Eye on the Courts: Brock Turner’s Release Touches A Nerve


The release of Brock Turner from Santa Clara County Jail, combined with the California legislature’s efforts to close the loophole that allowed the judge to sentence Mr. Turner to probation, has triggered another round of debate.

Cornell University Law Professor Joseph Margulies in Verdict today tries his hand at assessing the criticism.  He writes, “For many, the answer to this question is obvious—so obvious that they have not paused to consider the question carefully. But care is demanded, for in truth, there are two, very different complaints. Admittedly, they are related, but they reflect different criticisms about society. Observers have not paid sufficient attention to this complexity. But the solution endorsed by the State of California is likely to make one problem far worse, without making the other any better.”

Professor Margulies offers, “Certainly the most common charge is that Turner got off far too easily, and that anytime a man undresses and digitally penetrates an unconscious woman, he richly deserves to be sent to prison.”

To close the loophole, “the California legislature changed a provision of state law that had distinguished between the forcible sexual assault of a conscious victim and the sexual assault of an unconscious victim. In the former situation, California law required a mandatory minimum prison term. But in the latter, the assault was not considered ‘forcible,’ and a judge could order probation in lieu of prison, as the judge did in the Turner case. Under the new law, both offenses require a prison sentence, from a minimum of two years to a maximum of 14 for first-time offenders.”

There is a strong argument to be offered for removing the distinction.

As Santa Clara County District Attorney Jeff Rosen put it, “Why under the law is a sexual assault of an unconscious woman less terrible than that of a conscious woman? Is it less degrading? Is it less tragic, less traumatic?”

Then there is our own Assemblymember Bill Dodd, who argued on the floor of the legislature, “If we let a rapist off with probation and little jail time, we re-victimize the victim, we dissuade other victims from coming forward and we send a message that sexual assault of an incapacitated victim is just no big deal.”

There is a second point that is perhaps more interesting from a systemic level, and that is “if Mr. Turner were poor, and especially poor and minority, his sentence would have been considerably more severe and he would not have escaped prison.”

Professor Margulies argues, “I recognize that the criticisms are related. I suspect many people feel, correctly in my view, that Turner got off easily because he is not poor or a person of color.”

Professor Margulies writes that the criticisms are not the same, as one is about feminism and the other “is fundamentally about racism and classism, and attacks a culture of white elite privilege.”

The feminist argument says, “Men do not understand the reality of sexual assault against women, and we need to make absolutely clear that all forms of this conduct will be punished severely.”

The power elite argument argues, “If rich white kids get a break, so do poor kids of color. If poor kids of color don’t get a break, neither do rich white kids. We need to make absolutely clear that justice can’t depend on the color of your skin or the size of your bank account.”

The professor writes, “I feel strongly that both problems—which we might shorten as male privilege and white privilege—are unpardonably severe in contemporary society.”

I skip ahead to what I think is the most important critique of the solution: “what gives us any confidence that a newly minted mandatory minimum will be used against the next Brock Turner? Isn’t it at least equally likely, given what we know about race and the criminal justice system, that when we create more carceral weapons, they will most likely be used against people of color?”

This is, I think, the point that most are missing.  As the professor points out, the prosecution of sex offenses is not equitable.  While two-thirds of those who are registered as sex offenders are white men, the sex offender registration rate for blacks is twice that of whites.

He argues, “The fact is that creating a mandatory minimum for a specific crime will not reduce white privilege when there are so many ways for white defendants to avoid the most draconian consequences of the carceral state.”

The professor concludes, “Brock Turner’s sentence exposes two, ugly aspects of American society: White men get a break when they mistreat women, and whites get breaks that people of color do not. But the response to Turner’s sentence threatens to exacerbate one to ameliorate the other. If that is our choice, we should at least be explicit about it.”

And yet, in the end, our solution is never about addressing either inequity, it is about more punishment.

The problem that we ultimately have is that prosecutors rarely charge men with sexual assault.  The FBI estimates that only 40 percent of rape victims report their crime and only 20 percent of that number actually result in prosecutions.

In short, some statistics suggest that, for every 100 rapes, 97 receive no punishment.

We may argue that Mr. Turner did not get the punishment he deserves, at least through incarceration (although the social punishment seems to be a lot harsher), and he actually is in the 3 percent that gets some punishment – and a lot of that had to do with the willingness of the victim to come forward and to eloquently press for prosecution.

—David M. Greenwald reporting

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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  1. Delia .

