The Stanford Sexual Assault Case and the Limits of the Incarceration State

Between 12% and 20% of women are sexually assaulted while in college; between 3% and 10% might be raped or experience attempted rape.

Perhaps the most striking void left in the aftermath of the Brock Turner sexual assault trial—the Stanford rape case—is the utter lack of resolution for the victim and the degree to which the human harm created by his actions has gone unaddressed.

This is extraordinary given the apparent success of the case. Fewer than 10% of cases referred to prosecutors secure a conviction on the underlying assault or rape charge. The jury saw through the manipulations and smoke screens deployed by the defense attorneys, weighed the evidence, and found that Turner had committed three felonies, including attempted rape, beyond a reasonable doubt. This case should have been a poster child for the anti-sexual assault movement.

Instead, the case has ignited a firestorm of controversy, in no small part because of the power of the victim impact statement. Turner doesn’t “get it,” she writes, referring to the defendant’s comments that seem to deflect responsibility and his focus on intent, rather than the harm he created. The victim wasn’t “hurt,” she was emotionally and psychologically devastated. Turner still doesn’t understand the depth of the damage his actions caused to another human being.

But the law doesn’t require Turner (or his family) to “get it,” and this is why an even longer sentence is unlikely to change the current college campus climate on sexual assault. Criminal prosecution is about breaking the law, and whether or not the defendant broke it. Harm, if it’s considered at all, is in the sentencing phase—after the conviction beyond a reasonable doubt. For 90% of sexual assault cases, this day in court never arrives. 

Nevertheless, whether the case makes it to court, conviction or sentencing, the harm created by sexual assault remains and is palpable. A superficial reading of the victim impact statement demonstrates this as she describes the aftermath of the assault in heartbreaking detail–shame, humiliation, embarrassment, the sense of violation, mistrust, suspicion, an overwhelming sense of despair.

At no point in Turner’s 11 page statement does he directly acknowledge his role in the assault the victim’s dignity and worth as a human being. Instead, he writes about his intentions and campus culture, as they somehow diminishes his culpability.

Ironically, this acknowledgement of harm was the justice the victim wanted for the crime. She writes in her statement that “what I truly wanted was for Brock to get it, to understand and admit his wrongdoing.” Without this sincere admission, she says “someone who cannot take full accountability for his actions does not deserve a mitigating sentence.” This is where the courts failed the victim.

But an adjudication procedure that focuses on whether statute, law, or rules are broken will never provide the satisfaction victims want, or make significant inroads into addressing the harm created by sexual assault and rape. Extending Brock Turner’s sentence to one year, two years, or more cannot force him to “get it.” Jail time might get someone’s attention, but it cannot create understanding or force someone to admit guilt or accept responsibility for their actions. He can and perhaps will come out of prison even more hardened and bitter. (Indeed, this might be the case given the defendant’s shifting of responsibility to broader campus culture of excessive drinking and sexual permissiveness.)

Fortunately, the Turner assault case and the victim’s statement provide hints at broader strategies that may have longer-reaching and sustainable effects, even if the criminal justice system is not the centerpiece.

Sexual assault prevention strategies need to focus on two core principles: the harm inflicted on victims (harm reduction) and preventing future incidents. Punishment, while important when rules or laws have been broken, is less important than holding offenders accountable for the human harm they have created. This may or may not include expulsion or time in jail or prison.

Educating teenagers about consent is a first step. Too many are like Brock Turner: confused about what consent means and limited in their ability to responsibly communicate intent and desires. In the research for my book, Unsafe on Any Campus: College Sexual Assault and What We Can Do About It, due out in July 2016, I have been struck by the degree to which college students (men and women) confuse culpability with guilt, legal guilt with proper conduct, and simply don’t understand where lines are drawn.

Second, the stories of survivors such as the one in the Turner case need to be a critical component of anti-sexual assault education and training. Sexual assault and rape are different from most other crimes in that they are direct assaults on human dignity. Sexual assault and rape are traumatizing in ways that are poorly understood by those who have not experienced it, or provided support to someone victimized by it. Sex is not just sex—or “20 minutes of action”—when it comes to sexual assault, and students need to recognize the harm that comes with non-consensual sex.

Clinical psychologists observe that rape and sexual assault are about power—exerting the will of the offender over the desires of the victim. While this may seem more subtle in the Turner case, the principle is the same. The physical evidence and witness testimony showed that the victim was unconscious and unable to articulate consent. Rather than validate the victim’s inability to consent, the most charitable interpretation of Turner’s actions is that he presumed his desires were the same as the woman’s without her acknowledgement.

Third, college campuses need “little platoons” of empowered students and bystanders that do what the Swedish graduate students did in the Turner case: intervene and protect. A just society protects the vulnerable. It doesn’t, as Turner’s actions did, exploit their weaknesses.

Challenging the passive bystander culture on American campuses may do more than any other intervention to reduce the incidence and breadth of sexual assault and rape. Indeed, it very well may have made the difference between conviction and a “not guilty” verdict in the Turner case.

Reducing sexual assault and rape on college campuses will require a long-term, dedicated strategy focused on improving civic culture. It will not be solved by loosening legal standards in the criminal justice system to send more people to jail, focusing adjudication procedures on rule breaking rather than harm, or use incarceration and expulsion as the primary punishment to hold offenders accountable. Rather, a culture with empowered individuals that intervene to protect and respect the dignity of its individual members provides the long-term, sustainable future.