The Real Victim in the Brock Turner Rape Case: Aaron Persky

Aaron Persky, the judge who gave Stanford athlete Brock Turner 6 months after Turner was convicted of rape in a trial before Persky’s court, is facing a recall election today. As someone who cares deeply about the rule of law, I hope to fuck California voters throw him the hell off the bench. And while he deserved to be removed for his behavior from the bench, behavior dating back years, I couldn’t wait to comment until after the election because of the new interview in which he paints himself as the victim of uninformed masses who advocate mob rule in place of justice, starting with his own recall.

Persky, like many white men victims of “witch hunts” in which they are actually asked to be accountable for their own behaviors, chooses to avoid the actual issues raised by the case and the sentence he issued in favor of ranting about a topic that is only tangentially related but allows him to frame himself in a much better light during his only public interview about the situation:

“If a judge is thinking in the back of his or her mind how is this going to look? How will it look on social media? Will I be vilified on cable news? That’s the wrong avenue. We can’t do that. We shouldn’t do that,” Persky told CBS News’ John Blackstone.

Okay, sure. Absolutely we shouldn’t be listening to a fickle public outcry to make judicial decisions. But the reason for that is that it leads to injustice and we want our jurists focussed on the facts as they are relevant to making just decisions. The murder of a poor, Black 6-year old shouldn’t merit a shorter sentence than the murder of a rich, white 6-year old whose parents use their wealth to publicize the crime.

But here’s the thing: no one criticized Persky’s decision on the basis that he didn’t check Facebook for the most-liked sentence recommendations. People criticized Persky’s sentencing decision on the basis that he appeared to be swayed by the race and wealth of Turner’s family, and the fact that Turner had been a reasonably successful student at a prestigious school. That appeared to signal to Persky that Turner might go on to make money in the private sector after his sentence concluded, and thus that Turner was a better candidate for less jail time than other rapists.

Those reasons are just as shitty as checking Facebook likes.

Don’t trust me, either. Yes, I’ve read the sentence and Persky’s courtroom statement. They sickened me. But there’s more here too. The sentencing statement he made in his courtroom is only where we will begin our investigation of Persky’s fitness for the bench.

He wants us to believe that he follows the law even when it goes against public opinion, but the truth is that he rejected the legislative judgement that rape is to be punished by years in a state prison. Instead, he latched onto one small part of the victim’s impact statement and used it to rationalize a 6 month sentence in a local jail, of which Turner ultimately served 90 days:

as she writes, the damage is done. The role of the Court at sentencing is to essentially follow the roadmap that our system of criminal justice sets out for the Court in sentencing decisions. It’s not completely an unbridled discretion. It is constrained by factors that are contained in the Rules of Court. And so I’ve tried do that to the best of my ability. And my tentative decision is to grant probation, as recommended by the Adult Probation Department, with the defendant to serve six months in county jail

one other factor, of course, is the media attention that has been given to this case, which compounds the difficulties that participants in the criminal process face. So I acknowledge that devastation. And – and to me, the – not only the – the incident, but the criminal proceedings – preliminary hearing, trial, and the media attention given to this case – has – has in a – in a – in a way sort of poisoned the lives of the people that have been affected by the defendant’s actions.

And in my decision to grant probation, the question that I have to ask myself, again, …: Is state prison for this defendant an antidote to that poison? Is incarceration in state prison the right answer for the poisoning of [Jane’s] life?

And trying to balance the factors in the Rules of Court, I conclude that it is not and that justice would best be served, ultimately, with a grant of probation.

All of this, is, of course, crappy enough. But state law actually requires prison rather than probation except in exceptional circumstances. How does he get around that?

this is a case where probation is prohibited except in unusual cases where the interest of justice would best be served. And in this case, the Court is directed to apply the criteria in Rule 4.413(c) to evaluate whether the statutory limitation on probation is overcome.

some weight should be given to the fact that a defendant who is, albeit voluntarily, intoxicated versus a defendant who commits an assault with intent to commit rape, a completely sober defendant, there is less moral culpability attached to the defendant who is legally intoxicated. That’s as a comparative measure. But I don’t attach very much weight to that.

