People v. Turner

Background

Brock Turner was born August 1, 1995, in Dayton, Ohio. He graduated from Oakwood High School in 2014, where he was a three-time All-American swimmer. At the time of his arrest, Turner was a 19-year-old freshman at Stanford University; enrolled on a swimming scholarship, he was also a member of Stanford's swim team.

Before sentencing, the prosecution filed a memo with the court describing Turner's drug and alcohol history at Stanford and earlier in high school. It recounted that police found photos and messages on Turner's cell phone that indicated extensive drug use, including LSD, ecstasy, marijuana extracts, and excessive alcohol. Turner was arrested in 2014 for possession of alcohol while under legal age.

By the conventions of U.S. courts and media, the woman Turner was convicted of assaulting was called "V01" in the redacted police report on the incident, "Jane Doe" in the indictment, and "Emily Doe" and "Jane Doe 1" by local and regional newspapers, including the San Jose Mercury News, the Stanford Daily and the Palo Alto Weekly. At the time of her assault, Doe was a 22-year-old alumna of a different college. Her 20-year-old younger sister (referred to by the media as Tiffany Doe or Jane Doe 2), was a student at a distant California university.

In Stanford University's 2015 Campus Climate Survey, 4.7 percent of female undergraduates reported being subject to sexual assault as the term is defined by the university, and 32.9 percent reported experiencing sexual misconduct. According to the survey, 85% of the alleged perpetrators were Stanford students and 80% were men. The perpetrators of the alleged sexual misconduct were frequently aided by alcohol or drugs, according to the survey: "Nearly three-fourths of the students whose responses were categorized as sexual assault indicated that the act was accomplished by a person or person taking advantage of them when they were drunk or high, according to the survey. Close to 70 percent of students who reported an experience of sexual misconduct involving non-consensual penetration and/or oral sex indicated the same." Associated Students of Stanford University, and student and alumni activists with the anti-rape group Stand with Leah, criticized the survey methodology for downgrading incidents involving alcohol if students did not check two separate boxes indicating they were both intoxicated and incapacitated while sexually assaulted.

Incident details

Two Swedish graduate students, Peter Lars Jonsson (AKA W01) and Carl-Fredrik Arndt (AKA W02), were cycling by the Kappa Alpha fraternity on the Stanford campus about 1:00 a.m., on January 18, 2015, when they spotted the pair. According to Arndt and Jonsson, they surprised Turner behind a dumpster on top of an unconscious woman. Jonsson testified that he confronted him, asking Turner, "What the fuck are you doing? She's unconscious." According to Jonsson, Turner quickly rose and fled. As Arndt momentarily checked to determine whether she was breathing, Jonsson chased Turner, tripped him, and while holding him down about 75 feet from the dumpster, asked him, "What are you smiling for?" Arndt rapidly joined the chase, helping to pin Turner down. A bystander at the dumpster called emergency services. Meanwhile, two other passersby arrived to aid Arndt and Jonsson in holding the assailant. Campus police arrived moments later, questioned Turner, and then arrested him.

According to a Deputy Sheriff who described her as unconscious, after arriving at the hospital, the woman did not respond to shouting and shoulder-shaking until 4:15 am. She testified that when she regained consciousness, she had pine needles on her hair and body and "dried blood on her hands and elbows." In an interview with police, she said she did not recall being alone with any man during the night and stated she did not consent to any sexual activity. At the hospital, the victim was found to have abrasions and erythema on her skin. One nurse who administered a Sexual Assault Response Team examination at the hospital determined that she had experienced "significant trauma" (physical injury or bruising) including "penetrating trauma."

Turner and the victim had both attended a party at Kappa Alpha fraternity earlier in the night. The victim's sister testified in the trial that Turner, a man previously unknown to her, had approached her twice and attempted to kiss her, but she pulled away. She also testified that she never saw Turner and the victim interact at the party. According to the police report compiled the morning after the incident, Turner at first told police that he met the victim outside the fraternity house and left with her. He also stated he did not know her name and "stated that he would not be able to recognize her if he saw her again."

