Of Kangaroo Courts and Unicorns: Venues in College Rape Cases

(Co-authored with Sarah Skwire)

Judge Aaron Persky recently gave convicted rapist Brock Turner a six month sentence, to be served at a county jail. Despite the fact that Turner was caught in the act by two witnesses, and despite the clear medical evidence testifying to the violence of his crimes, and despite the jury’s unanimous conviction, Judge Persky — and the probation officials who advised the court — felt it was important not to deliver a punishment that would cause a “severe impact” on Turner’s life.

Turner was, after all, a highly successful college athlete.

One could grow old listing all the problems with the Turner case. Various commenters have pointed to the many inequities it exposes in the criminal justice system—contrasting the lengths of sentences black and poor defendants have received in similar rape cases and for drug possession. Why Turner is not labeled a “super-predator” like so many black men who have been convicted of equally violent crimes remains an interesting question. Others have pointed to the case as an impressively awful example of different kinds of privilege, of race, class, and athletic prowess, in action. Others have raised eyebrows at the discovery that, like Brock Turner, Judge Persky was also a Stanford athlete. And many have noted that the comments of Judge Persky as well as Turner’s father and friends serve as a seminar in what is meant by the phrase rape culture.

But these problems, no matter how important, are not the problem this post is concerned with.

Instead, we are concerned with the way the Turner case starkly exposes the fact that there is essentially nowhere to turn for justice in a campus rape case.

Historically, campus rapes were dealt with so badly by the court system that colleges demanded more control over policing their own student body. With women rightly arguing that victims could not get fair treatment in a judicial system that engaged in victim blaming and was controlled by an old-boys network mentality, it is not surprising that they turned to campus authorities with a more sympathetic ear.  And, for a while, colleges may well have been marginally better in dealing with sexual assault than the legal system was. But like so much else, those who have power quickly look to broaden and deepen it as their roles become institutionalized.

In the last few years, especially as Title IX and the Department of Education’s Office of Civil Rights have forced colleges to be more aggressive in handling sexual assaults and required a lower standard of evidence, that policing has become so inequitable and so scornful of the idea of the rule of law that there is widespread objection to it. In particular, in their perhaps laudable desire to see justice done, college campus have dispensed with the presumption of innocence, the right to counsel, and other aspects of due process. Several recent university decisions about on-campus rape cases have been appealed and overturned because the rights of the accused were so blatantly violated.

This point is worth considering when critics of campus kangaroo courts argue that the legal system should be handling these cases rather than campus adminstrators. Let’s remember Munger’s unicorn here, and the danger of contrasting an imperfect reality with an imagined ideal.

How much better than the typical campus judicial system is a court system overseen by Judge Perskys and staffed by people like the probation officers in the Turner case?  How much better is such a court system in which the arrogance and privilege of Turner’s father and friends plays such a role in determining sentencing?

These are the courts that essentially tell rape victims that—no matter the strength of the evidence against the attackers—the most important thing is not to ruin someone’s life because they committed a violent crime. Forget what has been done to the life of the victim.

This, of course, hardly exonerates the misbehavior of campus judicial processes. College adminstrators too are subject to the unicorn test.

What we have in other words, is a system with one venue that unfairly favors the victim and another venue that unfairly favors the accused. For those of us who are deeply committed to the rights of both victims and the accused, it seems like there’s no room for justice in either place.

Until we are willing to take seriously the cultural implications of the Turner case, and advocate simultaneously for the rights of the victim and the rights of the accused, the availability of multiple venues for campus rape cases might well turn out to be a race to the bottom.

  • LLC

    Maybe, just maybe this one’s egregious enough?

  • pierre menard

    This post makes a sweeping generalization on the basis of a single example. Judge Persky may or may not be typical — I genuinely do not know. But if there are convincing arguments that the justice system is overly biased for the accused in rape trials, you certainly haven’t provided them.

    • j_m_h

      Even one observation of judicial failure is enough to support the criticism.

      From my perspective systemic problem or not nip it in the bud — though at this point it’s fair to say there is plenty of evidence to support biases in our legal system at all sorts of levels.

      Poor people go to jail for shoplifting $100 worth of goods; right people do community service for shoplifting thousands of $.

      You might find http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf an interesting read.

