The Brock Allen Turner Rape Case And The Nature of Empathy

I've got a post up over at Fault Lines about the Brock Allen Turner case.

Last 5 posts by Ken White

Comments

  1. orgoman says

    Ken,

    I have avoided this story until now – mainly because after Duke Lacrosse and the Rolling Stone story, I find that waiting until all the information is out is a way to mitigate the internet mob mentality. I did read your column though and I had a couple of questions. Please understand that, 1) yes I have a bit of a contrarian streak in me and 2) I have a genuine interest in trying to understand the thinking of the judge here.

    1) You use the term "brutally" in reference to the sexual assault. While I have no doubt the assault took place, from the few details that I've seen, I don't think this applies. Was there violence that occurred? Would the use of violence in a case like this normally have an effect on the sentencing?

    2) According to the link in the story, probation officials recommended the six month sentence. Is this a common sentence for cases of this type? Does the judge usually follow the probation officials' recommendations or the DA's recommendation of six years?

    I guess I'm trying to figure out the appropriate level of outrage here. A lot of the anger seems to derive from the father's and the judge's comments – and they should immediately STFU. And I can see how from my comfy white suburban enclave that I might not get all of the issues here. From reading a lot of your previous stuff, I can see that you tend to think about a lot of these issues – so I'd really like to understand.

  2. says

    The final point you made could not have been better stated, and more people need to understand how unfair the justice system is before they talk about what the justice system should be allowed to do to people convicted of crimes. It seems people assume that "being sent to prison" means "being tortured by prison guards and other prisoners", and that's the real punishment.

    This situation came a few days after another social-media-explosive trial where a father of a murdered child tried to attack the convicted murderer in court and was restrained by bailiffs. In that situation, and in this one, I've seen a lot of people calling for extrajudicial punishment, the most popular being prison rape (which says a lot about which crimes we feel are worse than others.)

    But which convict is going to actually get that torturous prison experience? The white kid who had drunken sex who is going in for 3 months (because a judge didn't want him to have that torturous prison experience)? Or the murderous black man that'll be there the rest of his life (death row notwithstanding)?

  3. drinky squirrel says

    I too would like to hear the answers to Orgoman's questions. Especially the one about where the probation official's recommendation came from. I understand that the point of your post was that the poor and downtrodden are poorly treated – but I would still like to hear more about how it works with the rich and privileged.

  4. Miles Archer says

    I was surprised by your article. It wasn't what I was expecting. I was expecting an analysis of why the judge was right and that defendants are always being screwed by the system.

    Nice to see a nuanced view.

  5. VirtualPresence says

    The mental gymnastics needed to say "Judges empathize with defendants who share their life experiences" and he "fell so far into tribalism" and at the same time to look at the judge linked to La Raza in the Trump U case and say its evil/racist/bigoted/assholish/what-have-you to raise concern about a judge empathizing with the plaintiffs is indeed noteworthy

  6. Steve says

    My hope is that someone can and does parlay the outrage over this case into a real movement to repeal the 8th Amendment and replace it with something that explicitly (1) allows the death penalty for non-murder felonies and (2) mandates uniform sentencing set a priori by the legislature that defines the crime and forbids the current system of individualized sentencing by trial courts.

    But like most of my hopes, I expect that will be unfulfilled.

  7. albert says

    @Ken,

    I slightly disagree with your 'empathy' interpretation in this case. It sounds more like good ole boy elitism to me.

    I wouldn't be surprised if there were other factors involved in the judges decision; factors that may never see the light of day.

    . .. . .. — ….

  8. Wesley says

    This case struck me as somewhat analogous to the Ferguson grand jury case. The cop who shot Michael Brown was afforded the most fair and thorough grand jury proceeding ever recorded. The biggest problem with it is that grand juries are never fair and thorough — and that the cop was being treated special. The important — and most disturbing — fact to take away from that is not that the cop was treated wrongly. The problem is how the system treats everyone else.

    It sounds like this kid received a thorough consideration of his circumstances. The ultimate decision may be complete bullshit; I'm not really in a position to weigh in on that. This sentence could have been the product of another privileged white person being able to spend enough money to avoid a harsh sentence, or the lack of state prison could have prevented someone unlikely to re-offend from becoming a career criminal.

    My anger is not in the ultimate disposition of Turner's case. It's that the system runs roughshod over 99% of the people that come through it without any of the same apparent concern. The outrage this sparked only helps fuel the dehumanization of criminal defendants, which, as Ken pointed out, in turn will just make things worse for the people the system didn't care about anyway.

  9. orgoman says

    RIchard,

    I just tried to read as much of that statement as I could. It's terrible and my heart breaks with what that poor woman has to deal with.

    But here is my dilemma. And maybe it is my bias – what with the terrible media controversies over the last few years. But the greater the public outrage over something, the greater the internet storm, the more I look for evidence before I join in. The more I pull back and want to carefully examine every word to make sure that it is accurate. Yes, it is my contrarian nature. Yes, it's because we have all been suckered in the past. And it's probably why I am fixated on the word "brutally". Reprehensible, yes. Morally outrageous, yes. Deserving the opprobrium of the masses, yes. But it doesn't look like he hit her.

    This is also why I asked the second question. I'd like to believe in our justice system. I AM NOT A LAWYER, but it seems like most of the law is there for very good reasons that have stood the test of time. I'd like to think the problems in our justice lie not in the legal code, not in the thinking behind the fine judicial distinctions, but in the eternally fallible human element. And this is something that Ken hits hard – the judge probably saw himself in the defendant as he was also a Stanford athlete. But where is the solution for this undeniably imperfect system? I don't think we can ever eliminate human biases, but only try to minimize them. Which is why, when Ken calls the system broken, I want more evidence than one inept judge. And I'd want proposals for how an alternative system could address those inadequacies before I jump on the train. Our system may be biased, slow, uncaring, fickle and visually ugly from every angle, but it might be the best one possible. Or at least I'd like to think so.

    Of course at the end of the day, I just don't know. That's what I am trying to figure out.

  10. says

    I think that semantic questions about whether it is appropriate for me to use the word "brutal" when, after a drunken women collapses unconscious onto the ground in public, a man removes her clothes and shoves his hand into her vagina hard enough to cause abrasions and introduce dirt into her as she lies on the ground next to a dumpster, are unlikely to be productive.

    And though I think it's sensible to argue that you need alternatives to a system before you advocate getting rid of it, I don't think it's sensible to say you need alternative before you point out flaws.

  11. says

    @orogman

    I'd like to believe in our justice system. I AM NOT A LAWYER, but it seems like most of the law is there for very good reasons that have stood the test of time.

    If you follow this blog, one thing you are going to have to start thinking about is what exactly our "justice system" really is (naturally, you can disagree with Ken on the subject but it is one he has covered a lot). "Justice system" is just a name, and as Ken likes to tell it has nothing to do with what the system's function currently is. What the system is now is not what it started as, certainly. And it's how it is now for a lot of reasons. Large, complex "code base". Askew incentives. Indifferent citizenry. Wide range of motivations for agents of the system.

    As it stands currently, it is (arguably, although you're not going to convince me otherwise) a vehicle for career enhancement and the chasing of dubious political goals. It does this by chewing through a lot of our citizenry, truth be damned.

  12. says

    @orgoman:

    The word was "brutal". Not "violent". You may think they're equal because of connotations, but they are most definitely not equivalent. You can have a brutal defeat at chess–that doesn't mean you were punched any more than if you're "beaten" at chess. You're reading something in, then quibbling on what you've read in. Based on the description of events, I think brutal is perfectly fitting. It's "direct and lacking any attempt to disguise unpleasantness".

    Moreover: do you really need someone else to find you citations of people who have gotten badly light sentences versus ones who have not to believe it's systemic? That's. ..kind of hard to believe. I mean, you are undoubtedly aware of the affluenza case, and there are obviously others, and actual lawyers (not me, but others including Ken) are TELLING you it's common. Considering that, your contrarianism seems kind of unreasonable.

  13. Total says

    The mental gymnastics needed to say "Judges empathize with defendants who share their life experiences" and he "fell so far into tribalism" and at the same time to look at the judge linked to La Raza in the Trump U case and say its evil/racist/bigoted/assholish/what-have-you to raise concern about a judge empathizing with the plaintiffs is indeed noteworthy

    In the first case, we have actual evidence from the judge himself that he is swayed by the common life experiences. In the latter, we have nothing more than random assertions by His Orangeness In Chief and the fact that the local Latino bar association shares a name with an Organization The Right Has Decided Is Scary. If you can't figure out the difference between the two, then I may have to write this again in words of fewer syllables.

