This article first appeared on the Verdict site.
On September 2, Brock Turner was released from the Santa Clara County Jail. Mr. Turner is the former Stanford undergrad convicted by a jury of sexually assaulting an unconscious woman.
The prosecutor sought a prison term, but the judge sentenced Turner to six months in the county jail, followed by three years on probation. Because he behaved himself in jail, Turner was released after three months, consistent with California law.
The sentence has led to a tremendous backlash—against Turner, of course, but also against the judge, who voluntarily removed himself from hearing criminal cases and is now the subject of a vigorous recall campaign spearheaded by Michele Landis Dauber, a Stanford law professor.
But what exactly is the criticism in the Turner case? For many, the answer to this question is obvious—so obvious that they have not paused to consider the question carefully. But care is demanded, for in truth, there are two, very different complaints. Admittedly, they are related, but they reflect different criticisms about society.
Observers have not paid sufficient attention to this complexity. But the solution endorsed by the state of California is likely to make one problem far worse, without making the other any better.
Certainly the most common charge is that Turner got off far too easily, and that any time a man undresses and digitally penetrates an unconscious woman he richly deserves to be sent to prison.
U.S. Representative Eric Swalwell (D-Calif.), who represents the San Francisco Bay area, expressed a common sentiment: “There is no justice in the light sentence and early release of Brock Turner.”
To prevent sentences like this in the future, the California legislature changed a provision of state law that had distinguished between the forcible sexual assault of a conscious victim and the sexual assault of an unconscious victim.
In the former situation, California law required a mandatory minimum prison term. But in the latter, the assault was not considered “forcible,” and a judge could order probation in lieu of prison, as the judge did in the Turner case. Under the new law, both offenses require a prison sentence, from a minimum of two years to a maximum of 14 for first-time offenders.
Supporters of the legislation are clear about its purpose: to punish offenders like Turner, certainly, but also to alter what they see as a culture of male privilege.
Santa Clara County District Attorney Jeff Rosen, for instance, whose office prosecuted Turner and who sought the new legislation, asked rhetorically, “Why under the law is a sexual assault of an unconscious woman less terrible than that of a conscious woman? Is it less degrading? Is it less tragic, less traumatic?”
And Assemblyman Bill Dodd (D-Napa), a co-author of the legislation, argued on the floor of the California legislature, “If we let a rapist off with probation and little jail time, we re-victimize the victim, we dissuade other victims from coming forward, and we send a message that sexual assault of an incapacitated victim is just no big deal.”
Many people make a second charge—viz., that if Turner were poor, and especially poor and minority, his sentence would have been considerably more severe and he would not have escaped prison. In discussing the case in a radio interview, professor Dauber recently railed against a double standard in criminal justice:
We have one system of justice in this country, and we need to make sure … that when an individual does perpetrate an offense, that they’re subject to the same kind of justice and to equal justice, regardless of who they are, whether they have high grades, whether they are a Stanford student or not, whether they are an excellent elite athlete or not. Everyone needs to be subject to the same standard.
Of course, I recognize that the criticisms are related. I suspect many people feel, correctly in my view, that Turner got off easily because he is not poor or a person of color. But ultimately the criticisms are not the same.
Fundamentally, the former is about feminism. It says, “Men do not understand the reality of sexual assault against women, and we need to make absolutely clear that all forms of this conduct will be punished severely.” This criticism applies regardless of whether the offender is white or black, rich or poor.
In contrast, the latter criticism is fundamentally about racism and classism, and attacks a culture of white elite privilege. It says, “If rich white kids get a break, so do poor kids of color. If poor kids of color don’t get a break, neither do rich white kids. We need to make absolutely clear that justice can’t depend on the color of your skin or the size of your bank account.” It applies regardless of the offense, and regardless of whether the offender is male or female.
I feel strongly that both problems—which we might shorten as male privilege and white privilege—are unpardonably severe in contemporary society. But observers have generally neglected how these two complaints interact in this particular case.
Turner’s victim was a fellow Stanford undergrad. She read an extraordinarily eloquent and articulate statement in court that described in aching detail how Turner’s assault had affected her.
The statement is available online and has apparently been downloaded more than a million times. No one doubts its enormous impact on the debate surrounding the Turner case, nor should they.
Yet the very power of the victim’s statement forces us to consider whether the mainstream feminist critique—as applied to this case—obscures the race and class critique.
That is, I wonder whether we are appalled at Brock Turner’s treatment precisely because his victim expressed herself so beautifully. We recognize her as one of the “good” people, which makes me wonder whether we would see and hear the same reaction if the victim had been an uneducated woman of color.
As Mr. Rosen asked, is her suffering less tragic, less traumatic? If it is the same—and of course it is—we have to ask why it took this particular case to produce a change in the law.
So we are presented with a situation in which the feminist critique emerges because of the problems of race and class presented by Turner’s sentence. We feel compelled to protect women as a group, at least in part, because this woman in particular was not an uneducated woman of color.
In fact, what gives us any confidence that a newly minted mandatory minimum will be used against the next Brock Turner? Isn’t it at least equally likely, given what we know about race and the criminal justice system, that when we create more carceral weapons, they will most likely be used against people of color?
Indeed, recent research shows this may be particularly true in the prosecution of sex offenses. For instance, roughly 750,000 people in the United States are registered sex offenders, two-thirds of whom are white men. Yet the sex offender registration rate for blacks is twice that of whites.
The fact is that creating a mandatory minimum for a specific crime will not reduce white privilege when there are so many ways for white defendants to avoid the most draconian consequences of the carceral state.
Brock Turner’s sentence exposes two ugly aspects of American society: White men get a break when they mistreat women, and whites get breaks that people of color do not.
But the response to Turner’s sentence threatens to exacerbate one to ameliorate the other. If that is our choice, we should at least be explicit about it.
Joseph Margulies is a professor of law and government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013) and is counsel for Abu Zubaydah, for whose interrogation the torture memo was written.