The anti-sexism and sexual violence group UltraViolet has made it their mission to get Judge Aaron Persky removed from the bench, after he recently handed Stanford rapist Brock Turner a six month sentence. It’s not appealing to defend anyone involved in this case, but it does bring up heavy questions as to what kind of justice system we are advocating for.
Brock Turner will, as my colleague Stassa Edwards pointed out not long ago, spend more time in jail than roughly 97 percent of rapists. Persky’s sentence followed the recommendations of a probation officer, although the judge’s comments in court were what sparked much of the backlash. “A prison sentence would have a severe impact on him. I think he will not be a danger to others,” he said. And, on Turner’s version of events (namely his claim that he didn’t rape an unconscious woman behind a dumpster): “I take him at his word that subjectively that’s his version of his events. … I’m not convinced that his lack of complete acquiescence to the verdict should count against him.”
UltraViolet and other groups have pinpointed Persky as a place where it’s possible to make direct, actionable change: they have called his sentencing “rape culture at work” and say more than a million people have signed their petition to have him removed. From that petition:
It’s a horrifying example of rape culture: when a judge is more concerned with the well-being of a rapist than with justice or public safety. This judge has no business staying on the bench.
Now the story is making headlines around the country and Judge Persky is coming under fire. If we all speak out, we can generate enough outrage to force California’s judicial oversight commission to remove Judge Persky from the bench—and send a message to judges and law enforcement everywhere that rape culture has no place in our courts. Will you add your name?
Persky previously presided over at least one other highly controversial rape case. He allowed a civil jury to see provocative photos of an alleged gang rape victim, a woman who alleged she was assaulted by members of the baseball team at De Anza Community College. The defendants’ lawyers argued that the photos, which showed her partying and wearing scanty clothes a year or so after she said the attack took place, would show she wasn’t suffering from PTSD as she claimed. The woman lost the case.
UltraViolet also paid for a plane to fly over Stanford’s graduation, dragging a banner that read “Protect Survivors. Not Rapists. #PerskyMustGo,” and helped organize an open letter to the California Commission on Judicial Permission from Stanford alumni, which said that sentences like those from Persky discourage victims from reporting:
This attitude significantly undermines the impact that rape has on survivors, and contributes to an already pervasive problem: survivors are hesitant to report sexual assault. In fact, fewer than one-third of rapes are ever reported. And when one in four college women is sexually assaulted, attitudes like that of Judge Persky mean far too many rapists have impunity.
In a press release, the group said they will also purchase a billboard on a state highway in the Bay Area calling for Persky’s ouster. (You can see an image of the billboard design here.)
But as NBC points out, online petitions have no legal weight at all. A different recall effort backed by the Progressive Women Silicon Valley State PAC is trying to push a ballot measure that would allow voters to consider whether to recall Persky, although that, too, is historically difficult to achieve.
The larger question, though, is whether Persky is actually significantly worse than other judges on sexual assault. The Associated Press found that Persky tends to follow sentencing recommendations made by the probation department. The Santa Clara County Bar Association argues that threatening Persky’s job is 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.”
And a group of public defenders, as the Marshall Project reports, are arguing that the backlash against Persky could end up hurting their own, mostly poor black and Latino clients. Their concern is that the Persky backlash will scare or goad judges into imposing unduly harsh sentences. Deputy Public Defender Sajid Khan wrote in a blog post that the call for Persky’s removal is a symptom of a larger issue:
This culture of mass incarceration has so shaped our minds that when a judge, like Judge Persky in this case, undertakes a holistic sentencing analysis that accounts for both the victim and the convicted, we still insist on arbitrary, lengthy terms of incarceration as the response to crime.
Mass incarceration is largely a result of judges who have either not utilized discretion in sentencing or who have been deprived by state legislatures of discretion. This lack of discretion has manifested in draconian sentences and overfilled prisons. 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.
It’s tough to tell what longer-term impacts the Turner case might have on either rape sentences or Persky’s own career. The DA’s office confirmed that they did ask for him to be replaced on an upcoming sexual assault trial. Persky is up for reelection in November, but no one has filed to run against him yet.
UltraViolet and other groups clearly see that the public is deeply, passionately invested in this particular case, uniquely outraged by its outcome. They clearly believe that they have an opportunity to shift the cultural conversation here, to send a direct and unequivocal message about how we should adjudicate rape. But fixating on Persky as the problem, to the exclusion of every other factor—and without addressing the culture that creates thousands of Brock Turners and will create thousands more—might not result in the solution we need.
UltraViolet protesters demonstrate against Persky in San Francisco, Friday, June 10, 2016. Photo via AP