    And it's probably why I am fixated on the word "brutally". Reprehensible, yes. Morally outrageous, yes. Deserving the opprobrium of the masses, yes. But it doesn't look like he hit her.

    Dude, get a clue. In what world does "brutal" require hitting? He penetrated her with his fingers in such a way that she had dirt and pine needles inside of her when they examined her at the hospital. That's brutal. But in any case, I have no idea why you're fixating on that particular word. It has all the earmarks of someone looking at a particular tree so they can ignore the forest. You should stop doing that.

    I just tried to read as much of that statement as I could.

    So you couldn't even get through the whole statement, but you'd like to quibble about "brutal"? Act like an adult.

  14. David C says

    Dictionary.com gives the first definition of "brutal" as "savage; cruel; inhuman". It fits well enough.

    Yeah, violence would probably make it worse, but this sentence for rape is too light. There are sentencing guidelines that already take into account things like no previous criminal record. I see no reason in this case to go below the minimum guideline – you don't look at this case and see some manifest injustice if he's just sentenced normally.

  15. Lagaya1 says

    Steve- I think you missed the whole point of this article…well at least part of the point. The result of your suggestion would be that MORE injustice would result, and more serious injustice at that. Who do you think the death penalty most affects? Judges peers?

  16. Guy who looks things up says

    @orgoman

    Sorry for piling on, except not really. After your first post I kind of thought you were a clueless dick. Your second post proved that you are, in fact, a clueless dick.

  17. Steve says

    Lagaya1, I may have missed Ken's point. Otherwise, I just disagree with it I think.

    Way I see it, criminal law in our current system is about three questions asked in this order:
    1) Is an act illegal?
    2) Did a particular person perform an illegal act?
    3) What should we do with this particular person who performed that illegal act?
    Legislatures answer 1 generally and the trial courts answer 2 & 3 on a case-by-case basis.

    In the system I think we should have, the three questions would be:
    1a) Is an act illegal?
    2a) What should we do with anyone and everyone who performs that act?
    3a) Did a particular person perform an illegal act?
    Legislatures would answer 1a & 2a at the same time and trial courts would only answer 3a.

    Ken's piece, as I understand it, was about justice and injustice in answering Question 3. I believe that much of the injustice in the punishment question is inherent in asking it on an individualized basis and eliminated by asking it in general, as 2a. I believe justice in punishment is determined solely by the characteristics of the crime, not the criminal (and for more crimes than SCOTUS allows I believe justice requires death, but that's a side issue). Our current system of sentencing specific convicts, not stipulating uniform mandatory sentences for specific crimes, causes some of the present injustice. After all, judges' inability to empathize with a majority of the people they sentence only matters if judges have a say in picking the sentences. That's why I think we should make legislatures specify punishments (and I'm fine with them specifying a table of sentences rigidly bonded to specific aggravating or mitigating factors) at the time they define crimes: before the crime happens and a defendant's identified. That way, everyone convicted of something gets exactly the same sentence regardless of their attributes instead of some sentence within some range based on various attributes at the discretion of a judge.

    Ken's piece seems to argue against greater harshness in our current flexible sentencing system. I want to get rid of the flexible sentencing system.

  18. Lagaya1 says

    Steve- Even mandatory minimum sentences have been disastrous. Death penalty expansion would be horrifyingly so. Have you noticed how many wrongly convicted cases are in the news these days? Making a broken system worse is not the answer.

  19. Brian Z says

    @Steve

    And we know that when there’s a backlash against mercy and lenient sentences – when cases like this or the “affluenza” kid inspire public appetite for longer sentences – it’s not the rich who pay the price. It’s the ones who never saw much mercy to begin with.

    This is Ken's line which resonated with me the most; I think you're still not letting it sink in.

    Your outrage is causing you to suggest a systemic change that "locks in" the sentencing, but it only works if everything else about the operation of the "justice system" remains constant.

    What would actually happen is that the behaviors surrounding sentencing would not remain the same. Faced with the prospect of mandatory harsh and/or death sentences, the aggregate members of the justice system would make changes in the investigation, charging, plea-bargaining, prosecution, defense, etc of the accused. The powerful would once-again be mostly shielded while the downtrodden would face increased wrath.

  20. Steve says

    But it doesn't make it worse. Wrongful conviction's an error with my Questions 2/3a. Death penalty's 3/2a. Whether or not some person's actually guilty or not has no bearing on what is or isn't the appropriate punishment for whoever actually is guilty.

    Lenient sentencing is not a solution for wrongful conviction.

  21. Total says

    That's why I think we should make legislatures specify punishments (and I'm fine with them specifying a table of sentences rigidly bonded to specific aggravating or mitigating factors) at the time they define crimes: before the crime happens and a defendant's identified. That way, everyone convicted of something gets exactly the same sentence regardless of their attributes instead of some sentence within some range based on various attributes at the discretion of a judge.

    You're either an engineer or a programmer, right?

  22. MS says

    @Steve

    Your less flexible system is actually more likely to lead to greater variance in sentencing than the one we have today. Early in US history, there were states that had automatic death sentences for various crimes. The usual result of such regimes was far more jury nullification than we have today. Faced with the choice of convicting and executing someone they thought didn't deserve to die, and letting go someone who they believed committed the crime, juries frequently voted not guilty. England had similar issues with it's "bloody code", which mandated the death penalty for most crimes, including petty theft. If you are worried about people being let off easy just because they are sympathetic, it seems preferable to have such people be given lower sentences than simply set free altogether.

    The other big problem is that the inflexible regime that you want doesn't necessarily reduce flexibility at all. It just shifts it from the judge's determination of proper sentence length to the prosecutor's determination of which specific crime to charge. And given the vast number of crimes on the books today, both at state and federal levels, prosecutors will always have flexibility in determining what to charge. Even if you think flexibility is bad, presumably you would agree that its better that the person exercising that flexibility be ostensibly neutral rather than adversarial.

  23. Steve says

    Brian, we cross-posted.
    Total, yes: civil engineer.
    MS: Wouldn't it force more weight and thought to be put in the initial steps of deciding what's a crime to begin with and force legislatures to define crimes in greater detail, with more elements, so prosecutors would have less discretion? Move charging decisions from genus to subspecies, if you will?

    I recognize that there are too many crimes. There are too many things defined as felonies. There is grave injustice in how crimes are investigated and prosecuted, exacerbated by the impunity that cops and prosecutors have. I don't see how making decisions case-by-case makes those any better though.

  24. Total says

    Total, yes: civil engineer.

    Score!

    Wouldn't it force more weight and thought to be put in the initial steps of deciding what's a crime to begin with and force legislatures to define crimes in greater detail

    Are legislatures well known for doing so on hot button issues like crime?

  25. says

    Steve, I'm going to guess you haven't read any of my posts about how easily prosecutors manipulate mandatory sentencing schemes.

  26. Steve says

    Ken, I've read them but may have taken the wrong lesson from them: prosecutors use high mandatory minimums for vaguely-defined crimes they couldn't prove at a fair trial as leverage to get guilty pleas to "lesser included" offenses they still couldn't prove in a fair trial, so crimes should be defined in such a way that they can't do that or prosecutors need to be stripped of their discretion or something else needs to happen so they have less freedom in who to charge and what to charge them with.

  27. eyebiter says

    Thanks for the thoughtful post. Not sure I fully agree with it. For one, it really gets into uncharitable assumptions about the judges heart or state of mind that I think require mind-reading to know with such certainty. It could hardly be the main driver. Is it a Sotomayor style empathy that actually tips the scales?

    When there are *much stronger* reasons stated directly for the light sentence. Like the (admittedly disputed) probation officer report that told the judge the victim wasn't sure that jail time was necessary. Even the victims statement seems directed at the Probation officer's views of what would be appropriate punishment. Is it the judge's empathy really? Or the probation officer. The probation officer says his youthfulness, lack of priors, and drunken state mitigate the sentence. But the probation officer isn't an athlete. Not did he go to Stanford (did he?)

