California's new Brock Turner rape law erodes fairness in the system

When I originally wrote about the verdict in the Brock Turner rape case I defended not the leniency of the sentence Turner received, but the fact that “the system worked” (albeit poorly) in comparison to a campus tribunal. After he was released from jail I took the additionally unpopular stance of noting that the flaw was not with the idea of sending rapists to trial (rather than a kangaroo court on campus) but with the leniency of the sentence this one, specific rapist received. Still, the end result understandably enraged most observers and there were demands that a change be made to avoid this sort of result from recurring in the future.

Now California has hastily rushed into action and changed their sentencing procedures in response to the Turner case. (San Jose Inside)

California passed a new law last week that expands the legal definition of rape and mandates prison time for those convicted of sexually assaulting an unconscious victim.

The bill, signed Friday by Gov. Jerry Brown, came in reaction to the short jail sentence imposed on Brock Turner, the former Stanford University swimmer who sexually assaulted a woman by a dumpster after a campus party…

AB 2888 prevents judges from granting probation for a number of sex crimes, including sexually penetrating an intoxicated or unconscious person. Under the new law, those crimes would require at least a three-year prison sentence. Attempted rape would mandate two years in state prison.

In Turner’s case, prosecutors asked for a six-year prison term. But Persky hewed to a recommendation for a shorter jail stay from the probation department, which provides jurists with ostensibly neutral sentencing guidelines calculated by an algorithmic risk assessment for sex offenders.

I can definitely understand why some victims’ advocates are cheering this perceived corrective action by the California legislature. The sentence that Turner received was an obscene joke, but one which was allowed under the law. Removing the judge who handed it down may provide a sense of vindication to supporters of the victim but it does nothing to change the perceived lack of justice in the outcome. But still, there are several problems with these new sentencing standards which are troubling.

First of all, as a general rule, rushing new laws through the system which are named after or in response to one specific case has traditionally been a poor idea. Criminal cases are all unique in their own way and a one size fits all approach rarely satisfies everyone. The law of unintended consequences can be a real bear and rarely more so than when we attempt to lump all human beings into a single basket.

There are also very troubling aspects of most mandatory minimum sentencing rules. I can think of a few exceptions I’ve supported such as for the murder of uniformed police officers in the line of duty, but most other crimes take place over a broad spectrum and such minimum sentencing rules tie the hands of judges when unusual circumstances are encountered. It’s easy enough to say that this new bill was a good day’s work done when you think of how it would have impacted Brock Turner, but cases of sexual assault fall into twisted gray areas far too often. The glaring example in this case is the idea of a two year mandatory sentence for “attempted rape.”

How many defendants might find themselves in that particular pigeonhole when the specifics of the case are far less clear than what we saw with Turner? Defining actual rape is hard enough in too many he said she said cases even when penetration of some sort takes place, but the phrase “attempted rape” opens up a broad spectrum of circumstances. It takes little imagination to conjure up cases where an accusation is made which, in reality, amounts to little more than mixed signals on a date after a few too many beers. How long will it be before someone wakes up the morning after a disappointing attempted tryst at a club to find themselves looking at two years in a federal prison and a lifetime on the sex offenders list?

I wish that Brock Turner’s victim had received more justice than was achieved in this trial. I would think that most of you would agree. But the remedy in this case may wind up turning out to be worse than the original disease and Turner himself will never be made to serve additional time under this new law. Punishing someone else for Turner’s sins or the shortcomings of the judge in that trial is not justice. It’s misplaced revenge.

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