How Ousting The Judge In The Stanford Sexual Assault Case Could Impact Future Cases

Jun 11, 2016
Originally published on June 13, 2016 11:29 am

The six-month jail sentence of Brock Turner, a former Stanford University swimmer convicted of sexual assault last week, has sparked an outcry.

Vice President Biden released a letter of support for the victim. California Attorney General Kamala Harris condemned the light sentence.

Now, an effort to recall Judge Aaron Persky, who handed down that sentence, has begun.

NPR's Scott Simon spoke with Michele Dauber, the Stanford law professor who's leading that effort, about why she thinks Judge Persky's sentence is unacceptable, and why he deserves a recall.


Interview Highlights

On what it was like being in the courtroom when Turner was sentenced

Well, it was very emotional, because the survivor had read her incredible statement and the whole room was in tears. And then he imposed such a light and lenient sentence. People felt really confused and betrayed. All of her high school and college friends that had come were sobbing and they were asking me, "What does this mean, can we appeal, you know, why did he get away with it?" It was really shocking.

On why she believes this sentence is something she can't abide

It is not within sentencing guidelines, it is very, very lenient. One of the crimes for which he was convicted — assault, intent to commit rape — has a minimum guideline sentence of two years with a sort of expected sentence being four years for that crime. And it is also not eligible presumptively for probation. So in order to grant probation in that case the judge had to find on the record that this was an "unusual case" and that the interest of justice really required or would be best served by probation. And he did that by finding that he was intoxicated, and that he was, prior to committing these crimes, a very successful young man who had a great academic record and a lot of athletic accomplishment.

And the reason I say this case is dangerous and it makes women less safe at Stanford and other colleges, is that that description fits essentially every campus rape at Stanford certainly and many schools across the country. So it means that he has essentially taken campus rape out of the category of things you can go to prison for, and awarded it a lighter sentence.

On intoxication and academic success being grounds for a lenient sentence

Nobody gets into Stanford who isn't promising and doesn't have a great record; they all have spectacular records. And we know from research, even here at Stanford, but also nationally, that virtually all campus sexual assaults involve alcohol. So if you say being intoxicated as he was and being promising as he was, is sufficient to get you probation, then you are saying that every campus sexual assault ... would be entitled to probation. It says, you'll never go to prison essentially, if you commit these crimes. So it's really an outrage.

On the argument that Mr. Turner's public image is still damaged for the rest of his life, despite a shorter sentence

Whatever social ostracization that Mr. Turner may experience as a result of the publicity around his crime is quite apart from the law of the state of California, which is extremely clear and that's what I'm concerned with. The state of California doesn't say two years unless the person has been severely shamed on the Internet, and then, three months and probation. It says presumptively no probation, unless these certain, very specific criteria are met. And they were not met here, and that's why this judge should not be on the bench.

On how the recall process would work

There's a signature gathering effort that will begin. Those signatures have to be certified and then they are presented. Then they will open the recall campaign. At that point it will go on the ballot. If he is defeated in the recall then another candidate will be selected to take his place.

On whether it makes sense to recall a judge over a single decision, as unpopular as the public may find the decision

It is my belief that sometimes one case can be so bad that it does require strong action and strong repudiation. Judge Persky is a criminal judge, one of the very few criminal judges, who has jurisdiction over Stanford. So that means that we would be waiting six more years in order to remove him according to the regular election process, and any sexual assaults that happen on the Stanford campus during that time would be highly unlikely to receive a prison sentence based on this precedent. So we think this is dangerous; we can't really let it go on for another six years. We need justice for women now.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

SCOTT SIMON, HOST:

The six-month sentence of a former Stanford University student convicted of sexual assault has sparked an uproar. A group of California lawmakers has asked the Commission on the Judicial Performance to investigate and discipline judge Aaron Persky who handed down that sentence. An effort to recall the judge has begun.

Stanford Law professor Michele Dauber is leading that effort, and she joins us from studios at Sanford. Thanks so much for being with us.

MICHELE DAUBER: Thank you for having me.

SIMON: I understand you were in the courtroom when Brock Turner was sentenced.

DAUBER: Yes, I was.

SIMON: What was that like?

DAUBER: Well, it was very emotional because the survivor had read her incredible statement, and the whole room was, you know, in tears. And he imposed such a light and lenient sentence. People felt really confused and betrayed. All of her high school and college friends, you know, that had come were sobbing. And they were asking, you know, what does this mean? Can we appeal? You know, why did he get away with it? It was really shocking.

SIMON: Professor Dauber, why do you believe this sentence is just something you can't abide. Is it not within sentencing guidelines?

DAUBER: It is not within the guidelines. And in fact, it is very, very lenient. One of the crimes for which he was convicted, assault with intent to commit rape, has a minimum guideline sentence of two years with the sort of expected sentence being four years for that crime. And it is also presumptively not eligible for probation. So in order to grant probation in that case, the judge had to find on the record that this was a, quote, "unusual case" and that that interest of justice really required or would be best served by a grant of probation. And he did that by finding that he was intoxicated and that he was, prior to committing these crimes, a very successful young man who had a great academic record and a lot of athletic accomplishment.

And the reason I say this case is dangerous and it makes women less safe at Stanford and other colleges is that that description fits essentially every campus rape at Sanford certainly and many schools across the country. So it means that he has essentially taken campus rape out of the category of things you can go to prison for and awarded it a lighter sentence.

SIMON: Because students are figured to be so promising and had such a good record to get into a place like Sanford.

DAUBER: Yeah. Nobody gets into Sanford who isn't promising and doesn't have a great record. They all have spectacular records, and we know from research even here at Sanford but also nationally that virtually all campus sexual assaults involve alcohol. So if you say being intoxicated, as he was, and being promising, as he was, are sufficient to get you probation, then you are saying that every campus sexual assault, unless it's a second or third assault conviction, which doesn't even makes sense, would be entitled to probation. It says you'll never go to prison essentially if you commit these crimes, so it's really an outrage.

SIMON: What about the argument, professor, that although the man who's been convicted might be out of prison within a few months, he's damaged goods for the rest of his life. He's become a public symbol.

DAUBER: You know, I think that's really quite a part - whatever social ostracization that Mr. Turner may experience as result of the publicity around his crime is quite apart from the law of the state of California, which is extremely clear, and that's what I'm concerned with. The state of California doesn't say two years unless the person has been severely shamed on the Internet and then three months and probation. It says presumptively no probation unless these certain very specific criteria are met. And they were not met here, and that's why this judge should not be on the bench.

SIMON: What's the process of recall as you understand it?

DAUBER: So there is a signature gathering effort that will begin. Those signatures have to be certified, and then they are presented. Then they will open the recall campaign. At that point it will go on the ballot. If he is defeated in the recall, then another candidate will be selected to take his place.

SIMON: And let me ask you. As a law professor, is it wise to try to recall a judge over a single decision. As unacceptable as you find this single decision, don't you want judges to feel that they can have the courage to stand against popular opinion?

DAUBER: It is my belief that sometimes one case can be so bad that it does require strong action and strong repudiation. Judge Persky is a criminal judge, one of a very few criminal judges who has jurisdiction over Stanford. So that means that we would be waiting six more years in order to remove him according to the regular election process, and any sexual assaults that happen on Stanford campus during that time would be highly unlikely to receive a prison sentence based on this precedent. So we think this is dangerous. We can't really let it go on for another six years. We need justice for women now.

SIMON: Michele Dauber, professor of law at Stanford, thanks so much for being with us.

DAUBER: Thank you for having me. Transcript provided by NPR, Copyright NPR.