(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.