I think I’ve referenced enough topics in the title. And yes, I will get to all of them!
There’s a good chance you’ve heard of the Stanford sexual assault case. If not, you can read a good summary here. You would also do well to read the victim’s statement to her attacker, though a warning for upsetting sexual content is a given.
A lot of people are outraged over the sentence this young man received: six months in jail and three years’ probation. The maximum penalty for the three charges on which he was convicted was 10 years in prison. Six months is obviously much, much less than that. On the other hand, his punishment shall extend well beyond a prison term. He will have to register as a sex offender for the rest of his life. He was expelled from Stanford, meaning his educational and thus career prospects are sorely dimmed. And thanks to wide media attention, his actions will follow him wherever he goes. This is a penalty he will never be able to escape.
The question has arisen, though, of how to ensure such comparatively light sentences aren’t handed down in future cases. If the best outcome is a brief stint in prison followed by a few years’ probation, why should women report being assaulted? It’s a valid concern, since any victim of a crime must weigh the mental and financial costs of pursuing justice against the spectrum of possible outcomes. A pattern of light sentences for sexual assaults sends the message that it’s not worth coming forward, because the best case is a sentence measured in months.
One of the more common suggestions offered by people outraged over this incident is broader implementation and stricter enforcement of mandatory minimum sentences. But this does not solve the problem offenders like Brock Allen Turner present. What will happen instead is that charges and convictions will be soft-pedaled based on how much sympathy a jury or judge feels (or is expected to feel) for the accused. A young black man with a record? Little or no sympathy. A clean cut young white man with a promising future and lots of people advocating on his behalf? Well, the results speak for themselves. Shaun King had a few words to say about all this, but I’ll quote the most relevant part:
Do you know how many young black boys and girls, sometimes as young as 13 and 14 years old, are tried as adults in court rooms all across America and given mandatory minimums of 10 years and 20 years and even life in prison? Thousands. Tens of thousands. When I was sophomore at Morehouse College in 1999, one of my friends from childhood from Kentucky sexually assaulted a woman much like this. It's reprehensible. He deserved to have the book thrown at him. Being black and poor all but guaranteed such a thing would happen. He was 19 at the time, addicted to drugs, and had become a violent, ugly mess of a man. His father was never around and his mother died of cancer when we were in second grade together. My mother and I loved him dearly as a child. By the time I graduated high school, I hardly knew him, but was devastated by what he did, what it cost his victim, and what it would ultimately cost him. He was just released this year, 17 years later. While he was in prison, his beloved grandmother passed away and his only brother died of a sudden illness. I would often look at his photos online to see if he looked the way I remembered him. Sometimes, in his photos, it was clear that he had been assaulted. An eye would be swollen shut, cuts would be on his face. He served hard time. You'll never hear me say he didn't deserve it.
These kinds of judicial discrepancies are real and common. Given comparable circumstances and charges, black men are convicted more often than white men, and spend more time in prison. It is impossible, then, to discuss implementing harsher sentences for sex crimes (or, indeed, any crimes) without acknowledging that any such enhancements to the judicial system will have powerful racial implications. Calls for harsher sentencing are, in my view, largely well-intended–there is a desire to punish people for wrongdoing, especially when that wrongdoing rises to the level of sexual assault and rape. Mob justice is not an answer, so we must rely on the legal system to address it. But there are difficult, complex reasons as to why the legal system typically fails in this regard.
By and large, legal systems do not establish norms, but codify and enforce existing ones. Historically, rape laws resulted not from a desire to protect women’s bodily autonomy, but to help fathers protect the “purity” of their daughters for the sake of a future marriage. Young women (and their virginity) were treated as property that could be “damaged” by rape, assault, or even consensual premarital relations. While the law has evolved considerably in this regard–women are no longer regarded as property, and their bodily integrity is protected as a human rights concern–the lens through which the law is applied is still informed by the norms of surrounding society. The law does not recognize Brock Turner as a promising young man with a future–but his judge did. The reason judges have this kind of discretion is precisely to make exceptions, to recognize where the law may be too harsh, and to adjust accordingly. But it can also be used as it was in this case, to blunt the severity of a perpetrator’s punishment because he’s young, white, and able to evoke sympathy.
Mandatory minimum sentences will not and cannot fix this. Limiting the power of judges may make things better–but it could also make them worse, removing discretion that we might want them to have. These pushes for harsher penalties in the face of one egregiously insufficient punishment seem to arise as a way to compensate for society’s inability to address the underlying problem–namely, that men feel entitled to women’s bodies and think that assaulting and violating them is acceptable. This is top-to-bottom cultural problem and one of the central features of patriarchy. Stronger sentences will never address this–they can’t, because the psychological and cultural motivators for this behavior are so deeply entrenched, the mere specter of lengthy prison terms cannot override it. Turner was surely not thinking of the potential consequences when he assaulted an unconscious young woman. He was instead taking advantage of his white male privilege, to take what he desired, to satisfy his own curiosity and lust, to treat a woman’s body as his plaything without regard for the human being he was violating.
Sending him to prison for a longer period would solve one problem: the problem of Brock Allen Turner raping someone else (for as long as he is incarcerated). But it does not address a culture in which these events are commonplace, in which women attending colleges consider sexual assault such a fact of life that only 20% of victims report them to the police. Many survivors of sexual assault do not report them because they fear being judged for what they were wearing, what they drank, what they did before and after the assault, and whether they will even be believed at all. Much hand-wringing is done over the rights of the accused, but the fact of the matter is that institutions already go out of their way to protect accused perpetrators from the consequences of their actions–particularly when those accused are white men of means. Women are uniquely penalized for their behavior when it comes to being treated credibly and as people who need justice. Shooting and killing someone in self-defense brings less scrutiny than accusing a man of rape.
The justice system needs to do its job, but as a society–as men–we must do a better job of preventing and stopping assaults in the first place. In the long run, that’s the only thing that will put an end to this culture of sexual violence. It is evident that the criminal justice system will never function sufficiently well to capture and incarcerate sexual predators, and we cannot rely on it to do so. It’s on every one of us–and I do mean men, all men–to stop this behavior when we see it, to not turn a blind eye to friends and colleagues who are clearly preying on women, to not raise our sons to believe women are objects to which they are entitled. This is a society-wide problem and it needs society-wide solutions. Each of us is part of that society, which means there is something we can all do to help. The legal system is not going to do all the work for us.
