent himself upon his release from the county jail. Anyone who says that months in jail and years on probation is a ‘slap on the wrist’ is either ignorant or peddling falsehood. I have had clients beg to be imprisoned because the equivalents to California’s probation that are available in Victoria – community service orders and drug treatment orders – can be extraordinarily demanding. And demanding is what they should be: after all, they aim to induce behavioural change, which requires effort. Prison, on the other hand, is a place where every hour of one’s day is regulated, where one doesn’t need to think about where one’s next meal is going to come from, and where minor indiscretions are punishable by solitary confinement. It does not prepare anyone for real life. And given what they achieve in terms of rehabilitation (or its opposite), prisons are extraordinarily expensive. States spend up to $300 every day just to keep a person in prison in Australia. It’s likely to cost over $50,000 to keep Turner in the county jail for six months. Multiply that by the number of prisoners in California and the figures get massive. That’s a lot of money that won’t be spent on rehabilitation, or better education, or the kind of social services that might have helped prevent a young person’s transition into criminal behaviour. Or, in this case, it’s money that won’t be spent on measures that will actually help change the misogynistic frat culture from within which Turner’s assault likely emerged. Nearly ten years ago, a lecturer at Stanford Law School wrote that California’s prisons ‘are dangerously overcrowded, its recidivism rates are extraordinarily high, its corrections budget is enormous’, and that ‘California has no choice but to alleviate prison overcrowding’. Since then, the Californian prison crisis has gotten much, much worse. These problems are not addressed by sending people who commit criminal offences to prison for longer and longer periods. Much has been made of Turner’s privileged background. There is a hint of conspiracy – or at least conflict of interest – in reports that reveal Persky to be a former Stanford athlete himself. The logic of most media reports seems to be that because Turner would have been imprisoned for much longer had he been black or poor, or had he not been a Stanford student, his prison sentence should have been much longer. But they’re not reasons to lock Turner up for years. They’re reasons to not lock up poor black kids. Very few media reports acknowledge that this may have been a very good sentence in all the circumstances. In part, that’s because we’ve all been trained in the (il)logic of punishment: commit the crime, do the time, and that will prevent you or anyone else from doing the same thing again. But the evidence just doesn’t support this logic. If we actually want to reduce the level of criminal behaviour, we have to begin to address the causes of criminal behaviour. What led Brock Turner to sexually assault an unconscious young woman behind a dumpster while he was drunk (if indeed that’s what he did, acknowledging his defence and his likely appeal)? Whatever it was – perhaps a combination of significant problems with the way frat culture and broader consumer culture thinks about women and gender relations, the availability of alcohol, and a range of other factors – prison will not address it. * Media reports have taken their cues entirely from Professor Dauber’s petition, which carries the anonymous victim’s extraordinarily articulate 7,244-word victim impact statement in full, and quotes selectively from statements by Turner, his parents and his character witnesses, as well as from the judge’s sentencing remarks. It is rare for a victim’s impact statement to be so well-written. Many of them are painfully incoherent, reflecting both the victim’s underprivileged background – most victims of crime live in the same communities as offenders, and most criminal offenders are intensely disadvantaged – and the hurt and anger from within which they are written. Victim impact statements are a relatively recent addition to the criminal justice matrix. They come out of the broader ‘victims’ rights’ movement, which emerged during the 1970s with the goal of giving victims a more active role in the criminal justice system. For centuries, victims have been reduced to mere witnesses in the state’s prosecution of offences against it. Victims often feel excluded from the justice process, which is dominated by arcane procedures of courts and the indecipherable jargon of the law. Unfortunately, the main effect of victim impact statements is often to lengthen prison sentences, without really affording victims any substantive role in proceedings. The statement by Turner’s victim is vividly cogent, and conveys something of her shattering experience of learning what had happened to her while she’d been unconscious. Through Dauber’s online petition, this anonymous victim’s voice has travelled the world, stirring empathetic horror and anger everywhere. Her words help us to imagine what it felt like, to slowly awake to a reality forever changed. Too many already know this experience. The brilliance of her prose, which reflects the victim’s own privilege, affords us an insight into the experiences of women who aren’t able to express their pain as coherently. It is impossible not to be moved by this woman’s pain. But what Dauber is asking us to do is to translate the anger and hurt that we naturally feel on the victim’s behalf