The Stanford Rape Case Judge's Controversial History

By Tessa Stuart, Rolling Stone

19 June 16

How the Stanford case presided over by Judge Aaron Persky represents a maddeningly incremental kind of progress

s he handed down a six-month sentence to Brock Turner for sexually assaulting a woman behind a dumpster, Santa Clara County Judge Aaron Persky acknowledged the former Stanford swimmer's remorse — "remorse, which I think, subjectively, is genuine," Persky said. As the victim in the case wrote in a widely read statement, "The probation officer's recommendation of a year or less in county jail is a soft time­out, a mockery of the seriousness of [Turner's] assaults, an insult to me and all women."

At the heart of the public outrage that has ensued against Judge Persky over the past few weeks is the question of whether the judge sympathized too much with the perpetrator and not enough with the victim. (Persky was removed from another, similar sexual assault case this week over concerns about whether he could "fairly participate" in the trial.)

Judge Persky's critics, like those who have mounted a recall effort to remove him from the bench, argue that Persky also being a former student-athlete at Stanford may have made him overly sympathetic to Turner.

As some who are familiar with the case argue to Rolling Stone, the fact that more of the public has identified with the victim, rather than Turner, in this case makes it an outlier — one that constitutes a kind of progress, if a maddeningly incremental kind that has not yet gone nearly far enough.

Consider a similar case from 2007, which Judge Persky was also involved in. Like Brock Turner, the accused were student-athletes at a college in Santa Clara County, implicated in the sexual assault of an unconscious, intoxicated girl at a party. In both cases, the incidents were interrupted by alarmed bystanders.

The chief difference between the cases is that 2007's was an alleged gang rape; nine members of the De Anza College baseball team were accused of assaulting an underage girl at an off-campus party.

In the Stanford case, two grad students interrupted the assault. In the De Anza case, three members of the school's women's soccer team forced their way through a door that was being guarded by several baseball players after becoming alarmed about what was happening inside. Lauren Chief Elk, one of those soccer players, later testified in court that as she and her teammates carried the unconscious teen out of the room, one of the players told them, "This bitch got drunk and did this to herself."

Even local coverage of the cases was disturbingly similar. The same San Jose Mercury News columnist who recently argued that Brock Turner "doesn't belong in prison," painted a sympathetic portrait of one of the accused De Anza players, writing, "I don't give him a pass. But I'm convinced he was no rapist. He was a kid who got into big trouble because he had far too much to drink."

(The columnist, Scott Herhold, also highlighted both victims' culpability in their own attacks. He dispensed with the Stanford victim, writing, "The woman was so drunk that she does not remember what happened. On the stand, she acknowledged having blacked out on several previous occasions while drinking." And he described the underage woman in the De Anza case as "a blonde wearing jeans and high heels [who] straddled him and began a lap dance.")

Criminal charges were never filed against the nine young men in the De Anza case, despite two separate investigations by the Santa Clara District Attorney's Office and one by the California Attorney General's Office.

Journalist Emily Bazelon, writing about the Stanford case in Slate recently, explained why it was so unusual. "Often when you have those kinds of circumstances, we don't have any kind of holding of responsibility," Bazelon wrote, referring to the fact that the victim was unconscious and had no memory of the assault. "The police, the prosecutors, the university — everyone except for this judge — saw this case through the eyes either of the victim or the eyes of these graduate students one of whom cried when he told police what he had seen and that, actually, is a sign of progress for people who want to reform rape law."

The AG's office cited the fact that the victim blacked out as a major factor for not prosecuting in the De Anza case. "Jane Doe has no memory of anything that happened at the party beyond her initial arrival," Chief Assistant AG Dane Gillette wrote in a memo detailing his office's investigation. "None of the potential suspects believe or confirm that a sexual assault occurred."

The fact that the three women soccer players were willing to testify as witnesses made no difference. "Given their brief and late involvement, and their limited vantage point (i.e. looking at the incident through a curtained door), they were unable to provide consistent, useful identifications of the persons they observed engaging in sexual contact with Jane Doe," Gillette wrote.

When Jeff Rosen became district attorney in 2011, he reopened, then re-closed, the case. He called the events "reprehensible" and "inexcusable," but said his office could not prove criminal conduct "beyond a reasonable doubt."

A civil suit did go forward, though — with Judge Aaron Persky presiding. Two of the attorneys who represented the Jane Doe in the case have criticized Persky's judgement in the trial. As The Guardian recently reported, "The original judge in the case ruled in 2010 that the defendants could stay silent, but that would also mean that they would be prohibited from testifying in a later part of the case. That ruling was, however, overturned by Persky, a move that Jane Doe's attorneys now say undermined her case."

"It was shocking to see judge Persky disregard that order," one of the lawyers told The Guardian. "One judge completely disregarding an order that another judge has entered: yes, that was unusual."

Lauren Bryeans, another one of the soccer players who burst into the room at the 2007 party, says the failure to find a way to file criminal charges three separate times, and to find any of the young men liable in a civil trial (two players did settle out of court), contributed to an overwhelming and dispiriting sense that it isn't possible to get justice in these kinds of cases.

While so many people expressed horror at Brock Turner's lenient sentence, Bryeans was pleased to see charges brought at all. "I was surprised a conviction was made, to be honest, just because when I read the terms of what happened, it just seemed very similar to what happened [in the De Anza case]," Bryeans tells Rolling Stone. "I was upset with the sentencing — I mean, of course I was outraged at the sentencing, I think he got let off easy — but I was definitely, I guess you could say surprised at them even prosecuting him."

Lauren Chief Elk, who now runs a project focused on combating violence against Native American women, says she feels similarly. "What normally happens to women is that we don't even get a full, thorough investigation — look at our national rape kit backlog," she says. The Stanford victim "had her rape kit tested... she had multiple charges brought and then a conviction.

"These are all the things that we want and hope and wish for in our legal system with sex crimes, when they happen," she adds. "Now, was the sentence a little light? And was the judge apologetic to the offender? Yes. And nobody is arguing [otherwise], but this sentence was still harsher than what 99 percent of rapists get."