    I want to see the same amount of protesters out there when a woman gets no punishment whatsoever when she gets pissed off at her adoptive parent, one night stand, boyfriend, fiancee, married lover, jhusband, ex-husband, sister’s boyfriend who jilted her, ex-boss, curent boss, etc. and wrongfully accuses him of rape. We must show extremely harsh indignation.

    Otherwise, real rape victims will never see justice.

    It is a crime to file a false police report But if we actually begin prosecuting those people, future accusers will never recant their lie?

    Perhaps someone can suggest a way for this to work. The false accuser should somehow compensate the wrongfully accused.

    Perhaps there needs to be a registry of people who have filed false police reports.

    Real rape is a heinous crime. Falsely accusing someone of this heinous act is equally deplorable.

    1. Biddlin

      False reporting is a topic worthy of its own article. Please write and submit one.

      On the subject of appropriate punishment/sentencing, I think that there are vast differences between a serial predator and a young person who makes a mistake. While a measure of punishment is appropriate, if we incarcerate and stigmatize this latter type of offender, we in fact stigmatize him for life and create the serial criminals that now overfill our jails. A period of formal probation and and structured therapy seems more reasonable than 2 years in the state prison. Any subsequent offense should have much graver consequences.

      1. Tia Will


        A period of formal probation and and structured therapy seems more reasonable than 2 years in the state prison. Any subsequent offense should have much graver consequences.”



      2. Delia .

        Good a.m. Biddlin,
        We cannot address two aspects of this heinous crime without addressing  another aspect, in the same article.

        Because false accusers are an integral part of the whole problem of justice for rape survivors.

        1. Alan Miller

           . . . false accusers are an integral part of the whole problem of justice for rape survivors.

          . . . when a woman gets no punishment whatsoever when she gets pissed off . . . and wrongfully accuses him of rape. We must show extremely harsh indignation.  Otherwise, real rape victims will never see justice.

          Usually disagree with your opinions 180°, but agree with you solid on this one D.


  2. Delia .

    Mr. Turner’s sentence was ridiculously light and of course that infuriates me to no end. I am equally infuriated by the fact that AJay Dev has a life sentence for a crime many truly believe he did NOT commit.

    I hope the same protesters are in Sacramento next month.

  3. Tia Will

    “Men do not understand the reality of sexual assault against women, and we need to make absolutely clear that all forms of this conduct will be punished severely.”

    We persist as a society in our misguided belief that severe punishment will somehow help someone to understand why they should not assault ( either sexually or otherwise) someone else. At best “severe punishment” leads to attempts to avoid detection of one’s misbehavior thus diminishing those activities that they perceive as “too risky” due to an excessive chance of being caught not because it is inherently wrong. At worst, “severe punishment” does absolutely nothing since the perpetrator is simply not thinking logically about the consequences at the time of their crime whether due to excessive alcohol, drugs, testosterone or pure aggression.

    I do not believe that we will significantly affect the act of rape until men do “understand” the reality of sexual assault. And the means to help someone “understand” is to educate, not to punish when they have not adhered to the rules that we have not adequately taught them. We could start by modeling for our men the same attitudes and behaviors that we expect from our women. We expect thoughtfulness, caring for others, deference to the needs of others from our girls and still allow our sons to get by with a “boys will be boys” and “what can you do ?” attitude. Until we teach our men that every woman is to be treated with the same respect that they expect for their own mother, sister or daughter not because they are their possession, but because the women are their equals will we see a change in this behavior. Punishment has never and will never change this. Teaching our men ( and women) from birth through adulthood that the women in their lives are their equals, not their possessions or their prey just might.

    1. Delia .

      To hammer my point, we must also teach parents that if their daughter makes love to her brown skinned boyfriend, 100% consensually, they should not pressure her into filing charges against the young man.
      Parents’ misguided love and need to protect their teenaged young adults can cause irreparable damage to a young man or woman.
      This point should be part of the same article, not a completely different subject for amother VG article, imho.

    2. hpierce

      until men do “understand” the reality of sexual assault

      How patronizing and wrong… so, the vast majority of men do not understand this?  I note you used no “qualifiers”, so will have to parse it as meaning ALL men.  El wrongo… the vast majority of men DO understand it… who do you think intervened in the Stanford case?  Women?  Aliens?  Guardian angels?

      The jerk in this case was lucky that the men who intervened didn’t beat the crap out of him…



      1. Tia Will


        You can parse this anyway you like. I will stand by my statement “men”. If the shoe does not fit for you then don’t wear it. There is not a major religion that has not based its sociologic tenets on the supremacy of males over females. This applies to Christianity, Judaism, Islam and many others. If you doubt this, please quote me the lines from the sacred texts that hold women as the equals of men. This is not just historical. We see in the Middle East, now in France, and in the United States and Canada, men making rules for women. We have seen mayors in France banning the burkini and women in many countries not allowed to wear veils and various types of headscarves because it is offensive to those who feel that they should be able to dictate how women should dress while decrying its “symbolism of the oppression of women” even when the individual woman says that she wants to wear it.

