The sentencing of a convicted sex offender has recently become a topic of much discussion in the U.S. media, with the focus on the perceived leniency of the punishment and the perpetrator’s refusal to admit guilt. Generally not discussed are the deep assumptions that have elevated punishment to the first priority of the criminal justice system.
In January 2015, Brock Turner, a first-year college student, sexually assaulted an unconscious woman (call her Jane Doe) behind an outdoor trash bin on the campus of Stanford University. Two graduate students interrupted the rape, chased down the fleeing perpetrator, and detained him until law officers arrived. In March 2016, a jury found Turner 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. A probation officer recommended the convict serve a short stint in county jail rather than extended time in state prison. On June 2, the presiding judge handed down a jail sentence of six months, possibly reduced to three months for good behavior. Turner must also serve three years probation, participate in a rehabilitation program, and publicly register as a sex offender for the rest of his life.
Two letters, written before the sentencing and made public afterwards, have sparked widespread interest in the case. The first is a 7,000-word statement that Jane Doe read to her attacker in court, describing the suffering he has caused her, by both the assault and his not-guilty plea, and expressing her discontent with the probation officer’s mild recommendation. Her letter is eloquent, angry, enlightening, and heart-breaking; some pundits have suggested it be required reading for college students. The second is a 1,600-word appeal written by Turner’s father to the judge, pointing out that the guilty verdicts had already “broken and shattered” his son, and arguing that “incarceration is not the appropriate punishment.”
Various media outlets have described the public (meaning mostly other media outlets) response to both the minimal sentence and the father’s “tone-deaf” letter as “outrage,” even “nationwide furor.” Analysts were quick, and correct, to identify the privilege afforded the attacker, an outstanding male athlete at a major athletic institution, and the apparently indulgent and enabling attitude of the father, whose letter euphemized the rape as “20 minutes of action.” A college professor in Turner’s hometown described the “dark side” of an otherwise “idyllic” community, noting “the conflation of achievement with being ‘a good kid’” and “the tacit understanding that rules don’t necessarily apply.” Some observers denounced the role of race in determining the severity of punishment. In a similar case of a university athlete raping an unconscious woman on campus, Corey Batey was recently sentenced to 15 to 25 years in prison. The comparison—Batey has dark skin, Turner is pale—might be dismissed as anecdotal, except for extensive data showing that the legal system comes down much harder on convicts identified as non-white.
Aaron Persky, the judge in the Turner case, has also come in for scrutiny. Like Turner, Persky was once an intercollegiate athlete at Stanford University. While campaigning for the judgeship, he described his work as a public prosecutor as focusing on “sexually violent predators, working to keep the most dangerous sex offenders in custody in mental hospitals.” In announcing the jail sentence, Persky noted that Turner had no prior criminal record and was intoxicated during the rape, then concluded that “a prison sentence would have a severe impact on him. I think he will not be a danger to others.” The judge has since received numerous threatening phone calls and now faces a campaign to recall him from the bench. Prospective jurors have reportedly objected to serving in his courtroom.
The “outrage” is worth examining. It’s not about the rape itself, which, when originally reported, received minimal coverage. The rape epidemic in the U.S.A., never mind a single case, does not provoke “nationwide furor.” Rather, the public handwringing began over the relatively lenient sentence. If the online articles and comments are representative, many people believe that Turner’s punishment is not harsh enough. Typically, this is not based on a belief that Turner will rape again and must be removed from society. There has been little discussion of what the punishment is supposed to accomplish. The prevailing, unexamined assumption is that the punishment must fit the crime, and the prevailing opinion is that a short jail term doesn’t fit Turner’s sexual assault on an unconscious woman. He needs to suffer more.
What, precisely, is the appropriate punishment for such a horrific crime? The law says no more than fourteen years of incarceration in prison. The prosecutor recommended six years. The father insisted that social humiliation, self-hatred, and loss of athletic career are enough. Except for the occasional “rot in hell,” the professional and amateur online commentariat doesn’t seem to have an answer. And for good reason. Locking up a sex offender for six years rather than six months doesn’t make the community significantly safer—the recidivism rate for sex offenders is notably low. The threat of punishment, no matter how severe, may not stop a young man with a sense of entitlement and a skewed view of sexuality from raping; intoxicated or not, he probably won’t pause to calculate the number of years he might spend in prison if he proceeds. The rape epidemic, on college campuses and off, cannot be ended solely by temporary quarantines, and the U.S. prison system is not noted for rehabilitation—the man coming out may be a greater societal danger than the man who went in. If punishment through incarceration doesn’t make society safer, who can discern the appropriate length of sentence? The number is arbitrary.
