Stanford, Calif. — OUTRAGE is fueling a rare electoral effort to recall a California judge who sentenced a former Stanford athlete to a mere six months in jail for three counts of sexual assault. Regardless of the results of the recall campaign, the real test will be whether this controversy changes the way we think about rape. The aftermaths of two past judicial recalls involving rape cases are mixed. Perhaps this time, anger will lead to change.
Those earlier recalls, of a California judge in 1913 and a Wisconsin judge in 1977, combined the same elements that are now catalyzing the response to the sentence handed down by Judge Aaron Persky of the Santa Clara County Superior Court — a perceived lenience toward rape at a time of political mobilization by feminists.
The former Stanford student, Brock Allen Turner, 20, a champion swimmer, was convicted of sexually assaulting a woman behind a Dumpster on campus in 2015. The prosecutor sought a six-year prison term, but Judge Persky concluded that a term of less than 10 percent of that time, as well as three years of probation, was appropriate. He noted that both the defendant and the victim were intoxicated — witnesses confirmed she was unconscious — and cited the “severe impact” a prison sentence would have on Mr. Turner.
Had the website BuzzFeed not published the victim’s powerful courtroom statement, in which she described the trauma she and her family have suffered, this might have been just another case of a sexual assailant being let off easy. But a recall petition on Change.org gathered a half-million signatures in three days, and now a Stanford law professor is spearheading an effort to put a recall vote on the ballot.
Californians can resort to this mechanism because, in 1911, during the Progressive Era, the state’s voters passed a measure allowing the recall of judges (at the same time, they added an amendment to the state Constitution giving women the right to vote). Two years later, newly enfranchised women in San Francisco flexed their political muscles by petitioning for the recall of a police court justice, Charles Weller.
Like his colleagues, Judge Weller heard sexual assault cases and typically set bail at under $500, low enough so that several defendants chose to flee rather than stand trial. Judge Weller sometimes dismissed rape charges on technical grounds — as when a 15-year-old, impregnated by the accused, missed court because she was giving birth. No one complained until a year after women gained the vote, when Judge Weller reduced the $3,000 bail set for one Albert Hendricks, witnessed trying to assault two 17-year-olds, to $1,000; a former police commissioner had testified that Hendricks, as a substantial businessman, was unlikely to jump bail.
When Hendricks skipped town, women’s clubs in San Francisco took action. They had been instrumental in a recent campaign to expand statutory rape protection to girls under 18. A Women’s Political League gathered enough signatures to force a recall election. The group accused Judge Weller of abusing judicial power “by extending undue and unreasonable leniency to persons charged with the commission of heinous and vicious offenses.” Its slogan was “All’s Well That Ends Weller.” Voters agreed, and they replaced the judge with the reformers’ candidate.
But the recall did not make California courts more vigilant about sexual assault, and nationally, judges remained sympathetic to white defendants like Hendricks, while African-American men continued to be disproportionately prosecuted, convicted and executed for rape.
Only after the revival of feminism in the 1960s did another judge, Archie Simonson of Madison, Wis., fall to recall as a result of a rape case over which he presided. He had sentenced a 15-year-old to one year of home supervision after he pleaded no contest in the gang rape of a girl in their high school stairwell. More than the sentence, it was the comments made by Judge Simonson that led to the recall. He claimed that the boys had behaved “normally” in reaction to the revealing clothing worn by girls. When challenged by a female prosecutor who said she found his remark “sexist,” Judge Simonson replied: “You bet it is. I can’t go around walking exposing my genitals like they can the mammary glands.”
Outrage ensued, and feminist networks in the area led the response. The local branch of the National Organization for Women convened a meeting at a women’s bookstore. The feminist singer-songwriter Malvina Reynolds, who happened to be performing in Madison, wrote and immediately recorded a song, “The Judge Said,” with the refrain, “We’ve got out this petition and we’re going to screw the judge.” Leaders of the recall focused on the judge’s remarks, and their effort succeeded. The one woman running to replace Judge Simonson was elected.
These judges gave the impression that they sympathized more with the accused or the convicted assailant than with the female victims. In Judge Persky’s case, considering alcohol consumption a mitigating factor imputed responsibility to the victim, while his desire to protect the assailant from prison invited comparisons to the routine sentencing of nonwhites for rape.
Most lawyers dislike judicial recall, fearing the chilling effect on judges. But Judge Persky’s fate, whatever it is, may be less important than the reaction ignited by his sentencing. The energies unleashed by this case present a potential to reframe the issue of rape. What we need is a sustained critique of unequal privilege before the law and a true understanding of the deep and lasting damage that sexual assault exacts on its victims and their families.
Correction: June 10, 2016
An earlier version of this op-ed referred incorrectly to the website address of the recall petition of Judge Aaron Persky. It is Change.org, not Change.com.
Originally posted by The New York Times
By Estelle B. Freedman
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