On 18 January 2015, Brock Allen Turner committed a series of serious sexual assaults against an unconscious woman on an American university campus. Two graduate students at Stanford University saw the 20-year old Turner lying on top of the motionless victim behind a dumpster. Her underwear and bra had been partially removed, and Turner was thrusting on top of her unresponsive body until disturbed by the grad students. When interrupted, Turner immediately ran from the scene, only to be fortuitously apprehended by the Good Samaritans. The police were called, and found the victim to be completely unresponsive and heavily intoxicated. When she awoke three hours later, she told police she had no memory of what had happened. Turner admitted “fingering” the victim’s vagina, but insisted that, although drunk, she was fully consenting.
In March of this year, Turner was unanimously convicted by a jury of three felonies – assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.
What followed has been internationally dispersed through news organisations and a livid social media commentariat. Because, on 2 June 2016, the now-21 year old Brock Turner was sentenced by Judge Aaron Persky for offences tantamount to attempted rape, to 6 months’ imprisonment in a county jail with probation.
Due to, Judge Perksy said, Mr Turner’s youth, his positive character references and the impact that prison would have on him, he would follow the Probation Officer’s recommendation and impose 6 months in a county jail. Of which, it is reported, Turner will (as would be the case here) serve half before being released.
3 months for the attempted rape of an unconscious human being.
The reaction has been audible across the Atlantic. We have seen published in full the haunting victim impact statement, searing unabridged, unapologetic primal human pain indelibly into the reader’s – and one can only hope Turner’s – consciousness, its honesty and fluency justifying every one of its 7,000 words (and I speak as someone who has read many victim impact statements, to the point, I had thought, of becoming inured). We were then treated to the gawking lack of self-awareness, nay basic humanity, demonstrated by Mr Turner’s father – and, as released on Monday, his mother – writing pleas for clemency to the sentencing judge which hovered on the fringes of crassness, before filling the tank with a gallon of denial, hitting the accelerator and ploughing remorselessly into ugly victim-blaming. Why punish my son, Turner Senior innocently enquired, for “twenty minutes of action”? The fact, repeated ad nauseum in the character references and led in the opening stanza of every media report, that Turner was an accomplished swimmer from an apple pie family, appeared to vindicate long-held suspicions that judicial attitudes towards sentencing turn all too often on from which side of the tracks a defendant hails.
The case has been raised in the House of Representatives, where Republican Congressman Ted Poe has said:
“This judge got it wrong. There’s an archaic philosophy in some courts that sin ain’t sin as long as good folk do it. In this case, the court and the defendant’s father wanted a pass for the rapist because he was a big-shot swimmer. The judge should be removed.”
And, before long, 1.2 million people worldwide had signed a change.org petition to impeach the judge (not to recall him, as has been widely reported), and it is reported that he has since, appallingly, received death threats.
Publicly, the sentiment appears to be leaning one way. In legal circles, however, consensus crumbles. The Santa Clara County District Attorney’s office condemned the sentence, complaining, “The punishment does not fit the crime”, and bemoaning its impotence to challenge the sentence. By contrast, a representative from the Santa Clara County Public Defender’s Office published this defence online, applauding the Judge for his “holistic sentencing exercise” which prioritised rehabilitation over conforming to America’s “culture of mass incarceration”, and praising the judicial exercise of “discretion and mercy”.
Writing as an English lawyer with no formal training in California State Law, or U.S. Federal Law, my view on Judge Persky’s application of the law carries no authority. The (astonishing) lack of official data collated on California criminal sentencing prevents me from even assessing whether statistically this represents a major outlier.
But what I can offer, by way of (perhaps) interesting contrast, is a consideration of what would have happened to Brock Turner in an English court, had he been convicted of our equivalent offences. Could the same thing happen over here?
Turner faced sentence for three felonies (serious offences) – reported as assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object, carrying, it is said, a maximums sentence of 14 years’ imprisonment. The “foreign object” is not specified in any reports that I could find, and the police report and felony complaint (the equivalent to a Crown Court indictment setting out the charges) make no reference to penetration with an object other than the defendant’s fingers, so for these purposes I shall assume that the penetration was digital. Our law doesn’t distinguish, for charging purposes, between a conscious or unconscious complainant, and so, both penetrative acts would likely be charged as assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, which carries a maximum sentence of life imprisonment. It is possible that repeated acts of digital penetration, committed initially while the complainant was conscious but incapable of consenting and continued once she had lost consciousness (as I interpret the charges to represent), would be charged here under a single count to represent the whole activity. (Either way, as below, it will make little difference to sentence).
