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.