A Judge on Trial

This piece appears in the Winter 2016 issue of Ms. Subscribe today to get a copy and become a member of the Ms. community!

On June 2, a young woman stood up during a sentencing hearing  at a Santa Clara County Superior Court to read from a 7,000-word impact statement.

“I wanted to take off my body like a jacket,” she told her attacker, Brock Turner, convicted of three counts of felony sexual assault following a three-week jury trial in March. “You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today.”

The woman’s remarks were directed at Turner, but her words traveled far beyond the walls of the California courtroom. Her statement went viral, millions were moved by it, and Vice President Joe Biden penned an emotional response. But her powerful testimonial failed to rouse one crucial listener: Aaron Persky, the judge presiding over what the media dubbed the “Stanford Rape Case.”

J. Mulson for UltraViolet
J. Mulson for UltraViolet

Despite the prosecution’s request for a six-year prison term and despite the state’s mandatory minimum two-year sentencing requirement for assault with attempt to commit rape, Judge Persky chose to utilize a (since closed) loophole in California law. Persky deemed Turner’s “an unusual case,” citing the former Stanford University swimmer’s youth, previously high record of achievement and lack of prior criminal record, along with his high level of intoxication at the time he committed his crime. Turner, then 20, was sentenced to six months in jail, followed   by three years’ probation and registration on the sex offender list. In his remarks to the court, Persky noted the “severe impact” he believed a prison sentence would have on Turner, coupled with the “adverse collateral consequences” Turner would face as a result of the felony conviction.

Reaction to the sentence was swift and damning. More than 1 million signed a Change.org petition calling for Persky’s removal from the bench. Stanford Law School professor Michele Dauber, a family friend of the survivor, initiated the “Recall Judge Aaron Persky” campaign, raising (at press time) $330,000 since it was founded in June. (The Feminist Majority, whose executive director Kathy Spillar is executive editor of Ms., endorsed the effort in June.)

Meanwhile, Turner was released from jail on Sept. 2 after serving three months of his sentence.

“This was not an isolated decision,” Dauber stressed at a recall event in Palo Alto organized by prominent Silicon Valley feminists. Persky, a former criminal prosecutor who himself received a bachelor’s degree from Stanford and served as captain of the lacrosse team, has exhibited “a pattern of bias in favor of privileged [defendants who are] white, highly educated,   upper class [or] athletes…accused of violence against women.”

In Persky’s courtroom, a Cisco engineer pleaded no contest to severely beating his fiancée and received weekend jail time to ensure he would not incur absences from work. A plumber convicted of possessing “highly disturbing” images of child pornography depicting young and infant girls was invited to return  to court to have his sentence reduced to a misdemeanor. A man who pleaded no contest to beating and choking a former girlfriend had his sentencing delayed for several months to allow him to play football at the University of Hawaii. In August, news broke of the arrest of this same, now former, UH football player on separate charges of domestic violence in Washington state.

Armed with a robust and growing portfolio of bias in Persky’s decisions, Dauber and her team are prepared to present their case to the voters of Santa Clara County.In recent days, this effort has been underscored after California’s Commission on Judicial Performance cleared Persky of all charges of misconduct related to the Turner sentencing. “We believe that the record is completely clear that Judge Persky has a long record of failing to take violence against women seriously,” the campaign said in a media statement, “and we will demonstrate when we launch the campaign early next year.” 

“A biased judge is a threat to the entire legal system,” Dauber told supporters in the fall. “[It] destroys the trust of the people and the fairness of the process.”

Lenient sentencing in cases of sexual assault and violence is obviously not isolated to the decisions of one judge. In October, a Montana judge granted a suspended 30-year sentence, along with probation, to a man who pleaded guilty to raping his 12-year-old daughter. The man spent 60 days in jail—with credit for the 17 days already served. This past summer, a judge in Massachusetts sentenced an 18-year-old former high school athlete to two years’ probation after he admitted to sexually assaulting two sleeping women at a party.

Data from the Rape Abuse and Incest National Network indicate that approximately two out of three sexual assaults go unreported. The Turner case was unique for its abundance of physical and medical evidence, as well as two eyewitnesses who intervened. As Dauber points out: “The message that sent to victims of campus rape, most of whom do not have anything like this amount of evidence, was ‘don’t even bother calling the police.’” Furthermore, Persky and other judges who fail to adequately penalize sexual violence are ignoring rapists’ statistically high reoffending rates.

Fresh off an uncontested election for a new six-year term, Persky’s name would not have appeared on the ballot again until 2022 if the campaign has not raised “sufficient” funds to collect approximately 80,000 signatures in spring 2017, in time to qualify for the November ballot later that year. In a recent statement, the campaign affirmed that it had.

California is one of 39 states where voters elect judges at the trial court level. Of the 39, eight allow for the removal of a judge by a recall vote. A recall is— crucially—not an impeachment. Rather, it is a mechanism by which voters may petition for elected officials to face an early election before their previous term ends in the wake of widespread dissatisfaction with their performance.

The campaign to recall Persky has sparked intense debate within the legal community about the importance of maintaining judicial independence. Though it is, admittedly, an imperfect system, judicial elections are the sole method by which judges may be held directly accountable to their constituents. A recent independent poll among   likely voters in Santa Clara County found that 67 percent support the campaign to recall Persky. Women support the recall effort by a margin of 4 to 1 (or 80 percent), while among women under the age of 40 the margin is 5 to 1, and 81 percent of Santa Clara County voters do not believe Persky is fair in any case that comes before him.

The recall of one judge cannot obliterate legal bias against women, but it can send an unequivocal message to courts and to law enforcement that they will be held accountable for whose side they take in the fight against sexual assault.

That day in June, the young woman concluded her statement with a message to other survivors. “To girls everywhere,” she said, “I am with you.”

To follow the campaign’s progress, go to recallaaronpersky.com.



Lauren Young is a Ms. contributor. She has a Master’s Degree in European and Russian Studies from Yale University and a Bachelor’s Degree in Government and Russian Civilization from Smith College. Follow her on @thatlaurenyoung.