        We have some Jewish men who have asked women to change their seats on airplanes presumably because the male does not want to be tempted by the proximity of a woman not his wife. So in other words, the woman is supposed to give up her preferred seating because the man will not assume responsibility for the control of his own sexual feelings.

        We have web sites such as “Roosh” who is making his claim to fame by “teaching” men how to “score “with women by being bold and brash and basically treating the women like an object to be used for his sexual gratification. Don’t believe me, look it up. We have a culture where young men can still be heard discussing “how far they got” sexually with a woman that they are using solely for sexual gratification.

        Of course, their are many, many men who do not treat women this way. There are also many, many men who do believe that sexual exploitation is the norm for men and that women are solely accountable for sexual responsibility.

        I stand by my statement as written. If you do like it that way, you are free to supply your own modifiers.

    3. Alan Miller

      Sorry T, can’t agree on this one.  I equate rape with murder, because it really F-s up victim’s lives, via the most intimate of violations.  The idea is to take the perp out of society, not fix them.

      As for teaching men good values from birth, that takes good parents going to good templates.  Some are taught that, some will absorb it.  Others aren’t so taught, or are bad to the bone.  Teach a stone-cold rapist to respect women?  Pleeeeeeez . . .

      Sure, there are squishy situations that can not be discerned in court in a he-said, she-said with lots of alcohol — in those cases I cannot advocate for pulling the perps society card.  But for a stone cold rapist with a solid case against them, throw the key in the canal.

      As for this case, from the descriptions of the crime, this A-F is likely made of the stone-cold rapist material, alcohol or no.

      1. hpierce

        Actually, Alan, “fixing” them might be a great deterrent both for first offenses, and to avoid repeat offenses… SCOTUS probably would not go for that, though…

      2. Tia Will


        You have mistaken my basic premise ….. or perhaps have not read my previous suggestions about how to treat this individual. I do not want him free to victimize others. I also do not want to pay the amount of money that it requires to “lock him up and throw away the key”. I would favor house arrest which would be less expensive and keep him isolated from random victims. I don’t actually care at all how long that house arrest would be.

    4. Frankly

      We could start by modeling for our men the same attitudes and behaviors that we expect from our women. We expect thoughtfulness, caring for others, deference to the needs of others from our girls and still allow our sons to get by with a “boys will be boys” and “what can you do ?”

      Breathtakingly sexist perspective.

      Based on my observations of how boys and girls behave, I think the woman’s movement has done a fine job for eliminating any material difference in how both sexes approach sex.

      The difference is the day after… where most boys that make a mistake shrug it off as drunken stupidity but some girls get racked with regret, or anger that it wasn’t more than a one-night-stand, and seek retribution in the court system.

      This of course was not that.  This was a rape.  A criminal act that justifies punishment.

      1. Tia Will


        This from the man ( or his evil doppelgänger) who stated that women were responsible for the prevention of pregnancy with no comment about any responsibility on the part of the man.

        1. Frankly

          I never said that.  I said that women tend to own the primary preventive measure short of rape being committed.  Maybe being married 33 years gives me some credibility in that understanding.

      2. KSmith

        “The difference is the day after… where most boys that make a mistake shrug it off as drunken stupidity but some girls get racked with regret, or anger that it wasn’t more than a one-night-stand, and seek retribution in the court system.”

        Maybe if we didn’t teach our girls that their sexual feelings and sexual activities were worthy of shame and that they’re not sluts or whores for having sex when they want to they wouldn’t be “racked (sic) with regret or anger” and there would be fewer false reports.

  4. hpierce

    Everyone understands that the jerk was sentenced to “life” to register as a sex offender wherever he goes, right?

    Think about the implications of THAT!  As to employment opportunities, where he can live, where he can “be”… if he finds a wife who can get over his status, he will be barred from going to back-to-school nights, for example.

    I have no problem with that part of his sentence.

    1. Delia .

      There are countries that will meet Mr. Turner at the airport and make him turn around & immediately get back on the plane.  There are nut case vigila n te groups that will place dog crap on his front door, and enter his backyard when he is not home, and place dog crap on his family’s barbecue. There are nut cases that will follow him into a grocery store and pretend to accidentally bump up against him, over and over again. They will use their grocery carts to block the aisles ed and giggle viciously at him. ( Stories I’ve read about from offenders in northern ca.) He’ll never be allowed to travel out of CA for more than 14 days without checking into a police station. If he has children someday, his in laws will probably never feel 100% safe, letting him be around their precious grandkids.