into a rage directed at the recall of a judge and, ultimately, a longer prison sentence for Brock Turner. Those outcomes are unlikely to further Dauber’s ultimate goal: a world that is safer for women. It’s the certainty of punishment, not its length or intensity, that deters. It’s the prevention of violence, not the infliction of even more of it – in the form of lengthy prison terms – that will make society safer. And it’s the reform of the criminal justice system, not the persecution of its individual agents, that will bring justice for victims of sexual assault. A person who has been sexually assaulted – most likely she is a woman or a child – faces a terrible reality. She must first tell someone, and be believed. She must relive her emotional trauma, over and over again, by telling the story of what happened to her in a way that makes rational sense to others. If her case ever comes to court, she must prepare herself for every little detail of her story to be scrutinised by a team of defence lawyers. She must submit herself for one of the most soul-destroying procedures in the modern experience – cross-examination. She must rely on the professional competence of strangers to prosecute her own experience. She must submit herself for judgement. And she must prepare herself for the probability that her story, in the end, won’t quite be good enough to meet the law’s very high evidentiary burden: proof beyond reasonable doubt. At every step along this process, there are risks that the case against the person responsible for putting her through a living hell will collapse. As few as one in every hundred women who experience sexual assault come out the other end with a successful prosecution. That is a truly shattering statistic. Even then, as in this case, the ‘successful’ complainant is likely to feel that the sentence imposed is an inadequate reflection of the hell she feels. As we know it, the criminal justice system is built around the prosecution and punishment of the accused. There are few incentives for anyone charged with sexual assault to plead guilty: the potential penalty is high, and the prosecution’s case is often built on one person’s word against another. It is a complete defence, in Victoria as in California, if a defendant can introduce enough doubt as to whether he believed the victim consented. In most cases, the odds are firmly in his favour. What we fail to recognise, over and over again, is that it’s the maximum penalty itself that is ultimately responsible for putting victims through the hell of the trial process. There is another way. Instead of seeing punishment as the ultimate goal, we might want to problem solve. What are the problems in this case? The victim’s distress and sense of disempowerment. The offender’s behaviour and likely his attitude, perhaps to women. The broader culture from within which the offender’s behaviour emerged. These are the problems the justice system should address. But in the overwhelming majority of sexual assault cases, our existing justice system not only fails to address these – it adds an additional set of problems: the cost of long trials; the expensive authoritarianism of prison; and the re-traumatisation of victims. What if the lengthy prison terms – which don’t rehabilitate and which don’t deter often enough – were taken off the table in favour of a more targeted, evidence-based approach to rehabilitation of all parties involved, including the individual offender, the victim, and the culture at large? There are alternatives to the trial-and-punish model that have been tried elsewhere, with proven benefits. The Centre for Innovative Justice at RMIT University, headed by former Victorian attorney general Rob Hulls, last year published a report that investigates and recommends some of these alternatives in relation to sex offences. These include restorative justice models (where victims meet offenders face-to-face in a controlled, supportive setting), and intensive, residential, court-ordered rehabilitation services. What Brock Turner did was horrific, abominable, almost unthinkable. But we must not allow our natural and appropriate disgust at his act blind us to the evidence about what works and what doesn’t work, if we want to prevent him and others from doing it again, and if we want to afford victims the best opportunity to heal. Dauber’s admirable goal is to reform the justice system to better serve women who are the victims of sexual assault and other violence. But reform is achieved by attacking structures of power and privilege. Dauber’s petition, on the other hand, attacks an individual agent – Aaron Persky. No doubt part of her basis for doing so lies in the peculiar American practice of electing judges, a practice that turns them into politicians and makes them dangerously susceptible to the prejudice and ignorance of the loudest voices. The irony is that Californian reformers have few allies on the bench like Persky. Instead of reform, Dauber’s petition furthers the forces of populist reaction – the forces that demand tougher and tougher penalties against all the evidence. These forces do not contribute to a safer, less violent society. They create its opposite. – If you liked this article, please subscribe or donate. Russell Marks Russell Marks has worked as a criminal defence lawyer and academic. He is an honorary associate at La Trobe University, and author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 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