After his arrest, Turner told police that he met the victim at the Kappa Alpha house, they "drank beer together," "walked away from the house holding hands," and that he took off her clothes and fondled her while she rubbed his back. Turner then said he got nauseous and told her he needed to vomit. Turner said he got up and started to walk away to throw up, and heard another person saying something to him which he could not understand, then heard the same person talking to another person in a foreign language. He also denied running from the graduate students. During his trial testimony, Turner stated that he and the victim "drank beer together," "danced and kissed" at the party and both mutually agreed to go back to his room. Turner stated that the victim slipped on a slope behind a wooden shed, and Turner got down to the ground, and they started kissing each other. Turner said he then asked her if she wanted him to "finger" her, to which she said yes. He stated that he "fingered" her for a minute as they were kissing, then they started "dry humping." Turner testified that he stumbled down an incline where he was confronted by the graduate students saying things like "You're sick" and "Do you think that's OK?" Turner testified that he didn't know what they were talking about. They said they grabbed him. However, Turner said he broke away, but was quickly tackled.

Both prosecuting Attorney Alaleh Kianerci and the victim alleged that Turner's narrative during trial testimony was fabricated. Kianerci argued to the jury that, "He's able to write the script because she has no memory. But just because he wrote the script doesn't mean that ... knowledgeable jurors have to believe it." The victim described Turner's testimony as presenting "a strange new story, [that] almost sounded like a poorly written young adult novel."

Alcohol

In his statements Turner described initially drinking five Rolling Rock beers and two swigs of Fireball whiskey in a friend's room, and then having more beer later, reaching a total of nine beers.

Tested some time after his arrest, Turner's blood alcohol content was estimated to have been 0.171% at 1 a.m. He testified that he did remember what happened that night.

Jane Doe's blood alcohol concentration was measured in a hospital several hours after the assault at 0.12%, and doctors estimated her intoxication level at 1 a.m., the estimated time of the assault, to have been around 0.22%, or 0.242-0.249%. She told the police that she did not remember the events from some point after her arrival at the party until she woke up more than three hours later in the hospital. Shortly before 1 a.m., Doe phoned her boyfriend and left a voicemail message, which would be later entered as evidence by the prosecution. The Palo Alto Weekly described it as "almost entirely incomprehensible"; a juror later cited it as particularly strong evidence that she was not in a fit state to give consent.

The estimates for Turner and Doe for 1 a.m. were made by a supervising criminalist for Santa Clara County using nominally hypothetical situations.

Turner claimed limited experience with alcohol. However, evidence from his cell phone texts in the year before his arrest showed that he had extensively discussed his use of alcohol. In 2014, Turner was arrested on campus for underage drinking.

Consciousness

Doe reported that her last memory was around midnight, and made telephone calls to friends shortly after that. A responding paramedic said she did not respond to a "shake and shout" test, but that she opened her eyes when he pinched her nail beds. When Doe vomited on the scene before being taken away by ambulances, she was able to cough and spit out the vomit on her own without assistance. In a January 19 report, the paramedic rated her as 11 out of 15 on the Glasgow Coma Scale.

DNA

Craig Lee testified that the woman's DNA was found under the fingernails of Turner's left and right hands and on a portion of his right finger. Lee's test did not show when the DNA was deposited and could not tell if it was blood, but he said it did resemble blood. The woman testified that she woke up with dried blood on her hands and elbows.

Official responses

Turner withdrew from Stanford shortly after the incident rather than face disciplinary proceedings. On January 20—two days after his arrest—Stanford announced Turner had been banned from campus. Stanford further announced within two weeks of the incident that it had banned Turner from ever setting foot on campus again—the harshest disciplinary sanction it can impose on a student.

Turner had aspirations to swim for the U.S. National Team in the 2016 Olympics, but USA Swimming stated on June 6 that he would not be eligible for membership if he sought to reapply. On June 10, USA Swimming reiterated that Turner would never be welcome in its ranks again, under its zero-tolerance policy for sexual misconduct. That announcement effectively banned Turner from ever participating in a competitive swimming event for the United States. Sanctioned meets in the United States—including Olympic trials—are open only to members of USA Swimming.