    Or news reports that indicate that they already did due diligence to compare similar cases and this one wasn't way out of sync with other cases.

    The judge himself interestingly said he had to balance the jury's verdict with "information that came to light at trial" which to me means perhaps that the mere fact of conviction doesn't mean everything has happened the way it is reported in the media or by the victim (who of course had no knowledge of events since she had blacked out: which leaves her unable to form memories, but possibly quite able to take actions, move about, engage in kissing, etc)

    I'm sympathetic to her eloquent and passionate statement. On the other hand, she actually seems to hold the harm of him defending himself from the charges against him as something that should cause his sentence to be greater.

    "He pushed me and my family through a year of inexplicable, unnecessary suffering, and should face the consequences of challenging his crime, of putting my pain into question, of making us wait so long for justice."

    She also holds out for a standard of punishment that seems completely unworkable

    "The consequences of sexual assault needs to be severe enough that people feel enough fear to exercise good judgment even if they are drunk, severe enough to be preventative."

  28. MS says

    @Steve

    As a general matter, I don't think making legislative stupidity a lot more costly for citizens is likely to make legislative stupidity less likely. The current criminal justice regime already imposes severe hardship due to legislator's indifference to its costs; I see no reason to think that ratcheting up the costs even further will suddenly make legislators pay more attention.

    More specifically, I guess I'm not convinced that sentencing flexibility is a greater concern than those other issues you referenced. If they didn't exist, then maybe the benefits you suggested might come to pass. But they do, and under those circumstances I see your proposal as carrying a great cost without much benefit.

    Let me put it to you this way, if your first-best world is one where there is sentencing rigidity and those other issues don't exist, is your second best world one in which there is sentencing rigidity and those other issues remain or one where there is sentencing flexibility and those other issues are gone? If its the latter, then lets work to get rid of those other issues first before jettisoning one of the few safety valves that criminal defendants have access to.

  29. Gaelen says

    so crimes should be defined in such a way that they can't do that or prosecutors need to be stripped of their discretion or something else needs to happen so they have less freedom in who to charge and what to charge them with.

    How?

  30. Andrew says

    Great post, Ken. An important question, prompted by your responses in the comments section at Fault Lines:

    Which superhero's hand are you using as your avatar? The clenched fist and meaty forearm make me think Black Adam, but the pink glowy part feels very Gambit.

  31. ngarjuna says

    I know blogging isn't your full time job but holy shit I miss your posts when you're away. You are a total gem, Ken.

  32. Dan Mills. says

    The problem with defining crimes that tightly is that by removing discretion you ask for more unintended consequences, not more consistent sentencing, particularly when grafting such a change onto an existing body of law….

    Consider for example "Possession of any amount of cocaine shall be punishable by XX years imprisonment" (Making something up off the top of my head that is not a million miles from some of the stupid that legislators pass), well now a cop can arrest almost **ANYONE** given that amount of coke contaminating paper money.

    Or take the one that happened to a friend of mine, a scout master returning on a train from a camping trip with his group. Well, happens he had a machete in the bottom of his rucksack, happens the police had a knife arch, happens the police were doing zero tolerance as a policy at the time, the judge called the police and the prosecution into his office for a "word", threw the case out and apologised for it ever having gone that far.

    The law, even ignoring case law) is a massively complex system of interacting components, created with little thought to either system architecture, design or any sort of regular attempt to refactor the resulting dogs dinner.
    Watching legislators who generally have no training in how to work on complex systems that they only sort of understand tweaking the thing is sometimes like watching a 5 year old driving a forklift, impressive that it happens at all, but scary dangerous and you really wish you could get them to stop.

  33. Trent says

    Steve, the problem with trying to legislatively define punishments for Crime is no two crimes are the same. The other problem is that courts don't operate on logic, they operate on emotion. If you understand those two key facts you as an engineer will better understand the justice system which I as an engineer find arbitrary and capricious.

    There are no simple solutions to these problems because the world is filled with emotion, people aren't logical and people make mistakes. If there was an easy solution to this problem it would have been found already. Our only answer to the system we have is to call out Judges that do this, which Ken did quite eloquently.

    On the other hand I have a strong problem with the calls to punish the judge. Judicial independence is a cornerstone of a free society. We start putting our thumbs on Judges and in no time at all we'll have legal systems that are arbitrarily punishing people for the political affiliation to avoid angering the legislature.

  34. Robert says

    I like to think objectively about cases like this by switching the facts to something less emotionally charged. First of all, there was no "rape" charge. He most likely left the party with this girl, they went together willingly behind a dumpsters, and as they were rolling around in the pine needles, she passed out. He did a terrible thing by not calling 9-1-1. People die from alcohol overdose.

    To put it in "neutral" terms, imagine if two drunken frat boys got into a fight. Nobody can agree if anyone started it. They're exchanging blows. One of them, extremely drunk, collapses, apparently unrelated to the fight. When down, the other takes an additional punch at him, but not causing any serious injury. What charges should be filed against the man who took one more swipe at the collapsed man. A 6-month sentence seems about right.

  35. Robert says

    I like to think objectively about cases like this by switching the facts to something less emotionally charged. First of all, there was no "rape" charge. He most likely left the party with this girl, they went together willingly behind a dumpsters, and as they were rolling around in the pine needles, she passed out. He did a terrible thing by not calling 9-1-1, and a very distasteful thing by continuing to be in physical contact with her. People die from alcohol overdose.

    To put it in "neutral" terms, imagine if two drunken frat boys got into a fight. Nobody can agree if anyone started it. They're exchanging blows. One of them, extremely drunk, collapses, apparently unrelated to the fight. When down, the other takes an additional punch at him, but not causing any serious injury. What punishment should be meted out to the man who took one more swipe at the collapsed man. A 6-month sentence seems about right.

    It's also disappointing, but not surprising, that all underage drinkers involved in this weren't suspended from the University. There are no heroes in this case.

  36. Total says

    First of all, there was no "rape" charge.

    Just an "assault with an attempt to rape" conviction. The rest of your post is a typical rape apology, made only more disgusting by some kind of "let's all think rationally about this" approach that is even more appalling for its creamy pomposity.

    Reading it was like jumping into spoiled heavy cream: liquid, oleaginous, and foul-smelling. One wants to vomit and run at the same time.

  37. Richard says

    @Robert:

    First of all, there was no "rape" charge.

    Two of the three charges are sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object. Would you not define either of those things as rape?

    He most likely left the party with this girl, they went together willingly behind a dumpsters, and as they were rolling around in the pine needles, she passed out.

    First of all, if someone is intoxicated enough that they are on the verge of passing out, I question their ability to "willingly" do anything.

    Second, the jury has heard this case in far more detail than you have, and they appear to disagree with you, since they've convicted him of these charges.

    There are no heroes in this case.

    Except for the two cyclists who saved the woman.

  38. Tim! says

    Ken, I have unilaterally and without your permission added you to my roster of heroes. Thank you, hero.

  39. James Hanley says

    "I like to think objectively about cases like this by switching the facts to something less emotionally charged. First of all, there was no "rape" charge. He most likely"

    So in your mind "objectively" means beginning with a false claim and following up with speculation?

    You must have a very unusual dictionary if that's how you define objectivity.

  40. Aaron says

    In the courtroom of honor, the judge pounded his gavel
    To show that all's equal and that the courts are on the level
    And that the strings in the books ain't pulled and persuaded
    And that even the nobles get properly handled
    Once that the cops have chased after and caught 'em
    And that the ladder of law has no top and no bottom
    Stared at the person who [raped] for no reason
    Who just happened to be feelin' that way without warnin'
    And he spoke through his cloak, most deep and distinguished
    And handed out strongly, for penalty and repentance
    [Brock Allen Turner] with a six-month sentence.

    With apologies to Mr. Dylan.

  41. Mikee says

    RE: Robert

    "To put it in "neutral" terms, imagine if two drunken frat boys got into a fight. Nobody can agree if anyone started it. They're exchanging blows. One of them, extremely drunk, collapses, apparently unrelated to the fight. When down, the other takes an additional punch at him, but not causing any serious injury. What punishment should be meted out to the man who took one more swipe at the collapsed man. A 6-month sentence seems about right."

    Something tells me that if you were penetrated against your will you wouldn't equate it with one punch. Sadly, the only way you will ever learn that lesson is if you are in fact penetrated against your will. Even though you really, really, really need to learn that lesson, I still wouldn't wish it on you. And I've taken quite a few punches.