  • The problem with drawing conclusion from news stories is that they tend to highlight outliers. You hear about the one plane that crashed, not the thousands of planes that landed safely. Persky’s sentence is so obviously unjust that it has been picked up by the national media and gone viral on the internet. But the many cases where a tolerably fair judicial process led to a tolerably fair punishment don’t make headlines unless they involve a celebrity.

    • j_m_h

      You’re basing that on the assumption of a “tolerably fair” legal process. Depending on just how tolerant you are to injustice in the system by those running it I suppose it might be accurate but read the above link in my response to pierre and make up your own mind.

      • I completely agree with everything in the article you linked to Pierre. All the points in that article point to a legal system that is overly biased against (!) the accused. But the claim Horwitz and Skwire made was that the legal system “unfairly favors the accused” in rape cases! All the more reason not to draw sweeping conclusions from this story.

  • MARK_D_FRIEDMAN

    The sentence in the Turner case is terribly unjust, no doubt about it. I’m not a criminal lawyer (or a criminal of any sort for that matter), but my understanding is that in most states it is almost impossible to overturn a sentence, since the court is given broad discretion. There is an obvious solution to Turner-type cases: mandatory minimum sentences. Commit rape (first offense), go to jail for at least (say) five years, full stop. But there is a cost to this, as by taking discretion out of the hands of the trial judge, you deprive them of the opportunity to consider extenuating circumstances that might counsel a lighter sentence. Perhaps the best answer is to leave sentencing to the discretion of the trial judge, but provide that the appellate court can reverse if they conclude that the one imposed was not proportionate to the crime. I’m sure this is not a perfect solution, but it might be an improvement.

    • j_m_h

      The other option here as well is the civil suit that the family of the girl should be filing against the rapist. One might hope he spends the next 5 or 10 years of his life working off his debt.

  • DST

    Various commenters have pointed to the many inequities it exposes in the criminal justice system—contrasting the lengths of sentences black and poor defendants have received in similar rape cases and for drug possession. Why Turner is not labeled a “super-predator” like so many black men who have been convicted of equally violent crimes remains an interesting question. Others have pointed to the case as an impressively awful example of different kinds of privilege, of race, class, and athletic prowess, in action.

    Anecdotes abound.

    But these problems, no matter how important, are not the problem this post is concerned with.

    Phew, I thought you’d actually have to defend yourself there.

    With women rightly arguing that victims could not get fair treatment in a judicial system that engaged in victim blaming and was controlled by an old-boys network mentality, it is not surprising that they turned to campus authorities with a more sympathetic ear.

    When meeting your burden of proof is tough, why not just ignore it altogether?

    And, for a while, colleges may well have been marginally better in dealing with sexual assault than the legal system was.

    Yes, untrained, isolated academics clearly dispensed justice better than trained prosecutors, defense attorneys, and judges.

    Let’s remember Munger’s unicorn here, and the danger of contrasting an imperfect reality with an imagined ideal.

    No, the state-run courts, as imperfect as they are, are vastly preferable to the farces that are university disciplinary bodies.

    How much better than the typical campus judicial system is a court system overseen by Judge Perskys and staffed by people like the probation officers in the Turner case?

    Much, much better.

    How much better is such a court system in which the arrogance and privilege of Turner’s father and friends plays such a role in determining sentencing?

    Better than a system in which cloistered professors, mired in social justice and grievance-mongering, butcher due process altogether. (Did you unironically cite the privilege of the defendant?)

    These are the courts that essentially tell rape victims that—no matter the strength of the evidence against the attackers—the most important thing is not to ruin someone’s life because they committed a violent crime. Forget what has been done to the life of the victim.

    Better than ten guilty men go free than on innocent man hang.

    What we have in other words, is a system with one venue that unfairly favors the victim and another venue that unfairly favors the accused. For those of us who are deeply committed to the rights of both victims and the accused, it seems like there’s no room for justice in either place.

    No, what we have here is one venue that unfairly favors the victim and one venue that *fairly* favors the accused. The state, like any actor, should be reluctant to violently intervene in a dispute, and so of course it should favor the status quo over the any alternative, and so favor the defendant over the prosecutor.