Indictment and charges

On January 28, 2015, Turner was indicted on five charges:

1. Rape of an intoxicated person
2. Rape of an unconscious person
3. Assault with intent to rape an intoxicated woman
4. Sexually penetrating an intoxicated person with a foreign object
5. Sexually penetrating an unconscious person with a foreign object

The two formal charges of rape under California state law were dropped at a preliminary hearing on October 7, 2015, after DNA testing revealed no genetic evidence of genital-to-genital contact.

Sentencing

On March 30, 2016, Turner was found guilty of three felonies: assault with intent to rape an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object.

On June 2, 2016, Judge Aaron Persky sentenced Turner to six months in the Santa Clara County jail followed by three years of formal probation. After three months in jail, Turner has been released on September 2, 2016 [2]. He is permanently registered as a sex offender and is obliged to participate in a sex offender rehabilitation program.

Prosecutors recommended that Turner be given a six-year prison sentence. In their sentencing brief, they argued that several factors merited a more severe sentence:

He purposefully took her to an isolated area, away from all of the party goers, to an area that was dimly lit, and assaulted her on the ground behind a dumpster. He deliberately took advantage of the fact that she was so intoxicated that she could not form a sentence, let alone keep her eyes open or stand. This behavior is not typical assaultive behavior that you find on campus, but it is more akin to a predator who is searching for prey.

Santa Clara County probation officials, including his probation officer Monica Lassettre, recommended that Turner be given a "moderate" county jail sentence with formal probation:

During the presentence interview, the defendant expressed sincere remorse and empathy for the victim. In determining an appropriate recommendation, this officer considered myriad factors, including the impact of the crime on the victim and the safety of the community. Other factors included the defendant's lack of a criminal history, his youthful age, and his expressed remorse and empathy toward the victim. Based on the aforementioned information, a moderate county jail sentence, formal probation, and sexual offender treatment is respectfully recommended.

The probation report did not mention another woman who said she had been upset by Turner's unwanted physical advances at a Kappa Alpha party just eight days before the charged offense, though the reports were in the trial record.

Controversy over sentence

Prosecutors and victims' rights advocates have decried Persky's sentencing as lenient and biased.

Nancy Brewer, a retired Santa Clara County assistant public defender, described Persky as being "respected by both prosecutors and defenders", further stating that he "is seen as a fair judge who is not soft on crime or someone who gives lenient sentences." Brewer said that Persky "carefully evaluated the evidence and did what he thought was a fair and appropriate sentence in the case ... based on the Santa Clara County Probation Department's pre-sentence investigation report." Danny Cevallos said the judge "absolutely is obliged to consider very seriously the [probation department] report" and noted that the California penal code allows a judge to depart from the statutory minimum (two years) after considering the defendant's lack of criminal history and the effect of incarceration. Cevallos believed that while the sentence was lenient, Turner's prior clean record made him a candidate for minimum sentencing. Deputy Public Defender Sajid Khan did not consider the sentence lenient as he noted "Turner will register as a sex offender for life, and if he violates his probation he could go to prison for 14 years." Khan further stated that "Persky's reputation among public defenders (a group closely attuned to racial inequities in the courtroom) is that of a fair-minded jurist", saying, "No one has been able to cite an example so far of him [sic] where a similarly situated minority client has been treated harshly by him. We appreciated...the judge's understanding of Brock Turner's humanity...and we would want any judge to do the same for our clients." Similarly, other sitting judges (both state and federal) and legal commentators have defended Persky's decision, noted that the sentence may, in their opinion, be disproportionate due to the life-long consequences of a criminal conviction and sex offender registration, and called on the bar to protect the independence of the judiciary.

Turner's father protested the prison sentence requested by the prosecutor, saying it was a "steep price to pay for 20 minutes of action out of his 20 plus years of life." Santa Clara County District Attorney Jeffrey F. Rosen criticized the letter from Turner's father to the court, saying it reduced a brutal sexual assault to "20 minutes of action."

