Brock Turner’s victim’s account of her experience of sexual assault on the Stanford campus is now justly famous. The statement, running to more than 7,000 words, was released to the media on June 3, the day after Turner received a six-month jail sentence and probation for his three felony convictions. Its fame is due in part to the somewhat arbitrary factors that make certain stories social media firestorms and in part to the victim’s sheer eloquence. In a world where the most recent high-profile account of campus rape was an elaborate fabrication in the pages of Rolling Stone, the Stanford victim articulated the duration, complexity, and visceral truth of a kind of suffering that we often have a hard time categorizing, both legally and culturally.
While the cultural impact of this victim’s words has been unmistakable, in its vivid description of the experience of a sexual assault victim, it would be a mistake to focus on those words only to stew in the emotions they elicit. We cannot ignore, as much of the media discussion seems to, that both the victim’s account and a letter drafted by Turner’s father to the sentencing judge serve a particular function in a criminal trial under our adversarial system. If we’re going to get angry about rape, or, on the other hand, angry about the potential for false accusations of rape, it is crucial to understand the legal and constitutional function of such words in any prosecution, and especially in the uniquely challenging context of a sexual assault trial.
The legal definition of rape has evolved across history and jurisdictions, and our current understanding of the crime is highly contested. Because the essence of a sexual assault charge, under the California Penal Code and most others, is that the defendant’s touching was unwanted, proof of the victim’s consent usually provides a full defense. The question of what constitutes consent has been the legal issue at the core of our social debates about campus rape and “rape culture.” A victim cannot be said to legally consent when she is drunk. Nor is the defendant’s intoxication generally an excuse where it results in mistaken belief in consent. This complicates the scenario in which two intoxicated parties, both acting outwardly as though they are consenting but neither deemed legally capable of doing so, engage in sexual activities. In those cases, is it fair to say a rape has occurred? If it has, is it fair to say the woman is always the victim?
That question, as central as it has been, is legally irrelevant to the Stanford case. In that case, two witnesses observed Turner assaulting a visibly unconscious victim (and chased him down when he fled). As many legal commentators have observed, this is a rare case where we are not faced with conflicting accounts of a sexual encounter that make it at least possible that both parties believe they are telling the truth. The Stanford assault is one of those rare cases, and its clarity sheds light on the foggier ones. The term “rape culture” has become so pervasively bandied about by the left as a stand-in for any kind of male mistreatment of women (up to and including Ted Cruz awkwardly hugging his daughter during a photo op) that it has overwhelmed the already dangerously unstable lines the law must draw between guilt and innocence in sexual assault cases.
The Stanford victim’s narrative is thus particularly powerful due to the certainty of Turner’s guilt. And it should clarify for those who still, bafflingly, deny that, if campus sexual assault occurs in wide open public spaces, it certainly occurs with far greater frequency behind closed doors. But it would likewise be a mistake to conflate the universal harms suffered by rape victims, so well-articulated in the Stanford victim’s account, with universal certainty of each defendant’s guilt. We must strike a middle ground between misogynistic default skepticism of victim accounts and the wholesale rejection of the burden of proof requirement in rape cases.
Indeed, statements such as those written by the victim and by Turner’s father are not directly legally relevant until the sentencing phase, after a verdict. The sentencing process is free from most of the evidentiary rules governing the trial itself. A sentencing judge has broad discretion to consider all evidence provided by the convicted defendant, the prosecution, and the victim in arriving at a decision. In doing so, the judge is supposed to consider the several constitutionally recognized purposes of criminal punishment: the deterrence of crimes, the incapacitation of the specific defendant, and the principle of retribution, which mandates that crimes be punished with proportional severity. That last function has been said to have an “expressive” purpose—in giving a particular sentence the judge sends a message to the world about how far we, as a society, condemn a particular act.
These purposes are often in tension with one another. Turner’s judge seemed to be emphasizing the incapacitation function of sentencing: It seemed to him, probably accurately, that Turner was unlikely to offend again. As a result, he sentenced him to only six months in jail (the prosecutors had asked for six years’ imprisonment). In doing so, he was remarkably cavalier about the need for retribution, and about the message being sent about the wrongness of Turner’s conduct.
The public outcry arose over the disconnect between this light sentence and the victim’s searing account of her experience, which should have informed the judge’s deliberations. Because victims do not have constitutionally recognized procedural rights, statutes (in this case, Section 679.02 of the California Penal Code) give them the opportunity to make what are called “victim impact statements” during sentencing. The majority of criminal law scholars oppose victim impact statements because of the raw emotion they inject into the sentencing process, which, the argument goes, is unfair to the criminal defendant, particularly in cases (such as this one) where the victim is unusually eloquent and therefore likely to incite a disproportionately heavy sentence. As Mark Joseph Stern put it in a Slate column, the Stanford victim’s statement “had no place in the courtroom,” and the liberals who extolled it are hypocritical given their usual concern for the due process rights of defendants.
While Stern is correct about the hypocrisy and inequity of supporting victim impact statements solely in sexual assault cases, the Stanford case perfectly exemplifies why such statements are so important to sentencing. A crime has a specific victim, but it is prosecuted as a public harm. It is the public, not the victim, made theoretically whole by the retribution. And it is the public in whose eyes the legitimacy of the justice system must be maintained through the expressive function of punishment. Yet, due precisely to the availability of victim narratives, the measure of the harm the public experiences after a crime is inherently tied to the experience of the victim. The Stanford victim captures this relationship well when she addresses herself to other victims: “I hope that by [my] speaking today, you absorbed a small amount of light, a small knowing that you can’t be silenced, a small satisfaction that justice was served.”
Crimes cause emotion in the communities they disrupt due to the harms they do to victims, and the precise form of those harms becomes accessible when the victim can tell the court exactly what she tells the world outside of the court.
That said, the much-maligned letter written by Turner’s father in his defense belonged in the sentencing proceeding too. Christina Cauterucci, also writing for Slate, decries the letter as “[summing] up rape culture” and asserts that “Dan Turner defends his son with nearly every thin excuse his son’s victim demolishes in her letter.” But that’s exactly what the letter was supposed to be doing. The United States has an adversarial system of criminal justice, which operates on the assumption that justice is best served by both sides advocating energetically for their positions. Within that basic framework, a criminal defendant has a right, guaranteed in state trials by the Fourteenth Amendment, to present mitigating evidence at sentencing. Recognized forms of mitigating evidence include exactly the sorts of things the father mentioned—the impact of a sentence on the defendant and his family, the defendant’s other contributions to the community, and his overall character. So long as our adversarial system retains its current form, it’s both incoherent and destructive to criticize parties for operating within it, even when the only arguments they can make are, like Dan Turner’s, objectively weak.
At the end of the day, there is a place for well-warranted outrage at the inadequacy of Brock Turner’s sentence. There is also an important place for forcing ourselves to confront the nightmare of the victim’s experience, to which we have been given access. But for the punishment of sexual assault to be effective, just, and constitutional, these discussions must involve an understanding of the legal order in which they take place. Emotion should not be allowed to overwhelm the rule of law, but it can and should inform it.
Erin Sheley is an assistant professor on the faculty of law at the University of Calgary.
