He Failed in His Duty - Recall Judge Aaron Persky

He Failed in His Duty

SAN FRANCISCO- The Stanford law professor on her campaign to recall a county judge and clapping back at rape culture.

This is "Think Tank," an occasional series of conversations with Bay Area power players, conducted by San Francisco editors. Interviews have been condensed and edited for clarity.

Name: Michele Dauber
Occupation: Professor of law, Stanford University
Age: 
52
Residence: 
Palo Alto

San Francisco: Going back to the origins of your recall campaign against Santa Clara County Superior Court judge Aaron Persky, what angered you about the sentence he gave for convicted rapist Brock Turner in June 2016?
Michele Dauber: In the case of Mr. Turner, you have someone convicted of three predatory felony sex crimes receiving a sentence that’s more appropriate to shoplifting. That is just simply not sending the right message and will, in fact, suppress reporting. I mean, imagine being the victim in that case. Was it worth it? To have survived an excruciatingly bad crime, to have gone through all of that, all the indignity, all the victim blaming, getting cross-examined, having it implied you made it up, having giant pictures of your injured vagina displayed on an overhead projector for your grandmother to see? To survive all of that…for [the perpetrator to serve] three months in county jail and really a slap on the wrist and a bunch of sympathetic talk from the judge?

It was the judge’s response that seemed like the biggest injustice, did it not?
There was not even a moment when he said, “You did a terrible thing, and that’s why you’re being punished.” He looked at Mr. Turner and he saw what he wanted to see, not what was before him. He failed in his duty to express opprobrium, even to that extent. So I think that’s the kind of thing that has to be corrected in order to provide the appropriate incentives for victims to come forward. And that’s my goal.

As a Stanford professor, you’re also trying to challenge a campus culture that seems to want to protect its own. Is this a fight against Stanford itself?
The first thing to understand is that we have epidemic rates of sexual violence at Stanford. Forty percent of undergraduate women reported in Stanford’s own survey that they experienced sexual violence or serious sexual misconduct during their four years with us. But only 2.7 percent of that violence is reported to anyone in a position of authority. So if people’s loyalty takes the form of blind defensiveness of the institution, then it is not actually serving the interest of the institution. Stanford would be helped by taking a clear-eyed look at what the situation is and working to improve it.

And couldn’t the same be said more broadly of all of Silicon Valley?
One of the things that have been bad for Silicon Valley has been this idea that “We’re disrupters. We move fast and break things.” People have confused, very severely, the idea of disrupting product-development conventions and breaking laws. So when Stanford has inculcated this culture of impunity, they’re not just incubating good ideas and new products. They’re also incubating rape culture. That’s what’s so pernicious about the decision that Judge Persky made in the Turner case, and in the other cases that the campaign has documented: They reinforce and re-embed and re-inscribe this idea of impunity for upper-class, white, athlete, high-status offenders. What we’re trying to do with this campaign is use the electoral system to clap back at that idea.

One of the main criticisms of this campaign, leveled by some public defenders and notable law professors, is that it endangers judicial independence by pressuring judges to issue harsher sentences across the board—which could ultimately harm the poor and people of color.
Judges are not sitting around fearing that they’ll be recalled. A recall has the highest signature threshold you can have. I mean, 58,634 signatures is a lot of signatures. It costs a lot of money, it takes a lot of time. [Our campaign] is going to have been two years from start to finish and cost over a million dollars. There is absolutely no way that judges are going to be worried that’s going to happen to them, especially when they already sit for election every six years.

But there are those who argue that Turner’s sentence should actually be the norm—that longer jail sentences don’t help anyone in society.
Our campaign isn’t about harsh sentencing. It’s been extremely clear and narrowly focused on addressing the problem of impunity for privileged perpetrators of violence against women, particularly in the case of college athletes, tech workers, and upper-class or white individuals. I do not believe judges will make the fantastic leap of logic that would be required to interpret this as a campaign encouraging them to impose harsh sentences on anyone. And I reject the idea that’s being advocated by Judge Persky’s supporters that we have to choose between caring about mass incarceration and caring about the fact that victims of sexual and domestic violence do not have adequate access to justice.

Originally posted in San Francisco Magazine. Read it here