      His street address will be published for every nut case to bother him, day and night.
      Many of the same nut case hypocrite vigilantes will slap their own children and will possibily drive under the influence today. Perhaps just for a quick trip to a neighborjood store – no big deal.
      The sex offender registry is a huge punishment.

      1. hpierce

        Besides the “nut cases”, he’d better not run into a guy whose sister or girlfriend was sexually assaulted.  His odds for a long life might be better in prison…

      2. hpierce

        “shunning” is better than direct violence… and more effective, as there are little legal proscriptions against shunning… recall that at least many years ago in villages in China (and probably other cultures) a miscreant might not be able to buy anything from anyone… they became non-persons… they’d have to steal for anything they needed… but, no one would “notice” because they perp no longer “existed”… cheaper and more effective than incarceration…

        Great story… “a Man without a country”… did involve incarceration, though…

  5. SODA

    What is concerning to me as a tangent, is the fact that armed protestors are outside Turner’s home. The guns look like automatic weapons. What is wrong with this picture??

  6. Delia .

    Vigilantes want to continually bother Mr. Turner even after he’s served his time. Because vigilantes believe they are so perfect, they have time to bother other people.

    1. SODA

      To me that’s immaterial. I have many concerns about his sentence etc but the fact that protestors are outside his home with automatic weapons is very disturbing to me.

      1. hpierce

        SODA… I agree that having any civilian in public, with automatic weapons, is very disturbing, but protesters in a residential neighborhood, at least ten times more so…

      1. Delia .

        I agree with you on this one, Alan. The judge is the one who came up with the sentence. Also the laws in.place @ time of sentencing. But the pictured morons are too stupid to challenge the actual statutes.

        He. Served. His. Time.

  7. Delia .

    Photo’s of self righteous disgusting morons, who sould be working on improving themselves. Will probably go home and leave their loaded weapon near their girlfriend’s kid. Idiots, every one.

  8. Tia Will


    I said that women tend to own the primary preventive measure short of rape being committed.”

    Which more or less proves my point since a woman is no more responsible for conception than is a man.

    How do you think that the woman “owns” the primary preventive measure when the man has the very simple choice of leaving his penis in his pants if he does not want to conceive ?

    1. Delia .

      That is silly, F.

      You say women have the primary responsibility. Then you are empathetic when a young man “makes a mistske”.

      Do you see that your statements are not equitable? They are sexist.

    2. hpierce

      Uhhh… rape (as in ‘forcible’) has little in common, if anything, with a man wanting a woman to ‘conceive’… it is a crime primarily of control over another, lack of sobriety, and/or sociopathic behavior.

      “Date rape” is ‘squishy’ (pun unintended)…  even without drugs/alcohol in the picture, it can be in the “eye” (yeah, that’s not the organ(s) involved) of the beholder, and sometimes well after the fact.

      The ‘facts’, as disclosed, at least of record in the Stanford case, sure seem to point to forcible rape.

      1. MamaBear

        I am pretty sure date rape is most common, and your saying it is in “the eye of the beholder” may be what someone on here meant when they said men need toup their awareness of rape.

        If a woman says no, it means no. If she insists “for” for several hours well into the point of fatigue setting in, it means no.

        If an intimidating man with a known capacity for violence and erratic behavior insists against her protests – it is likely she is terrified on top of being exhausted.

        If a woman’s two choice’s are to submit or else get the living crap beat out of her – and so she submits; she has been raped.

        In the case of intimate partner/date rape; the man’s objective just may be for her to conceive because more children makes her less desireable to other men and also such a conception will keep her self esteem low enough for the abuser to keep abusing her. (In many cases). A lot of women have been raped. Especially DV survivors. A rapist of this kind will demand his victim’s participation as a requirement for him to “stop”.

        A  skilled rapist will leave his victims confused mostly because he creates an instance that is so hard for her to explain that she would fear being doubted. This is why you find attractive men raping women that society finds “less attractive”. It is a game for a true sociopath and they are entertained by the fact that they could violate and degrade someone to such an extent only to have their actions made invisible by prejudices that reaffirm their insults of their victims. Skilled pedophiles operate in the same way.

        If I take a guess, I believe date rapists and IP rapists are likely to be serial rapists far more than the forcible one who gets caught or has some other underlying issue at work.