  42. M. Hall says

    Ken, for those of us unfamiliar with California law, could you clarify the impact of the sex offender registration for Turner? Is this a life-long, irreversible designation? Are there aspects to that designation that would motivate a judge to appropriately consider a lower sentence,as was done here?

    I was surprised the sentence was only 6 months for the reason that Turner attempted to flee when he was confronted, suggesting that he clearly comprehended he was doing something wrong at the time, despite his intoxication.

  43. Gorshkov says

    RE: Robert

    "To put it in "neutral" terms, imagine if two drunken frat boys got into a fight. Nobody can agree if anyone started it. They're exchanging blows. One of them, extremely drunk, collapses, apparently unrelated to the fight. When down, the other takes an additional punch at him, but not causing any serious injury. What punishment should be meted out to the man who took one more swipe at the collapsed man. A 6-month sentence seems about right."

    Except one punch isn't going to scar you for life, or affect your ability to hold adult relationships with members of the opposite sex, or affect your feelings of personal safety every time you go out the door, etc.

    Now – to be closer to a parallel ….. instead of "but not causing any serious injury", how about "broke his jaw and fractured his neck, leaving him paralyzed from the neck down"?

    All of a sudden, we're talking about a simple action that has life-long consequences. Do you still think 6 months is long enough?

  44. TimL says

    I usually don't comment because I don't have much to add (because y'all discuss things very thoroughly), but I want to echo M. Hall's question/perspective.

    It seems to me that the harshest penalty impose on Turner was to be placed on the sex offender list. I am not a lawyer or particularly knowledgeable above sex crimes and their punishments, but it seems to me that being a registered sex offender is something akin to wearing a Scarlet Letter for the rest of your life.

    That is, if I had a choice between a year in prison without being on the sex offender list and 6 months in prison but being put on the sex offender list… I'd take the former over the latter IMMEDIATELY.

  45. piperTom says

    As to the extent of the victim's injury, she laid a foundation for it early in her statement: "A deputy explained I had been assaulted. I still remained calm, assured he was speaking to the wrong person."

    Remember that our subject is the degree of the sentence and not whether assault is evil or the defendant is guilty. The victim was so lightly injured that she didn't believe, at first, that she had been assaulted. Only later, after doctors and cops had talked to her, did she realize it. Her words attach more importance to her missing underwear than to her abrasions. So, harsh punishment? By what standard?

    I hope that she sues him and gets a lot of money. He has and deserves a terrible reputation. But his spending years in prison isn't helping and isn't right.

  46. Total says

    The victim was so lightly injured that she didn't believe, at first, that she had been assaulted

    The victim was in shock and still under the effect of alcohol. Soldiers have not realized that they had had limbs blown off when first coming to after being hit; would you like to talk about them being "lightly injured" or does your analysis only apply to women?

  47. libarbarian says

    He most likely left the party with this girl, they went together willingly behind a dumpsters, and as they were rolling around in the pine needles, she passed out.

    @Robert

    This sounds like it could be plausible … right up until you consider the fact that Brock responded to the presence of other people by immediately FLEEING THE SCENE!

    I'd bet that fact was the nail in his coffin and what made even the jury members most willing to imagine scenarios whereby a guy could end up "innocently" fingering an unconscious girl behind a dumpster, decide that this guy knew he was doing something wrong at the time he was doing it.

    If you can proffer a reasonable explanation why a guy who believed he was engaged in a consensual act with a willing partner would immediately respond to being interrupted by abandoning his partner and fleeing, please do so.

  48. libarbarian says

    @TimeL

    I agree. This guy is never going to live this down. Think about the reaction of any potential employer to the results of a Google Search of his name. Would you want him at the company Xmas party around partying female coworkers?

  49. Trent says

    I'm not surprised by the people attempting to justify or explain away the rape but I am disgusted. Turner didn't leave the party with her, she left the party alone and passed out on the way home. He happened upon her, took her clothes off and sexually assaulted her. In the process of the assault 2 bikers passed and investigated. Upon his realization that he was discovered he tried to flee and was restrained. None of this is in dispute.

    If you were unconscious and someone walked up, took your clothes off and sexually assaulted you, would that be ok? Would you explain it away as no big deal or not very injured? Empathy is being able to put yourself in the position of another. Maybe you should be trying to empathize with the victim, not the perpetrator.

    Sexual assaults have some of the highest recidivism rates in all of crime. This kid rapes an unconscious girl at the ripe old age of 19. Odds are this isn't the first and won't be the last assault, hell if he hadn't been caught in the act he probably would have got away with it.

    I can say one thing, I would have not even considered doing what he did nor would almost anyone else that isn't a sex offender and sex offenders don't get better.

  50. says

    Yes, there are ways to get off the sex offender list. I cannot speak to specifics, Ken has touched on them in the past.

    We're (the editorial we) very, very bad in this country about reversing our judicial mistakes (going back to an earlier point). We're talking about scenarios where people are jailed, proved innocent beyond a doubt, and then wait months to be released. It's absurd. And this is to say nothing of how we do not like to admit we fucked up in matters of crime & punishment.

    Wrestling a 20 foot saltwater crocodile for your life is probably easier to do than get off the list.

  51. BadRoad says

    What ever happened to the bicycle guys? Did they not testify at the trial? It seems like they might have been helpful witnesses for the prosecution, and if they are foreign students in the university's graduate program they shouldn't have been terribly difficult to find.

  52. Gorshkov says

    To add insult to injury: I just read that he's been scheduled to be released on September 2nd, after having served 50% of his sentence.

  53. eyebiter says

    @trent "Turner didn't leave the party with her, she left the party alone and passed out on the way home"

    What was the evidence for that. I don't recall seeing that reported.

  54. Justin says

    @trent Yeah, post a link if that's true. I've not seen that reported anywhere either. From what I've read all we know is she was drunk, they were fooling around at the party together, dancing, kissing. I've seen witness statements saying they saw them kiss at the party.

    Then, somehow they ended up outside, alone together.

    From Turner's testimony, he asked if she wanted to go back to his dorm, and they left together. She fell down, pulled him down with her, and they were fooling around, kissing on the ground.

  55. AlphaCentauri says

    So many of the comments just exemplify Ken's point — people automatically sympathize with the person who they identify with.

    Men, what if it were you or your son who woke up in an emergency room, who had strangers retrieving pine needles and gravel from his rectum, and who found out he had been lying behind a dumpster with his genitals exposed while surrounded and photographed by strangers and fellow students for an extended period of time? From the way males tend to respond to the phrase "Get the gimp!" I think "brutal" might be the exact word that comes to mind. But somehow a woman should take this in stride, like having her wallet stolen if she passes out drunk on the bus home.

    BTW, the RSS feed for this site hasn't worked in some time.

  56. libarbarian says

    From Turner's testimony, he asked if she wanted to go back to his dorm, and they left together. She fell down, pulled him down with her, and they were fooling around, kissing on the ground.

    Then why did he run?

  57. Justin says

    Why do innocent people confess to crimes they didn't commit? I don't know.

    I'm only relaying what has been reported. And that is what has been reported. I have not seen it reported anywhere that she left alone to walk home, and Turner found her outside, unconscious.

  58. Total says

    In Turner's original discussion with the police, he could not pick the victim out of a photo array, said that he didn't know how she got behind the dumpster, and could not recall anything conversation they had.

    A year later, once he found out that the victim could not remember anything, he had a whole neat story recalled and ready to go in court. I tend to believe the first version.

  59. Justin says

    If I recall, during the original questioning the policed asked him if he was taking her back to his dorm, and at the time he said no.

    But, that, and changing other parts of his story later doesn't change the things other people say they saw. And other people say they saw them together at the party, dancing and kissing, from what I remember.

    So, it would seem, at least something had been going on between them at some point before they ended up outside, alone. That makes his claim of them leaving together, and fooling around outside at least seem plausible.

    And, to my original point, I've still not seen it reported anywhere that he just found her unconscious outside. That would be a substantially different story than anything I've seen so far.

  60. eyebiter says

    I'm not sure I want to make the assumption that anyone is discussing things in bad faith, with sympathies for one or the other person determining who one believes more. People probably are, but that becomes a rabbit trail for discussing an event without personal knowledge.

