NPR Feature: Outrage Grows Over Jail Sentence for Stanford Sexual Assault

By July 6, 2016 December 14th, 2017 standford rape case, Uncategorized

shanlon wu stanford rape case brock turner NPR

Outrage over a six-month jail sentence for a Stanford student convicted of the sexual assault of an unconscious woman is intensifying. A leaked statement from the perpetrator’s father saying his son was being unfairly punished for “20 minutes of action” went viral, as did a wrenching letter by the victim to the court. Thousands have signed petitions demanding a lengthier sentence and for the judge who oversaw the case to be removed from the bench.

NPR forum, including Shanlon Wu, discusses the Stanford case and the problem of campus sexual assault.

Article Link: http://ww2.kqed.org/forum/2016/06/06/2010101855045/

Listen to the show here

TRANSCRIPT: Outrage Grows Over Jail Sentence for Stanford Sexual Assault

Krasny: from KQUED public radio in San Francisco. Coming up on forum this morning on our opening hour outrage over a 6-month jail sentence for a Stanford student convicted for the sexual assault of an unconscious woman is intensifying.

A lead statement from the perpetrators father saying his son was being unfairly punished for 20 minutes of action went viral as did a wrenching letter from the victim to the court.  

Thousands of signed petitions demanding a lengthier sentence and for the judge who oversaw the case to be removed from the bench. Forum discusses the case and the problem of sexual assault after this.  From KQUED public radio in san Francisco I’m Michael krasny and good morning. Last weekend a Santa Clara superior court judge gave a 6-month sentence to a Stanford swimmer who sexually assaulted an unconscious woman. Sparking international outrage and a recall campaign as of which this morning has collected over 250,000 signatures. Brock Allen Turner, 20, was convicted of sexual assault of a woman who had been intoxicated and was unconscious. In handing down the sentence Judge Persky said he weighed Turner’s character, lack of a criminal record, and a letter from the victim and his father defending his son both went viral and have created even greater and more intense emotion about this case which along with the sexual assaults on university and college campuses is our topic for discussion for this mornings opening forum. Let me tell you who is joining us. We have here in the studio with us Sam Levin who is a reporter for the Guardian US and former staff writer for the East Bay Press.

Levin: thank you for having me.

Krasny: good to have you also glad to have Stephanie Phan who is a student and leader of the Stanford association of students for sexual assault prevention. Welcome to the program.

Pham: Thank you so much for having me.

Krasny: Good to have you and also good to have Michele Landis Dauber back with us who is a professor of law and sociologist of Stanford who helped to lead the process that revised Stanford’s policy on sexual assault and harassment. Welcome back.

Dauber: Thank you for having me.

Krasny: Good to have you and also good to have Shan Wu with us who joins us from the nation’s capital. An attorney with Wu, Grohovsky, and Whipple also a federal former prosecutor whose practice focuses on student defense including sexual assault cases. Shan welcome to the program

Wu: Thank you. Glad to be here.

Krasny: Glad to have all of you aboard and Sam Levin I want to begin on a serious note with you since you were in the court room I want to get your response and begin with the victim because she actually read a letter that as I said has gone viral and I want people to hear a little bit of that letter and then get your response to what was really the response in the court room to it. She read first about reading about herself and scrolling down and reading an account a narrative about what happened and she said she could not imagine her family reading this online. I kept reading in the next paragraph I read something that I will never forgive. I read that according to him i liked it. I liked it. Again, I do not have words for these feelings. And then she goes along and says she thought there is no way this is going to trial. There were witnesses, there was dirt in my body. He ran. He was caught. He is going to settle and formally apologize and we would both move on. Instead, I was told he hired a powerful attorney, expert witnesses, private investigators who were going to try and find details about my personal life to use against me. That he was going to go to any length to convince the world he had simply been confused. I was not only told I was assaulted I was told that because I could not remember, I technically could not prove that it was unwanted. And that distorted me, damaged me, almost broke me. Now When she read this in the court room and she began by saying I want to remain anonymous I want me to be an everywoman. What was the responses? What was the feeling there.

Levin: it was a really emotional speech delivered really passionately ad obviously very compelling and eloquent and what made it so powerful for the people in the room was that she directed it to Mr. Turner the defendant and gave that speech right to him. I mean it was incredibly emotional and I think part of the reason you are seeing it speak to so many people and go viral is that it is a very detailed account of experiencing the assault but also the traumatizing aftermath of that and going through this very long process you know more than a year and a half this trial that really affected her and her family deeply and I think she articulated that in a way that obviously really spoke to a lot of people in the room and also across the country.