One concern, widely expressed, is that the “slap on the wrist” for the perpetrator is “a slap in the face” of the victim, that the severity of her trauma, the extent of her violation, has not been fully acknowledged. The California attorney general, currently a candidate for the U.S. Senate, opined, “The concern I have in that case is that the victim’s voice was not heard. It was not respected. She was not given dignity in the process.” Another concern is that the light sentence sends the wrong “message.” A Stanford law professor, one of the organizers of the recall campaign, has interpreted the judge’s decision as “saying to women on college campuses that they don’t deserve the full protection of the law in the state of California.” Jane Doe’s statement included both of these considerations:
I told the probation officer I do not want Brock to rot away in prison. I did not
say he does not deserve to be behind bars. The probation officer’s recommendation
of a year or less in county jail is a soft timeout, a mockery of the seriousness of
his assaults, an insult to me and all women. It gives the message that a stranger
can be inside you without proper consent and he will receive less than what has
been defined as the minimum sentence.
To her great credit, Jane Doe was not, in her anguish, demanding vengeance; she was worried about the signification of the judge’s decision. “The seriousness of rape,” she wrote, “has to be communicated clearly, we should not create a culture that suggests we learn that rape is wrong through trial and error.”
The scandal of the six-month jail sentence raises this question: Why, in U.S. culture, do both the dignity of a rape victim and proper condemnation of rape hinge on the length of the rapist’s time behind bars? To be more blunt, why the obsession with punishment?
Deeply embedded in Western thought is belief in a supreme deity who punishes but also redeems. The path to human salvation after wrongdoing includes confession and repentance, followed by punishment and, if the deity wills it, forgiveness. Christianity teaches that humans are by nature sinful but have been redeemed by the suffering/punishment of Christ. One essential point is that, after a violation, harmony must be restored between God and the sinner. With secularization, the state has replaced the deity. Sin is called “crime,” and the criminal owes a debt not to the victim but to “society,” as represented by the state; the relationship between victimizer and victim is secondary. The state determines and administers the debt (punishment) and has the power to forgive (pardon). Once the debt is paid, the conflict is considered resolved, civic integrity restored. To that, add the logic of capitalism, which demands a balance sheet. For there to be justice, a sinner must pay full price for his sins.
So Brock Turner must be punished by the state—even if that punishment is not a proven deterrent, brings little promise of rehabilitation, and comes at great expense to taxpayers. (Paying his debt to the state puts the state in debt?) Since he caused suffering, he must suffer for it, and justice isn’t served until his suffering matches or exceeds the suffering he caused. The ledger must be balanced. This mindset prevails: Turner’s father argues that his son has already suffered enough and, if allowed to educate “other college age students” in the error of his ways, could “give back to society in a net positive way.” The public is “outraged” because Turner, presumably, won’t suffer anywhere close to the amount of suffering he caused Jane Doe. The insufficient punishment is deemed an insult to the victim (and potential victims), as it devalues her suffering. Torment is the coin of the realm.
Western cosmology also values admission of guilt. Individual salvation requires repentance, which first requires confession of sin. “Sorry” goes a long way. In the U.S.A., this can be observed in the commercial media’s treatment of public figures caught in marital infidelities or legal transgressions. Rather than denials and justifications, the transgressors are best served by tearful confessions and humble requests for forgiveness—televised, naturally. Then, after a period of exile (punishment), they can return to the public arena—as “expert” commentator or “elder statesman”—with image somewhat rehabilitated. Confession + contrition + suffering = atonement. In this simple equation, no matter the arbitrary value of atonement, less confession and/or less contrition means greater suffering is required.
Additional factors include the role of material wealth and perceived race in determining the goodness and worth of an individual. Western cosmology emphasizes verticality, with some humans closer to divine status, being “chosen” or “saved,” while others are “damned” or “fallen from grace.” Historically, the politically dominant group in the U.S.A. has insisted on wealth and whiteness as evidence of God’s favor. Chosenness, in secular terms, is elite status. Elites have greater social value, deserve privilege, and, hence, their losses hurt more. To see these assumptions at work, compare the (wealthy white) media coverage of murder in a wealthy white community and murder in a poor black community. The latter often goes unreported. Those toward the bottom of the hierarchy are presumed to have lower ambitions and less appreciation for life. It follows that, with less wealth, comfort, and humanity to lose, poorer and/or darker convicts require relatively longer incarceration (loss of freedom) to reach sufficient deprivation. To simplify a rather complicated calculus, consider: confession + contrition + suffering = atonement, where suffering = loss x social status. (Gender complicates matters even more, due to the complexity of the patriarchal view of female suffering.) This thinking contributes to racial disparities in sentencing today, as does the notion that those with darker skin are more savage—inherently violent, less rational. Defenders of the enslavement of blacks in the early U.S.A. argued that bondage helped blacks while protecting whites from black savagery—and such assumptions still persist. Black and poor and convicted of violent crime—from the perspective of the dominant group, there may be no punishment severe enough to bring redemption: confession + contrition + suffering – inherent debasement < atonement. Fallen from grace, indeed.
Jane Doe’s letter follows the general formula. Again to her credit, she wanted rehabilitation, for victim and victimizer; she assumed Turner was redeemable. The starting point for her was time and space for healing. The starting point for him would be facing up to his crime. She wrote that “what I truly wanted was for Brock to get it, to understand and admit to his wrongdoing. Unfortunately, after reading the defendant’s report, I am severely disappointed and feel that he has failed to exhibit sincere remorse or responsibility for his conduct.” So, the ledger must be balanced. “Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward.” More confession and repentance by the rapist (and no perceived inherent debasement) would mean less punishment required. Judge Persky mostly adhered to the same formula, stating that he found Turner sufficiently remorseful (contrition) and believed Turner’s positive character references (no inherent debasement). However, regarding confession, Persky didn’t think the defendant’s “lack of complete acquiescence to the verdict should count against him” —a key difference.
