SACRAMENTO — Before Judge Aaron Persky gave Brock Turner the lenient sentence heard around the world, few knew that California’s penal code deemed the sexual assault of an unconscious person less severe than an attack on a conscious person — or that the state defined rape in very narrow terms.
Outrage over Turner’s six-month jail sentence for three felony counts of sexual assault quickly inspired legislation to toughen penalties and broaden California’s definition of rape — proposals that take aim at a problem all too common on college campuses. But cracking down on sex crimes might not be the no-brainer Californians expect it to be. And no one knows that better than Sen. Jim Beall, D-San Jose, who in 2014 lost a fight to increase penalties for youths who sexually assault unconscious victims.
Like the current proposals responding to the Turner case, Beall’s bill came in response to a horrific event that shocked and outraged the public: Audrie Pott, a 15-year-old Saratoga High School student, killed herself in 2012 a week after being sexually assaulted at a party by several of her classmates. Because Pott was unconscious during the attack, the assailants skated by with punishments of 30 to 45 days, served on weekends.
Before Beall’s measure was amended, it would have forced perpetrators of such crimes to spend at least two years in a juvenile detention facility. But the get-tough push collided with another movement — and a federal court order — to ease prison overcrowding after decades of aggressive new sentencing laws.
“These vicious crimes are the type we should want to put people away for,” Beall said. “Why can’t we discuss increasing penalties for unconscious rape and lowering penalties for the many other, lesser crimes that come with overly tough sentences?”
The ACLU has already come out against a bill written by Santa Clara County District Attorney Jeff Rosen, whose office prosecuted Turner, a former Stanford student-athlete who sexually assaulted an unconscious woman outside a frat party. Assembly Bill 2888 would send those convicted of sexually assaulting an unconscious or intoxicated person to prison for at least three years and make them ineligible for probation. Currently, that rule applies only to those convicted of sexually assaulting a conscious person. So Persky, a Santa Clara County Superior Court judge, was allowed under the law to sentence Turner to jail and probation rather than prison.
“California law already provides for very long sentences for many crimes,” said Mica Doctoroff, a legislative advocate for ACLU of California. “Hasty policy-making like this has had and will have unintended consequences, particularly for communities of color.”
Even UltraViolet, a feminist group championing a 2017 recall election against Persky because of his decision, called the mandatory-minimum proposal “bad policy.”
The Turner sentence was an outrage, argued Nita Chaudhary, co-founder of UltraViolet, and “too often rapists spend little to no time in jail for their crimes.” Still, she said in a statement, the mandatory-minimum misses the mark and fails to hold judges like Persky accountable.
The other legislation introduced as a result of the Turner case was Assembly Bill 701, by Cristina Garcia, D-Bell Gardens, and Susan Eggman, D-Stockton. It would broaden the definition of rape — currently defined as “an act of sexual intercourse” — to include forced penetration of any body part with any foreign object.
Because the measure would result in longer prison sentences for many sexual offenders, it will likely be opposed by some groups working to reduce prison overcrowding, as well as some advocates of sentencing reform.
California lawmakers are more open than most to understanding the impact of sexual assault on victims, said Alameda County District Attorney Nancy O’Malley. But even here, she said, talk about tougher penalties usually ends with an acknowledgment that the state’s prisons are ill-equipped to handle a flood of new felons.
Across the country, illogical thinking about the seriousness of campus sexual assault is partly to blame for the lack of progress, said O’Malley, who belongs to a group of attorneys working together to write a model penal code. At a recent meeting in Washington, D.C., she was shocked by how callously other lawyers discussed the problem.
“Law professors got up to the mic at this meeting and said, ‘When did going to a football game, sharing some drinks and having sex afterward become rape?’ ” O’Malley said. “It’s 2016, and this is what we’re still hearing. I was stunned.”
But the global firestorm touched off by the Turner case seems to suggest that public opinion is shifting after decades of activism — and that the law is lagging behind, said Evan Lee, a professor at UC Hastings College of the Law.
“If this was in 1953, you guys aren’t reporting on it,” he said. “In 2016, most people feel like it’s not a woman’s job to live her life in a way that absolutely minimizes the possibility of her becoming a victim of a sexual predator.”
Lee added: “There’s no doubt in my mind that it’s notorious cases like this that give the public a sense of how seriously its government takes these offenses. This six-month sentence is grossly out of line with what most people think is the seriousness of rape.”
Sexual assault is a highly underreported crime that leads to few convictions. While accurate figures are impossible to pin down, the Rape, Incest & Abuse National Network estimates that of every 1,000 assaults, just 344 are reported to police; 13 are referred to prosecutors — and just seven result in felony convictions.
Current law gives judges too much discretion over the consequences of such violent crimes and sends the wrong message: “Wow, you can get away with something like this,” said Assemblyman Bill Dodd, D-Napa, who introduced Assembly Bill 2888 with Assemblyman Evan Low, D-Campbell.
“I think we’re all human beings,” Dodd said. “Abuse of discretion can go on anywhere, so that’s why you have laws, to tighten up on discretion.”
The Turner case, experts say, follows a well-worn path: An incident causes outrage, and lawmakers react. But, Lee said, that’s not necessarily a bad thing.
“Legislatures almost never sit down in the calm of the moment, where they just say, ‘Let’s look ahead, let’s overhaul this area,’ ” he said. “This clearly has struck a nerve with so many people, and now you see legal reform taking place. That’s the way it’s supposed to work.”
Follow Katy Murphy at Twitter.com/KatyMurphy. Follow Jessica Calefati at Twitter.com/Calefati.
California’S sexual assault bills
Assembly Bill 2888, by Assemblyman Evan Low, D-Campbell, Assemblyman Bill Dodd, D-Napa, and state Sen, Jerry Hill, D-San Mateo, would make prison time mandatory for sex offenses involving penetration in which the victim was unable to consent because of intoxication or unconsciousness. It was written by Santa Clara County District Attorney Jeff Rosen. Currently, judges have discretion to sentence offenders to probation, rather than prison, for such crimes.
Assembly Bill 701, by Cristina Garcia, D-Bell Gardens, and Susan Eggman, D-Stockton, would broaden the definition of rape — currently defined as “an act of sexual intercourse” — to include forced penetration of any body part with any foreign object.
