When Stanford University rapist Brock Turner was convicted of sexually assaulting an unconscious woman outside a frat party, prosecutors had sought to sentence him to six years in a state prison. Instead, California judge Aaron Persky handed down a sentence of six months in county jail. In response, witches across the world united to hex Brock Turner, and a million people signed a petition to remove Persky from the bench.
Now Judge Persky has been removed from a forthcoming sexual assault case after fears from prosecutors of judicial bias. The Santa Clara District Attorney's office said in a statement that they lacked "confidence that Judge Persky can fairly participate in this upcoming hearing." The case in question involved a male nurse who allegedly sexually assaulted a female patient while under anesthetic. The news comes just days after a juror in the Stanford case wrote to Persky expressing her outrage at the "ridiculously lenient sentence that Brock Turner received... which makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape."
For Dr Julia Downes, an expert in sexual violence and the law, the Stanford case is an all-too-common reminder of how members of our judiciary can be guilty of reproducing myths around rape culture. "The case has outraged many of us who work in sexual violence activism, support services, and research. It is a stark example of who is more valued in society. The concern over the future of Brock Turner as a young male athlete at an elite school was valued more than supporting a young woman who he had sexual violated to recover."
Downes highlights how Persky's sentencing was framed in the context of the impact of Turner's future prospects, rather than enacting justice for his victim. In recently released court documents, Persky was drawn to a character reference from Turner's childhood friend Leslie Rasmussen. "I don't think it's fair to base the fate of the next ten + years of his life on the decision of a girl who doesn't remember anything but the amount she drank to press charges against him," Rasmussen said. She later apologized for the letter.
"The framing of the sentence by those around him as a personal 'tragedy' for a promising young man who was caught up in a culture of drinking and 'promiscuity' signals a remarkable lack of awareness of the devastating and serious impact that rape and sexual assault can have on survivors," Downes explains.
Does she believe that Persky is guilty of bias based on Turner's race and social class? "It's fair to say that his class and racial position meant that he could protect himself and avoid being accountable for his actions using high-paid lawyers," she responds. "This refusal to admit responsibility and 'lawyer up' is a use of the court process to further harm the survivor."
Professor Leslie Moran, who lectures on gender inequality in the judiciary at Birkbeck University, describes the protocols for removing a judge from a case. "There's a regular glut of cases reported in the media about judges handing down lenient sentences with regards to sexual violence," he explains. "Usually, complaints around possible bias will lead to prosecutors raising the issue, and this may lead to the judge being removed. The standard is that if you perceive bias, the judge has to be removed."
Is it necessarily the case that more gender equality in the judiciary will lead to tougher sentencing for rapists? In Moran's view, it's not just enough to have more female judges—after all, women are just as capable of reproducing myths around rape culture as men. "It's not enough to just have women on the bench, as experts such as Rosemary Hunter argue. We need to have feminists on the bench, because feminists bring a whole range of values and sensitivities and a political awareness that makes for good judges."
Meanwhile, judiciaries around the world are overwhelmingly male-skewed. "In the UK there are more female law graduates than men," Moran says, "but there's only one woman in our Supreme Court. It's an acute embarrassment all round. There are brilliant women, but there doesn't seem to be the political will to get them appointed."
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Moran says the Stanford case serves as an exemplary example of why judicial discretion in rape sentencing should be removed entirely. "In the UK we have a sentencing council which attempts to reduce the amount of discretion the judge is given. They create a grid looking at the factors that go into the sexual violence; so if drugs were used, or it was a stranger rape, that would affect the sentence."
For Downes, the issue is far greater than one judge and one rapist. She believes that the Stanford rape case reflects how our legal system treats sexual violence victims on a wider level. "Gender inequality is a structural issue. Each person is shaped by their own experiences and their unconscious biases. This can inform our decisions from the smallest and everyday to the biggest and complex judgements in serious sexual assault cases."
The solution? "We need to have specialist training and awareness about the lived complexities of rape and sexual assault. Otherwise, the myths that that circulate in our society about 'real' rape—such as that it must be reported immediately or the victim must resist physically—will persist. And the result of this is to disadvantage sexual violence victim-survivors, especially in such an adversarial court system."