Sunday Commentary: Dodd’s Sexual Assault Bill Takes Us in the Wrong Direction

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In the aftermath of Judge Aaron Persky’s decision to sentence Brock Turner to probation and six months in county jail after a sexual assault conviction, Assemblymember Bill Dodd, who represents Davis and is running for the state senate, has joined with two Silicon Valley legislators to introduce a bill that would close a “loophole” in sentencing that “will ensure that anyone convicted of sexual assault in California cannot be sentenced to probation.”

While there is understandable frustration about the sentencing in this case, I fear that this is a case where the cure may be worse than the disease.  There is a reason why the nation is slowly moving away from the draconian sentencing policies of the past few decades, with the destructive mandatory minimums that tie the hands of judges and end up punishing people for a long time for relatively minor crimes.

As someone who has spent seven years observing court trials, one thing I have learned is that every case is different, and eliminating a judge’s discretion means at times doing injustice.  With discretion, of course, comes the possibility of mistakes – but that is the price we live with sometimes in a democracy.

Sexual assault trials are very difficult to prosecute.  Most cases do not involve a stranger jumping out of a dark alley to physically assault and rape a woman.  Instead, you have shades of gray – alcohol, consent, levels of consent, a lack of physical evidence and, generally speaking, a lack of witnesses.

There is a reason why for years prosecutors would not prosecute many rape cases and there is a reason why, given how the system is set up, if an individual is convicted of rape, they may receive a relatively light sentence.

Years of lobbying and public campaigns have shifted the playing field somewhat, but, at the end of the day, our system of crime and punishment is based on fundamental tenets – the presumption of innocence and the need for proof beyond a reasonable doubt.

Over the years we have covered many rape trials that ended in acquittal or a hung jury for the precise reason that, while in many cases we probably believed that there was unwanted sexual intercourse between the defendant and the victim, the evidence did not a lead a jury to conclude it had been proved beyond a reasonable doubt.

The press release on the introduction of this legislation seems relatively modest.  They noted that, under current law, a defendant’s use of force triggers a mandatory prison sentence, but in cases where the victim is “unconscious or severely intoxicated, the victim is unable to resist, and the perpetrator does not have to use force.”

So, the proponents write, “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.”

On the surface that makes sense.  But now consider the case of Lang Her.  The alleged victim in this case became heavily intoxicated after a round of drinking games and she alleged that, after falling asleep, she awoke to discover Mr. Her was having sexual contact with her.

The Vanguard covered this case in both May 2015 and February 2016, and both times it hung.  The first time it hung 8-4 for acquittal and the second time 10-2 for guilt.  It is possible that they could have gotten a conviction in the third trial, but no one really knows for sure.

The district attorney’s office and defense attorneys agreed on a plea agreement in which Mr. Her would be sentenced to five years of probation and register as a sex offender and undergo sex offender counseling.

The Turner case is an extraordinary case where you have a jury conviction for a rape, coupled with a lenient sentence.  As they say, bad cases make for bad law.  And creating a new law based on a rare case is a bad idea.

The problem that we face here is that there are probably tens or even hundreds of cases more similar to Lang Her than to Brock Turner.  Had Lang Her faced a mandatory prison sentence, he never would have pled to the probation charges.  The trial would have gone on and, with two hung juries, it is not hard to imagine there would have been a third or fourth.

Facing mandatory prison sentences will force marginal cases to trial – and may make prosecutors less rather than more likely to bring forward cases with gray areas – and force victims to be re-traumatized over and over again as they have to recount their experience through testimony.

As I have said before, who knows these cases better?  Legislators who are operating on general assumptions, or departments of probation and judges who have heard the testimony, interviewed the parties and know the records involved?

Before we change the law, perhaps we should look to see if the sentencing handed out by Judge Persky is a common occurrence.  Because, if it has only happened a few times, then perhaps we are trying to fix something that is really not broken.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 thoughts on “Sunday Commentary: Dodd’s Sexual Assault Bill Takes Us in the Wrong Direction”

  1. quielo

    Histrionic Personality Disorder is characterized by constant attention-seeking, emotional overreaction, and suggestibility. This personality’s tendency to over-dramatize may impair relationships and lead to depression, but sufferers are often high-functioning.

    https://www.psychologytoday.com/conditions/histrionic-personality-disorder

     

    This is a condition endemic in ambitious politicians and leads to dramatic and unwarranted shifts in policy.  Thank you David for some stability. I think Dodd has a virulent case of HPD.

    1. Eric Gelber

      I hope this was intended as humor, in which case it’s merely unfunny and disrespectful. The misuse of psychiatry to discredit political dissenters and opponents is a well-established means of oppression that has been the source of human rights violations not only in totalitarian nations but also in the U.S.

      I happen to disagree with Assembly Member Dodd on this issue. But I believe his position is thoughtful and sincere–not the manifestation of a personality disorder or character flaw.