    • j_m_h

      “Yes, untrained, isolated academics clearly dispensed justice better than trained prosecutors, defense attorneys, and judges.” because we know they are all either angels of that the system actually supports the defense side as well as it does the DA side?

      • DST

        because we know they (the professional) are all either angels of that the system actually supports the defense side as well as it does the DA side?

        I’m not claiming that they are perfectly ethical, or even perfectly knowledgable, but I, as a defendant, would rather have my case heard by a judge who received training specifically in the law, and had a clear professional incentive to be fair and unbiased, than a professor or college administrator, who had no training in the law, and whose primary duties were something other than hearing cases.

        I would also rather have my pipes be fixed by plumbers than by salesmen, and my food cooked by chefs than by parking attendants. Call me crazy…

  • King Goat

    Private institutions owe only what ‘due process’ they’re contractually obligated to in deciding to terminate association with someone alleged to have violated their internal policies (it’s not uncommon for an institution’s policies to overlap with what would be criminal matters and for institutions to independently investigate/decide alleged violations of that type). For public institutions the amount of due process warranted is a function of what’s at stake: in a criminal action liberty and life can be at stake, but for situations with lesser potential consequences less process is required. Termination from a public college is essentially like having some public benefit terminated. Should a determination by the criminal justice system be required before, say, public housing or other welfare benefits are terminated for conduct which is potentially criminal? It’s not currently. So why are college students special?

    • M S

      First of all, this is entirely non responsive to the point of the original post, which is that people who look to college adjudications for the justice that is lacking in the criminal justice system are bound to be disappointed. Saying that there is no explicit guarantee of justice in the college disciplinary system doesn’t refute this point at all (and tends, actually, to support it).

      Second, I don’t actually believe you think private institutions owe only whatever due process they contractually provide. I bet that you think that there are substantial extra-contractual obligations that institutions owe to their affiliates. Or maybe I’m wrong, and you think that, barring a contractual provision indicating otherwise, a college has both the moral and legal right to arbitrarily expel a student on the basis of race. If you do, I apologize. But if you don’t, why make the argument in the first place?

      Third, you are wrong if you think that expulsion proceedings on the basis of sexual assault carry no criminal consequences. Anything that is said by an accused student can be repeated in a criminal court by anyone who was in the room when it was said. There are serious 5th amendment issues involved in participating in one of these hearings that shouldn’t be decided without consultation by an attorney. Which is why it is outrageous, and fully deserving of condemnation, that many of these colleges actually prohibit students from bringing attorneys with them. Do you think that the same colleges that tell students “Come without an attorney or be expelled, your choice” are giving students fair warning that their testimony can be used against them? Do you think the Department of Education, which is pressuring colleges to adopt these procedures, are exerting equal pressure to ensure that that warning is given?

      Finally, you say that this is just like the termination of any other public benefit. Please identify for me any process for terminating public benefits for criminal conduct anywhere in the country that explicitly prohibits the individual at issue from bringing an attorney into the process. (If you can, I will roundly condemn that one too). Also, as a general matter, do you actually think that public benefits (housing, welfare, etc) should be terminated if the government can prove criminal conduct in a civil hearing with lower proof and minimal procedure? If not, again, why make the argument?

      • DST

        Anything that is said by an accused student can be repeated in a criminal court by anyone who was in the room when it was said.

        Wouldn’t that be barred by the rule against hearsay?

        • kevinsdick

          Only if it’s used to prove the truth of hearsaid (?) statement. The hearsay rule does not bar using a statement to demonstrate a person’s state of mind. So if the accused says, “You are my slave!” to the victim, that can’t be used to prove that the victim is in fact his/her slave. But it can be used to demonstrate that the accused’s state of mind would lead him to make such a statement.

        • M S

          Generally speaking, when a party’s prior statement is being used against that party, the use of that statement is not considered hearsay. That’s certainly true in the federal rules (see FRE 801(d)(2), https://www.law.cornell.edu/rules/fre/rule_801), as well as in the states that have adopted the federal rules as their own (which is most of them) and NY (although technically in NY this is an exception to the hearsay rule, rather than a non-hearsay statement). I haven’t looked at every other state, but I’m not aware of any state that differs here; it’s a pretty basic element of evidence law in America.

        • Farstrider

          Party admissions are not hearsay when used against that party.

