What Recent Sexual Assault Court Cases Reveal about the State of American Democracy
“A steep price to pay for 20 minutes of action.”
These were the words used by Dan A. Turner in defense of his son, then twenty-year-old Stanford swimmer Brock Turner. After two bystanders discovered him atop the body of an unconscious woman in 2015, the younger Turner had become embroiled in ongoing rape conviction proceedings, which, for better or worse, captivated the nation’s attention. While Mr. Turner’s argument may have appeared untenable to the jury members who declared him guilty, the poorly placed ‘boys will be boys’ attempt to humanize a convicted rapist evidently resonated with one person in particular: Judge Aaron Persky. Citing concern for the “severe impact” upon the 20-year-old’s later life, Persky sentenced Turner to six months in jail and just three years of probation. Judge Persky’s preoccupation with the well-being of a convicted rapist—and not the victim of such brutality—reflects a deep-rooted flaw with respect to the arbitrary nature of judicial prudence in rape and sexual violence cases.
The now three-year-old case of People v. Turner again reared its head amongst the public consciousness. Earlier this month, Chanel Miller, the victim in the Turner case previously referred to only as “Emily Doe,” revealed her identity in preparation for the release of her memoir, Know My Name. The release of Miller’s book now provides the perfect impetus for us as a nation to assess the progress that has—or has not—been made since that fateful night on Stanford’s campus in 2015.
In response to public outrage regarding Persky’s light-handed 2015 sentencing, California lawmakers enacted mandatory minimum sentences for sexual assault cases that very same year, ensuring that "all forms of non-consensual sexual assault may be considered rape for purposes of the gravity of the offense and the support of survivors.” Following this legislation, Judge Persky was recalled from his position via a ballot motion in 2018, making him the first judge to be recalled in the state of California in 80 years. This unprecedented initiative on the part of voters reflects a shift, however small, in public attitudes towards the extent of judicial bias citizens are willing to tolerate.
Perhaps some good did come from People v. Turner. But was that change made to last? How far have we really come since then?
Just this year, Judge James Troiano of Monmouth County, New Jersey resigned for refusing to try a 16-year-old accused rapist as an adult despite overwhelming evidence in favor of his guilt. The defendant, known to the public as G.M.C., recorded video footage of himself sexually violating an unconscious victim in 2018 while her head was repeatedly hit against a wall. In days following the event, he proceeded to send the video to his friends with the attached message: "[w]hen your first time having sex was rape."
In statements from court proceedings detailed in a damning appellate ruling overturning Troiano’s decision, Judge James Troiano described the defendant’s actions as “a 16-year-old kid saying stupid crap to his friends.” He subsequently concluded, “[D]o I believe that it shows in any way a calculation or cruelty on his part or sophistication or a predatory nature? No, I do not.”
In G.M.C.’s defense, Troiano proceeded to provide details inconsequent to the events of 2018, noting his high standardized test scores and occupation as a Boy Scout, further stating, “[T]his young man comes from a good family who put him into an excellent school where he was doing extremely well…He is clearly a candidate for not just college but probably for a good college.”
Judge Troiano has since resigned from his position amidst widespread public outcry, but the story of his incontestable judicial biases is one that has begun to feel like a broken record. The New Jersey Supreme Court, alongside its rebuke of Troiano, ordered removal proceedings for Ocean County Judge John F. Russo Jr., who demanded that a victim “close [her] legs” as an indication of aversion in response to rape.
Examination of these cases reveals the implicit yet irrevocable damage these judges inflict upon our democratic institutions. The question is no longer one of guilt or innocence according to just practice, but rather a concerted effort to exonerate young men who could have--and should have--known better.
In its statement rebuking Judge Troiano’s conduct, the New Jersey Court of Appeals wrote that the judge “substituted his judgment for that of the prosecutor.” In taking into his own hands the question “Is he someone I want to see in jail?” rather than “Is he guilty?” Judge Troiano subverted the fundamental purpose of the court. Perhaps he saw himself in G.M.C. Perhaps he saw someone else in the victim. Regardless, the net outcome was that execution of justice was tainted by one man’s decision and a host of socially-internalized biases held against the victim.
Let us bear in mind, too, the potential ramifications of what may become of those judges who continue to hold office. The 2018 appointment and confirmation of Supreme Court Justice Brett Kavanaugh, despite multiple allegations of sexual misconduct brought against him, remains now more pertinent than ever. While it may seem that all decisions may have been made regarding Kavanaugh’s appointment and prior, potentially-criminal acts, questions surrounding his ability to serve in a fair and impartial manner are far from moot.
Despite Democratic senators’ best efforts, Kavanaugh’s appointment was confirmed 50-48 in October of 2018. Maryland’s prior one-year statute of limitations in charges of attempted rape settled—or, more accurately, failed to open—the question of Kavanaugh ever serving a day of jail time.
However, the deeper and more pressing implications that remain regard Kavanaugh’s ability to serve not as a defendant, but as a judge. Before his appointment to the Supreme Court, Justice Kavanaugh served more than 12 years on the United States Court of Appeals, regarded by many as the nation’s ‘second highest court’ for the D.C. Circuit. In his prior judicial career, Kavanaugh presided over more than 2,000 cases and wrote beyond 300 opinions. He has only just completed his first term as Justice and will continue to play a decisive role in the innumerable cases heard before the Supreme Court for the remainder of his life. Regardless of whether or not Kavanaugh will ever be brought to justice for his prior actions, the fact remains that his philosophy towards sexual assault cases must have, and always will, veer towards the side of the alleged transgressor.
The fact that judges at every level of our judiciary continue to espouse the aforementioned ideology is not only problematic, but deeply frightening. And it ought to be so for everyone - not only for victims, not only for women, but for all participants in this democracy who hold onto the expectation that when they are called to stand before a judge in a court of law, they can and will be heard fairly. Rulings are no longer a matter of what is right and just, but rather, for whom future Ivy-League aspirations may be jeopardized.
Can these ever-expanding fractures in our justice system be undone? Let Chanel Miller’s brave decision to identify herself as the victim in the Turner case serve as a call to action. To forget is to fail; that is a reality that Christine Blasey Ford, the victim of G.M.C., and so many more to come certainly cannot endure.