        “He could have any woman, why would he rape her?” Do you know how much a narccisistic sociopath loves hearing that about the fat woman he raped (or his ex toward who he was abusive)? It’s a triple win. Perceived innocence, public degradation of his victim, and a stroke to his own ego.

        Domestic violence victims will be raped many times and often not leave the man right away as their family has grown, they fear consequences of leaving (retaliations), or they could even love the horrid man. Rape is complicated only because rapists refuse to understand what “no” means.

        Books/films like 50 Shades don’t help but since we cannot control media, wed hope people would still use their own sense.

  9. Delia .

    Do you understand you are doing more harm than good by suggesting a woman’s brother ,dad, partner, friend, etc. might take the law into their own hands. Maybe the victim is the one who should decide how her attacker should be corrected. Not the men in her life.

    1. hpierce

      Do you not understand that (most) men are biologically hard-wired to protect the women in their lives?  It is only socialization and/or conscience that can overcome that.

      Guess you can’t… you’re missing the y-chromosome… I was not saying it would be “justified” or “legal”… but I get the ‘biological imperative instinct’… it is real… faced with a possible attack on my female friend, was prepared to use lethal force to stop him if he took the 6 inch knife out of its sheath when he was getting first aid from her.  So, sue me… or say I was immoral… I don’t care a whit for your opinion of me.

      I do agree though, with the victim’s right to prevail, in mercy, where the family or the law would dictate otherwise.

      That way, they achieve “power”, and that is good, and right.

      [and, I only said “they might”]

      1. Biddlin

        Here I am speaking from experience. When a predator assaulted his adult sister, recently, her then 62 year old brother beat the younger man into whimpering, quaking submission, before he could be deterred. Absolutely instinctive. That said, in the cool light of reflection, he hopes he would not have been inclined to stalk the yahoo for vengeance.

  10. Tia Will


    Do you not understand that (most) men are biologically hard-wired to protect the women in their lives?”

    I understand that men, just like women need to take control over their “hard wiring” to act responsibly, not just when it is “their female relative ( emphasis on the word “their”), but when any other person is involved. All women should receive the same “respect” that their reserve for “their” women. Instead, we have as a society placed all of the responsibility for sexual activity and its potential unwanted consequences on women. You doubt this, just take a sampling of the words that are commonly used to describe exactly the same behaviors.

    Stud, player, ladies man  vs.  slut, whore, tramp. Nothing sexist about any of that right.

    Uhhh… rape (as in ‘forcible’) has little in common, if anything, with a man wanting a woman to ‘conceive’”

    Perhaps you had not noticed that Frankly and I had diverged off topic and started a conversation about reproductive responsibility. Maybe you weren’t following, or maybe I should just stay on topic.

    1. David Greenwald

      Tia – do you really think it’s hard-wiring rather than socialization “to protect the women in their lives?” Is there research on this? I’m skeptical that hpierce’s claims have a scientific basis, he cites no source to support the comment.

  11. Tia Will


    do you really think it’s hard-wiring rather than socialization “to protect the women in their lives?”

    I think that this is a very complicated issue. Speaking as a previous anthropology major, there is no human society of which I am aware in which the men do not, as a general rule behave more aggressively than do the women. This might lead one to believe that there is some “hard wiring” that causes this to be the case. However, sometimes exceptions to “common sense” observation can lead us to challenge our own assumptions. In every society of which I am aware there is a circumstance in which women will tend to act as ferociously as will men, and that is when they perceive their children to be threatened. Protection of one’s “children” or those we believe to be “dependent” on us or “our possessions” does seem to be a universal. However, sorting out what is “hard wired” from what is socialization is no simple task. If one looks across cultures, some are much more violence prone than others with ours being near the top and, for example, the Hopi being near the bottom. This would suggest that socialization has a much stronger influence than “hard wiring” would suggest.

    My point was that, in our society, we have used a patriarchal structure in which men are “in charge” of the women and children. Men are supposed to “protect us” but we pay a very heavy price in that we are expected to be….trained to be….submissive.  I doubt that this would present much of a problem in our society if men were trained to protect all of the women that they encounter. However, this does not seem to be the case. They are trained to protect “their women”. Their mothers, sisters, daughters….but unfortunately they do not seem to be either “hard wired” nor “socialized to protect” women that they do not own. As a matter of fact, many men seem to view these women who belong to other men as “fair game” in an attempt to dominate, often sexually.

    I believe that we have come far enough as a society to make the realization that as humans we should all be treated with equal dignity. The amount of respect shown by a man to a woman should depend upon her inherent worth as another human being, not her degree of relationship to himself. The same of course could also be said about how women are trained to treat men, as equals to be respected, not as superiors to be deferred to.

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