    I'm trying to understand, in terms the judge himself would agree with, the stated reasons he made a decision that seems lenient. Once I understand it, I might decide I still hate it. People can good-faith devil's advocate to help themselves cement a viewpoint that they actually hold, or because they see flaws they'd like to explore.

    Like someone might think the very notion a woman might go for a sexual encounter behind a dumpster is obviously ludicrous. I agree, if the woman isn't blacked out drunk. My impression is that being blacked out drunk means you do very bad and ill advised things. And you don't even necessarily give the impression that you're incapacitated, and certainly not that you're not forming any memories of the event. Its it plausible someone would get involved behind a dumpster in command of their reason? No. Is it *plausible* that they could do so if they were black out drunk? Please point me to information that would render that implausible. In good faith I'd like to find some but I haven't

  61. Justin says

    Why is hooking up behind a dumpster implausible? People do it in bathrooms, on the beach, in crowded rooms, in hallways, on elevators, in stairwells, in public parks, in cars. Why is outside, behind a frat house such a stretch?

    I've seen people hookup in the middle of the dance floor at one of the very few college parties I attended. I saw a girl I knew fooling around with a guy she had just met in the hall right outside of a small apartment party, she wasn't even drinking, let alone drunk.

    These things definitely happen. I don't know if that's what did happen. But it's certainly not implausible.

  62. Total says

    But, that, and changing other parts of his making up a story later doesn't change the things other people say they saw.

    I fixed that for you.

    And other people say they saw them together at the party, dancing and kissing, from what I remember.

    Which is not the same thing as them leaving together.

    So we have a witness who can't remember what happened but phoned her boyfriend during that period to tell him how much he meant to her, and a witness who originally said he had no idea how the victim got outside and then reversed himself completely when facing criminal charges?

    I'll go with the victim and Turner's original story, thanks.

  63. eyebiter says

    Wow. So the probation officer is a woman.

    and

    "Several defense attorneys from the Santa Clara County Public Defender's Office spoke out Wednesday in support of the judge and his decision, including the head of the office, Public Defender Molly O'Neal.

    While it's not surprising that some defense lawyers would back Persky's decision, O'Neal's support is significant. O'Neal is the first gay woman to hold the Santa Clara County position, has a daughter heading to college this fall, and is known as a feminist.

    O'Neal said she is appalled at the venom directed at Persky, who she says has received multiple threats. The victim was vindicated by the jury verdict, which sent a strong message that such assaults are not to be tolerated, she said.

    "We lock more people up in the United States than anywhere else in the world," O'Neal said. "To what end in this case?""

  64. Justin says

    @eyebiter
    There's no really good resource. Most of the coverage is hysterical nonsense, and is totally lacking in any facts or details. The Stanford Daily coverage is the most complete I've seen. But there are huge pieces missing.

    I haven't seen any report, even, on her testimony, let alone full transcripts. The only thing I've seen about what she was asked and how she responded was her own personal letter.

    His testimony is only slightly covered, again no transcripts.

    I haven't seen much of anything about witness testimony. Just a couple of random things.

    Or anything about other evidence. For example, it would be shocking to me if there were no photos of them both at the party, either apart, or together.

    There's very little to go on.

  65. Trent says

    Total has summed up pretty well what I remember reading as facts. That he couldn't even pick out of a lineup a girl he claimed he was taking back to his room is damning. His testimony after the fact is just not believable. Consensual college sex doesn't involved dirt and pine needles inside the woman and abrasions to her vagina. It doesn't involve sex with someone that's unconscious and attempting to flee when a random stranger sees you isn't the behavior of someone having consensual sex. The jurors with a full view of the evidence unanimously convicted him.

    He deserved 3 years minimum. He'll be lucky to spend 90 days in jail, with the overcrowding in California jails he could serve almost no time. That is not fair to the victim.

  66. TimL says

    To follow-up my question about the Scarlett Letter part of his punishment.

    I have had two experiences in which men on the sexual predator list moved into my general area. Both times, we were sent a flier with the person's name and information. Meetings were held. People watched their kids extra close.

    While I am not the least bit sympathetic to their plight (full disclosure: my daughter was VERY tangentially the victim of a pedophile — he took clothed pictures of her without her/our consent), it did seem like a harsh punishment.

    I also read something on Reddit in which a person had confessed to a sex crime that he claimed that he did not commit (I can't recall the reason for pleading guilty to the crime). He said that it had followed him everywhere and had effectively ruined his life.

    I guess my point here is this: sometimes prison is not the harshest and most appropriate of the available punishments.

  67. Justin says

    @Trent "The jurors with a full view of the evidence unanimously convicted him." The judge, and probation officer with a full view of the evidence sentenced him. Why is it ok to question the sentence, but not the verdict?

  68. Justin says

    @Grandy
    The point is, you can't have it both ways. You can't argue, the jury convicted him, they had more information than us, so they unquestionably did the right thing. And then, turn around and say, the sentence is an outrage.

  69. Steve says

    @Gaelen, I thought I had a way figured out. But apparently I didn't, or at least not one that's going to work in a world full of humans who are, as Trent pointed out, a horde of emotional imbeciles in need of severe culling. Myself included, which is why

    @MS I honestly don't know. The "other issues" are so unjust and are scary because they're what are more likely to impact me – but sentencing flexibility is tied up so closely with leniency in my mind that I can't get rid of my visceral disgust for it. And I really don't think the "safety valve" of sentencing flexibility is a valve worth mentioning. If you're wrongly accused, maliciously prosecuted, unfairly perpwalked or beaten or shot for contempt of cop, wrongly convicted, etc., what good does lucking out on a short sentence really do you? All that flexibility's done is shorten your incarceration without ameliorating any of the other ill effects of the injustice done to you: job loss, stigma, physical or mental injury, civil and administrative consequences of felony conviction, etc. And if someone's rightly convicted and gets a lenient sentence… as an atheist I probably shouldn't believe in sin, but I do, and mercy is the worst.

    @Dan Mills, I'm really tempted to take the cop-out of giving you the easy obvious retorts. Fucking stupid people, fucking stupid existing conditions.

    All I want is a world where fewer things are illegal, police and prosecutors are trustworthy, and anything too serious for community service, a fine, or maybe a caning gets you the death penalty whether you're Kenneth Lay, Daryl Atkins, Anthony Coker, William Thompson. Brock Turner, Ethan Couch, or Mark Ciavarella. And I know odds of getting any of what I want are basically "not happening" so I might as well brainstorm impractical ways of getting them. It's that or keep dealing with this pain in my jaw muscles and let my doctor put me on blood pressure meds.

  70. says

    I think there's a tension between the desire for equal punishment and the desire for proportional punishment. If you want exclusively equal punishment, then a year in jail is more punishment to someone with a high-paying job than a lower-paying job or to a person in college than a person who is retired. If you want exclusively proportional punishment, then a speeding ticket should be a percentage of your net worth.

    And if we're going to let judges find the balance wherever they think fair, you're going to get unfair results much of the time.

  71. AlphaCentauri says

    The running away is pretty damning. If I were interrupted while being intimate with a consenting woman, my first impulse would be to pull her dress back down to cover her, or to pull her closer. Running away and leaving her lie there uncovered and unconscious just wouldn't even occur to me.

  72. Trent says

    @AlphaCentauri

    Sealed the deal for me. Interrupted mid coitus by two men I don't know isn't going to have me running away, it's going have me getting between my partner and them and doing everything I can to keep them away from her. Even if I just met the girl. But then I don't have sex with unconscious people, that's just a sick IMO. Those two together and this wasn't a casual encounter with a consensual partner, no matter what story his lawyers have helped him "remember".

    @Steve

    There is an answer but it requires the good people to do right thing and work to fix the injustices by calling out them out and not letting them be swept under the rug. You can help by supporting the people working to fix the injustices. Ken did part by writing that great post, and the more people that read it and the girls excellent statement to the court will help.

    One of the greatest things that's happened in the last 10 years IMO is that the wide availability of video recording devices in everyone's pocket has led to significant efforts to reform policing. Police can no longer wantonly shoot unarmed people in the back and expect that there is no chance they won't be punished because the department will just cover it up. And things like blogging are exposing the injustices in our courts by making people aware of them, where before no one likely would have ever heard about it. Without the Internet, this girls statement would have never been read by a million people. Your anger, and mine is actually evidence that things are starting to change, at least thats my hope. Injustices aren't hiding in the dark, at least not as many as there used to be and any improvement is something to cheer.