As to “assault with intent to commit rape”, the act of removing a person’s underwear and thrusting on top of them while they are passed out would probably be charged as attempted rape (contrary to section 1(1) of the Criminal Attempts Act 1981), also carrying a maximum of life imprisonment.
Further details of the case, not widely reported, can be found in the original police report here. These have to be taken with caution, as initial police reports invariably reflect the preliminary view of the police officer author(s) rather than an objective assessment of the evidence that is before a jury at trial. But the report is nevertheless instructive.
The Sentencing Exercise
The court in Turner’s case was not required to follow any formal sentencing guidelines (save for the mandatory sentence that was waived, see below). By contrast, in the Crown Court judges are required, by section 125(1) of the Coroners and Justice Act 2009 to follow any “relevant sentencing guideline”. A number of such guidelines have been published by the Sentencing Council (formerly the Sentencing Guidelines Council), including the Sexual Offences Definitive Guideline. The operation of these guidelines is designed to be simple, although rarely is in practice. The principle is to assess the seriousness of the offence by reference to harm caused and the defendant’s culpability, and then to reflect the features that aggravate or mitigate the position. Thus, on the guidelines, one feeds the facts of the case into the given matrix to arrive at a category for “harm” and a category for “culpability”, which combined gives you a “category range” and a “starting point”. The Judge can then move the starting point up or down within (or, exceptionally, outside) the range to reflect the aggravating and mitigating features of the offence as specified.
Where sentencing for multiple offences, judges are required to have regard to the principle of “totality” – i.e. to pass a proportionate sentence that reflects the whole of the offending, rather than simply aggregating individual sentences for each offence. Therefore, in a case like this, where all of the offences arose out of the same incident, the court would usually pass a higher sentence on the “lead” (most serious) offence, uplifted to reflect the other offences, and pass concurrent sentences on those other offences.
So, what’s Brock Turner looking at?
For assault by penetration, this to me looks like a Category 2 case for harm, due to the judge’s finding that the victim was particularly vulnerable due to her incapacitation. For culpability, none of the factors in Category A appear to apply, so giving Turner the benefit of the doubt he would fall within Category 2B. This provides a starting point, for a single offence, of 6 years’ imprisonment after a trial (which, incidentally, is what the prosecutor in California recommended), with a sentencing range of 4 to 9 years’ imprisonment.
For attempted rape, one considers the similar-looking rape guideline, and, again, we appear to be looking at a Category 2B offence. Rape is considered more serious than assault by penetration, and so the starting point for a 2B rape is higher – 8 years’ imprisonment after trial, with a range of 7 to 9 years. However, as this was an attempt, rather than a completed act, the court will reduce the starting point to reflect that fact. So we probably again end up with a starting point around the 6-year mark.
One then considers the presence of aggravating or mitigating features. And this is interesting, because what the judge considers to operate in Turner’s favour would be viewed very differently in a Crown Court.
Judge Persky held that, “there is less moral culpability attached to the defendant who is legally intoxicated” than a sober defendant committing the same offence. Our Sentencing Guidelines explicitly provide that, by contrast, committing an offence under the influence of alcohol or drugs is an aggravating feature, public policy militating against crediting people who willingly get tanked up and commit unlawful acts. Far from limiting his culpability, Turner’s drunkeness would aggravate his position.
Severe psychological or physical harm
Judge Persky found this to be present, having regard to the Victim Impact Statement, and I would be inclined to agree.
Specific targeting of a vulnerable victim
The police report, and comments attributed to the prosecutor, suggest that Turner made persistent efforts to kiss the plainly uninterested victim and her companions throughout the night. This, I would submit as a prosecutor, represents specific targeting of a (already established to be) vulnerable victim. Aggravating feature ticked.
Attempts to dispose of or conceal evidence
It is arguable (although I probably wouldn’t submit it with much vigour) that Turner’s fleeing the scene ticks this box. But many defendants run to evade capture, and it is rarely factored into a judge’s final sentence.