      • King Goat

        1. The post is about people looking for ‘justice,’ but my point is that when institutions, like but not only colleges, do these independent investigations into possible internal policy violations they are not about ‘justice’ they are about whether the institution wants to continue to associate with (or perhaps to continue to provide services/benefits to) those in question.
        2. I’m only talking about due process, that is the process that is warranted before disassociating with (or terminating services/benefits to) someone, not substantive rights like non-discrimination.
        3. & 4. I think you’re confused as to what’s going on here. A person is always free to get a lawyer and file suit if they feel their contractual or due process rights were violated. What they’re not free to do is to make an organization undergo whatever process they want.

        Think of it this way: you join the YMCA. One day, another member of the YMCA accuses you of cursing and threatening him at the basketball court. The Y is free to call or not call the police about this matter, but aren’t they also free to look into it themselves and decide whether they want to keep you (or your accuser if they find they think he made it up) as a member? Do they have to, apart from any contractual agreement, let you have a lawyer present when they ask to speak to you about the matter? That’s the position the private college is in, no? As to the public college, let’s say it’s a Parks and Rec program and gym. Must they allow you to have a lawyer when the program head talks to you about the alleged incident? This isn’t a criminal matter (your comment about heresay, to the extent its applicable, could apply to any similar setting, when the Y director comes over to you and asks what you did if the police eventually come he’s free to tell the police what you told him).

        Note, in both cases you might could sue for defamation. You might have been promised contractually some type of hearing or arbitration. Of you might be getting some government benefit that is so important some more formal process is warranted (the main case for this, Matthews v. Eldridge, nicely lays out the relevant factors for this determination). But absent the potential consequence of you going to jail, should you really have to go through the justice system before they can decide to terminate your membership in the program? There’s a lot of such programs out there, that’s a lot of court work!

  • Theresa Klein

    If I understand correctly, the case in question involved the man penetrating the woman with his fingers, not with his penis. This seems to be somewhat obscured because that meets the legal definition of rape, but it may help to put the six month sentence in some context.

    Not that I agree with using the guy’s college athlete status or the desire not to have a “severe impact” on his live to excuse his behavior.

    • King Goat

      Theresa, I don’t mean this in any confrontational or ‘gotcha’ kind of way, but do you think a person penetrating without consent a woman with his fingers is much less of an offense than doing so with his penis, and if so why is that?

      • Theresa Klein

        I do think it is a lesser offense. Not only is there less risk of contracting a disease or becoming pregnant, but a finger is also a lot smaller than a penis. I don’t understand why some people believe that it is verboten to mention this.

        • martinbrock

          As soon as I saw “six months”, I wondered what was up. Mentioning it is verboten half of the time, because the art of politics is all about which half of the truth is told.

          • Theresa Klein

            Yeah, I think a lot of the outrage on social media is because people are just skimming the headlines and the basic facts. It take rather a close reading of the woman’s statement, and noticing that what he was actually convicted of was “sexual penetration with a foreign object”, to realize that what he did was finger her and dry hump. The articles mention that the two bikers saw him “thrusting atop the woman’s body”, but do not mention that he was fully clothed.

        • King Goat

          I don’t think it should be verboten to mention it. In fact, it seems pretty reasonable to part of me (for one thing, finger penetration is usually thought of as an ‘earlier base’ than genital to genital penetration so there’s something intuitive there). Your points about potential disease and pregnancy as well as the size are also quite reasonable.

          Another part of me doesn’t buy it though. Penetration of the vagina with anything, finger, penis, broomstick, what have you, all seem like a somewhat equivalently serious violation of one’s bodily integrity.

          • Theresa Klein

            Of course, it is still a crime. It’s just that maybe it doesn’t deserve as severe a sentence as raping an unconscious women behind a dumpster, with your penis.

      • martinbrock

        I had never heard of this case before reading this post. When I read an article like this one, with allusions to the “equally violent crimes” of “super-predators” but no mention of the fact that the rape in this case involved only fingers, why would I not also question the characterizations of “violence” and “consent”?

