Brock Turner’s “outercourse” defense failed miserably

“The fact that defendant was engaging in a different sexual act at the time the encounter was interrupted (namely, ‘dry humping’) does not foreclose the inference that he intended, ultimately, to rape,” the judges wrote.

Former Stanford University student Brock Turner lost his appeal for his sexual assault conviction Wednesday, despite his attorney’s best efforts to argue that he only wanted to have “outercourse” with an unconscious woman.

Turner was jailed in 2016 after he was convicted of sexual penetration of an intoxicated person, sexual penetration of an unconscious person, and intent to commit rape. The case, which made national headlines, provoked outrage after Santa Clara County Superior Court Judge Aaron Persky sentenced Turner to just six months, saying that a prison sentence would have a “severe impact” on the then-20-year-old.

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The maximum penalty for Turner could have been as long as 14 years in state prison.

Despite the short sentence, Turner was ultimately released three months early. However, the conviction still requires him to register as a sex offender for the rest of his life.

At a July hearing in San Jose, Turner’s lawyer argued to the judges of 6th District Court of Appeal that the conviction was based on insufficient evidence, according to Palo Alto Online. Turner’s attorney, Eric Multhaup, said that because Turner was seen “engaged in aggressive thrusting,, he had only participated in what Multhaup called “outercourse.” (According to Multhaup, during “outercouse,” people are clothed and do not have “penile contact.”)

As a result, Multhaup argued, Turner didn’t demonstrate an intent to commit rape, according to Palo Alto Online.

The panel of three judges were “poker-faced” during this novel argument, according to the Mercury News. But their Wednesday opinion made clear that they did not believe it.

“The fact that defendant was engaging in a different sexual act at the time the encounter was interrupted (namely, ‘dry humping’) does not foreclose the inference that he intended, ultimately, to rape,” wrote Judge Franklin Elia in an unanimous opinion. “Neither the evidence nor common sense supports defendant’s contention that ‘dry humping’ is mutually exclusive to actual intercourse.”

Anger over Turner’s sentencing led voters to lead a successful recall effort against Persky in June. It was the first time since 1932 that California voters had recalled a judge.

Turner’s victim remains unnamed, but the impact statement she wrote about the effect the assault and subsequent court case had on her life went viral in 2016. In a follow-up essay for Glamour, the victim — who goes by the name “Emily Doe” — wrote, “I hope you grow up knowing that the world will no longer stand for this. Victims are not victims, not some fragile, sorrowful aftermath. Victims are survivors, and survivors are going to be doing a hell of a lot more than surviving.”

Cover image: PALO ALTO, CA - MARCH 30: Brock Turner, 19, appears in the Palo Alto branch of Santa Clara County Superior Court court on Mon., March 30, 2015, for a status hearing on charges that he allegedly raped an unconscious, half-nude woman outside a campus fraternity party in January. Gary Reyes/Bay Area News Group via Getty Images.