No previous convictions
This is a big one in Turner’s favour. No previous for any similar offences will usually go a long way.
Positive good character
The best mitigation you can hope for as a defence lawyer is good character and a guilty plea. Turner doesn’t qualify for the latter, but a judge over here would be entitled to, in most cases, afford some weight to a defendant’s positive character. BUT, the Sexual Offences Guideline is different to many others, in that it provides that “in the context of this offence, previous good character should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence“. So being a golden boy champion swimmer, while possibly contributing, to a limited extent, in projecting the image of a good chap who acted entirely out of character, is going to go much less further on these shores.
And what about the tone of those references? In particular Dad’s? Is that likely to help? Plainly Judge Persky was not affronted by Turner’s dad solemnly reporting that the stress of proceedings had put Brock off his favourite ribeye steak , but would this help or hinder Brock’s break for freedom?
Personally, I would not in a sqwazillion years have submitted those references to an actual judge with eyes. I can’t think of any who would have subconsciously treated them as anything other than an aggravating factor. The musings of a father who, when confronted with the finding that his son penetrated an unconscious woman’s vagina and took steps towards raping her, suggests that what is really needed is for this woman to learn about “the dangerous of promiscuity”, are unlikely to inspire sympathy in any judge I have ever appeared before. Characterising an offence of near-rape as “20 minutes of action” is similarly an attitude I, as a defence lawyer, would wish to distance from my client. In practical terms, this letter would demolish all mitigation I had carefully laid before the court during my heartfelt plea for leniency. You want references to say how nice your boy is, how sorry he is for what he’s done to the victim and how you, as his parent, recognise he needs to be severely punished for a serious offence. Then you stick in your paragraph pleading to give him a light sentence.
Age or lack of maturity where it affects the responsibility of the offender
Another feature afforded much weight by Judge Persky was Turner’s youth. And he would receive similar latitude from a Crown Court. But not much. And the suggestion that he is merely a victim of accepted “campus culture” is unlikely to assist him.
Judge Persky, in a feat of reasoning that I still don’t understand at the fifth time of reading, found that Turner was remorseful, even though he maintained his version of events rejected by the jury at trial. The judicial attitude can be summed up as, “Well, he said sorry today, even though it appears it’s a politician’s “I’m sorry for any offence caused” rather than a “I’m sorry for sexually attacking you” and, well, kids will be kids and the two of them are probably never going to agree on what happened, so, y’know, let’s say he’s sorry and I can justify the sentence I’m about to hand down.” Seriously. Read it and tell me if you come to any other interpretation. Nil points in my court, sunshine.
This was listed by Judge Persky as pertinent to his decision; however it is a bold advocate over here who argues that their high-profile client warrants special dispensation by virtue of his infamy. Turner’s case can be distinguished, possibly, from most “celebs” in that he did not invite media attention prior to the trial, but committing a serious offence and having the press hound you for it would be considered, by most English judges, as par for the course. And certainly not reason for special treatment.
Impact of imprisonment
Not a specific consideration on our Guidelines, but this would be addressed in an English Pre-Sentence Report (say below), and particular difficulties in adjusting to prison may influence a borderline decision. But this usually applies where a defendant has extreme physical or medical requirements, or where they are a plain suicide risk, or have vulnerable dependents on the outside world. The fact that you’re used to the Good Life will not usually be prayed in your aid.
The Probation Report
The Probation Report by the county probation officer recommended the sentence that Turner ultimately got, and this has been cited in support of the Judge’s ruling. Over here, most defendants, particularly sex offenders, will have a Pre-Sentence Report prepared by a probation officer. And Judges will pay careful attention to, and often follow, the recommendation as to sentence (i.e. should it be immediate custody or should it be a rehabilitative community order/suspended sentence?) However. While most reports are excellent, some, whether through authorial inexperience, or being provided with scant details of the offence, or through plain misjudgment, do occasionally propose sentencing disposals for serious cases that, as a barrister pleading mitigation, you have to acknowledge at the outset are batshit cray cray, lest the judge transfer his apoplexy at the recommendation on to your client. “Your Honour, I recognise that the recommendation in the Pre-Sentence Report is unrealistic in this case…” is a phrase I’ve had to gabble more times than I can remember. The fact that there is a recommendation would not, in the Crown Court, save you if, as a barrister, you submitted that the Court should adopt a plainly unduly lenient sentence. And it of course does not absolve the Judge of his or her duty to impose an appropriate sentence. Some cases are so serious that only immediate custody will suffice. Rape and kindred offences, as per the Sentencing Guidelines, tend to fall within that bracket. I have seen, in exceptional cases, recommendations for alternatives to immediate custody in cases of this type, but they are in the tiny, tiny minority, and usually arise where there are truly incredible features to the case. Nothing that is listed in Judge Persky’s judgment would, in my experience, persuade a judge that the probation recommendation was realistic.