  73. Justin says

    @Trent nowhere, anywhere does it say they ever had sex. In fact, much of what you've said about what happened isn't based on any account that I can find.

  74. Sinij says

    I know 'rape culture' is all the (out)rage these days, but I don't see this sentence as overly lenient. Imagine if this was a drunken fight in the alley between two boys, and one of them got his teeth knocked out, would you still feel 6 month is too lenient?

  75. says

    @justin

    The point is, you can't have it both ways. You can't argue, the jury convicted him, they had more information than us, so they unquestionably did the right thing. And then, turn around and say, the sentence is an outrage.

    We certainly can have it both ways, if for no other reason than the Judge and Jury are two entirely separate entities. Subject to different motivations, duties, incentives, and dis-incentives. To say nothing of the fact that one is a group of people and the other is a single person. You seem to feel you have made some sort of compelling argument to the contrary here. You have not.

  76. Steve says

    @Grandy & @ Justin, they're also doing two different things, as discussed to death in the comment train with me on Wednesday. The jury's answering a true/false question, the judge is answering an essay question.

  77. libarbarian says

    Why do innocent people confess to crimes they didn't commit? I don't know.

    Wow Justin, that is some "Fucking Magnets! How do they work?" level faux cluelessness.

    Someone "irrationally" confessing to a crime after hours of coercive interrogation designed to illicit a confession, has no relation to someone responding to an interrupted bout of "consensual" sex by immediately attempting to flee.

    I have not seen it reported anywhere that she left alone to walk home, and Turner found her outside, unconscious.

    Whether or not he found her or they left together is completely irrelevant. What is relevant is whether or not he knew she was unconscious when he was doing what he was doing. Even if they started making out, if he ever realized that she was unconscious and still proceeded then it's rape. The evidence all points to that being the case. He knew he was fingering an unconscious woman and he reacted exactly the way you'd expect such a person to react and totally unlike a person who believed he was engaged in a consensual act with a willing partner.

    Given the context, his quick flight is powerful evidence that he knew that he was doing something wrong*. But it's even more than that. EVERY one of his behaviors at the time is consistent with the hypothesis that he knew that she was totally unconscious and NONE of them are consistent with the hypothesis that he wrongly, but honestly, believed she was conscious. He made no efforts to help her cover up or to speak to her …. almost as if he knew that she would be unaware that she was now exposed to strangers or speak to them……

    But, yeah, I'm sure all that is just a big string of inexplicable coincidences ……..

  78. Justin says

    @Grandy that's a fair argument. But, you agreed from the outset that it's acceptable to question a jury's verdict. I maintain that it is logically inconsistent, and unprincipled to argue in a single post that the jury had all the information and cannot be questioned when you get the result you want. But the judge and probation officer who both also had all of the information can, because you didn't get the result you want.

    Either you agree that even when you have all of the information you may be fallible, or you don't.

    @libarbarian Fair point, I thought about that after I posted it. But I don't think it invalidates my point, which I suppose I never specifically stated. I don't know why he would run. I don't know what was going through his mind, or even what actually happened. I've said, clearly, that there is very little information to go on based on what's available in the media.

    I would say I don't know what happened. I'm not sure how anyone else can claim otherwise. You can paint all kinds of plausible stories with the small amount of information we have available to us, some worse than others.

    That said, it absolutely does make a difference whether or not she decided to leave with him. If she did his version of events is at least plausible. You could still create a rational argument about why he's guilty even if that was true, but I think you could also rationally argue the opposite. If she didn't leave with him, his version of events becomes completely implausible, and I'm not sure you could make a rational argument for why he's not guilty anymore.

  79. Jackson says

    I think arguing about the specifics of the case misses the point of Ken's post.

    I think believing that leniency or flexibility in sentencing being evil means you are also okay with children being expelled or sent to juvenile detention under zero tolerance because of "finger guns".

    To emphasize this, if your reaction to that paragraph was not "fuck those kids, they deserve it, assholes", then you do believe in lenience, you just don't like it in the context above or some other contexts. That's fine, but we are now discussing when we should apply it as we both agree it should exist, not a zero flexibility context.

    The problem with law is the same as the problem with human experience: it is often very malleable, subjective, unreliably reported, and context dependent. To think we can tightly define a system of rules that will produce the correct outcome with low error is the height of human arrogance.

    As an engineering solution, I would suggest that part of Ken's point is this (and Ken can tell me to fuck off and die if I am wrong):

    Start with the assumption that the actors in the system are capricious, flawed, biased, inconsistent, and likely to use the powers granted to them in unsavory ways at least some of the time. Given that, now design a system / repair the flaws in the current system in a way you believe to be workable in that context, which improves the net outcomes of the system.

    If you are unwilling to accept that as your starting assumption, I would suggest you probably have not observed the behavior of people, or at a bare minimum, the legal system with any degree of frequency.

    Another useful test from an old political science professor of mine: "How would this work with the politicians and actual government workers we have, not the enlightened ones we wish we have? In short, how would the DMV or TSA implement and execute this?"

  80. BadRoad says

    @Trent

    One of the greatest things that's happened in the last 10 years IMO is that the wide availability of video recording devices in everyone's pocket has led to significant efforts to reform policing. Police can no longer wantonly shoot unarmed people in the back and expect that there is no chance they won't be punished because the department will just cover it up.

    Yeah, they have to wantonly shoot unarmed people in the front if they want to get away with it now. Or kill them with their bare hands.

  81. Mikee says

    RE: Sinij

    "I know 'rape culture' is all the (out)rage these days, but I don't see this sentence as overly lenient. Imagine if this was a drunken fight in the alley between two boys, and one of them got his teeth knocked out, would you still feel 6 month is too lenient?"

    You know how Trump rails against Mexico for having a lot of rapists? Did you know their rape rate is less than half of what America's rape rate is (13.6 rapes per 100,000 people in Mexico, 26.4 rapes per 100,000 people in America)? Still wanna think that "rape culture" is just the latest outrage and not a significant problem that is just casually dismissed as an outrage by people that lack common sense, decency, and empathy (Yep, you included.)

    Ask any rape victim if they'd trade their experience for a few missing teeth and you'll have a greater understanding of what a "unanimous yes" feels like. (And you're not the first one to make such a ridiculous, infantile comparison in this comment thread.) Keep pretending it's not a problem, and maybe you'll be forced to change your mind when it happens to someone you love.

  82. scared anon says

    I don't know how else to get in contact but tumblr user roachpatrol could use some help. they are the focus of a witch hunt and tumblr refuses action or any other help to this young jewish artist.

  83. Justin says

    @Mikee you and Sinij aren't operating on the same assumptions, that's why his question seems ridiculous and infantile.

    Sinij is assuming the most charitable version events. That they were together, dancing, making out, fooling around, left together, continued fooling around, she passed out during, and he didn't realize immediately, and happened to get caught.

    You're assuming a more sinister version of events, maybe more along the lines of what Trent suggests. She was at the party alone waiting for her sister to return, ran off into the woods to pee again, and on the way back got woozy, sat down somewhere near the dumpsters to recover, and passed out, Turner came along, found her unconscious, stripped her naked and took advantage.

    I would say again, we know almost nothing. The facts available to us probably wouldn't cover more than 4 or 5 sentences. Based on what little information is available either story seems plausible. Everything in either story absolutely happens. People hook up at college parties, and end up fooling around outside on the ground. And people commit brutal, senseless, violent rapes, some far, far more brutal than even the worst possible version of events in this case.

    If you want to respond, respond using his assumptions, or explain why his assumptions are necessarily wrong.

    It's hardly productive for you to go back and forth talking past each other using your own assumptions, totally unaware of the other's.

  84. Mikee says

    RE: Justin

    I'm not assuming anything. She said it was sexual assault, the witnesses that luckily happened upon the scene thought it was sexual assault, the police charged him with sexual assault, the DA prosecuted him for sexual assault, and the jury found him guilty of sexual assault. I've read his explanation, I've read her story, there aren't many assumptions to make.

    California has an 'affirmative consent' law, not so coincidentally passed specifically for situations exactly like this one. It removes the burden for the victim to prove consent wasn't given onto the attacker to prove that consent was given. Only willful ignorance would blind a college student in California to that change in California law.

