In response to the national outrage over former Stanford University student Brock Turner, who was sentenced to six months in jail for sexually assaulting an unconscious woman, California lawmakers want to ensure rapists aren’t treated so leniently in the future. But in the process, they’re pursuing the same policies that fed thousands of people into a broken incarceration system, and will do little to fix the problem of rape.
On Monday, the California legislature approved a bill to expand the state’s legal definition of rape, eliminating the current distinction between “rape by force” and other types of sexual assault, like coerced oral sex that occurs when the victim is too intoxicated to give consent. AB 2888 would classify these sex crimes under the same sentencing laws, making prison time mandatory for all of them.
Under this law, Turner would have faced a minimum of three years in prison and the judge presiding over his case would not have had the authority to recommend probation for him instead.
The legislation’s well-intentioned supporters hope that AB 2888 will help change societal norms around sexual assault — sending the message that raping an unconscious victim who is physically unable to provide consent should be treated like a serious crime.
“Why under the law is the sexual assault of an unconscious woman less terrible than that of a conscious woman?” Santa Clara County District Attorney Jeff Rosen said in June. “Is it less degrading? Less traumatic?”
While California officials may be focused on empowering sexual assault victims, however, their response to Brock Turner’s case has broader implications beyond addressing a persistent rape culture. It feeds into a deeply flawed criminal justice system that has relied on mandatory minimum laws to prop up a carceral state.
This is how mass incarceration happens. https://t.co/XxliliLpEJ
— David Menschel (@davidminpdx) August 30, 2016
Mandatory minimum sentences, popularized in the 1980s and 1990s at the height of the failed War on Drugs, have deepened race and class divisions in this country by subjecting low-level offenders to harsh minimums that judges have no power to overturn. They allow federal prosecutors to wield too much power over the vulnerable people who are disproportionately likely to come into contact with the criminal justice system, and they leave those offenders behind bars for decades.
There’s growing bipartisan agreement that an important part of reforming the criminal justice system involves getting rid of mandatory minimums, which don’t actually work as a method of deterring crime. Over the past several years, the Department of Justice has worked to get prosecutors to stop using these harsh minimums for certain drug trafficking cases.
These reforms are gaining momentum on both sides of the aisle. And introducing a new realm of mandatory minimums, for rape rather than for drugs, represents a step backward.
It’s not hard to see where California lawmakers are coming from. To be sure, deeply ingrained gender norms that teach men they’re entitled to women’s bodies have created a society that doesn’t take sexual assault or domestic abuse very seriously. Women who speak up about being raped are shamed, blamed, and bullied into silence. Cops tend not to believe their stories. Judges ask them why they didn’t close their legs. Their rape kits languish on dusty shelves waiting years to be tested. In response, activists have worked tirelessly to deepen society’s understanding of sexual consent, and strengthen the definition of rape to include cases when victims have been historically been brushed aside — when they have been drinking, for example, or when they had a previous romantic relationship with their attacker.
Now, with the explosion of outrage around Brock Turner’s case — a potent mix of gender, race, and class privilege — it seems like a real opportunity. There’s an appetite to find real solutions. Stanford students stood up in protest at their graduation. More than a million people signed a petition to recall the judge who heard Turner’s case. California lawmakers sprung into action.
But legal experts and feminist activists aren’t convinced that a mandatory minimum law — and, in turn, shifting the balance of sentencing power away from judges and toward prosecutors — is the right path forward here.
Writing recently in the New York Times, two recent graduates of Yale Law School who have been active in advocating for a better approach to sexual assault cases on college campuses warn that “victims deserve a new solution, not a stale policy.”
“We share in the outrage at Mr. Turner’s actions, but worry that this law could cause more harm than good. History shows that this reform would not deter violence and most likely would perpetuate punitive racial and class disparities,” write Claire Simonich and Alexandra Brodsky.
UltraViolet, the feminist advocacy group that called for the removal of the judge who presided over Turner’s case, agrees.
“While it is long past time that our justice system take the crime of rape seriously, we need judges who focus on finding justice for rape survivors, not the re-hashing of bad policies that rig the system against poor people and people of color,” Nita Chaudhary, the group’s co-founder, said in a statement shortly after California’s legislation started picking up steam.
Finding justice for rape survivors is the complicated part, of course. There’s no easy path forward for ensuring that victims of a crime that has historically been normalized feel like true justice has been served.
But it is clear that, from a policy perspective, mandatory minimums for rape won’t necessarily keep women safer by deterring people from committing sexual crimes. We’ll need a much broader set of societal reforms — including instilling healthy attitudes about gender, sexuality, and consent from a young age — in order to address the roots of a pervasive rape culture.
A political science professor writing for Common Dreams puts it simply: “We have falsely equated punishment and protection in the United States.”