Did Judge Persky make right call in Stanford rapist case? (opinion)
June 30, 2016
Let's say your child has committed a crime, been convicted, and is about to be sentenced. What should the judge do?
Here's what we know: In January 2015, two Stanford University graduate students on bicycle came upon what appeared to be a rape in progress behind a campus dumpster.
One Brock Turner, a 19-year-old Stanford freshman and scholarship swim team member, was on top of a partially nude woman who was not moving.
Turner ran, was pursued, arrested and charged with sexual assault. His victim, a woman in her early 20s, was taken to hospital, unconscious for some three hours. Both Turner and the woman had grossly elevated blood alcohol levels.
Turner claimed his sexual acts were "consensual." The woman had no recall for any of it.
Turner refused to plead guilty, perhaps because a guilty plea would necessitate lifetime registration as a sexual offender.
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The case went to trial. In March 2016, a jury convicted Turner of three counts of sexual assault with intent to commit rape of an intoxicated person, sexual penetration of intoxicated person with a foreign object, and sexual penetration of an unconscious person with a foreign object.
The prosecutor asked for a "standard" sentence for these offenses — two years on each count, or a total of six years in state prison. The probation officer recommended a year or less in county jail and three years probation.
The victim, addressing the court before sentencing, wrote, in part, "The probation officer's recommendation of a year or less in county jail is a soft time-out, a mockery of the seriousness of his assaults, and of the consequences of the pain I have been forced to endure."
Judge Persky sentenced Turner to six months in the county jail, and three years probation, asserting that Turner was remorseful, had no prior convictions, was young and unarmed, would comply with probation, and was not a danger to others.
He concluded that state prison, a brutal and dangerous address compared to most jails, would have a "severe impact" and "adverse collateral consequences."
A national uproar ensued over the "light" sentence. Stanford law professor Michelle Dauber and others in the legal community want Judge Persky removed from the bench.
An online petition has gained over a million signatures.
Professor Dauber said, "Brock Turner's sentence for three violent felonies isn't merely shocking, it's dangerous. It reinforces the myth that sexual assault isn't a serious crime, particularly when it is perpetrated by young, white, male athletes in elite universities."
We also know that sexual crimes are underreported and that most claimed sexual assaults never go to trial. It's also said that 90% of campus rapists are repeat offenders, and that 2/3 of rape survivors know their attacker. Some 60% of sexual assaults are not reported to police, and only 3% of rapists are ever incarcerated.
So, to be clear, I view sexual assault as a serious crime that frequently goes unpunished.
But what is the appropriate or correct sentence for this crime and others?
America has long vacillated between a theory of punishment and rehabilitation for convicted criminals. When punishment advocates prevail, longer jail and prison sentences ensue. That's been the case for some 50 years, largely caused by a "War on Drugs" that has normalized lengthy jail or prison sentences.
It's in that context that six months in the county jail for a sexual assault conviction seems absurdly insufficient. After all, if drug possession can earn you a year in county jail and more in state prison, sexual assault, a far greater crime, should result in a much longer period of incarceration.
The National Institute of Justice is the research arm of the Department of Justice. In the last several years, drawing on the best research, it provides data at marked variance with state sentencing policies emphasizing punishment and long periods of incarceration.
The Institute concludes thatM "prisons punish and keep people off the street," but are "unlikely to deter future crime." Moreover, "Severe punishment doesn't chasten' individuals," and may, "exacerbate recidivism." Meaning, longer prison sentences may make you more, rather than less, likely to commit another crime.
Not a good way to prevent crime when more than 90% of prisoners return to the community and 2/3 of released prisoners reoffend within three years.
So, getting back to Judge Persky's sentencing of Turner, his emphasis on no prison time, relatively brief jail time, and a three-year probation would appear to be consistent with Institute of Justice research, public outcry not withstanding.
And, if I were the Judge, I would require ongoing psychotherapy to include not only sexual assault issues, but the roots of how Turner got to be that way, substance abuse counseling, and payment for all medical and counseling services for his victim.
Incline Village resident Andrew Whyman, MD, is a clinical and forensic psychiatrist. He can be reached for comment at firstname.lastname@example.org.