It’s different. There is no explanation, no rational justification for why it’s any different than a murder, or any other battery, or, frankly, any malum in se offense, but that doesn’t stop the self-serving hypocrites from trying. The vapidity of the claim was obvious in Stanford professor Estelle Freedman’s op-ed on the Brock Turner case and the need to change the legal system’s view of rape and sexual assault:
But Judge Persky’s fate, whatever it is, may be less important than the reaction ignited by his sentencing. The energies unleashed by this case present a potential to reframe the issue of rape. What we need is a sustained critique of unequal privilege before the law and a true understanding of the deep and lasting damage that sexual assault exacts on its victims and their families.
Feel it? Feel that “deep and lasting damage”? No mention of the deep and lasting damage of a murder. Not of a beating. Just sexual assault, which is different because, something, something, it just is.
Of course, the reason it’s different is obvious. It’s because it involves a woman, and violates the feminist self-interest, that women are special, and therefore crimes against women are special. This doesn’t mean that the crimes of rape and sexual assault aren’t damaging, but that they are neither more nor less harmful than other crimes that don’t involve women.
And lest this detail escape notice, that crimes are harmful is why they’re crimes. Women’s pain is no more special than men’s, or children’s. Or whites or blacks. Or Christians or Muslims. The notion is that if they cry enough, people will believe it. And people, being susceptible to the victim who has the saddest tears, end up believing. But it’s a lie.
But for perhaps the first time ever, no rational person can disagree with Slate’s Mark Joseph Stern, who calls bullshit on his own.
Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism. This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left.
Of course he has to Gertrude his way through the trenches of allies, and toss in all potential scared dogmatic beliefs, because his religion demands it. But that’s mere cover for the heresy to come. Due process? That concept only applies to lower forms of pain on the hierarchy of victimhood, and yet Stern does the unthinkable. He puts principle ahead of team loyalty.
Start with the petition, quickly creeping toward its goal of 1 million signatures, to “remove Judge Aaron Persky from the bench for [his] decision in [the] Brock Turner rape case.” Persky, the petition argues, demonstrated “bias” in handing Turner a light sentence—six months for raping an unconscious woman behind a dumpster at a fraternity party.
Yes, it wasn’t rape, but don’t get too hung up on that, given that the popular usage of rape has lost all meaning. And yes, a petition at Change.org is what 12-year-olds think matters, together with Stanford prawfs like Michele Dauber, who leads the mob. As Judge Mark Bennett notes at Fault Lines, it’s curious that a tenured academic would scream for the nuclear option when a judge does one thing with which she disagrees, given that professors defend their academic freedom while denying judicial independence over one mistaken decision.
In contrast, Stern sees the hypocrisy.
It is quite possible that Persky’s decision was, indeed, biased on account of Turner’s race and privilege. If so, that is a matter for California’s judicial ethics commission. It is certainly not a matter for recall or impeachment. Judicial elections are already a travesty of justice. Recall efforts compound the problem: They blatantly put pressure on judges to follow public opinion—or mob mentality—rather than maintaining judicial independence.
The mob is bad, horrible, when it comes to lynch the bad black guy. The mob is good when it demands the rapist be lynched, and the head of the judge who failed to string him up.
Even worse, Persky has received anonymous threats from social justice advocates outraged by his ruling. These hecklers may believe their cause to be noble, but . . .
This requires no further explanation. But Stern, in a display of principle that may well get him anonymous threats, drives the lie home:
Then there is the widely lauded victim impact statement Turner’s victim read during the sentencing hearing. I am glad she wrote this extraordinarily powerful letter and glad so many millions have read and been moved by it. But it had absolutely no place in the courtroom. Victim impact statements were once a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights.
In a criminal sentencing hearing, the judge (or jury) should consider only the facts of the case at hand in determining the defendant’s culpability. Victim impact statements introduce a massive amount of emotion into the proceedings, allowing the judge or jury to be swayed by emotional response rather than logical reflection. That, in turn, shifts the focus away from the defendant and toward the victim while injecting arbitrariness into the sentencing process. The defendant’s punishment may well hinge on how emotionally compelling the victim can make his or her statement.
Isn’t it all about who cries the saddest tears in this Age of Emotion? There are sound, deeply disconcerting countervailing arguments in mitigation of a sentence of life plus cancer. That Turner, despite his father’s awful support letter, will suffer the loss of education, of career, of Olympic potential. That he will live branded as a rapist for the rest of his life, which may well preclude his ability to marry, to have a family. That he will be on the sex registry, unable to live or work like others, for the rest of his life. And more.
This isn’t a comparison of whose pain is saddest, or an apologia for what he did, but a pragmatic determination of the proportionality of punishment. Victim impact statements, even ones that yank the shit out of our heartstrings, are anathema to due process. Except when they are written by a woman who was sexually assaulted, because that’s different.