Repercussions to the judge

Although he did not face any opposition in an election held five days after the sentencing, Persky faced a campaign to recall him. Online petitions calling for Persky to be removed attracted over a million signatures by June 10, 2016. Professor Michelle Dauber, a sociologist at the Stanford Law School and longtime advocate on campus sexual assault, who is also a family friend of the victim, is leading the Committee to Recall Judge Persky. The Committee plans to collect signatures in Santa Clara County to force a November 2017 recall vote. The demands received support from Representative Ted Poe (R-Texas), who took to the floor of the United States House of Representatives to condemn Turner's sentence as too lenient and to call for Persky's removal.

Persky had also been a student and lacrosse team captain at Stanford University.

The move to recall Persky was opposed by the Santa Clara County public defender, who said she is "alarmed by the hysteria" about the Turner sentence. A group of 70 public defenders has petitioned in support of Persky, warning against "mass incarceration" brought upon by state legislatures or indiscreet judges, and fearing that the backlash against Persky could hurt their clients (mostly poor African and Latino) by compelling judges to give out harsh sentences. Deputy Public Defender Sajid Khan wrote "rather than using robotic, one size fits all punishment schemes, we want judges, like Judge Persky, to engage in thoughtful, case by case, individualized determinations of the appropriate sentence for a particular crime and particular offender". Santa Clara County district attorney Jeff Rosen, whose office prosecuted Turner and will not appeal the sentence, stated, "While I strongly disagree with the sentence that Judge Persky issued in the Brock Turner case, I do not believe he should be removed from his judgeship" and said "Judicial independence is a critical part of the U.S. justice system. The immense power that comes with judicial independence also comes with accountability to the people we serve." Danny Cevallos stated that judges enjoy a modicum of independence from public pressure, and "there are no apparent grounds for impeachment or allegations of judicial misconduct, based on this sentence alone." Cevallos said that the recall movement "raises the question: is removing judges good for the spirit of the judiciary system, especially when the judge's sole transgression is a legal sentence" where he correctly applied the law. The Santa Clara County Bar Association has released a statement saying that removing Persky would be a "threat to judicial independence" and weighs just one of his 13 years of decisions too heavily, saying they see "no credible assertions that in issuing the sentence, Judge Persky violated the law or his ethical obligations or acted in bad faith." Similarly, other sitting judges (both state and federal) and legal commentators have defended Persky's decision, noted that the sentence might, in their opinion, be disproportionate due to the life-long consequences of a criminal conviction and sex offender registration, and called on the bar to protect the independence of the judiciary.

In June 2016, at least ten prospective jurors refused to serve in a misdemeanor trial for possession of stolen property where Persky was presiding, citing the judge's sentencing of Turner as a reason. The following week, Rosen filed a peremptory motion for recusal in a case where Persky was to preside over the criminal trial of a surgical nurse charged with sexual battery for allegedly touching the genitals of a patient under sedation. Rosen called his move to have the judge removed from the case, "a rare and carefully considered step for our office."

As a result of the backlash in the wake of his sentencing, Persky has asked not to hear any more criminal cases, and has been re-assigned to the Civil Division of the California Court system.

Revisit of previous civil case of alleged rape

In 2011, Persky presided over a civil lawsuit against multiple members of the De Anza College baseball team, who were accused by the minor plaintiff, "Jane Doe", of gang-raping her while she was unconscious until a passersby intervened. During the trial, Persky decided that the jury should be allowed to view photographs of the plaintiff taken at a party she attended approximately a year after the alleged gang rape, as per the defense's claim that this evidence contradicted the plaintiff's claims of suffering from post-traumatic stress disorder. The jury found the defendants not liable.

Following Turner's sentencing in 2016, the plaintiff's attorneys in the De Anza case criticized Persky for allowing the photos into evidence. Attorneys for Doe said the photographs were not the only evidence that Persky unfairly permitted. Four of the baseball players had invoked Fifth Amendment rights not to self-incriminate during the discovery phase of the litigation. According to a lawyer for Doe, that was a critical juncture: it prevented their team from obtaining evidence that could have helped them pursue their case. The original judge in the case ruled in 2010 that the defendants could refuse to testify, but that would also mean that they would be prohibited from subsequently testifying in the case. That ruling was, however, overturned by Persky after he took over the trial in 2011, a move that Doe's attorneys say undermined her case.

