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