When a Fight Against Sexual Assault Bolstered Mass Incarceration

A new documentary revisits Stanford student Brock Turner, who was convicted of sexual assault but served only three months in jail. Feminists led a recall effort against the case’s judge — but actually led judges to favor harsher sentencing across California.

Protesters prepare to deliver a notice of intent to recall Superior Court Judge Aaron Persky at the Santa Clara County Registrar of Voters office in San Jose, California on June 26, 2017. (Gary Reyes / Bay Area News Group via Getty Images)

In 2016, Brock Turner was convicted of three counts of felony sexual assault. The woman he’d assaulted, Chanel Miller, had been unconscious at the time; Turner assaulted her after a party, behind a dumpster on the Stanford University campus, where he was a freshman.

Before Judge Aaron Persky of Santa Clara County’s Superior Court decided the sentence, Miller read a statement, addressing Turner directly. She detailed how she had only gone to the party to spend time with her younger sister, and how she had gotten drunk because she’d forgotten how much her tolerance for alcohol had decreased since college. She said that the next thing she remembered shortly after arriving at the party was waking up in the hospital, covered in pine needles and bruises.

Turner was facing up to fourteen years in prison, but Judge Persky only sentenced him to six months in jail, as well as mandatory registry as a sex offender. Television commentators described the sentence as a “slap on the wrist for a privileged, white sexual offender at an elite university.” The blond-haired Stanford student, a star athlete on the school’s swim team, had gotten a few months; others with less privilege have received, for example, a life sentence for selling thirty dollars’ worth of marijuana.

Turner was released on September 2, 2016, after three months behind bars, an early release on account of good behavior. Outcry once again broke out: protesters greeted him outside the Santa Clara County jail upon his release. Hours after Turner’s release, another rally was held outside of the jail demanding the recall of Judge Persky. Nearly two years later, Persky became the first California judge to be recalled in more than eighty years, with 62 percent of voters favoring his recall.

The Recall: Reframed is a short documentary by Rebecca Richman Cohen that takes issue with the “Recall Persky” campaign. The film, now streaming on NBC’s Peacock platform, features interviews with people close to the Turner case who opposed the recall, arguing that while the campaign was done under the guise of a feminist push to rectify the justice system’s failure to treat sexual crimes with the gravity that they deserve, it actually became an impediment to substantive justice.

It’s true that there are few, if any, legal consequences for most perpetrators of sexual violence. Out of every one thousand sexual assaults in the United States, 310 are reported to the police; fifty of those reports lead to arrest, twenty-eight of those arrests will lead to a felony conviction, and twenty-five will end with incarceration. In other words, 975 of the alleged perpetrators of every one thousand sexual assaults walk free.

But the demand for harsher sentencing doesn’t rectify the problem. For starters, it would affect only those twenty-five perpetrators who serve time, not the 975 who don’t. Plus, it’s well-known by now that incarceration doesn’t affect everyone equally. Those who are the most likely to already be targeted by the criminal justice system — i.e., not the Brock Turners of the world — bear the brunt of longer sentences.

That isn’t a hypothetical. A study of six California counties found that judges immediately began extending the length of sentences by 30 percent across the board once the Recall Persky campaign began. The study’s authors estimate that the recall led to somewhere between eighty-eight and four hundred cumulative years of additional prison time in just those six counties.

“The effect wasn’t on the next Brock Turner,” says Charisse Domingo, community organizer at DeBug, a San Jose–based community organization that focuses on criminal, housing, and immigration justice. Instead, harsher sentencing hit the young working-class people who rely on organizations like hers.

Alaleh Kianerci, Chanel Miller’s lawyer in the Turner case, explains that she had fought for a longer sentence and told Judge Persky that she disagreed with his decision. But she, too, did not support the recall campaign.

“A lot of people were surprised that I opposed the recall,” says Kianerci. “There’s no one more vocal in defense of Chanel than I am, but the recall’s not the right way to protect future victims of sexual assault and prevent another Brock Turner from happening.

“Long sentences disproportionately affect people who are nothing like Brock Turner,” says Aya Gruber, a law professor at the University of Colorado Boulder and the author of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. Gruber explains the problem with “carceral feminism,” a term that refers to the reliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence.

“Increasing sentencing, broadening the definitions of crimes, and prosecuting more people?” she asks the camera. “We all have this imagination that it will get at the more powerful criminal offenders, but criminal law doesn’t equalize the world; criminal law does the opposite. Criminal law exacerbates inequality.”

That, too, should not be controversial. Disparities in sentencing are well documented: police are twice as likely to search black drivers, even as white drivers are more likely to be found with contraband, and federal judges sentence black men to an average of 19 percent longer prison terms than white men for comparable crimes. To equate accountability with longer prison sentences, and imagine that a more punitive approach will hurt the Brock Turners of the world rather than everyone else, is a delusion.

“It wasn’t that Brock Turner didn’t deserve the kind of careful analysis that the judge gave him,” says Domingo. “It’s that everyone does.”