Defendant's statements

After the guilty verdict, Turner maintained to his probation officer that the encounter was consensual. He also gave an 11-page statement to the judge that said he received verbal consent from the woman before she passed out.

According to Turner's statement, he and the woman drank, danced, and kissed at the party. Sometime around midnight, he asked her whether she would like to go back to his dorm and she said yes. He claimed that she had slipped behind a wooden shed and he sat down on the ground with her and engaged in sexual activity with the victim until he became nauseous and walked away to throw up.

Turner stated, "It debilitates me to think that my actions have caused her [Emily Doe] emotional and physical stress that is completely unwarranted and unfair."

Victim-impact statement

Doe read a 7,138-word victim impact statement aloud in the sentencing phase of the trial. The New York Times described the statement as a "cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault". On June 3, 2016, Palo Alto Online and BuzzFeed published Doe's full statement. BuzzFeed's publication rapidly went viral, achieving over 8 million views in three days, driven by widespread sharing on social media.

In the statement, she detailed the negative effects Turner had on her life: "You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today." The statement also detailed the effect on Doe's ability to remain in her full-time job, which she left afterward "because continuing day to day was not possible."

Doe's statement also described her experience at the hospital and learning she was being treated for sexual assault: "The next thing I remember I was in a gurney in a hallway. I had dried blood and bandages on the backs of my hands and elbow. … My brain was talking my gut into not collapsing. Because my gut was saying, help me, help me." Doe expresses gratitude to "the intern who made me oatmeal when I woke up at the hospital that morning, to the deputy who waited beside me, to the nurses who calmed me, to the detective who listened to me and never judged me, to my advocates who stood unwaveringly beside me, to my therapist who taught me to find courage in vulnerability."

The statement articulated that "social class" should not be factored into the sentence: "The fact that Brock was a star athlete at a prestigious university should not be seen as an entitlement to leniency, but as an opportunity to send a strong cultural message that sexual assault is against the law regardless of social class." Doe also disagreed with the probation officer's assessment that Turner had shown remorse, stating that Turner had failed to show genuine remorse and this was a factor in her anger at the brief sentence.

The statement was subsequently formally released by Santa Clara County and was picked up by national and international media including the Washington Post, CBS News, Los Angeles Times, TIME, San Jose Mercury News, Cosmopolitan and the UK's Daily Mail and The Guardian. The letter went viral, being shared over 11 million times in four days. CNN anchor Ashleigh Banfield read most of the statement aloud during a 20-minute segment of CNN's Legal View.

On June 16, a bipartisan group of eighteen members of the House of Representatives took turns reading the statement on the House floor. Representative Jackie Speier organized the reading to raise awareness about sexual assault, and to promote her legislation on campus sexual assault. Paul Gosar said: "People need to learn from this, ... This should matter to everyone." Cheri Bustos claimed a need for more women in the house to bring the issue of sexual assault to the forefront. Vice President Joe Biden wrote Doe an open letter titled, "An Open Letter to a Courageous Young Woman", which read in part, "I am filled with furious anger — both that this happened to you and that our culture is still so broken that you were ever put in the position of defending your own worth."

Slate writer Mark Joseph Stern has described the statement as an "extraordinarily powerful letter and glad so many millions have read and been moved by it. But it had absolutely no place in the courtroom", noting that victim impact statements are a "a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights".

Prosecutor's statements

Santa Clara County District Attorney Jeffrey F. Rosen stated that "The punishment does not fit the crime." Rosen described Turner as a "predatory offender" and stated he "has failed to take responsibility, failed to show remorse and failed to tell the truth." Rosen added, "Campus rape is no different than off-campus rape. Rape is rape. And I will prosecute it as such."

Juror's statement

A juror calling himself "A Concerned Juror" (he described the 12 as mostly male) said this was his first time as a juror and that he recently became a U.S. citizen after residing in the country three decades. He wrote a letter to the judge expressing dissatisfaction with the sentencing length. The juror said that "the fact that Turner ran away after two Stanford graduate students noticed him on top of an unmoving woman" was compelling evidence along with the incoherence of the message that Doe left her boyfriend before meeting Brock. The juror believed this was very strong evidence "that Turner should have reasonably known she was not able to give consent."

