"If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." State v. Oliver, 70 N.C. 60, 62 (1874)
Sadly, sexual violence against women and girls remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman's credibility to such intense hostility and imposes the penalties of shame and stigma to a more severe degree than alleging rape. Even when there are witnesses and the crime scene has the makings of a CSI episode, factors irrelevant to sexual violence, including the victim's choice of clothing, hairstyle, and time of the attack frequently serve as points of searching inquiry, and scrutiny. Such extraneous points of critique further compound an atmosphere of shaming and stigmatization associated with sexual violence, but are seen as crucial in bolstering an affirmative defense and inevitably building the case against rape victims.
Indeed, this week, the unbelievably light sentence of Brock Turner provides a glaring contemporary example of how judges may attempt to spare men who victimize and traumatize women. Turner, a 20 year old former star swimmer at Stanford University, was convicted on three counts of felony sexual assault, and despite prosecutors recommending a six year sentence (of a possible twenty year maximum), Judge Aaron Persky thought six months in the local jail was more befitting the crime. In sentencing Turner, Persky explained, "A prison sentence would have a severe impact on him. I think he will not be a danger to others." Persky, emphasized that Turner had "less moral culpability," because he had been drinking. Persky created an exception that is not tolerated in law--voluntary intoxication is not a defense.
Judge Persky's wrong. Men who batter as well as men who rape women are more likely to be repeat offenders. As one important study involving men who commit rapes shows, most rapists are "repeat offenders, with each committing an average of 5.8 rapes apiece." Indeed, they are also violent too. "The 120 rapists were responsible for 1,225 separate acts of interpersonal violence, including rape, battery, and child physical and sexual abuse," the researchers found.
Turner's six month sentence will likely mean that he spends only three months in jail--basically it's like being sent away to a dreadful summer camp. Prosecutors suspect Turner will be home by early September.
Persky has said that he is responsive to rape victims and that he works to keep sex offenders locked away. So what makes this case different? What makes Brock Turner--a man caught in the act of sexual violence--so special? In her book, Crazy Love, Leslie Morgan Steiner, writes about how her ex-husband (a repeat domestic batterer) didn't fit the profile of how people imagine an abuser: he too was blond, athletic, and an ivy-league graduate. Nevertheless, he strangled her and beat her, including four times on their honeymoon.
Turner's case highlights two big problems in criminal justice in the United States. The first is that race and class continue to matter in criminal sentencing. Turner's father thought his son didn't deserve to receive a sentence more reflective of the crime, writing to the judge, that a longer sentence would be "a steep price to pay for 20 minutes of action out of his 20 years of life." Clearly the judge thought so too. Turner's race, class, and education, placed him above the law. But this is nothing new. Black youth have been sentenced to 20, 30 year sentences for 1st offense non-violent crimes.
But, this case also reeks of the awful, distasteful history of sexual violence against women and sex serving as the property and domain of men. Clearly, this is not simply a problem in the United States. For example, in Delhi, India, after the notorious gang rape of a female medical student, which resulted in the young woman's death, some politicians blamed the victim, warning that women's shouldn't be out at night. One prominent politician asked, did the twenty-three-year-old victim "really have to go watch a movie at 11 in the night with her friend?" In Afghanistan, victims of rape are often charged with adultery, and if they aren't stoned, burned with acid, or jailed, they are forced to marry the rapist. And in Central and South America, the chilling cases pile up of ten and eleven year old girls forced to carry to term the babies conceived by rape.
Such examples may seem stark until we recognize that until a couple decades ago, marital rape was legal in the United States. That is, judges and the legislature didn't think there was a crime when husbands violently forced their wives to submit to sex--even when the couple was estranged. But, one need not look back decades. Last year, Mandy Boardman, a business owner who lives in the United States came forward with a horrific account of her rape. In that case, Boardman's husband, David Wise, drugged and raped her over a three-year period--videotaping the process. Despite a prosecutor's recommendation of a forty-year jail-term, Judge Kurt Eisgruber sentenced Boardman's ex-husband to home detention. Eisgruber warned Boardman that she needed to "forgive" her ex-husband.
Cases of incest have been treated similarly in the United Sates. In People v. Henry, which involved a father's rape of his thirteen-year-old daughter, the court noted that it could not be disproved that the girl was not married to her father (or someone else), which would bar the state's prosecution of rape. The court chided the prosecution for assuming that a thirteen-year-old child was not married to anyone, including the father. The court remanded the case despite the daughter's pregnancy, childbirth, prior testimony, and the father's jailhouse confession to an officer.
Numerous cases in the United States point to courts viewing husbands and wives as one person--and raping oneself is not a crime....I have written about this history of coverture--women being the legal property of their husbands--here and about marital rape here. What this sad history reveals is that women were completely voiceless to bring charges against the men who sexually violated them--and that was the law. Most tellingly, male legislators and judges thought this made sense. Not until women began to join the bench and legislature did these practices and laws begin to die away.
Judge Persky's sentence this week reflects a deeper, more grotesque history in the U.S. where tolerated sexual violence against women dates back to the founding of our nation. As I wrote last month in the American Journal of International Law, "we ought to be concerned about the roots of marital rape and how this history may influence contemporary public policy and judicial opinions." I warned that "in reality, courts preserve and legitimize systems of terror in U.S. households." It turns out that those systems are also maintained behind dumpsters on college campuses.