The Stanford Rape Case Raises Serious Questions for the Legal Profession

From Cosmopolitan

Early last year, Brock Allen Turner, a 20-year-old former Stanford student, raped a then-22-year-old unconscious woman behind a dumpster. He was caught only because two Stanford graduate students who happened to be biking by saw Turner lying on top of an unresponsive woman, pulled him off, and held him until police arrived. One of the graduate students was so shaken by what he saw that he cried relaying the story to law enforcement. Turner was eventually convicted of multiple felonies. Prosecutors asked for a six-year sentence.

Instead, Turner was sentenced to six months, of which he will likely serve just three. Judge Aaron Persky's reasoning: A longer sentence would have a "severe impact" on Turner.

The short sentence, the reasoning for it, and the stunning letter the victim wrote about the assault have collectively roiled the internet this week. In that letter, she details the ways in which the trial was as much about her as her rapist, illustrating what so many rape victims mean when they say going to trial is like being assaulted all over again.

"I was pummeled with narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name," she wrote. "After a physical assault, I was assaulted with questions designed to attack me, to say see, her facts don't line up, she's out of her mind, she's practically an alcoholic, she probably wanted to hook up, he's like an athlete right, they were both drunk, whatever, the hospital stuff she remembers is after the fact, why take it into account, Brock has a lot at stake so he's having a really hard time right now."

It's an ugly, disturbing line of questioning. Rape survivors often know they are going to face interrogations like this, which may be one reason so many of them don't report; this kind of aggressive questioning often works, which may be partly why fewer than 20 percent of sexual assaults (and depending on who you ask, it could be as low as 3 percent) ever result in a conviction.

It is easy to look at these questions and conclude the defense lawyer is a victim-blaming sleaze. Certainly the woman here has good reason to despise him. The rest of us, though, shouldn't be calling for his head. Instead, we should be rethinking American rape law, and the legal profession should be having tough conversations about the competing ethical obligations in sexual violence cases.

The questions Turner's lawyer asked were aggressive enough to serve as the art for the BuzzFeed post on the victim's letter. They're there at the top, in red: How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink?

And on and on and on, questions that hurt your heart when you imagine them being asked of a young woman whose only crime was having the bad luck to be at a party with this particular man.

Still: This was the attorney's job.

I don't mean that in a shrugging way, the way that all kinds of abuses and oppressions have been justified with "I was just following orders." I mean: Vigorously defending a client is a defense attorney's job, and that vigorous defense is a vital component of our criminal justice system. This is a good thing. It is a valuable, necessary, essential thing. In a system like ours, it is the job of the prosecutor to prove beyond a reasonable doubt that a criminal defendant is guilty, and it is the job of the defense attorney to zealously defend his or her client, raising doubts about the prosecutor's claims wherever possible. This is how it should work. It should be a high bar to convict someone of a crime, to put them in jail, take away their liberty.

And yet we don't hear victims of car theft saying that the trial was like being stolen from all over again, or robbery victims saying the trial felt like having their home burglarized again. We do hear rape victims say their trials are often humiliating exercises in re-victimization. It's a sentiment common enough to be cliché. There is, no question, something going very wrong here.

Before I was a journalist full-time, I was a lawyer. I didn't do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I'm not a religious person, but if there is anything I believe is the Lord's work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense - the only line of defense - for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

Brock Turner is not an indigent, underprivileged defendant. He's a comparatively wealthy white man, a former student athlete at one of the most elite universities in the world, who made a choice to commit an act of violence. His family was able to pay for an upmarket defense lawyer, and while that lawyer was unable to convince a jury that there was reasonable doubt of Turner's guilt, he was able to convince the judge that Turner shouldn't go away for very long. There are a series of privileges reflected in the judge's decision, some combination of racial, economic, and educational, and Turner's attorney played on them to get this result.

Still, this was the attorney's job, the unambiguous obligation of his profession.

How, then, can we reshape it to be less awful for rape survivors and also for the many criminal defendants who are, unlike Brock Turner, not coming from immense privilege, and are often at a significant disadvantage in a system that is supposed to put the burden of proof on the prosecution but too often sees defendants as guilty just for stepping into the courtroom?

Toward the end of the second-wave feminist movement, feminist legal scholars pushed for, and saw implemented, rape shield laws - rules of evidence that bar defense lawyers from introducing irrelevant information about a rape victim's sexual history at trial. Over the past several decades, rape law itself has evolved: marital rape is now largely outlawed (although only fairly recently and often with significant exceptions), some states have removed statutory requirements that rape victims fight back, and many states now take incapacitation from drugs or alcohol into account when criminalizing nonconsensual sex.

Still, we treat sex crimes differently, both legally and culturally, from many other crimes. Our social understanding of rape as something a woman should fight off, and our entrenched skepticism of the morals of sexually active women, explains why defense attorneys are able to point to women's behavior or supposed consent in defending their clients. This is fundamentally different than the defense of, say, a man accused of a mugging - it's hard to imagine "the victim agreed to give this stranger his wallet" or "he had willingly given a person money before" being successful defenses in those cases.

We need better sexual assault laws, which more accurately reflect the realities of both sexual violence and consensual sexual activity. Our laws have not appeared from thin air; they were written by men, litigated by men, developed and revised almost entirely by men, based on a foundation created by men according to men's perceptions, beliefs, and experiences. When the foundations for rape laws we now use in the United States were initially developed, women were for all intents and purposes the property of men (and enslaved women were very literally the legal property of men). It was legally impossible for a man to rape his wife, because the law presumed men had unfettered sexual rights to their wives' bodies. Sex was set up as oppositional, something men got from women, that women had a social obligation to protect and reserve only for a man with appropriate legal authority over her (that is, her husband, or at least her fiancé). This is the groundwork upon which we have built today's rape laws. It is why even a relatively progressive sexual assault law like California's defines rape as an act done forcefully or under duress, in violation of a person's will or when they were unable to express their will one way or another because they were incapacitated - instead of, more simply, sex to which one party did not consent.

