Justice Beyond Incarceration: Perspectives on Race, Rape, and Brock Turner

We all know about the Stanford rape case, and we know about it for good reason: Because the survivor’s incredible statement to the court got the widespread airtime it deserved.

But we know about it for other reasons too. Primarily, we’ve heard a lot about the six-month sentencing of Brock Turner, which many feel is far too lenient. Public outrage against the relative lenience of the sentence has been directed toward a movement to recall the judge, Aaron Persky, from the bench. The petition for the judge’s recall reached over a million signatures. Persky was in fact recently removed from a sexual assault case at the behest of prosecutors, who criticized his decisions in a couple recent cases, alluding to the Stanford rape case as well. 

The trial brought renewed attention to the brutal double standards sexual assault survivors are subjected to in courts. It also, importantly, prompted increased public discourse on race and mass incarceration. And it has brought up a question that we as feminists and as a society at large continue to struggle with: In cases of sexual violence — in cases of violence in general — is incarceration our best hope of justice?

The Stanford survivor’s treatment in the courtroom — she was asked questions about what she was wearing and how much she drank — contrasted with the insinuation that Turner’s actions were merely the result of drunkenness, revealing the deeply patriarchal entitlement that fuels rape culture.

Turner’s treatment before the law, on the other hand, revealed the deeply racist entitlement that fuels the way white society thinks about crime and punishment. Turner, a privileged white dude, received six months in prison for raping an unconscious woman. The same month, a black man named Corey Batey, convicted for a similar crime, was given the mandatory minimum sentence of 15-25 years. Viewing the cases side by side, we can see an illustration of the sickening rate and duration of incarceration in the United States, and of the racist violence inherent to this system. The publicity around Brock Turner’s conviction not only brings the issue of sexual assault, but of racist sentencing, into the headlines of mainstream public debate.

The double standards, in both cases, are maddening: Between victim and aggressor; between black and white.  

In light of this, it can feel just to advocate incarceration of Turner. The survivor certainly thought so, and that’s important. And it may even be just— he is a person with every advantage in the world who decided to use that privilege to seriously harm another human being. But we can use the debate to consider the implications of the case beyond Turner. Namely: We can consider how advocating for the harsher sentencing of even a privileged man reinforces an ultimately violent system.

We can ask: Will public outcry advocating harsher sentencing in this case reinforce the American justice system’s tendency to over-sentence — ultimately harming people far less privileged than Turner?

Is incarcerating perpetrators of sexual violence actually a sustainable solution to sexual assault (especially considering the high incidence of sexual violence in prison)?

Is incarceration as is, especially considering the extreme length of sentences and brutal use of punishments like solitary confinement, just punishment to begin with?

Considering that we are often marginalized and asked to consider our assailants above ourselves, it feels unfair that sexual assault survivors should be asked to worry about our assailants. It is, after all, our right to want and advocate for more punishment for our perpetrators, and nobody’s business to tell us what we should want and what we should consider just.

Yet we also know that critiquing the carceral system is a form of survivor advocacy. Survivors, after all, struggle with both the marginalization of our experiences, the prospect that attacks against us may not be recognized by our culture and the law, and the possibility that if we do choose criminal proceedings, our perpetrators — who we may have complex relationships with — could be punished more than we consider just. Added to this, of course, is the fact that sexual violence haunts the prison system: Many perpetrators of sexual violence have also been subjected to it; many incarcerated people are victims of sexual assault; many incarcerated people are assaulted in prison. Changing our culture’s notion of justice means digging deep to critique the very logic of punishment itself — even when applied to privileged white guys — in the search for healing.

As feminists we have not only the responsibility but the privilege to imagine new forms of justice; not only new processes but new notions. We have the opportunity and the vision to imagine healing, not only for victims of violence but for perpetrators. Feminists have radically altered the way we think about gender and violence; we can and must also radically reimagine gender and justice.

Below is just a teeny tiny sampling of articles grappling with just this question of incarceration and alternative forms of justice, both in the Stanford case and beyond.

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Who Wins When We Incarcerate Brock Turner? by Lily Zheng and Erika Lynn

Many call for an end to prisons that dehumanize their queer and trans inmates, prisons that suck up resources for expansion that could otherwise be used towards education and community resource-building, private prisons that profit off of removing society’s undesirables.

This same prison-industrial-complex that we fight against in our work and decry as inhuman and brutal is suddenly our friend when a cisgender woman gets raped? When a cisgender, heterosexual white athletic man rapes? […]

The real solutions here must consider effectiveness over satisfying our moral outrage. We need more intentional approaches on consent education and sex ed at all levels of education, more resources for sexual assault prevention on college campuses, more care and respect given to survivors of all kinds to meet their needs. We need programs that teach healthy expressions of masculinity, healthy and communicative boundary-setting in relationships and community-based efforts to promote mental health and well-being on college campuses. We need, most of all, to be able to see rapists as people who can become better, to indict the societal nonconsent and other systems that they and we are all entrenched in.

Could Removing Brock Turner’s Judge Hurt Poor and Minority Defendents? by Maurice Chammah (explore The Marshall Project website for more reporting on mass incarceration)

As The Marshall Project has reported, judicial elections tend to favor candidates who are most vociferously “tough on crime.”[…]

But the judge is finding support from a number of public defenders, who argue that punishing him will ultimately hurt their own clients — most of them, unlike Turner, poor people of color.

The Unintended Consequences of the Stanford Rape-Case Recall by Jeannie Suk

The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly—and there is no reason to believe that will be true only in cases with white male rape defendants.

There’s Another Way the Stanford Survivor Could Find Justice by Alyssa Peterson

We are right to be collectively outraged that gender-based violence is rampant, normalized, and institutionally condoned in our society. But it’s disappointing that, when confronted with even more evidence that thecriminal legal system fails to provide justice, our national conversation has been largely confined to talk of reforming the existing system, as though there were no other alternatives.

That’s a real shame. As Alexandra has written extensively, we have civil law alternatives that can provide victim-centered justice.

All Survivors, Not Just Students, Need Civil Law Options by Alexandra Brodsky

What would be the off-campus equivalent that would give non-criminal, agile options to victims across the country? A civil private right of action for all survivors. This right would mean victims of gender-based violence in any setting, not only schools and the workplace (which is covered by Title VII), could sue their assailant or a responsible third-party institution in civil court. While a trial looks very different than a campus disciplinary proceeding, civil law allows courts to provide nimble solutions, like those students demand on campus.

And, yes, a civil private right of action would also provide victims with the opportunity to sue for monetary damages. It may seem distasteful to assign a monetary value to rape. But sometimes what a survivors most needs is the cash to pay medical bills, gain financial independence from an abuser, or even just get up and move.