Damaging Justice to Make a Point About Rape

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There’s currently a campaign to recall a Superior Court judge in my county.

Judge Aaron Persky presided over the 2016 trial of Stanford student Brock Turner, who was ultimately convicted of digitally penetrating an unconscious woman on campus.

With Turner a young first-timer with no previous police record, the Probation Department recommended a sentence of six months in jail and three years’ probation, focused on rehabilitation. As is typical, the judge followed this recommendation. California law also requires that Turner register as a sex offender for the rest of his life—an absolutely crucial factor that Recall proponents don’t discuss.

Many people are very upset about the sentence, thinking it way too light. “Six months in jail for assaulting an unconscious young woman!” (Again, ignoring the lifetime sex offender registration.) Outraged, hundreds of thousands of people—most of whom know nothing about the case beyond sensational headlines—want to punish the judge by revoking his job.

That is, they want to undermine judicial independence. Perhaps they misunderstand a judge’s actual mandate. It is NOT to reflect community values, and it is NOT to satisfy the bloodlust OR the sympathy of the community in a given case. No, that’s how it works in places like Russia, Iran, and Egypt, where judges implement community values (as dictated by the government) rather than the law.

A judge’s sworn job is to understand the law and apply it impartially, using the accepted tools of the judicial profession—including knowing and applying precedents, managing conflicting interests in the courtroom, being sensitive to ethical issues, and sifting through the recommendations of various officials within the justice system.

Regardless of how one feels about Judge Persky’s sentencing decision in this case, revoking his job (and destroying his career) undermines the effectiveness and impartiality of every judge in every case. Judges are human; after this recall election, which judge will NOT look over her or his shoulder when making complicated judicial decisions?

As dean of the law school at University of California Berkeley Erwin Chemerinsky says, “Justice, and all of us, will suffer when judges base their decisions on what will satisfy the voters.”

The California Commission on Judicial Performance has cleared Judge Persky of misconduct or bias. Open letters supporting Persky have been signed by 20 retired judges and almost 100 law professors across California. And several County Bar Associations (those are lawyers, not judges) have voted to defend Persky, saying that his removal would be a “threat to judicial independence.”

This Recall election isn’t about whether Aaron Persky deserves to be a judge. It’s about whether the community deserves judges who are independent. The separation of the judiciary from both government and popular opinion is a brilliant innovation of our American system, and we must protect it no matter how painful it feels on a given day.

Even legal system professionals who disagree with Turner’s sentence are against the recall campaign. “Most of the judges in California would have done the same thing as Judge Persky,” says District Attorney Jeffrey Rosen—whose office prosecuted Turner and recommended a six-year prison sentence after his conviction. “I do not believe he should be removed from his judgeship.

* * *

In addition to his jail sentence, Brock Turner is now required to register as a sex offender for the rest of his life—some 40, 50, 60, or 70 years.

People dissatisfied with Turner’s “light” punishment apparently know very little about what lifetime sex offender registration means. These convicts face rampant, LEGAL discrimination in jobs, housing, education, and healthcare. They can’t own homes, get school loans, enter most professions, get a basic security clearance, or get police protection. With their passports stamped “registered sex offender,” they’ll be denied entry into virtually any other country on earth.

With their name and address public information—FOR LIFE—there is no such thing as paying a debt to society and living quietly. If a registered sex offender lives with his mother and a church is built next door, he has to move. Murderers literally face fewer obstacles once they leave jail.

As a lifetime registered sex offender, Brock Turner’s life is pretty much over. Months in jail, years in jail—as awful as that is, it’s most certainly LESS awful than being a registered sex offender for life. Do those criticizing Judge Persky’s decision understand or even care about this? Or do they just want a pound of flesh? That’s an ugly and dangerous position from which to sanctimoniously demand public policy.

* * *

The Recall election campaign is underway, with rallies, legal maneuvering, and dueling letters to newspapers and websites.

Of course, that’s how democracy works. But there’s a disturbing note to it: people who oppose the recall are being painted as pro-rape. That is, Recall supporters are making this election a referendum on rape, sexual harassment, domestic violence, and women’s rights in general. They see the actual judge and this actual situation as a convenient archetype rather than parts of real life.

For example, Recall campaign leader (and victim family friend) Professor Michele Dauber, says “This historic [Recall] campaign is part of a national social movement to end impunity for athletes and other privileged perpetrators of sexual assault and violence against women.” She stresses the recall campaign is focused specifically on ensuring that “white, privileged men” are held accountable.

According to The New York Times, the case is being described as “symbolizing the barriers to justice often faced by women and assault victims in the courts.” But this case is more accurately described as a triumph for the justice system: even though unconscious, the woman was rescued by passersby, and the perpetrator was quickly arrested, quickly tried, quickly convicted, and quickly sentenced. And is now required to register as a sex offender for life.

* * *

Hanging Brock Turner—or making sure he rots in jail until he dies—will not make our planet safer. Getting rid of Judge Aaron Persky will not make anyone safer. (In fact, by eliminating judicial discretion, it will disproportionately harm poor people and people of color.)

Oversimplifying this situation as black and white—either you’re for hanging Turner or you trivialize rape—will not make anyone safer. It will instead keep the progressive movement divided, and discourage men and women from working together to change society.

Recall supporters who can’t make a decent argument call anyone with whom they disagree a rape apologist, or accuse others of being brainwashed by the patriarchy, or say their privilege prevents them from thinking clearly. This doesn’t make a Recall supporter right, or even smart. It just makes him or her a bully.

And by pretending that lifetime sex offender registration is a light sentence or a trivial detail, we continue to dehumanize those whose lives are ruined by it. While three years in prison may feel like a lifetime, it’s absolutely nothing in comparison to spending an actual lifetime as a registered sex offender.

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