        “Crime” means whatever a legislator says it means. Jurors commonly declare “guilt” after a judge tells them what the law declares a crime. If the fingering this case occurred in the back seat of a car after a night of drunken partying without affirmative consent, witnessed by two other people in the car, a typical jury could find the fingerer guilty of rape in some jurisdictions. Are we discussing this sort of case? How would I know? I can’t expect an article like this one to tell me, because in our “rape culture”, the difference between this scenario and a man dragging a woman into a dark alley at gun point forcibly to penetrate her vagina with his penis is not worth mentioning.

        • King Goat

          Martin, if you read what transpired here we’re talking something quite a bit more shocking than The Way We Were…

          • martinbrock

            That I haven’t read what transpired, having read this post, is my point. “Shocking” doesn’t tell me anything either, except that you want to create an emotional impression in me. Maybe I’d think six months a miscarriage of justice if I knew more, but why would I leap to this conclusion given the cultural context? It would be like assuming that every convicted pot smoker is something out of Reefer Madness.

          • King Goat

            Whose asking you to leap to the conclusion given merely the cultural context? Most people upset about the verdict are so because it doesn’t seem to fit with the facts of the case as they know it.

          • martinbrock

            I’m asking for the facts that don’t fit the verdict, and you will aren’t presenting them. I could google for more facts, but my point is that details of these cases are veiled behind vague allusions to “rape” and “violence” and “crime” and “shock”. Whatever I learn about the facts now, can they amount to the impression created in my mind by “shockingly violent rape”? I doubt it.

          • King Goat

            So you admit you’re forming a judgment without knowing about what you’re talking about?

            FWIW here’s the police report for this case, though considering your mindset going in I’d expect a fair amount of confirmation bias at work I think you’d find it a bit more shocking than The Way We Were.

            http://www.documentcloud.org/documents/1532973-complaint-brock-turner.html

          • martinbrock

            Skepticism is not forming a judgment. Do you understand the difference? In fact, skepticism is not forming a judgment.

          • King Goat

            “skepticism is not forming a judgment.”

            More like a predisposition not to form a judgement in a certain direction I’d say, which, depending upon the strength of the predisposition, comes awfully close to a judgement itself at times. But, fair enough.

            “only penetration with fingers occurred”

            I still don’t buy this ‘only’ business about that. I imagine that (and I guess this is just my predisposition towards a judgement which also is probably not justified) if you passed out somewhere and someone decided to take that as an opportunity to start shoving fingers up your anus you’d find that to be a serious violation, and if others were to retort ‘hey, it was just fingers, not like it was a penis you know’ it probably wouldn’t qualify it much for you.

            “Rape statutes now routinely require the rapist to commit an “act of penetration””

            Most jurisdictions have lots of different statutes to cover what’s commonly understood as rape. Some require acts of penetration but certainly not all. Rape can have multiple types or dimensions, it’s not unique in that.

          • martinbrock

            No. Skepticism is not a predisposition not to form a judgment in a certain direction.

            Why don’t you buy this “only” business? I’m judging the case only by what I’ve learned by reading this post and the comments.

            Yes, I would feel violated if I were passed out and someone shoved fingers up my anus. Why do you ask? The word “only” in my comment suggests nothing about my reaction to this violation. “Only” describes the absence of a penis in my anus in addition to the fingers.

            If you shove your fist in my face while I’m intoxicated, how many months in the county jail do you expect?

          • King Goat

            Skepticism is literally defined as “a disposition to incredulity either in general or toward a particular object.”

            “only finger penetration” implies a lesser violation, I don’t buy that. I think finger penetration quite serious, and that was the point of my question put to you.

          • martinbrock

            The first definition that google reports for “skepticism” is “doubt as to the truth of something.” Wikipedia defines the word with “any questioning attitude towards unempirical knowledge or opinions/beliefs stated as facts, or doubt regarding claims that are taken for granted elsewhere.” Why do you accuse me of incredulity?

            My words “case involved only fingers” only reiterates Theresa’s words “penetrating the woman with his fingers, not with his penis.”

          • King Goat

            http://www.merriam-webster.com/dictionary/skepticism

            “Why do you accuse me of incredulity?”

            From your original comment (‘why would I not also question the characterizations of “violence” and “consent”?’; ‘”Crime” means whatever a legislator says it means. Jurors commonly declare “guilt” after a judge tells them what the law declares a crime.’ etc).

