Dodd Among Three Legislators to Attempt to Eliminate Probation for Sexual Assault Cases

In the wake of what the legislators are calling a “shockingly lenient sentence given to Brock Turner by Judge Aaron Persky in the recent Stanford rape case,” Assemblymember Bill Dodd, along with Silicon Valley Assemblymember Evan Low and Senator Jerry Hill who represents Santa Clara and San Mateo, have introduced AB 2888.

According to a press release from Assemblymember Dodd’s office, the bill would close a “loophole” in sentencing that “will ensure that anyone convicted of sexual assault in California cannot be sentenced to probation.”

According to the release, the legislators worked with Santa Clara County District Attorney Jeff Rosen in crafting the proposal.

“We need to send the message that sexually assaulting vulnerable victims who are intoxicated or unconscious is a serious crime,” said Assemblymember Bill Dodd. “Letting a rapist off with probation and little jail time re-victimizes the victim, dissuades other victims from coming forward and sends the message that sexual assault is no big deal. Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case. Our bill will help ensure that such lax sentencing doesn’t happen again.”

Under current law, not all forms of sexual assault involving penetration are included in the list of offenses that would trigger a mandatory denial of probation.  Current law clarifies that a defendant’s use of force triggers a mandatory prison sentence. However, when a victim is unconscious or severely intoxicated, the victim is unable to resist, and the perpetrator does not have to use force.

For example, a perpetrator at a college party who chooses to forcibly rape a conscious victim will go to prison upon conviction. However, a different perpetrator at the same party who chooses to watch and wait for a victim to pass out from intoxication before sexually assaulting her may get probation.

“Rapists like Brock Turner shouldn’t be let off with a slap on the wrist,” said Assemblymember Evan Low. “Judge Persky’s ruling was unjustifiable and morally wrong, however, under current state law it was within his discretion.  Current law actually incentivizes rapists to get their victims intoxicated before assaulting them.  While we can’t go back and change what happened, we can make sure it never happens again.”

“Sexual assault cases can be among the most troubling situations that law enforcement officials have to deal with. I believe perpetrators of sexual assault should receive sentences that the reflect the severity of their crimes,” said Napa County Sheriff John Robertson. “I applaud Assemblymember Dodd for introducing common sense legislation that will better serve our community and provide better justice for victims of sexual assault.”

In March of 2016, Brock Turner, a Stanford University student, was convicted on 3 felony counts of sexual assault of an intoxicated and unconscious woman. Despite the fact that the defendant was eligible for a sentence of up to 14 years in prison, Judge Aaron Persky sentenced the defendant to six months in jail and three years’ probation. The sentence has been criticized by many as unethically lenient, given the horrific nature of the crime.

“We need to change the law to protect the next Emily Doe from the next Brock Turner,”’ District Attorney Rosen said during a news event announcing the proposed legislation outside of the Palo Alto courthouse where Turner was tried and convicted. “Let’s give the next campus sexual assault victim no reason to fear that her attacker will end up walking around free after spending less time in jail than it takes to finish a single college semester.”

However, not everyone agrees that the sentencing in this case was problematic.

Santa Clara Deputy Public Defender Sajid Khan wrote recently, “Mass incarceration is largely a result of judges who have either not utilized discretion in sentencing or who have been deprived by state legislatures of discretion.  This lack of discretion has manifested in draconian sentences and overfilled prisons.  Rather than using robotic, one size fits all punishment schemes, we want judges, like Judge Persky, to engage in thoughtful, case by case, individualized determinations of the appropriate sentence for a particular crime and particular offender.”

This legislation would close down that discretion that judges and departments of probation have. In this case, Judge Persky is being demonized for following the recommendations of the Santa Clara County Probation Department.

Mr. Khan writes that “after the jury found Mr. Turner guilty, the Santa Clara County Probation Department submitted a probation report along with a recommendation to the Judge about the appropriate sentence.  This report would include a summary of the offense, an interview with the victim, an interview and analysis of the offender and then a breakdown of statutory aggravating and mitigating factors and sentencing criteria.”

He notes, “With regard to Mr. Turner, the probation department recommended, based on all of the circumstances and factors of the case, that he receive a county jail sentence along with probation supervision.”

Mr. Khan writes, “The sentence Judge Persky imposed upon Mr. Turner is exactly what I would want for a public defender client of mine under similar circumstances. Mr. Turner, just 20 years old, had no prior criminal history and an exemplary record as a student-athlete. Probation, rather than prison, is the expectation for such an offender.”

—David M. Greenwald reporting