The second factor is whether the defendant was armed with or used a weapon. That’s not applicable. …

fifth, degree of monetary loss to the victim is not really applicable. …

Eight, whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. And this was not – Mr. Turner’s actions on that night did not demonstrate criminal sophistication.

The next – the (b) factors in that Rule of Court – I’ll just go through those. The first is prior record of criminal conduct, whether as an adult or juvenile, …. That’s favorable for the defendant. There’s no criminal convictions.

… also, I have considered the character letters that have been provided by Mr. Turner’s friends, family, which indicate a period of, essentially, good behavior.

The fourth is the ability to comply with the reasonable terms of probation, … I think he will be able to comply with the recommended terms….

Other factors were seen as mitigating against the unusual sentence of probation, including the extraordinary vulnerability of the victim. Breech of trust is one possible aggravating factor that was dismissed by the court, but in my reading I get the impression that Persky actually sees this as a mitigating factor, rather than simply the absence of an aggravating factor. Likewise with Turner’s lack of weapon use: with his victim entirely unconscious, no weapon was needed. In what way should that count in his favor?

As you can see, there’s nothing particularly unusual in this case. Though Persky repeatedly insists that he doesn’t weigh Turner’s intoxication “heavily”, he does repeatedly bring it up when questions about intoxication are not, per se, a statutorily established mitigating factor that might lead to probation.

Ultimately, Turner’s crime was simply not less serious than most other rapes. How, then does Persky justify the probation to the court (and what should conclusions should we draw from those justifications)? It’s really all about Turner being  a wealthy, college-age boy whose criminal acts were reported in the media:

Number five is the likely effect of imprisonment on the defendant and his or her dependants. Obviously, a prison sentence would have a severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a – at a young age.

Number six are the adverse collateral consequences on the defendant’s life resulting from the felony conviction. And those are severe. And they’re severe in a couple of ways: One, with respect to the Penal Code section 290 registration that he’ll be subject to for life; and, secondly, with respect to the media attention that’s been given to the case, it has not only impacted the victim in this case, but also Mr. Turner. Where, in certain cases, there is no publicity, then the collateral consequence on those on the defendant’s life can be minimized.

And so this is where it gets odd: not only is this the single area where the judge really makes any (remotely) convincing argument that the case meets the exceptional criteria for assigning probation, in this very section where he’s supposed to be making his strongest argument, he is using the media coverage as a reason to adjust his sentence, exactly that which he said he is ethically bound not to do. This is a man whose best defense is to shunt the conversation in a direction which even he admits leads to wildly inappropriate and unjust violations of judicial ethics: basing the sentence on the media coverage.

So, yeah. Fuck him. But don’t miss the forest for this one tree, and don’t just trust me. The San Francisco Examiner interviews other lawyers about him and condemns him for a pattern of behavior, not merely one case. Would you be surprised that Persky went to Stanford? That he was a student athlete while there? No? Me neither:

Sadly, the Turner sentence was not an isolated incident. Persky, a former Stanford athlete, has a pattern of bias favoring athletes and other privileged perpetrators of violence against women. For example, Persky adjusted the sentences of two different college football players convicted of domestic violence to accommodate their football schedules.

Persky also sentenced a Sunnyvale man convicted of felony child pornography to only four days in jail and three years’ probation. This sentence was set by Persky, not the D.A. The man, Robert Chain, had dozens of images of little girls, including an infant, being sexually abused. Persky also said he would be “receptive” to reducing Chain’s felony conviction to a misdemeanor after only one year of probation — contrary to the probation recommendation.

Even those who have called the recall misguided have criticized Persky’s judgment. UC Berkeley School of Law Dean Erwin Chemerinsky called the Turner sentence “grossly inadequate punishment” and “an “abuse of discretion.” Former Santa Clara County Superior Court Judge Ron Del Pozzo called Turner’s six-month sentence “inconsistent with the jury’s verdict” and said he expected a four- to six-year prison sentence based on similar cases in our county.