Krasny: and in spite of that, onlookers and you yourself described the judge as being unusually sympathetic to him. Levin: Yes you know if you pick apart some of the language of his sentencing decision, you can see lots of statements that do seem to express a range of sort of sympathy or understanding of the impact this has had on the defendant which a lot of advocates were sort of surprised to see given that this is a criminal prosecution and he was convicted of three felonies and so I think there was a lot of kind of shock at some of the justifications he used for giving a lighter sentence which was 6 months in county jail on probation when you know the statutory minimum recommended in this kind of case was 2 years in state prison so he had to kind of find that this was an unusual case that deserved that lighter and more lenient sentence.

Krasny: The probation department actually recommended 4-6 months. The DA recommended 6 years

Levin: Correct and I mean the maximum for the felonies he was convicted of would have been 14 years in prison and so the judges obviously have discretion and latitude but in this case some people who are critical of the decision see it as him bending over backwards to give him practically the lightest sentence possible.

Krasny: You know his father used very temperate language and said he is being punished for 20 minutes of action, did he actually testify on his son’s behalf and what was the reaction to that?

Levin: He did and it was pretty much word for word of the version that has since gone viral online. It was obviously an emotional speech but I think that from the perspective of the victim and her supporters it was a speech that failed to recognize the seriousness of the assault. I mean there has been sort of a lack of acknowledgment of Mr. turner, his attorney, and his family that an assault was committed and even now they are still sort of arguing that it was in some how it was somehow a consensual encounter despite the fact that there is an abundance of evidence that the woman was unconscious at the time that this happened. And so you know the father talked a lot about the impact of this on his family which is of course severe and on his son and who his son is and how this has affected him but sort of failed to speak about the impact this has had on the victim and the seriousness of the actual offense.

Krasny: We have Sam Levin here in the studio with us a reporter for the Guardian US and former staff writer for the East Bay Press and Michele is a professor of law and sociologist of Stanford and she is leading the recall here against Judge Persky and I should also mention she was back with us talking about sexual assault at Berkeley and I believe at the time you said its no different at Stanford and it seems in some ways unfortunately bear that out. Talk about how the recall effort is going. It is getting a lot of momentum.

Dauber: Well yes and in fact if listeners are interested in the recall, they can go to recallaaronpersky.com and they can sign up for updates, learn about the recall, and donate and people all across the state and country are doing that right now. Our concern obviously is that the sentence does not reflect at an appropriate understanding of the risk of sexual assault and the need to deter sexual assault particularly on college campuses. So we believe that it didn’t correctly apply the law and it didn’t correctly apply community sentiment. And we do not think that judge Persky reflects the appropriate balance of decision making and we do plan to recall him. The recall is being spearheaded by a group of political experts and it is coming through the progressive people of Silicon Valley which is an org of political women located out of Palo Alto and we have retained legal counsel that is expert in the referendum and recall process. We have mapped out our strategy and getting signatures and I am completely confident that we will succeed.

Krasny: Well I understand the concern that’s led to this recall and the outrage behind it the minimization of the sentences you see it and also you say that it makes women less safe.

Dauber: Yes, this decision is dangerous and it makes all women at Stanford less safe and here’s why. The state legislature of the state of California has said that certain offenses are presumptively ineligible for probation ad one of the offenses that Mr. turner was convicted of is California penal code 220 which is assault to commit rape and the minimum sentence for that is two years in prison unless the judge makes a finding on the record and it’s the judge that has to make the finding, not the probation department. So while the probation department did make a recommendation, the legislature has delegated this discretion not to the probation department but to the judge. And the judge had to make a finding that this was an unusual case and it would be in the best interest of justice for him to receive probation or this short stay in the county jail that he got. And in order to do that, he concluded that the unusual was that there was alcohol involved and that he was a high achieving young man. So that is essentially every campus rape at Stanford. If you are going to make an exception and say that a case is unusual if there is alcohol, of if the young man is high achieving, then you have essentially said that women who are assaulted on college campuses do not have equal access to the law courts and we just cannot have that situation- that is completely unacceptable and that is a view that does not reflect the law or community sentiment and we believe Judge Persky should be replaced.

Krasny: Judge Persky has said that he cannot speak because he is on appeal. You are a friend of the family of the victim?

Dauber: I am.

Krasny: Does that have any weight with you? Does that influence you?

Dauber: Absolutely but I think I would feel this way regardless.

Kransy: Let me bring Stephanie Pham into this. Stephanie Pham is a student and leader of the Stanford association of students for sexual assault prevention. How did you feel Stephanie about the way Stanford handled this? They said they did everything right but then they said there was a controversy about the mugshot not being released. Let’s hear your feelings on that

Pham: Extremely frustrated I would say. I mean I think the statement they released yesterday was probably one of the coldest statements I have ever read. Yes, they did admit that the case occurred but they still failed to apologize or offer the survivor any form of therapy. And it is incredibly unfortunate that the university’s response to this horrific situation lacks any form of sympathy to the survivor of the case. And that is why we started the petition to ask for the university to step up and show that it wants to prioritize survivors and well being of students and that statement and their current response is not reflecting of that.