            You seem unaware of how your penultimate sentence undermines your last one. It’s clear you think relevant criteria making the offence less serious include things like 1. ‘only fingers,’ not penis 2. the woman was intoxicated 3. not conscious of the nature of the act and 4. presumably a first offense. I only buy 4. Again, if you passed out from intoxication and someone decided to take that as an opportunity to shove their fingers into your anus, I doubt you’d say ‘well, I was drunk, and I didn’t know the nature of it because I was passed out, and thankfully it was just fingers, so not so serious!’

          • martinbrock

            I don’t understand why questioning implies incredulity.

            Yes, only fingers while intoxicated seems less serious to me than penis at gunpoint. I confess to this presumption, but we were discussing details of the case unstated in this post, not my views of the severity of a crime.

            I never say anything remotely dismissive about this crime. I never suggest that it should not be a crime. The issue we’re discussing is whether six months in the county jail, plus life on a sex offenders registry, for this offense is a miscarriage of justice and evidence of a culture of tolerance toward rape.

          • King Goat

            Martin, incredulous is a synonym for skeptical.

            “I never say anything remotely dismissive about this behavior”

            Saying ‘only fingering,’ questioning ‘consent’, putting ‘rape’ and ‘crime’ in scare quotes,yep, nothing dismissive there!

            Your hypothesized scenario is not this case.

          • martinbrock

            Incredulous is not a synonym for skeptical. Here is the Stanford Encyclopedia of Philosophy on “skepticism”.

            Again, my words “case involved only fingers” only reiterate Theresa’s words “penetrating the woman with his fingers, not with his penis.” My use of “only” had nothing to do with judging the severity of the crime. The context is clear on this point.

            Quoting a word in this context does not imply “scare quotes”. We are discussing the meaning of words here. When I’m discussing a highly ambiguous word, I place the word in quotes to emphasize that what it evokes our minds may differ. Again, “shockingly violent rape” evokes in my mind circumstances very different from the circumstances described in your link to the facts of this case.

            I don’t assert that my hypothesized scenario is this case, but you do avoid the question.

          • King Goat

            http://www.merriam-webster.com/thesaurus/incredulous

            “Again, my words “case involved only fingers” refer to Theresa’s words “penetrating the woman with his fingers, not with his penis.”

            And Theresa clearly understood that her statement implied a less serious offense.

            “When I’m discussing a highly ambiguous word”

            Consent is ambiguous here?

            “Do you believe that six months in the county jail, and life on a sex offenders registry, is a miscarriage of justice for a first offense of inserting fingers into a woman’s vagina while she is intoxicated and not conscious of the nature of the act? ”

            Yes. The fact that she was intoxicated is not relevant at all to me, the fact that she was not conscious proves the offense, and the fact it was fingers instead of a penis means next to nothing.

            “Is this sentence evidence of a culture of tolerance toward rape or evidence of athletic privilege?”

            Maybe, it’s hard to know everything that might be behind it.

          • martinbrock

            And Theresa clearly understood that her statement implied a less serious offense.

            I also consider the offense less serious, but it’s a separate issue. My use of “only” had nothing to do with the severity of the offense.

            Consent is ambiguous here?

            When I know only the circumstances stated in the post and comments, when I read that a man has committed a shockingly violent rape and then discover that he inserted a finger in her vagina while she was intoxicated to the point of being unaware of the nature of the act, yes, I’m also inclined to wonder what “consent” means in this context. Was the woman unconscious or only so intoxicated that her judgment was impaired? I’ve had sex while my judgment was impaired by intoxication, and I didn’t think myself raped. I thought myself exercising poor judgment.

            … the fact that she was not conscious proves the offense …

            But I still don’t know that how unconscious she was. I’m relying on this post and the comments. Your document says “unconscious of the nature of the act”. This statement would seem less ambiguous to me if it omitted “of the nature of the act”.

            Maybe, it’s hard to know everything that might be behind it.

            So I’m supposed to agree with this post by speculating about facts that might be behind the facts presented here? Wouldn’t this reaction be credulous?

          • King Goat

            The document describes her unconscious in the sense of being entirely unresponsive even hours after the act in question, she couldn’t stand, speak, answer questions.. Even if that were not the case, ‘intoxicated to the point of being unaware of the nature of the act’ would clearly vitiate consent. Not aware of the act is language similar to the common law test for insanity.