Criminal defense lawyers familiar with Judge Aaron Persky’s performance on the bench speak very well of him. They say he’s exceptionally fair to all, including defendants who don’t enjoy white privilege. They strongly support him, even if they may not be in complete agreement with the sentence here. But the Dauber followers, pitchforks in hand, don’t care about any of that, as they have one outcome they can’t abide.
America’s criminal justice system has been distorted in other ways—almost always by well-meaning activists—in an effort to dispense the appropriate punishment to sexual abusers.
Well-meaning activists are no different, no better, than anyone else. They’re just the other team in the “end justifies the means” war, with their preferred outcome at any cost.
Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence. That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system.
When someone as blindly dedicated to the cause as Stern calls bullshit, it is bullshit. And indeed, it is bullshit. And the efforts to justify the social justice flavor of “noble causes” at any price is no different than the other team’s, the hated team’s, the wrong team’s, efforts to fight for their desired outcome. You’re liars and hypocrites, all of you, to achieve your “profoundly misguided effort to stop sexual violence.” It’s not that there isn’t harm, but your harm is no more special than anyone else’s.
Two things I wonder about whenever I hear about the latest hysteria over rape culture:
1) Why don’t they ever talk about the place where rape is the most prevalent (far more than colleges): prisons?
2) What would have been the reaction if Turner had been black, or Latino, or Muslim, or gay (with a physically weaker male victim)?
But you know the answers to your questions. This is about the hierarchy of progressive victimhood, not the fallacy of rape culture. There are winners and there are losers, and it’s all about where they stand on the victim ladder.
Thanks for these comments. Actually too many of the FB comments I have seen express satisfaction that this defendant will get raped in prison so he will know what it feels like. Since I have represented both men and women who have been raped in prison, I have felt compelled to point out that rape is wrong and can never be part of a sentence in a civilized society. We still have this eye for an eye mentality too prevalent.
Hammurabi’s Code is easily comprehensible to simplistic fools. As long as people don’t want to think, they will scream, “an eye for an eye.”
The “Social Justice Warriors” have lost their marbles on this one. People who ordinarily post against capital punishment in any context have been advocating the killing of Judge Persky as well as the sodomization and killing of Brock Turner in custody. It is off-the-rails insanity, and reveals the true face of “Social Justice Warriors” as a monstrous composite of the face of McCarthyism and the face of the lynch mob. Eventually (and sooner rather than later if the violence they have endorsed actually occurs), “Social Justice Warriors” will lose their supporters just as McCarthy and lynch mobs have. The only question is how much damage will be done to the justice system and how many lives will be destroyed before it happens.
It is my understanding that the term “rape culture” was coined to describe life in (male) prisons to begin with, and feminists plucked it for their own purposes.
Thank you for a thoughtful essay. Baylor’s Sam Ukwuachu received a similar sentence (6 months plus probation plus a lifetime on the sexual offenders list). If Mr. Turner’s sentence is too light, then surely Mr. Ukwuachu’s sentence is also too light, and if one agitates over one, then one should agitate equally over the other. I wish each man’s sentence had been a bit longer but their time on the registry should be limited. At the risk of offering an idea that might have holes in it, their youth should be taken into consideration with respect to the registry.
Issues with the registry are far more significant than you appear to grasp, but every post can’t delve into every tangential issue with any depth. Feel free to read more issues with sex offender registry, but trying to insert it in such a simplistic way is unhelpful.
I respectfully withdraw the last two sentences of my comment.
I’m impressed that Stern was willing to take on the VIS issue at all. Maryland has a basis for them in the Victims Rights amendment to the state constitution (Article 47, not sure if other jurisdictions have anything like it) that was adopted after referendum. To date the amendment has been interpreted as a guiding principle for prosecutors, judges, and the police as opposed to providing victims with substantive rights that can be exercised during criminal proceedings. That’s consistent with the text and is as it should be if we’re going to have it at all.
I can understand the desire of people who are wronged to want vindication but insisting on doing it as part of criminal proceedings baffles me. The system isn’t set up for it and the VIS serves no legitimate purpose in that context.
Again, it’s all about ends. When you hate the defendant/crime, it’s glorious. When the defendant is marginalized, it’s horrible. The arguments don’t change, everybody just switches sides to align with their sympathies.
“Yes, it wasn’t rape…” I reposted this and a friend controverts it. Did you mean to say “was”?
No, what I wrote is correct. The crimes for which he was convicted and sentenced were sexual assaults, not rape, under California law.