Statements by Turner's family and friends

On June 4, Michele Dauber posted a letter written by Dan Turner, Brock's father, asking for leniency for his son, arguing that punishment was a "steep price to pay for 20 minutes of action out of his 20 plus years of life." The letter sparked outrage and was cited as an example of the prevalence of rape culture.

Dauber also circulated, again via Twitter, a letter written by Leslie Rasmussen, a female childhood friend of Turner, that defended Turner and blamed alcohol consumption and universities for advertising themselves as "party schools". The letter was met with further criticism. The publication of her letter, in which she also said Brock came from "a respectable family," led to cancellations of her local band's engagements at a festival and clubs as far away as New York. Rasmussen soon disavowed the letter, writing on Facebook, "I did not acknowledge strongly enough the severity of Brock's crime and the suffering and pain that his victim endured, and for that lack of acknowledgement, I am deeply sorry."

Writing to the court and recommending against prison, Oakwood Judge Margaret M. Quinn, a Turner family friend and retired federal prosecutor, also blamed the assault on alcohol, minimizing Turner's culpability. "He made a mistake in drinking excessively to the point where he could not fully appreciate that his female acquaintance was so intoxicated. I know Brock did not go to that party intending to hurt, or entice, or overpower anyone."

Brock's character was defended by at least 39 people including his ex-girlfriend who said he never pressured her and that he was kind, loving and respectful.

Doe's family's statements

Her sister (referred to by police as "Jane Doe 2") wrote a letter saying "an entire part of my heart has been permanently broken" by the assault, the lengthy prosecution, and Turner's failure to take responsibility for his actions.

Police reports

The Stanford University Department of Public Safety provided the initial response and investigation. A felony complaint was filed in the Superior Court for the County of Santa Clara on January 28, 2015.

Turner had a prior campus law enforcement encounter when he was found by Stanford University police to be a minor in possession of cans of beer on November 11, 2014. He was cited as well for possession of a counterfeit Ohio driver's license. In addition, after publicized reports of the January 18, 2015, sexual assault incident, another female reported that Turner had made unwelcome physical advances toward her at a prior Kappa Alpha party on January 9, 2015.

Appeal and release

It was reported that Turner's legal appeal would be led by attorney Dennis Riordan, who represented former baseball player Barry Bonds in a perjury case. Riordan was present in court Thursday, June 2 with Turner's initial attorney Michael Armstrong.

Turner was released from Santa Clara County jail on September 2, 2016, having served three months of his six-month sentence. The guards, who had kept him in protective custody during his stay, handed Turner a package of hate mail which had built up during his stay, as he exited.

Under the terms of his release, he will be living with his parents in Sugarcreek Township, Ohio, where he must register as a sex offender. He will be on probation for three years with the Greene County Sheriff's Office, and must abstain from drugs and alcohol during that period.

The day of his release, Turner's parents contacted the police, expressing worry about protesters being a danger to their safety. The day after his release, protesters gathered on the sidewalk outside his family home. One protestor held a sign telling people to shoot "your local rapist" while holding a gun.

State legislation

The public outrage at the sentence in the Turner case prompted the California State Legislature to pass two bills that would change California state law on sexual assault. Assembly Bill 701 would broaden California's definition of rape so that it would cover digital, as well as penile, penetration. Assembly Bill 2888 (written by District Attorney Jeff Rosen) would provide for a mandatory minimum three-year prison sentence for sexual assault of an unconscious or intoxicated person. (Current California law provides a mandatory minimum prison sentence when a defendant uses force, but has no mandatory minimum sentence when the victim is unconscious or incapacitated and unable to resist.)

The final versions of A.B. 2888 and A.B. 701 were both unanimously approved by the California legislature. Both bills subsequently went to Governor Jerry Brown's desk. The bills were signed into law on September 30, 2016.

After these laws were enacted, state law from before 2016 continued to provide that where imprisonment in the state prison is imposed for rape (when the victim is not a minor) or for the crime of sexual penetration when the victim is "prevented from resisting by any intoxicating or anesthetic substance," the imprisonment is for a period of "three, six, or eight years."