          • martinbrock

            Yes, it does. I only read the complaint down to the signature page at first. No one is denying the criminal behavior. The question involves the severity of the crime vs. the sentence imposed and the implication of a culture tolerate of rape.

          • Theresa Klein

            “only finger penetration” implies a lesser violation

            So you don’t think penetration by a penis is a greater violation? So guys who rape unconscious women with their penises don’t deserve more punishment than those who finger them?

          • King Goat

            Honestly, I see penetration by a penis, finger or inanimate object as pretty equivalent. I think that’s because to me the overriding offense is based on the violation of bodily integrity involved in all of them, so there’s nothing magical about the penis (insert joke here).

          • Theresa Klein

            Maybe for men, it makes little difference, since we’re not talking about the same orifice. For a woman, there are , as previously mentioned some objective differences between a penis and a finger that makes a penis more of a risk.

          • King Goat

            I grant you the differences you’re talking about, I just don’t think they’re controlling. By that logic anal or oral rape is a less severe crime than vaginal rape, and that doesn’t comport with my moral intuition.

          • Theresa Klein

            It’s worth noting that penetration by a finger of the vagina probably isn’t painful. Whereas anal penetration usually is, though it’s probably more painful to be penetrated by a penis than a finger. I think anal rape is probably consider more severe because it’s painful. Similarly digital penetration is less severe because it’s less painful (if at all)

          • martinbrock

            Anal sex is substantially more likely to transmit HIV. The anus is not naturally receptive to a penis, and anal sex is very painful if you aren’t accustomed to it. If anything, the difference seems more significant for men.

          • King Goat

            BTW-Much of your third paragraph was added after you originally posted it, it’s bad form not to note you edited it after the fact.

          • martinbrock

            I don’t share your sense of etiquette. The software permits editing, so I use it to compose comments. If I see a reply to my comment, I’ll stop composing and reply to the reply instead.

            Regardless of etiquette, you haven’t answered my question. If you shove your fist in my face while I’m intoxicated, how many months in the county jail do you expect? We’re discussing the severity of a sentence here. The post suggests that the sentence is incredibly light for this offense, so light that it constitutes evidence of a culture of intolerance toward rape. Is six months in the county jail for punching someone in the face evidence of a culture of intolerance toward assault?

          • King Goat

            It’s a very inapt comparison so I’m not sure what’s served by discussing it. I think it’s a battery you’re describing, depending on injury, and that a rape is a much more serious offense.

            So, my turn. What should the sentence be if you passed out drunk and someone took the opportunity to pull down your pants, take off your underwear, and proceeded to shove his fingers into your anus?

          • martinbrock

            You think that inserting a finger into the vagina of a highly intoxicated woman is much more serious that punching her in the face? We can differ on these questions, of course. You haven’t answered my question, so I don’t feel obliged to answer yours, but I’ll answer anyway. I’ve never been raped by man, I’ve had a man’s finger and a man’s penis in my anus, so my answer is not entirely hypothetical.

            If met a man at a gay bar, and if I left the bar with him in a highly intoxicated state, and if I later realized that his finger was in my anus and didn’t like it, I would object, and I might file charges. I’m not sure about the efficacy of these changes, but six months in the county jail and life on a sex offenders registry would satisfy me, assuming no other extenuating circumstances. In fact, I’m more reluctant to file the charge if he’ll spend his life on the registry.

            You may now accuse me of being disingenuous for the sake of this discussion, but I’m not being disingenuous in fact.

            If the guy punched me in the face, I’d want him behind bars longer.

          • King Goat

            I think I answered your question quite directly: a battery (which is what you’re describing) is less serious than a rape (which is what occurred in the case in point).

            “You think that inserting a finger into the vagina of a highly intoxicated woman is much more serious that punching her in the face? ”

            Intoxicated to the point of being unresponsive? Indeed, and iirc most state’s criminal code treats the former as considerably more severe.

          • martinbrock

            I wasn’t asking about rape as a legal category in California vs. battery as a legal category. I was asking about the severity of inserting a finger in a vagina vs. a punch in the face, all else being equal, in your opinion. I answered your question honestly. I’d much rather have the finger in my ass, even if don’t want it there, even if I don’t like the person inserting the finger in my ass. I don’t want anyone legally entitled to do either to me, but I’ll take the finger in the ass over a punch in the face any day.