      1. quielo

        Eric, It is not intended as humor at all. Every tragedy is seem as a gold mine of publicity by politicians who then rush to be “first to file” in order to get priority access to the press. Thoughtful legislation is the victim here.

         

        I understand you make your living from the goodwill of the political class and therefore have a vested interest in defending them. I however am agnostic in this regard. I noticed that while I provided a definition of HPD ” constant attention-seeking, emotional overreaction, and suggestibility” you gave no reason why Dodd was NOT exhibiting these symptoms.

         

         

         

         

  2. nameless

    There is a reason why for years prosecutors would not prosecute many rape cases and there is a reason why, given how the system is set up, if an individual is convicted of rape, they may receive a relatively light sentence.”

    Before we change the law, perhaps we should look to see if the sentencing handed out by Judge Persky is a common occurrence.

    You answered your own doubts in the second quote by the first quote.

    Also:

    1. Rape is very infrequently prosecuted.  See: http://www.thedailybeast.com/articles/2016/06/11/the-most-shocking-thing-about-the-stanford-verdict-isn-t-the-light-sentence.html

    2. Rapists are often given lenient sentences.  See:

    http://www.huffingtonpost.com/2014/05/01/sir-young-rapist-gets-light-sentence_n_5251116.html

    http://www.wcax.com/story/4325804/sex-offender-sentence-criticized

    http://townhall.com/tipsheet/christinerousselle/2016/06/08/thousands-sign-petition-to-recall-california-judge-who-gave-a-rapist-a-light-sentence-n2174911

    http://www.inquisitr.com/3211360/montana-mom-outraged-as-daughters-rapist-gets-online-support-light-sentence/

    http://thinkprogress.org/justice/2013/11/15/2949891/alabama-rapist-punishment/

    https://www.themarshallproject.org/2015/08/28/weekends-in-jail-for-rape#.1Vd2g1mku

    https://www.change.org/p/judge-says-child-rapist-didn-t-mean-to-hurt-the-3-year-old-toddler-he-sodomized

    http://www.msnbc.com/melissa-harris-perry/no-prison-time-rape-survivor-speaks-out

    http://laist.com/2015/04/07/judge_m_marc_kelly.php

    I think I’ve made my point!

     

    1. The Pugilist

      “His punishment isn’t like others not because it’s short, but because he has one. The bitter truth is that rapists—most of them—don’t go to prison. In fact, according to the nonprofit RAINN (Rape, Abuse & Incest National Network), 97 percent of rapists face no punishment at all.”

      They are correct here, but the problem is that this solution will not change that at all.  Why?  You have to look at why rapists don’t get arrested or go to prison.  First, it’s a very difficult charge to prove.  How do you prove beyond a reasonable doubt without physical evidence or witnesses?  Second, because it’s difficult to prove and emotionally traumaticizing, women are unwilling to come forward and get re-traumatized.  So what’s the solution?  Certainly not the bill at hand.

  3. Delia

    I suspect one could cite just as many examples, from the Innocence Project, of men who were falsely accused, then exonerated, by DNA evidence.

    1. nameless

      What the heck does that have to do with anything?  All I am arguing is that the judge in the case of Brock Turner gave far too lenient a sentence, proved that it is NOT an isolated incident.  And I am all for the Judge in the Brock Turner case to be recalled.  Are you trying to argue the sentence Brock Turner got was fair? Are you trying to argue rapists should get light sentences? I’m not understanding your point.

      1. sisterhood

        “What the heck does that have to do with anything?”

        For every lenient sentence you describe, there are just as many overly harsh sentences. For just one example, Ajay Dev is serving a ridiculous sentence of 300 years in state prison. Other people of color are serving sentences with no DNA evidence whatsoever.

        I am a rape survivor, so of course I want justice served for a real rapist. But false accusations are too common in America.

        I also believe that the unjust sex offender registry needs to be eliminated.

        I also believe that the young man who raped the young woman next to a garbage dumpster is extremely mentally ill, and a long prison sentence will do almost nothing to help him with his mental illness.

         

  4. Tia Will

    nameless

    Are you trying to argue the sentence Brock Turner got was fair?”

    I am a little confused by your use of the word “fair” with regard to Turner’s sentence. Did you mean to say “fair” or did you mean to say “just”?  From the number of cases of lenient sentences, it would seem that by comparison, the sentence handed to Turner was indeed “fair” in that it was in line with the sentences given to other rapists . Is this just ?  I believe that neither of us believes that it is just, although possibly for different reasons.

    1. nameless

      Brock Turner’s sentence was neither “fair” nor “just”.  According to the US Dept of Justice, the average sentence for rape in this country is 9.8 years, with 5.4 years being the average time served.

  5. Marina Kalugin

    in the US< there is tons of case law on opposite sides of nearly every issue…

    I am sure the many attorneys who hang out here can cite all sides of each issue way better than me, who has little time to look for docs….

    proves little, other than who has more time to go digging…

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