How California’s New Rape Law Could Be a Step Backward

The California legislature passed Assembly Bill 2888 on Monday, in response to the lenient sentence a California judge gave Brock Turner, a Stanford freshman convicted of sexually assaulting an intoxicated and unconscious woman. If signed by governor Jerry Brown, the bill will expand the kinds of sexual assault convictions for which a mandatory minimum prison sentence applies. Turner’s sentence has been widely criticized as too lenient, but there is reason to fear this is the case of an outrage-generating case resulting in a law likely to have unintended consequences.

Turner was sentenced to six months in county jail (that the law only required him to serve three of with good behavior, which was exactly what happened), three years of probation, and a sex offender management program. He will have to register as a sex offender for the rest of his life.

The new bill amends the penal code to bar judges from granting probation for a number of crimes including two that Turner was convicted of: sexually penetrating an intoxicated person with a foreign object (his finger) and sexually penetrating an unconscious person with a foreign object. Under the new law, these crimes would carry a mandatory three year prison sentence. Probation would only be allowed for the third crime Turner was convicted of, assault with intent to commit (penile) rape, in “unusual cases” in which the judge must specify the circumstances on the record – so attempted rape would generally entail a two year prison sentence.

Prosecutors requested Turner be sentenced to six years in prison. The judge’s decision to instead accept the recommendation of the probation department, which is tasked with providing neutral sentencing recommendations to the court, has been met with national outrage and allegations that Judge Aaron Persky gave Turner special treatment because he is a white, privileged, elite athlete and widespread calls to have him removed from the bench.

Within the legal community there has been alarm at the efforts to recall Persky. Local public defenders say Persky is a thoughtful judge who is fair to their clients from poor backgrounds and that the lenient sentence he gave Turner is in keeping with his general approach to sentencing, while the Santa Clara Bar Association put out a statement calling attempts to remove the judge a threat to judicial independence. 

This response risks making things worse for defendants who aren’t as privileged as Turner.

So is the better approach to change the law to limit the discretion of all judges? Judge Persky was faulted for considering things like the defendant’s age, intoxication, remorse, lack of a criminal history – but he is required by law to consider those factors in making his decision. There is literally a checklist of such factors the probation officer had to go through in recommending the sentence to the judge.

But critics are concerned that race, class, and privilege skewed the outcome here. The concern is certainly legitimate – but the response risks making things worse for defendants who aren’t as privileged as Turner. We can’t know whether the defendant benefited from bias towards white college athletes. But we absolutely do know he benefited from something most poor or minority defendants lack – the resources to hire private counsel.

While many criminal defendants barely enjoy the right to an attorney due to inadequate funding for public defenders – often leaving them pressured into pleading guilty rather than going to trial – Turner was able to take his chances at trial with attorneys able to mount a vigorous defense. Though he was found guilty, his attorneys were able to collect scores of letters attesting to Turner’s character, how his downfall has taught him his lesson and the support network he has to keep him from reoffending.

But the bill that stemmed from the backlash against this unusually privileged felon will inevitably have a disproportionate impact on the same people mandatory minimum laws generally do – poor people of color. The likely consequences of this kind of tough-on-crime response to a high profile case seen as a symbol of a larger problem should concern two groups in particular: Californians and feminists. (I say this as a women’s rights attorney who grew up in the Silicon Valley).

California has a history of reacting to rising crime rates with tough sentencing laws, such as those in the 1970s and 1980s that overcrowded its prisons but did little to improve public safety. AB 2888, as Mica Doctoroff of the ACLU of Northern California explained, is the kind of “hasty-policymaking” in response to high profile cases that risks repeating history. “As we have learned again and again, mandatory-minimum sentencing is poor policy that disproportionately impacts communities of color,” she warned lawmakers. “California already provides an adequate sentencing scheme for the serious crimes addressed by this bill.” Yet California’s overwhelming liberal lawmakers almost unanimously passed the kind of bill that keeps California a leader among the nation in mass incarceration.

Well-intentioned feminists seeking to combat violence against women have a complicated history of aligning with law and order conservatives to promote punitive policies that particularly impact communities of color. For example, harsh sentences disproportionately doled out to men of color and “no-drop” policies in domestic violence cases that deter women from calling police or subject them to arrest themselves if they don’t wish to aid in prosecuting their abusers.

We should be wary of over-reliance on the criminal justice system to bring about social justice.

Feminists should be generally wary of over-reliance on the criminal justice system to bring about social justice, given that it disproportionately targets marginalized groups and reinforces hierarchies. We should be cognizant of the way portrayals of sexually violated (white) women as permanently damaged and broken have been used to perpetuate the tough-on-crime notion that all criminals are irredeemable monsters who need to be locked away forever. Historically, the irredeemable monsters have been black men, but making privileged white college students comparable boogeymen isn’t a step towards equality. Focusing on individual criminality obscures the society-wide attitudes that foster crimes like Brock Turner’s. The notion that the solution is to lock him up because he is uniquely evil lets the society that raised him off the hook. It may provide some deterrence, but it does nothing to address the root causes of the problem in a culture saturated with the message that real men prove their worth through sexual dominance.

Feminists and progressives need to question whether an even more punitive system actually serves our goals. Brock Turner did a terrible thing, and perhaps should have spent more time in jail. But what would mandating he spend three years in prison accomplish? He was 19-years-old at the time – which means he was legally an adult but lacked a fully developed brain – with a problem of underage binge drinking and an abhorrent view of women. Do we want to see him rehabilitated or do we want retribution? Our prisons definitely aren’t rehabilitative – locking him up would make him more likely to commit future crimes while using up public funds feminists should want to see put to better use.

Sexual assault is a scourge that has to be combatted, but it is a symptom of a much larger problem of gender inequality and lack of respect for the right to bodily integrity in our culture – scapegoating one judge or ratcheting up sentences for acts that are already criminal will do little to solve it.

All in all, the Turner case is a win. Most rapes aren’t even prosecuted, but his case resulted in not only a felony conviction but a very public downfall that serves as a warning to anyone who might claim to be confused about what sexual assault is. It’s not perfect, but it’s progress.