Thank you for this article and the ensuing discussion, it brings up several issues predictably ignored in the MSM. I interned at the same county PD’s office in the distant past as a law student and found that they had a good grasp on the judges and were woe to involve themselves in political controversies. In light of this I found the following statement by the Public Defender to be very interesting:
[Ed. Note: Link deleted per rules.]
Knowing a few other deputy PDs in the office, I can say that they have the same views on the issue. A few who have commented on social media have made their posts private due to a deluge of random, often violence filled retorts. In any case, I do not think people understand how unusual it is for the PD to be making such statements, but as you’ve alluded, the public and media in general has a poor grasp of the law and its implications.
I’m digressing, but you’ve noted that the sex offender registry is a complex issue that cannot be distilled to any one post. However I’ve found reporting on it to be very vexing. I’ve done years of work in legal aid, and one of the most unusual personal developments during this time was an unexpected level of sympathy for the rare client who is a registered sex offender. I’ve seen clients who could no longer see their siblings, no longer able to care for their children, lose nearly every job, become destitute, could not attain an education, forced to live in the boonies, etc. It is enormously disappointing to see people dismiss the nature of this punishment, one that is unceasing until death. Of course, simply mentioning the deleterious effects on the defendant gives rise to a chorus – “well what about the victim?”
I do not think Turner deserves to be the most hated person in the US – in the age of social media and cellphone activism, no human is suited to handle that level of vitriol. I have compassion for both sides of this case, I don’t find it too difficult at all, but find myself asking in frustration, am I the only one? It is frightening to see the media (MSM and social media) consumed by a rabid mob mentality, with few voices calling for restraint or thoughtfulness. It’s as if there is a cult of victimhood whereby we keep emphasizing over and over again how destructive and unrecoverable the crime is – a competition for greivance. This is not good psychiatric practice at all.
Anyways, it’s Friday and your post has been thoughtful reading, albeit I’m working overtime by writing this diatribe. Thank you for providing a very interesting perspective on the issue.
You may want to consider the persuasive value of repeating things already said and adding in your feelings about them, given that no one was wondering about your feelings. And if simplistic one-sided discussion of the sex offender registry by someone else is ill-conceived, why would it be any different for you? On the bright side, your comment is way too long, tedious and no one will read it.
Speaking of Michele:
♡In a letter to Persky, Stanford law professor Michele Dauber detailed her personal relationship with the victim, who has been a close friend of the professor’s daughter since middle school. Dauber, who has since launched a campaign to remove Persky from the bench, described the victim as a “lovely, warm, talented, funny girl” who came from a “close, loving, involved family.”♧
From that left coast paper that is very much like that NY paper you read everyday.
At least Dauber had no underlying personal agenda in her attack.
From the get-go it appears you equivocate Freedman’s “victims” solely with women. Why do you believe her definition of sexual assault victims wouldn’t include men that have been assaulted as well? I know it really doesn’t matter since you’ve already made up your mind that the whole sentencing outrage is because women secretly (or not so secretly) want special privileges, but I’m absolutely certain that if Turner was caught by two men fingering a unconscious, half-naked man’s asshole next to a dumpster and Turner only got 3-6 months in a county facility, I would still be just as outraged. I wish no ill will on Turner (people who wish to see him raped in jail are terrible), but I think he deserved a longer sentence and not a metaphorical lynch mob. I do agree with you on this, however: some people have allowed their anger to thwart any sense of common decency.
An unfortunate practical aspect is that this plays out as a one-way gender street. It shouldn’t. It does. When there is a tenth of the blind outrage of a woman sexually assaulting a man, we will begin to approach parity. For now, it isn’t so.
[And cool how you impute immutable prejudice to me because you disagree. Kinda makes you a flaming asshole. Was that what you were aiming for?]
“I invite thoughtful comments, but please keep it civil and respectful.” And then you go on to call MRG a flaming asshole. Kinda makes me think you’re a flaming hypocrite, and makes me uninterested in anything else you have to say.
If you’re going to try to make a point, best not to make a fool of yourself in the process. Is there a reason why you think your “uninterest” matters? Is there a reason why you shouldn’t be held to the minimum level of intelligence that is expected of everyone else here? Is there a reason why you feel compelled to announce to the world that you’re a narcissist who presumes that anyone gives a damn about her “uninterest? Foolish and narcissistic is no way to go through life.
Are you going to give out a prize for the 10,000th time some dumbass writes a comment like that? If so, can you let me know where we are in the count so I can try to win?
If I do, it’s not gonna be a good prize. Trust me on this.
Now who’s not paying attention? You’re supposed to give participation ribbons to all of us dumbasses.
Non-lawyer here with some honest questions:
[Ed. Note: Balance deleted.]
This is a law blog, for lawyers and judges. It is not a free lawyer Q&A blog. Honest questions are still questions. I’m sure there is a place for you to ask on reddit.