The Question Nobody Is Asking About Brock Turner

Brock Turner's sentence is wrong, but so are the protesters calling for fourteen years in prison. We don't need more people spending more time behind bars, we need a whole new approach.

Like almost everyone I know, I was outraged by the outcome of Brock Turner's case. A rich white Stanford athlete rapes an unconscious woman behind a dumpster, is caught in the act, and refuses to admit guilt or apologize. His father blames the victim for "sexual promiscuity" and laments his son's loss of appetite for steaks and pretzels, encouraging supporters to see Brock as a victim of "political correctness." Judge Aaron Persky, clearly swayed by his own background as a rich white Stanford athlete, gives Brock only six months behind bars. The sentence is ten times shorter than what the prosecutor requested, and twenty times shorter than what star athletes from poor black families have faced for similar crimes. Protesters, justifiably upset by Judge Persky's refusal to take campus rape seriously, react by demanding a long prison term for Brock and trying to recall Judge Persky.

After the trial, the victim explained that "what [she] truly wanted was for Brock to get it, to understand and admit to his wrongdoing." She may have won the case, but he escaped without taking responsibility for his actions.

To me, the key question is "What could we have done to make Brock and his family accept his responsibility?"

What few people realize is that our current system actually encourages offenders to evade responsibility. Almost all violent offenders plead guilty, meaning that they go to prison without ever hearing from their victim. Brock went to trial instead, which meant that he watched his defense attorney accuse the victim of being a drunk slut. When the victim delivered her heartbreaking statement, he was free to cover his eyes and ears, and he did not have to reply. Now he will go to jail, where every threat, abuse, and injury he suffers will make him feel sorry for himself--not recognize the pain of his victim. Our prisons are full of violent offenders who feel like they are the victims because they do not connect the pain of prison to the pain of their victim. Yes, this process might help Brock acknowledge his terrible crime, but is it the most effective way to do so? Absolutely not.

A far more effective model is called restorative justice. Imagine a mediator bringing Brock and his family together with the victim and her family for a face-to-face conversation about how he harmed the victim. The families would reach a restitution agreement by consensus. Sound impossible? This process is used in juvenile justice systems across the U.S., and ninety-five percent of victim-offender mediations reach a restitution agreement by consensus. The process would only proceed if both the victim and perpetrator agreed to it, and if the agreement failed, Brock would face tougher sanctions in the traditional justice system.

Would this really help the victim? Take the example of Joanne Nodding, who explains her own experience with a restorative conference after surviving rape. She was traumatized by her rape, and the traditional court process left her depressed and unfulfilled. But at the restorative conference, she saw that the man who raped her was scared of meeting her. When he had to make eye contact with her and listen to what it felt like to be raped, he started crying. He gave her a heartfelt apology. By the time Joanne left, she "felt on top of the world," and she was finally able to move forward with her life.

Restorative justice can bring closure that the courtroom cannot, since it allows the victim to confront the perpetrator directly. It restores power to the victim, instead of shifting it to the judge and jury. Of course, it cannot erase the offense, but it is far more effective than sending a perpetrator to prison out of revenge.

But would a restorative conference really make Brock more likely to take responsibility for his crime? Participating in a conference would force him to listen and speak to his victim--as opposed to the traditional system, which encourages him to feign innocence, assassinate the victim's character, and feel sorry for himself. It would replace the incentive to discredit the victim with an incentive to actually listen to her. It is impossible to predict if it would successfully push Brock to accept responsibility, but it is surely more effective than a prison cell.

It's important to note that helping the victim heal isn't the only purpose of punishing Brock. There are two other important goals--his punishment should also prevent him from raping other women and deter others from committing rape.

In fact, it is critical for both of these goals that Brock take responsibility for his crime.

As far as preventing Brock from raping others, the problem is not that he is getting away with a "slap on the wrist." He will live in fear of sexual and physical assault for at least three months in jail. For the rest of his life, his sex offender status will make it difficult to find housing and employment and publicly label him a rapist. Brock is going to regret that evening every day until he dies. But unless he takes responsibility for his actions, he may continue to blame the victim rather than recognize that he committed rape. 

The same is true for deterring others from committing rape. Nobody is going to commit rape "because Brock's punishment didn't sound too bad." After all, studies show that making harsh punishments harsher doesn't deter crime. But young men are hearing the message that Brock was a victim of "political correctness," not the perpetrator of a terrible crime. That is the truly dangerous message, which perpetuates rape culture and encourages future Brocks. The best way to stifle this message is for Brock to take responsibility for his actions.

While a prison sentence is at best an indirect and ineffective way to get Brock to take responsibility, restorative conferences reach the perpetrators directly and powerfully. Studies show that the conferences prevent perpetrators like Brock from reoffending, because they force them to take responsibility for their actions and directly confront the pain they caused.

One final note on race and privilege--Brock got a short sentence because Judge Persky could see himself in Brock, as a rich white Stanford athlete. I'm confident that Judge Persky would have given a poor black man many years in prison for the same crime. Protesters have rightly criticized him for this hypocrisy but wrongly demanded that he give Brock an equally long sentence. We need judges to identify with all defendants, to worry that fourteen years in prison would permanently damage any defendant, and to recognize that prison time doesn't help the victims. Judge Persky may be blind to his own privilege and hypocrisy, but his racist, classist sentence for Brock Turner holds a kernel of truth--long prison sentences hurt not just Brock Turner but our entire society.

Should Judge Persky be praised for his decision? Absolutely not. He should be condemned for displaying little concern for the most important piece of all--that Brock take responsibility for his actions. Don't criticize him for giving a short sentence, criticize him for letting Brock off without accepting responsibility. Even without restorative justice, he could have tried dozens of strategies to force Brock to take responsibility. As long as we think our only option is prison time, we will be letting Brock off easy.

What should we do?

  • Advocate for restorative justice. Restorative conferences can take a number of forms, including family group conferences, victim-offender mediation, and circle sentencing. All these forms force the perpetrator to listen to the harm he has caused and take responsibility for his actions. None of them allow Brock Turner to live his life believing that he is the victim.
  • Resist the urge for mandatory sentencing. In the 1980s, we tried to stop judges from handing down arbitrary, biased sentences by forcing them to impose mandatory minimum sentences and follow sentencing guidelines. The result? Much harsher sentences for poor people and people of color. As defense attorney Ken White writes, "when there's a backlash against mercy and lenient sentences - when cases like [Brock's] or the 'affluenza' kid inspire public appetite for longer sentences - it's not the rich who pay the price. It's the ones who never saw much mercy to begin with."
  • Condemn Judge Persky for the right reasons. We don't need more people in prison. We need more people to take responsibility for their actions. Judge Persky didn't care enough about the victim to try to make Brock accept responsibility. Judges can do far more than decide the length of a prison sentence, and they need to exercise this power.