In fact, in his own letter to the judge, Turner did confess guilt and express remorse: “I am the sole proprietor of what happened on the night that these people’s lives were changed forever. I would give anything to change what happened that night. I can never forgive myself for imposing trauma and pain.” But he was only confessing to “drinking and making poor decisions while doing so.” This was the second source of the online commentariat’s “outrage”—that Turner and his father blamed the reprehensible assault solely on what the father’s letter characterized as a campus culture of “alcohol consumption and sexual promiscuity.” Neither father nor son could admit that Jane Doe had been raped. The son told his probation officer, “Being drunk, I just couldn’t make the best decisions, and neither could she.” He did acknowledge causing Jane Doe “emotional and physical stress that is completely unwarranted and unfair”—almost a textbook definition of violence. The father, though, insisted that the son had “never been violent to anyone including his actions on the night of Jan 17th 2015.” Denial and cognitive dissonance were hard at work, which magnified Jane Doe’s misery. She wrote, “Instead [Brock] took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public.”
Why, after being caught in the act, did Turner “risk” going to trial with a not-guilty plea? Why, instead of throwing himself upon the mercy of the state (grace of the deity), did he, in Jane Doe’s words, hire “a powerful attorney, expert witnesses, private investigators who were going to try and find details about my personal life to use against me, find loopholes in my story to invalidate me and my sister, in order to show that this sexual assault was in fact a misunderstanding”? Economic privilege surely played a role, as Turner wasn’t stuck with an overworked public defender pressuring him to accept a plea bargain. In a sad irony, Turner could also benefit from the fact that his victim had been unconscious and couldn’t fully recall the circumstances of the assault. Jane Doe explained, “Then he learned I could not remember. So one year later, as predicted, a new dialogue emerged. Brock had a strange new story…there was suddenly consent…he remembered, oh yeah, by the way she actually said yes, to everything, so.”
I contend that the culture of punishment also played a role in Turner’s refusal to take full responsibility for his actions. Being neither dark-skinned nor poor, Turner could assume that the cards weren’t all stacked against him, that his privileged social status might prove a mitigating factor. Certainly, his parents understood this. Like her husband, Turner’s mother wrote a letter to Judge Persky, insisting that her son’s shattered dreams of even higher status—through athletic glory, Stanford degree, and medical career—were loss enough. Judge Persky appears to have accepted this logic, referring to the “adverse collateral consequences” Turner faced. Even the prosecution, which cited the predatory nature of the crime, recommended a sentence far below maximum. Still, the likely sentence, even with the appropriate confession and contrition, even without racial stigma, was severe enough to deter Turner from admitting to sexual assault. This was the “risk” he faced. Truth or dare? Might as well skirt the truth, plead not guilty, and take his chances with a jury—no matter the cost to the victim. In other words, a defendant with proficient legal defense may be incentivized to deny guilt.
To understand the influence of the culture of punishment, imagine a culture obsessed with rehabilitation instead. Imagine heated debate over how much and what type of therapy, rather than punishment, the rapist should undergo. Imagine public “outrage” because the criminal is not being afforded sufficient psychiatric care and social reeducation. It seems worth noting that sexual offender registration does not allow for full forgiveness and restoration, no matter the degree of confession, contrition, and atonement. For the rest of his life, even with no further criminal convictions, Turner will have to announce himself as a sex offender. There is no evidence that such practices make society safer, but they do keep the offender isolated and alienated, not fully restored into society. So, continuing the thought experiment, imagine widespread discussion over how to evaluate the convict’s fitness for returning to society. Imagine a criminal justice system—restorative not retributive justice—where the prevailing imperative is not to punish bad people but to help all people become less violent. In such a society, punishment may still have a place, but not as the primary solution—to the great relief of poor and dark-skinned convicts especially—and the dignity of victims wouldn’t hang precariously on the resources of a defendant, the impulses of a jury, or the whims of a judge. As a bonus, imagine how such a society, with its emphasis on rehabilitation, not punishment, might promote fewer violent crimes as redress is not equated with inflicting torment on others.
Here’s my speculation: If Brock Turner had believed that the state’s primary concern for him was rehabilitation and restoration rather than imposition of suffering, he would have been more likely to confess fully and accept the shame of knowing that he had consciously committed rape. In turn, Jane Doe would have been less likely to suffer through what she called “revictimization” in the legal proceedings. If these assumptions are correct, then another sad irony follows: The online clamor over Turner’s insufficient punishment, often including professions of concern for Jane Doe, is indicative of a punishment culture that actually contributed to greater torment for Jane Doe.
Timothy Braatz is a playwright, novelist, and professor of history and peace studies at Saddleback College in Mission Viejo, California. His most recent nonfiction book is Peace Lessons.