    I'm not unaware of Sinij's assumptions. He's assuming that rape culture is a fantasy that only exists in the mind of a select few, and makes an analogy to a fist fight. That analogy is akin to saying that one can know what post-war traumatic stress disorders are like because they did a paintball tournament underneath a fireworks show.

    Fist fights and sexual assault aren't even in the same ballpark, the former is kindergarten playground games compared to the latter's professional all-star games. I've been in my fair share of fist fights, and none of them made any emotional impact that wasn't erased with a beer. The emotional impact on most sexual assault victims never fully heals and often requires years of therapy to get close to pre-attack normalcy.

    A physical beating between two drunks that leaves one with wounds that require years of hard work to overcome would be bad enough that a six month sentence would be considered lenient.

    I also doubt that Sinij will be revisiting the discussion, since he didn't read anything before he made his comment. The fact that Robert hasn't returned to defend his analogy leads me to believe Sinij won't be back either.

  85. Justin says

    @Mikee how does one prove consent? Is there a standard, or is it totally subjective based on behavior and outcomes?

  86. Careless says

    You know how Trump rails against Mexico for having a lot of rapists?

    No, and I don't believe he's ever done that.

    Still wanna think that "rape culture" is just the latest outrage and not a significant problem that is just casually dismissed as an outrage by people that lack common sense, decency, and empathy (Yep, you included.)

    Yes. The idea that there's a widespread rape culture in this country is fucking stupid and outs you as a very silly person

  87. David C says

    California has an 'affirmative consent' law, not so coincidentally passed specifically for situations exactly like this one. It removes the burden for the victim to prove consent wasn't given onto the attacker to prove that consent was given.

    If you're referring to this law, it doesn't quite do that. It only requires a preponderance of the evidence standard, but it doesn't actually put the burden of proof on the accused. And, of course, it only applies to campus proceedings, not to actual criminal trials.

    I don't really like the idea of campus tribunals for something so serious. If a rape happened, you should be going to the police, not the university. And the accused deserve more protection than mere preponderance of the evidence as decided by people who aren't judges.

  88. says

    As a computer engineer, Jackson nailed much of what I was thinking: treat justice as an engineering problem. The ancient philosophers who influenced our modern system of justice were really smart dudes, but they were also blow-hards, and we need a complete paradigm shift in my opinion. If it was working great, then that would be one thing. Justice should be treated more like science.

    Succeeding generations of jet engines are built using less moving parts than previous iterations. We're able to carry 8 core CPU phones in our pockets because we keep making transistors smaller and more efficient. Just about everything in our lives becomes more efficient over time.

    But the law, at least to the average person, gets more monolithic, incomprehensible and arbitrary over time instead of evolving like everything else in our lives.

    Seems to me from engineering standpoint that justice is functioning the opposite of its stated design goals and needs to be reworked such that it actually fucking works. We can build transistors that are billionths of an inch thick for Pete's sake.

    Pretty please someone devote a fraction of the R&D we spend on electronics to figuring out how not to fuck over a big chunk of society. Seriously. Put some big brains on it. "Nerd Harder" or maybe use more cat pictures. Whatever. I'd rather be sent to prison by grumpy cat than some rich asshole so far removed from anything resembling the common experience. Or be like my roommates in my late teens and hand every defendant a 20-sided die and say "roll for justice." What's more blind than a roll of the dice? Certainly works for deciding who has to do the dishes.

  89. David C says

    OK. That's an actual criminal law. But, "Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent." So if this is the law referred to, the person who said it shifted the burden onto the defendant was even wronger.

  90. Durandal says

    If you think this sanction was unjust and inadequate to the crime, please don't ever tell me your thoughts on our overpopulation of prison and especially not your thoughts on the incarceration rate for black males.

    My brain really couldn't take the cognitive dissonance.

  91. David C says

    Durandal, you can think sentences are too long in general and still think a sentence was too short for one particular case.

    Or maybe the cognitive dissonance you refer to is in YOUR brain.

  92. Mikee says

    RE: Durandal

    Our prisons are overcrowded because of the number of non-violent potheads we incarcerate, not because we have too many sexual predators locked up.

  93. Mikee says

    RE: Careless

    "No, and I don't believe he's ever done that."

    So your nickname refers to how you deal with facts and evidence?

    “They’re bringing drugs, they’re bringing crime, they’re rapists, and some I assume are good people."

    “If you look at the statistics of people coming, you look at the statistics on rape, on crime, on everything coming in illegally into this country it’s mind-boggling!”

    "Well, somebody’s doing the raping, Don! I mean somebody’s doing it! Who’s doing the raping? Who’s doing the raping?”

    Trump started his quest for the presidency built upon calling Mexicans rapists. Have you really not been paying attention?

    1 in 4 women will be victims of sexual assault, and America has been consistently in the top 10 for rape rates going back as far as international rape statistics have been tracked.

    You're free to believe I'm stupid for agreeing that there is a rape culture in America, just as I'm free to believe you're projecting your own stupidity onto me because you lack the facts necessary to have a valid opinion.

  94. Mikee says

    RE: David C

    Yes, it does put the proof onto the accused. Did you even read it?

    "(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
    (A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
    (B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
    (3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
    (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:"

    It's not a valid excuse to say she consented when she was drunk, or unconscious. It's called the "Yes Means Yes Law" for that very section, the accused needs to have valid proof that the complainant consented. It switches the burden.

  95. Mikee says

    RE: Justin

    "@Mikee how does one prove consent? Is there a standard, or is it totally subjective based on behavior and outcomes?"

    Seriously?

    How about video camera to record consent, and written statements to prove nothing nefarious happened, and witnesses to the consent before retiring to privacy, just to name a few? I'm having a hard time believing you've got an open mind on the topic when your imagination was unable to come up with those three very easy ways to prove consent.

  96. David C says

    Mikee:

    Yes, it does put the proof onto the accused. Did you even read it?

    Yes, I did. I'm not sure what you were reading, though. The part dealing with the burden of proof is in this small portion of what you quoted:

    (3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

    Preponderance of the evidence is not quite the same as putting the burden of proof on the accused. (I suppose it's as close as they can get without it being obviously unconstitutional.)

    The other stuff you quoted just invalidates some possible defenses, which is not at all the same thing as saying the accused must prove what happened. I mean, it's not a defense to drunk driving that you didn't know you were drunk, but that doesn't change the fact that the prosecution still has to prove you were both drunk and driving.

    And, again, this is not criminal law. It's campus tribunal "law" and punishments are limited to campus discipline up to and including expulsion. And that's not necessarily going to help if indeed some guy is assaulting unconscious girls in alleys – if they aren't actually criminally prosecuted, they'd be able to keep doing that whether or not they're actually a student at the university.

  97. Czernobog says

    OK, ignoring all this idiotic speculation about the question of Brock's guilt. The pertinent question remains why the judge chose such a lenient sentence. I read the probation officer's report here:

    https://www.washingtonpost.com/news/grade-point/wp/2016/06/10/probation-officers-report-for-brock-turners-sentencing/

    It's worth reading as it addresses several of the questions asked in this thread about the evidence.

    And as the title of the article suggests, they do seem to recommend a moderate jail term.

    IANAL, but six months doesn't sound like a moderate term under California law.

    Ken, I know you don't normally do requests, but is there any chance of a follow-up lawsplainer?

  98. Bwana says

    I think the keyword in this report is "county jail". It is my understanding that county jail sentences are less than 1 year, aren't they ?

  99. Total says

    They do make the defendant prove his (or her) innocence on a crucial element of the crime.

    Er…wait. I'm confused. If someone raises a defense in a proceeding, don't they have to have evidence that that defense is true? If I claim self-defense in a murder trial, don't I have to have some evidence that it was, in fact, self-defense? Why is this different?

    (IANAL)

  100. says

    Actually, no. Given that self-defense is not an affirmative defense, once you raise the defense the prosecution has to disprove it.

    If you had to prove your own defenses, the negation of any element of a crime could be called a defense, and so you'd have to prove your own innocence.

    (IANAL either.)

  101. Total says

    once you raise the defense the prosecution has to disprove it.

