Sexual Violence in the Law

Image courtesy of Steve Calcott via Flickr


Content warning: sexual assault and rape.


Brock Turner became the rallying cry for legal reform surrounding sentencing of sexual assault and rape cases when he was released from prison after just three months, despite being convicted of three felonies ─ and last month, he appealed his case. In addition to complaining that testimonies about his swimming record weren’t allowed and that the prosecutor used the phrase “behind the dumpster” too often, the 172 page brief includes about 60 pages that emphasize the intoxication of the victim.

With two witnesses, DNA evidence from both Turner and the victim, testimonies about the victim’s intoxication and unconsciousness, and a testimony from the victim’s sister who said Turner harassed her earlier in the evening, the case should have been a slam dunk ─ yet, after just three months in county jail, he was released.

In order to understand how Turner’s case, and those like his, can be sentenced in such a counterintuitive way, it’s important to understand the legal context in which they occur, including legal definitions, defenses, and penalties.

Laws surrounding sexual violence can be difficult to sort out, in part due to the overwhelming number of legal terms. Rape, rape of a spouse, sodomy, forcible acts of sexual penetration, oral copulation, sexual battery, and unlawful sexual acts procured by fraud or false pretenses all fall under the umbrella of prosecutable sex crimes.

Rape, as defined in the California penal code, is the “act of sexual intercourse accomplished with a person not the spouse of the perpetrator” under seven specified circumstances. The more well known circumstances include when the victim is incapable of consenting due to mental or physical disabilities, when the victim is forced against their will, or when the victim is “unconscious of the act.” The lesser known circumstances include when the victim believes the accused “is someone known to the victim other than the accused” or when the accused makes the victim believe they can incarcerate or deport them if they don’t submit.

The penalty for committing rape can be 3-8 years in prison. The most common defense is consent, meaning that the defense will argue that the victim did indeed consent, and was capable of doing so. Intoxication is not a viable defense, although it is still brought up in court cases (like Brock Turner’s), because it is one of the specified circumstances that constitutes rape.

Turner was originally charged with two felony counts of rape (rape of an unconscious person and rape of an intoxicated person), but the charges were dropped in favor of sexual assault charges when the rape kit revealed no genital to genital contact, and therefore no sexual intercourse.

California’s sexual assault laws say someone is guilty of sexual battery if they “touch an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse” against the victim’s will or while the victim is restrained. Sexual battery also occurs if the victim is medically incapacitated or institutionalized, or if the accused misrepresented the act as serving a “professional purpose.”

The penalty for sexual battery is one to four years if convicted of a felony. Turner was only sentenced to six months in county jail, despite being charged with felony counts of sexual assault of an unconscious person and sexual assault of an intoxicated person. Like most other sexual assault defenses, Turner argued the victim gave consent.

So how does the state define consent? According to the penal code, consent is the “positive cooperation in act or attitude pursuant to an exercise of free will.” The code also specifies the person must “act freely” and “have knowledge of the nature of the act,” and notes that marriage or dating history does not equate consent.

For the circumstances in which someone is physically or mentally unable to give consent due to disability or intoxication, the accused can still argue that they were unaware of these circumstances. The law says only if the condition “was known, or reasonably should have been known by the accused” can a conviction then be leveled. Additionally, because consent can almost never be definitively proven, the defense will often resort to discussions of the victim’s background and any past relationship or consent.

This was the case with Turner, where his lawyers claimed that Turner and the victim mutually planned to go home together after meeting at a fraternity party earlier that night. They emphasized her intoxication as a means of arguing that the victim frequently consented to sex with men she’d just met. In a perverse stroke of luck, a voicemail she left her boyfriend that was described as “almost entirely incomprehensible” solidified their case that she was too intoxicated to give consent.

In an accurate criticism after the sentence was administered, the District Attorney said the sentencing “does not factor in the true seriousness of this sexual assault, or the victim’s ongoing trauma.” Stanford law professor Michele Landis Dauber also spoke out in June of 2016, noting: “The judge bent over backwards in order to make an exception … and the message to women and students is ‘you’re on your own,’ and the message to potential perpetrators is, ‘I’ve got your back.’”

Judge Persky, the man who leveled Turner’s six month sentence, is facing a recall effort and recently defended his decisions. He wrote that, as a judge, he must consider “rehabilitation and probation for first-time offenders.” Presumably this means he believed Turner “would be able to be a benefit to society for the rest of [his] life,” as Turner wrote in his own statement.

The problem, of course, is that his first act as a “benefit to society” is to appeal his case. Here is where all the critiques and fears of scholars and women everywhere are realized: When you give a person a light sentence for a sexual crime, you create and support entitlement. You cement the foundation of rape culture. The simple fact that Brock Turner, his family, and his lawyers really thought this appeal might work, and believed in it enough to file it, unmistakably highlights the areas in which our legal system is not working.

It does victims absolutely no good to revise legal language and sentencing to be more inclusive for the victims and harsher for the perpetrator if judges refuse to sentence to the fullest extent. When the legal system allows politicians like Roy Moore, Ralph Shortey, and Donald Trump and entertainment tycoons like Harvey Weinstein, Kevin Spacey, and Bill Cosby to get away without repercussions, it leads men without power to believe they can harass and assault women, men and children especially if they are white or have a modicum of social influence.

In a hopeful end to Emily Doe’s (the survivor in the Turner case) statement, she wished other survivors “absorbed a small amount of light, a small knowing that you can’t be silenced, a small satisfaction that justice was served, a small assurance that we are getting somewhere,” but now, with this appeal, one can’t help but think the legal system has let Doe, and all victims, down.

If you or someone you know is a survivor, RAINN has a comprehensive guide to ensuring safety, beginning therapy, reporting the assault, and other helpful information (available in both English and Spanish). They also run the Nation Sexual Assault Helpline where you can call (800-656-HOPE) or chat in English or Spanish online. If you are a student on UCLA’s campus, CARE is available to you both by email or phone for consultations, as well as alternative healing programs and group therapies. All resources listed are free.


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