Outraged by the lenient sentence ex-Stanford student Brock Turner received for sexually assaulting an unconscious woman last year, California lawmakers passed a bill yesterday that would make similar crimes punishable by mandatory jail time. The legislation moves to fix an inconsistency in sentencing under California's rape laws.
Right now, a person convicted of sexually assaulting a conscious person will go to prison for at least three years and be ineligible for probation. As critics saw with Turner's case, the same could not be said for someone who assaulted an unconscious person.
At a hearing in June, the bill's author, Santa Clara County District Attorney Jeff Rosen, testified, "Today, a perpetrator at a college party who forcibly rapes a conscious victim will go to prison. However, a different perpetrator at the same party who chooses to watch and wait for a victim to pass out before sexually assaulting her can get probation."
"The victim's increased vulnerability," Rosen continued, "actually protects the perpetrator from a harsher penalty."
If passed into law, the updated statute will "prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation," whether the victim is conscious or unconscious. Furthermore, a convicted rapist would serve a minimum of three years in prison.
Betsy Butler, executive director of the California Women's Law Center, says this bill closes a loophole that had previously focused on the use of force. Theoretically, she tells Broadly, if a victim is unconscious, a perpetrator didn't technically use force to attack him or her. "This is about the fact that [Turner's victim] was intoxicated: She was unconscious and someone didn't forcibly rape her," she says. "But he still raped her. When there's no consent, it's rape—whether you say no or whether you're not able to give a response."
Even though Judge Aaron Persky's sentence for Turner of six months in jail garnered so much criticism, Butler points out, it was within his discretion to deliver that punishment under the California penal code. "It's something we weren't aware of and needed to change," she says.
When there's no consent, it's rape—whether you say no or whether you're not able to give a response.
However, the new law has its critics: According to Mercury News, the ACLU of California plans to lobby California Gov. Jerry Brown to reject what they have called "hasty policy." "The well-intentioned mandatory minimum sentence this bill creates will have negative impacts on communities of color and other unintended consequences," said Natasha Minsker, director of the group's Center for Advocacy and Policy.
Some sexual assault advocates agree: In an August 11 New York Times editorial, Know Your IX co-founder and former Feministing editor Alexandra Brodsky and Claire Simonich rose similar objections, noting that mandatory minimums contribute to "prison overcrowding, racial imbalances, and overly punitive sentences." In addition, they argued, such requirements do not prevent the privileged from getting off easy, as juries may be less likely to convict a "sympathetic (read: white and wealthy) person" who's faced with a potential long sentence.
"None of this is to say that Mr. Turner and the judge are not worthy of our disgust," they added. "There are better ways, though, to make courts responsive to rape and its victims."
Butler, however, says she doesn't believe anyone is acting "cavalierly" in passing this bill. "The legislature is there to make sure our laws are reflective of the needs of the residents of the population of California at any one time," she says. "This situation presented a loophole that needs to be corrected. It's a problem, we've now noted it, and hopefully we're going to fix it with a governor's signature."
Last week, legislators also passed a bill that broadened the definition of rape to include "all forms of nonconsensual sexual assault." Both bills await Gov. Brown's approval, who has not indicated if he'll sign them or not, Reuters reports.
Meanwhile, Turner is set to be released from jail on Friday for good behavior after serving only three months.