Weighing everything into the balance, I would expect Turner to be looking at between 5 and 6 years, all in. But could a Crown Court judge take an exceptional course? Judge Persky was required to impose a minimum of 2 years’ imprisonment and prohibited, under Penal Code section 220, from imposing probation except in unusual cases where the interests of justice would best be served (Penal Code section 1203.065). That interests of justice test is expanded upon in Court Rule 4.413(c) and applied by Persky, and he relies in particular upon Rule 4.413(c)(2)(C), which provides that the interests of justice may permit a departure from the mandatory prohibition on a light sentence followed by probation “where a defendant is youthful and has no significant record of prior criminal offences”. And it is on that feature, primarily, that Persky hangs his hat (before listing the various other features of mitigation that he feels assist Mr Turner). Would that be enough, in English courts, to get the sentence down to the 6 month mark? It’s difficult to compare, as we don’t have the concept of a short sentence in a county jail (rather than the state prison reserved for lengthier sentences) followed by lengthy probation conditions determined by the Judge; rather we impose a sentence (of whatever length) in a prison and the defendant, when released (usually at the halfway point) remains on licence until the expiry of the sentence (if over two years), or for 12 months after his release (if the sentence is less than two years). But my opinion, for what it is worth, is that a short custodial sentence would be the least likely outcome in our courts. The very best Mr Turner could pray for is a suspended sentence of two years’ imprisonment (the maximum for a suspended sentence), and that, on the facts reported, would appear wholly unlikely.
Judge Persky paid significant regard to the fact that Turner would, as a convicted sex offender, be required by Penal Code 290 to register with the authorities as such. This, he considered, represented a further punishment that was relevant to his consideration of sentence. Over here, “notification requirements” (or “being put on the sex offenders register” as the media have it, notwithstanding that no such register exists) automatically apply to these offences by virtue of section 82 of the Sexual Offences Act 2003, and, assuming a sentence of around 6 years, those requirements would also last indefinitely. It would not be considered at all relevant to sentence, although the position in California may differ due to the public availability of information about registered sex offenders (through, for example, Megan’s Law).
The District Attorney, while professing incredulity at the sentence, has declared itself unable to challenge a sentence unless wrong in law. By contrast, our Attorney General can refer sentences in such cases to the Court of Appeal if he considers that they are unduly lenient and, if the Court of Appeal agrees, the sentence can be increased. I would, as a prosecutor, be drafting my advice to the Attorney General before I’d left court had that been my case, and I’d wager that it would take something extraordinary for the Court of Appeal to find that a 6-month sentence was not unduly lenient for offences of this type.
On the information available, including Judge Persky’s sentencing remarks, the victim impact statement and the character references published, I would be astounded if a defendant in Brock Turner’s circumstances appeared before an English Crown Court and received the sentence that he did. Sexual offending, while occasionally (in my personal opinion) dealt with leniently in our courts, is still usually recognised as comprising the most degrading violations that one person can inflict upon another. That Judge Persky appears, notwithstanding the victim impact statement, to have overlooked the public policy imperative in imposing condign sentences for acts involving the deliberate, brutal, callous and humiliating sexual exploitation of a vulnerable victim, is a failing unlikely to be repeated in the English Criminal Justice System, and, to that extent, Turner should be eternally thankful to be an American.
Note: This blogpost has been compiled by an English barrister with no formal training in California State or U.S. federal law. Apologies at the outset for any error in my interpretation or explanation of the relevant law; any proposed corrections are welcomed.