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Opinion Law professor: Judge should be recalled for his role in the Stanford sexual assault case

Santa Clara County Superior Court Judge Aaron Persky, shown on June 27, 2011. (Jason Doiy/Recorder via AP)

Michele Dauber is the Frederick I. Richman Professor of Law and a professor (by courtesy) of sociology at Stanford University. After the sentencing in a high-profile sexual assault trial, she launched an effort to recall the judge in the case. (Santa Clara County, Calif., Judge Aaron Persky is unable to respond, as an appeal is pending.) Here Dauber responds to Roderick O’Connor, the deputy public defender in Santa Clara County, Calif., who criticized that effort. — Susan Svrluga

California judges are accountable to voters

Millions of people around the world have been shocked by the lenient sentence handed down by Judge Aaron Persky for the brutal sexual assault of an unconscious woman at Stanford University.

Former Stanford University swim team standout Brock Turner was sentenced June 2 to six months in the county jail and placed on probation. He will be out in three months with good behavior.

For women in Santa Clara County and across California, Brock Turner’s sentence for three violent sexual felonies isn’t merely shocking, it’s dangerous. It reinforces the myth that sexual assault is not a serious crime, particularly when it is perpetrated by young white male athletes in elite universities.

Debate eruprts over judge’s decision in Stanford sexual assault case

O’Connor defends this short sentence as an example of “individualized sentencing” that demonstrates Persky’s fairness and impartiality — although it’s telling that O’Connor doesn’t mention any of the details of the crime or the sentence.

Lawyer: Judge acted fairly in the Stanford sexual assault case

In fact, Persky, who was captain of the club lacrosse team at Stanford when he was a student there in the 1980s, had to bend over backward to award Turner such a light sentence.

One of Turner’s crimes was assault with intent to commit rape, which carries a minimum sentence of two years in prison and is presumptively ineligible for probation.

Nevertheless, Judge Persky concluded that Turner’s youth and intoxication made him less morally culpable for his crime and that he had already been punished by the loss of his swimming scholarship and by the media coverage of the trial.

According to Persky, prison would simply have too severe an impact on Turner.

Persky also gave short shrift to the victim’s trauma. Many of the “character letters” that Persky hailed as persuasive were directly victim-blaming, attacking the victim for dancing prior to the assault and assailing her level of intoxication.

Persky did not even require Turner to take responsibility for the sexual assault. At sentencing, Turner continued to place responsibility for the crime on Stanford’s culture of “binge drinking and sexual promiscuity.”

Persky even verged on questioning the jury’s verdict, calling the trial an “imperfect process” and saying that Turner should not be “penalized” for failing to fully accept the findings of guilt.

“I take him at his word”: Judge in Stanford sexual assault case explains controversial sentence

One juror angrily wrote to Persky that the sentence was “ridiculously lenient” and made a “mockery” of the whole trial, according to the Palo Alto Weekly. “It seems to me that you really did not accept the jury’s findings,” he wrote. “We were unanimous in our finding of the defendant’s guilt and our verdicts were marginalized based on your own personal opinion.”

The prosecutor in Santa Clara County seems to agree. The week after the sentence in Turner’s case, the prosecutor asked to have Persky removed as the judge in an upcoming sexual assault trial, saying that he had lost confidence that the judge could “fairly participate” in the case.

Judge who issued controversial sentence in Stanford trial removed from a sexual assault case

Elected officials including Rep. Jackie Speier (D-Calif.) and numerous members of the California legislature have called for him to resign or be removed. A former Santa Clara County judge called the sentence a clear example of “bias” and “white privilege.”

Jurors refuse to sit in Persky’s courtroom because they are so upset by his misapplication of the law, according to the San Jose Mercury News.

Even many of Persky’s defenders condemn the sentence. For example, University of California at Irvine professor Erwin Chemerinsky said that he was “outraged” by Persky’s “grossly inadequate punishment” of Turner, which he called a “terrible error.”

Sadly, this is not the first time that Persky has appeared to favor athletes accused of campus rape. In a 2011 civil trial following the alleged gang rape of an unconscious 17-year-old victim by members of a college baseball team, according to the Guardian, Persky allowed the jury to consider photographs of the victim taken at a party nearly a year after the assault in order to prove that the victim was not really traumatized. Her lawyers called the impact of the photos “prejudicial” and questioned other rulings by Persky that favored the defendants.

Fortunately, the citizens of Santa Clara County have a mechanism for addressing this situation.

Under Article II of the California Constitution, judges are elected by the people. They serve a fixed term and are subject to recall like other elected officials during their term.

In O’Connor’s superheated rhetoric, this orderly democratic process of gathering signatures, filing petitions, and voting governed by law is a “lynch mob.” O’Connor’s view would bar voters from considering judges’ actual decisions, no matter how biased or arbitrary, when voting on a judge.

Would O’Connor make the same argument if the violent crime in question were based on the race, religion or sexual orientation of the victim? This is a radical idea that would leave judges completely unaccountable to the voters. He is certainly entitled to his view, but it is flatly inconsistent with California law.

O’Connor’s most perplexing argument is that other judges, seeing the public reaction to Persky’s solicitude toward Turner, will respond by lengthening sentences for those who don’t have the “wealth, status and privilege enjoyed by Turner.” This turns reality on its head. It is the very fact that judges like Persky often exercise “discretion” in favor of defendants like Brock Turner that preserves a system in which poor and minority defendants receive long sentences to which the Brock Turners of the world will never have to be subject.

After the victim heard the sentence, she told a reporter that “even if the sentence is light, hopefully this will wake people up. I want the judge to know that he ignited a tiny fire. If anything, this is a reason for all of us to speak even louder.”

The voters of Santa Clara County will speak loudly and clearly when they replace Persky with a judge who will ensure that victims of sexual violence in our community receive the full protection of the law.