          • King Goat

            And I answered you when I said: “Intoxicated to the point of being unresponsive? Indeed”
            Then I just noted that my opinion seems to match the moral intuitions of enough people to correspond with the law.

          • martinbrock

            The moral intuitions of enough people in the U.S. give us an incarceration rate seven times higher than the rate in Canada and 3.5 times higher than the rate in Mexico.

            You were right that this case is not equivalent to The Way We Were, but it doesn’t qualify as a shockingly violent rape in my vernacular either, rape of some description but not shockingly violent. Six months in jail and the sex offender registry looks like justice to me. I believe that a black male might have been treated more harshly for the same offense, but the problem is the treatment of the black male, not the treatment of Turner, and nothing about this case suggests tolerance of rape. The victim was given every consideration by everyone involved except the rapist himself.

    • j_m_h

      That really was something that should have been clarified. Wonder if there shouldn’t be a different term here — if you say “rape” I’m pretty sure everyone is going to envision penetration with a penis.

      Exactly how much a difference in punishment there should be I’m not sure — which is perhaps why it’s legally classified the same.

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  • Jeff R.

    These are the courts that essentially tell rape victims that—no matter the strength of the evidence against the attackers—the most important thing is not to ruin someone’s life because they committed a violent crime. Forget what has been done to the life of the victim.

    Isn’t this situation newsworthy precisely because it’s not very common?

    • martinbrock

      Feminists need evidence, that isn’t fictional, of a campus rape culture destroying the lives of women to protect privileged males, and this case is what they have.

      What has been done to the life of the victim in this case? She drank herself into a stupor and hooked up with a similarly drunken asshole before passing out. The asshole is infamous, expelled from Stanford (presumably), in jail and on a sex offenders registry that will severely limit his options for life. His victim is a cause celebre championed by all right thinking people with complete anonymity by her choice, including this post claiming, ironically, that the effect on her life is forgotten.

  • j_m_h

    After reading the police report, and getting some education about the legal definition of rape I cannot help but think the article is making a mountain out of a mole hill in many ways.

    A tragic even? Yes. Do we want to send the message to our kids that sex and unconscious partners is off limits and not tolerated? Yes. Does the punishment here fit the crime — possibly. In fact I’d say the only way this case deserve a blog post here is if the authors want to push some of the items the ruled out — what if this had been a local, non-student who was black? He getting the same deal? We don’t know but my intuition says no.

    While I’m fine with the claims that there are biases in both society and our legal system and efforts to highlight them are valuable. This seems to be more akin to a witch hunt type event. We got two drunk college age kids and no certainty about when the fingering occurred or when the girl passed out. This is in no way to justify the event or suggest no punishment but it seems like it’s approach a legal technicality as opposed to some highly violent crime (without additional details that do not appear available).

    The real message probably should be about the risks and stupidity of getting too drunk and attempting to do anything with a very drunk person other than put them somewhere safe to go to sleep.

  • Krinein_ev

    Unsurprisingly, lots of libertarian dudebros are rape apologists.

    • j r

      Unsurprisingly, people who use the word “dudebors” are not adept at thinking logically.

      • Krinein_ev

        The term seems apt for a site brimming with MRAers and other rape apologists.

      • martinbrock

        Please don’t feed the trolls.

  • martinbrock

    I’d still like to know what Horwitz and Skwire consider a just sentence in this case. That Turner will serve his sentence in a county jail is relevant for some reason. Is six months in a Federal penitentiary more just? Twelve months? Two years without the sex offender registry? Twenty years? Hung, drawn and quartered?

  • sandy

    “victim and […] accused”

    Don’t you mean, accuser and accused.

  • Michael Steane

    He got a lot more than Lorena Bobbit did for cutting off her husband’s penis with a carving knife, after planning to do so. She got NO jail time, just 45 days’ compulsory psychiatric observation. At least two copycat crimes are directly related to the failure to give an appropriate sentence.

    There will, however, be no one saying “for just a six month sentence, a life on the sex offender registry and the assured destruction of my future prospects” I can commit a rape.