Editorial: Rape bill in response to Brock Turner case shows how headlines trump thinking in criminal justice

As 15-year-old Audrie Pott lay unconscious at a party in September 2012, three boys sexually abused her, wrote comments on her body and texted photos of their act to other students at Saratoga High School in Santa Clara County. Audrie committed suicide several days later.

The teenage attackers got off with a few weeks in juvenile hall; two were allowed to serve their time on weekends. Anger over the light sentence crystallized in the form of SB 838 – also known as Audrie’s Law – which increases penalties against juveniles who sexually assault people who have passed out.

It would have been nice if the brutal attack, the sentences and the headlines and outrage that followed had spurred a more exhaustive reexamination and overhaul of California rape and assault law rather than a bill so narrowly focused on the circumstances of one incident. It would have been helpful if lawmakers had taken the opportunity to thumb through their statute books and had discovered the continuing imponderable discrepancy between sentences not just for juveniles but for adults who rape conscious victims and those who rape unconscious ones. If they had, they might have had a more rational legal framework in place than the one that allowed Santa Clara Superior Court Judge Aaron Persky to sentence former Stanford student Brock Turner in June to a mere six months in jail plus probation for the sexual assault of an unconscious woman after a party in 2015.

But they didn’t, and the maddening result is that lawmakers are now repeating their mistake by rushing to pass more headline-driven bills tailored to the circumstances of a particular case and the highly unpopular sentence that followed.

When the Brock Turner sentence hit the headlines, Assemblywoman Nora Campos (D-San Jose) quickly announced that she would introduce a bill on sentencing in cases in which an unconscious victim is raped (it’s worth noting that Campos is running against state Sen. Jim Beall, another San Jose Democrat, who is author of Audrie’s Law). She was beaten to the punch by AB 2888, a bill that once covered funding for food displays at California fairs, but was hastily rewritten and now prohibits probation for a variety of sex crimes, including rape or sexual assault of an unconscious person.

This is the route that has gotten California and much of the rest of the nation into so much trouble: a bad or unpopular ruling, followed by public outrage and anger, leading to competition by lawmakers to churn out harsher sentences, less judicial discretion and irrational, unjust, unequally applied sentencing.

The problem in existing rape sentencing law is real. Just as killing an unconscious person is still murder, rape remains rape whether the victim is alert or passed out. Laws that treat it as somehow a softer crime may be remnants of a sexist outlook that protected rapists by unfairly focusing on the status, condition, demeanor or sexual history of the victim. The substance of AB 2888 may be one needed, if narrow, reform.

But legislate in haste, lament at leisure. A lasting cure to irrational laws comes not from the latest brutal rape, tragic suicide or mind-boggling sentence, but from a more thoughtful, deliberate and contextual reshaping of criminal statutes. That’s the kind of thing that could come from a sentencing commission, or, absent that, a Legislature somewhat like California’s – but with a little less focus on the headlines and a lot more on justice.

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