    That doesn't seem to be true. From the court case you linked to:

    "Therefore, once a defendant asserts a consent defense and provides sufficient evidence to support the defense, the State bears the burden of proving lack of consent as part of its proof of the element of forcible compulsion"

    So the defendant cannot simply say that the accuser consented and leave it at that, they have to provide "sufficient evidence to support the defense."

  102. says

    Precisely my point. He (or she) is being forced to prove innocence.

    And that's wrong, for reasons I listed above.

    Just like lack of self-defense for assault or murder, lack of consent for rape is an integral part of the crime and the prosecution has to prove it.

    It certainly would help the defendant in any case to provide evidence/proof for either defense. But due process demands that the defendant not be made to do so. That's what innocent until proven guilty means.

  103. Total says

    Precisely my point. He (or she) is being forced to prove innocence

    The quote I cited was from the court's _ruling_; ie what they say as the solution to the the issue you're raising. Later in the decision, the court reiterates it:

    "the defendant need only produce sufficient evidence to create a reasonable doubt as to the victim's consent."

    So the court concluded that the defendant does need to provide evidence but only enough to create a reasonable doubt, not to be a preponderance.

    ie, from your court link: "As we explained in Riker, when a defense negates an element ofthe crime, the State can require the defendant to prove that defense only to the extent of creating a reasonable doubt as to his or her guilt."

  104. Mark Z. says

    Mikee: Education Code 67386 is not criminal law, so it's not constitutionally required to follow a standard of "beyond reasonable doubt". The accused can't be deprived of life, liberty, or property based on a campus disciplinary hearing.

    If your boss catches you stealing company property, you'll probably be fired. If you're also charged with theft and acquitted, the company is not required to reinstate you. You can ask, but they can say "No, we still think you did it." The judgment of the court doesn't automatically carry over into every other domain. This is true even if your employer is the state and the court is an agency of the state.

    Penal Code 261.6 is also an affirmative consent law. However, it is criminal law and so doesn't affect the standard of proof required (as it explicitly says). The law defines consent itself as being affirmative; it does NOT establish an affirmative defense of consent. Non-consent is still an element of the crime, and if it looks like the victim plausibly may have consented, the court is supposed to acquit.

  105. Sinij says

    @Mikee Rape culture implies that rape is prevalent, widespread occurrence. This is often quoted along with 1 in 5 flawed statistic. This is why I disagree with the term.

    While violent rape is horrid crime, clearly this is not what happened in this case. Therefore, you going with the worst possible assumption (paraphrasing: OMG! Violent rapist only got 6 month sentence! Rape culture! White privilege!) is not supported by facts.

  106. David C says

    The accused can't be deprived of life, liberty, or property based on a campus disciplinary hearing.

    Are you sure there's no property interest when it comes to being expelled? After all, tuition was paid.

  107. Czernobog says

    @Sinij: I'm not sure why you inserted "violence" into the equation. Raping an unconscious girl without beating her in the process is also a horrid crime. There's no point in putting words in anyone's mouth.

  108. says

    Note to self: Do not try posting while getting ready to take your little girl to the eye doctor.

    John, you hit the nail on the head. I was actually thinking of how the Washington Supreme Court was distinguishing self-defense from consent as defenses, and for a moment I got them mixed up in my mind.

    Total, interesting point about "only" having to establish "reasonable doubt" — supposedly still not having to actually prove your defense. Frankly, in the context of something like rape, which often has little objective evidence, that seems to me a distinction without a difference.

    It's far from clear to me that university judicial boards and investigators are required or even competent to make these fine distinctions. Heck, criminal jurors sometimes muddle distinctions like "preponderance of the evidence" vis-a-vis "clear and convincing evidence" vis-a-vis "beyond a reasonable doubt" (page ix).

    Given the push by the Department of Education's Office of Civil Rights (OCR), which holds the Sword of Damocles of funding cutoff over the heads of all public and the vast majority of "private" colleges, this is a due process issue since the government is effectively both forcing these rules and pushing colleges in a specific direction.

    And in that context, it's safe to assume that the distinction between "creating a reasonable doubt" and "proving consent" is lost on pretty much every college adjudicator.

    Last but not least, what David C said about property. Keep in mind that college education is in some ways a discontinuous good: If you leave school midway, you may have only paid half the tuition, but you've probably gotten much less than half the benefit of a college degree. Indeed, if you're kicked out — let alone for something like rape or sexual assault — you're arguably much worse off than if you'd never started. Even if you never paid a dime.

  109. Sinij says

    @Czernobog " I'm not sure why you inserted "violence" into the equation. "

    I did this because definition of rape was changed over time to intentionally lack precision. According to some, my spouse and I rape each other every time we go for a tumble after having couple glasses of wine. There is this kind of "rape" and there is kidnapped a stranger at a gun point, beat black and blue while forcefully penetrating and left for dead Rape. When talking about sentencing, these distinctions matter.

  110. markm says

    According to the probation report someone posted, both the defendant and victim had BAC of 0.13%. For once, this isn't a case of blaming the man for inebriated sex even though both partners were equally impaired; there are witnesses that the woman was passed out while the man was still physically functional. However, it means that imputing more guilt to Turner because he couldn't ID the victim from photos or for other memory lapses is wrong. Nor does it mean much that the victim's sister and friends don't remember her leaving with Turner, since they apparently did not notice her leaving at all.

    The facts, as far as I know them, can fit a range of scenarios, from Turner (with his judgment impaired by drinking) finding an unconscious woman and attempting to rape her, to the two leaving the party for a hookup in the first place they could find, the woman enthusiastically cooperating at first, and Turner not noticing that his partner had passed out until he was interrupted. Pine needles and the resulting abrasions in the vagina do not contradict that last one; I can say from personal experience that it IS possible to have sex in a pine forest without introducing foreign objects to the vagina, but we were both sober and careful – too careful for the sex to be the best. Drunk and over-eager sex is likely to leave minor injuries even in a much cleaner environment. I don't see evidence beyond a reasonable doubt of anything worse than continuing drunken sex after the partner had passed out. So, under the interpretation most favorable to Turner, life on the sex offender registry seems an extremely heavy penalty in itself.

  111. markm says

    Ken, when you call this a "brutal rape", you are using a definition of "brutal" which makes it redundant – by your definition, all rapes are brutal, so brutality is an essential element of the crime. Introducing that into a discussion of the appropriate sentence is similar to calling for an armed robber to receive a sentence enhancement beyond the sentence prescribed by law for armed robbery because the robber carried a weapon. (This happens, but I expect you'd agree that it is wrong.)

    Instead, I'd reserve the use of "brutal" with "rape" to cases where the brutality went beyond the usual for rape, for example when the rapist severely beat the victim. Inept fingering in unsanitary conditions, causing injuries that might also occur from consensual sex, comes nowhere near being that severe.

  112. Total says

    when you call this a "brutal rape", you are using a definition of "brutal" which makes it redundant

    No, he didn't.

    Instead, I'd reserve the use of "brutal" with "rape" to cases

    And you could have done something useful with the time you spent parsing the exact meaning of brutal you're comfortable with. What a waste.

  113. Kat Fud says

    I read the online posting of the police report. I have a slightly different question.

    Apparently around 6AM the following morning the police questioned Turner. That's when he admitted those acts for which he was charged.

    Had Turner just clammed up, STFU, and waited for an attorney, how much better a deal do you think his attorney could have bargained for him?

    I ask because the entire case is founded on his 6AM admission. Nobody else saw actual rape occurring, and the victim was unconscious and has no memory of the incident. A couple of guys saw something suspicious, they acted on it and caught Turner, but the charges don't really reflect what the witnesses saw. The charges are based on Turner's own responses to questions.

    "assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object."

    Five charges were filed initially; All three of the ones that stuck were based on his own 6AM admissions – the other two charges were dropped.

    The police report went through great effort to say that at 6AM, Turner was sober and speaking of his own volition. They would have had NOTHING had he shut his mouth.

    So this is a point that I think the media has side-stepped a bit. Turner not only admitted to committing this act, he screwed himself out of a decent plea-bargain, and may even have been able to get more charges dropped, if he had shut his trap and let his attorney handle the police.

    I'm just interested in understanding how much better this could have gone for Turner if he hadn't made that 6AM confession, and whether instead of complaining about a 6 month sentence which will likely be reduced to 3, we could all be complaining about suspended sentence, probation, or even worse, misdemeanor assault MAYBE, and certainly no rape charges.