This could change with affirmative consent laws, which don't require that a party resists or says no, and instead require that both parties are consenting to sex. It's a small, subtle shift, but an important one. A prosecutor would have the burden of proving that an accused sexual assailant didn't have a "yes" for the sexual activity. As it stands, prosecutors generally have to demonstrate that a victim resisted and said no, was incapacitated and unable to say no, or was otherwise forced or coerced - which can be difficult when the only testimony is from the victim herself, and rape cases are somewhat unique in that juries often simply don't believe the sworn testimony of a victim. The Stanford case, for example, was probably won in part because of the two graduate student witnesses who interfered in the rape and offered sworn statements about what they saw. Had it been the victim's word against her perpetrator's, with her having to prove that she was fully incapacitated while also testifying that she remembered almost nothing, the prosecution's chances of a win would have nosedived. An affirmative consent standard wouldn't stack the deck in favor of the prosecution, but it would emphasize to a jury that both parties have a duty to obtain consent for sex – it's not just a woman's job to say no.

While an affirmative consent standard is increasingly used by universities (including the University of California system), it has not yet been codified into criminal law. If we understand that sex as something parties enter into for mutual pleasure as opposed to one party getting something from the other, and if we believe that the burden should not be on women to fight men off but on men to not penetrate people without consent - and while of course men are sexually assaulted, women are assaulted much more often, and it is almost always men committing sexual assaults - then affirmative consent should be the standard we use in determining whether a sex act was criminal. Our criminal code should change to reflect that standard.

There's an opportunity and an obligation for the legal profession here too. While the American Bar Association offers lots of information on representing or recommending legal counsel to victims of sexual violence, there's far less guidance on the ethics of defending those accused. There's no question that it is of course ethical to defend accused rapists, but the how matters. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming - and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client - especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place - which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case?

These are not easy questions, and, even among feminist lawyers, there are not simple, clear answers. What is obvious is that we are long overdue for a profession-wide grappling. And, for those of us who care about justice in all corners of the courtroom, what is also clear is that the rights of criminal defendants don't have to be so starkly at odds with the interests of crime victims. A fairer system that incarcerated fewer people, focused on rehabilitation instead of just punitive punishment, and was truly about what was done instead of who did an alleged bad act would better serve defendants and victims alike. Many victims, including the woman raped by Brock Turner, do not want the people who hurt them to, in her words, "rot away in prison." What they do want is a criminal justice system that is fair, to both victims and accused criminals, and punishments that fit the crime itself, not the skin color or social class of the person who committed it.

There are few jobs more indispensable to the functioning of our legal system than defense attorneys. And yet it also seems there are few people these same attorneys hurt more than sexual assault victims. Our criminal justice system is just that: A system. It is what we make it; we get to change it if it's not serving its purpose, and we have changed it, many times over. It is only very recently that women have had any real say in the construction and implementation of this system; the same is true for men of color and poor men, who are also disproportionately likely to be caught up in it.

We want the law to be unassailable, to be black-and-white; we want justice to feel righteous and sweet. We want defense lawyers who are the Atticus Finches we read about as children, standing virtuously for the marginalized and falsely accused; we want prosecutors to be the zealous advocates who put the bad guys away on Law & Order. The inside of a courtroom is not so tidy, and these loftiest ideals often conflict.

What the defense attorney did in the Brock Turner case was his job, the obligation of his profession, a valuable and important requirement. And still, on the young woman who was unlucky enough to cross paths with Brock Turner, who showed up at the hospital bruised and dirtied and bloodied, this lawyer left another mark. For those of us who are not the victim or her family or her friends, even if we are currently outraged by the sentence, we will soon move on to the next outrageous thing, the next injustice (there will always be another). This case will fade. But the questions it raises, the conflicting values, and the imperfect, untidy solutions currently on offer aren't going to go away.

It is far past time we set out anew to address them. For those in the legal profession, and those who care about justice, there are few matters of greater urgency. The American Bar Association, and the Bar associations of all 50 states, should set to work on the question of how best to reform American rape laws, evaluating affirmative consent as an option alongside other proposals, with input from prosecutors, defense attorneys, feminist legal experts, and rape survivors alike. Ethics committees should develop a modern, highly specific set of best practices for arguments that rely on harmful stereotypes or play into biases, whether that's bringing up women drinking or having consensual sex or partying in rape cases; relying on a jury's racism in criminal cases generally; or utilizing defenses like the one known as "trans panic," used to justify the actions of men who murder transgender women by asserting that the man on trial panicked when he discovered a sexual partner's trans status and is therefore less culpable for killing her (the LGBT Bar is working on banning this defense nationwide). Judges should be more circumspect about what they allow to be introduced into their courtrooms. Law schools should address these complex questions and the roles lawyers play not just in carrying out the law, but in shaping American values, norms, and culture.

The Stanford case is not an example of an individual glitch or a bad defense lawyer. It is instead a very public and particularly egregious display of one of many problems baked into a system built by a narrow group of people, that simply has not evolved quickly enough. If order for anything to change, we have to be willing to tackle hard, complicated, messy questions.

It is time.

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