One of the few good things to come out of this is the community response, including the recall:

Santa Clara County District Attorney Jeff Rosen removed Persky from another sexual assault case, saying he lacked confidence that Persky could “fairly participate” in the case. Jurors refused to serve in Persky’s courtroom. One juror from the Turner case said Turner’s sentence made “a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape.”

As Rep. Ro Khanna, D-Fremont, said: “It sends the wrong message: that if you are from a privileged background, if you are a star athlete, and if you commit your crime on a college campus, then the law does not apply to you.”

For women, Turner’s sentence isn’t just shocking, it’s dangerous. It reinforces the myth that sexual assault is not serious. Why would a victim go through the long process of medical examinations and invasive questions if the result is a slap on the wrist? …

The Mercury News wrote that “the recall will make it easier for victims to come forward and encourage prosecutors to aggressively pursue cases … He should be recalled.” The Weekly was even more withering in its criticism, writing that “Judge Persky abused his discretion, disrespected a jury, failed a crime victim and broke trust with the public he serves. There is no judicial accountability if these failures don’t lead to his removal from office.”

That’s why more than 50 elected officials from Santa Clara County, and hundreds of business, union, women’s rights and community leaders have endorsed this recall.

There are people who think that Persky still belongs on the bench. There are people who think that California’s recall law should not be used, even though there’s nothing in the law itself to suggest that this is an unexpected or undesirable use of its provisions. From what we’ve seen so far, they are in the minority.

Persky is a judge who is deeply biased and appears from my outsider’s perspective to be unable to follow the law. More importantly, my less-informed perspective is clearly backed by the opinions of many who are intimately informed of the situation, of California law, and of the community context in which Santa Clara courts must function.

In short: Persky is entirely unworthy to be a judge and when he is recalled today, I will happily say good riddance to bad rubbish.








  1. says

    Persky is an elected judge, so his comments about not taking public opinion into account in making decisions ring a bit hollow.

  2. EnlightenmentLiberal says

    defendant who is, albeit voluntarily, intoxicated versus a defendant who commits an assault with intent to commit rape, a completely sober defendant, there is less moral culpability attached to the defendant who is legally intoxicated.

    Fuck that, and fuck the judge who said it.

  3. says

    California boy here. The election is today; Persky’s recall is but one of the many issues we’re deciding. For what it’s worth, I voted to pull that sad, bigoted schmuck off the bench.

  4. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    Thank you, Cubist!

  5. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says


    Interestingly, during one discussion while I was at law school when we were exploring criminal intent and diminished capacity, the prof asserted that in Russia the voluntary use of intoxicants before committing a crime generally was considered an aggravating factor. So not merely in driving, but also in cases like assault. The Russian point of view (according to my prof, I don’t have any cites to give you for any real certainty since I don’t read any Cyrillic-coded language) seems to express itself in the response, “You got drunk AND hit somebody?” rather than, “You got drunk then hit somebody?”

    I’m not really sure how I feel about it. I think in most cases voluntary intoxication shouldn’t enter into it. There are laws were the nature of one’s intent is at issue, not just the existence of it. That wouldn’t always be the case: under laws that require “willfulness” a prosecutor might rightfully have a harder job trying to convict someone who was voluntarily intoxicated. But in many cases, I think it’s probably right out. The sober decision to self-administer intoxicants mitigates any possible reduction in mens rea during the performance of the crime (imo). On the other hand, I don’t think that taking intoxicants should typically be an aggravating factor, as might be the case in Russia. The obvious exception there is intoxicated driving: it makes perfect sense to manage public risk by requiring drivers to be sober while operating a vehicle in any public area (drunk driving your tractor around your own farm would still be legal, as it is today in many if not all states and most of Canada too).

    Shorter me: I’m with you. The fact that Turner had consumed alcohol before committing his sexual assault seems no reason be lenient, and the fact that he consumed it illegally (being 19 years of age) seems not much reason to be more harsh.

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