Krasny: Well its not reflecting its certainly reflecting a lack of compassion and awareness and all that but they did things by the book according to them. In other words, they acted swiftly, they made an immediate police investigation, got the DA involved in it and all of that legal side of it.

Pham: Right but they didn’t express any apology. It is so simple to just release a statement that says “we are very sorry”

Krasny: “We get that it was terrible” something along the lines of that.

Pham: Exactly, it expresses just a small ounce of sympathy towards the survivor and her family because she did such an amazing and brave thing of releasing that letter and going through this entire process and this rape happened on our campus. It happened on a university sanctioned fraternity party, it happened by a university student. So the fact that they still hadn’t expressed a single ounce of remorse is absolutely ridiculous. And we believe and students have expressed deep concern for this and they want the university to step up and to stand with survivors and with the survivor of this case.

Krasny: You heard professor dauber say that this decreases and has an impact on the safety of students and I am wondering what your response is to a letter by an undergraduate student by the name of Sanders Hayes who was I don’t know if you saw it was the class of ’16. Essentially what he said was, it was an open letter. He said there has been no research on higher sentences increasing reporting of sexual assault.

Pham: Right, I respectfully disagree completely with that letter. Sure he is bringing it to a larger conversation of mass incarceration and that is an entirely different topic here. I just think we need to focus on prioritizing needs of survivors and forwarding what the survivors interests are.

Krasny: again, Stephanie Pham here in the studio with us. A student and leader of Stanford association of students for sexual assault prevention. Shan Wu is an attorney with Wu, Grohovsky, and Whipple and a former federal prosecutor whose practice focuses on student defense including sexual assault cases.  Shan Wu you have pointed out that on campuses because we want to talk broadly as we have before about sexual assaults on campuses and what can be done about them as they continue to unfortunately escalate. There has been about a 100% increase that has been marked over the last year or two. At least that is some research out of Johns Hopkins. Overcorrection you talk about in response to this and overcorrection in recent years because schools have I think you have put it “hastily and acted scores of new sexual misconduct procedures” and I think this makes it more difficult more labyrinthine or what?

Wu: it makes it more difficult for both the survivors as well as the accused because in their hast to react to this situation the lack of training and the lack of professionalism is damaging to both survivors as well as to the accused students. In this case, I will add that as a former sex crimes prosecutor, this judge basically gave the equivalent to a misdemeanor sentence to a defendant convicted of three felonies. So it is an extremely light sentence. I will also agree that it can send a message that campus sexual assaults may appear to be as a lower class of sex crimes and the absolutely shouldn’t be. There is a different standard of proof when it comes to a campus disciplinary hearing of sexual assault but this was a criminal case. It is beyond reasonable doubt. He is convicted of three felonies. It makes no sense when you are going against the statutory minimum to give him a sentence that is more appropriate for a misdemeanor.  

Krasny: This is plain and utterly lucid as far as you are concerned and I am interested to hear your take on it from that perspective but I want to get back to what is happening on campuses with the proliferation of a lot of misconduct and sexual misconduct and sexuall assault and all sorts of things along the continuum. There has been in fact an increase or dramatic increase in the number of young men who have either been trying to use Title 9 or who have been using even civil rights protection to say there is gender bias now and discrimination of men because of the quickness and the desire to move forward on campuses.

Wu: there is unquestionably that perception among many of the accused including many of our clients. I would say that that perception is unfortunately strengthened by the fact that a lot of times the investigation of the campus sexual assault proceedings is just not very professional. There is very little control in terms of what kinds of evidence gets in. Heresy evidence is widely allowed at the college age of course, there Is a lot of evidence that comes from text messaging or other social media that often times really get put into the proceeding with no attempt at verifying whether it is authentic or not. There are still insensitive questions put towards the victims and there are also equally insensitive and irrelevant that go towards the accused. So I really think the colleges are trying and they have a moral as well as a legal duty to do something but one thing that they really need to do is step up the quality of their training to make these proceedings more beneficial to both sides.  

Krasny: well let me go back if I may to Stephanie Pham who is a student representative here and leader in the Stanford association of students for sexual assault prevention.  At Stanford there is a 6 point resolution that the senate has endorsed and I wonder what your response to that is because some are saying this goes really in better directions in terms of establishing rules on sexual offense some say again it doesn’t go far enough, it is not codified again. Your thoughts?   

Pham: I believe that there is still so much work that needs to be done in this issue and we need to still continue to prioritize survivors and what they need so just continuing that and really forwarding their interests  

Krasny: Michelle Dauber do you want to jump in here because we have a record here, according to this resolution, of 40% of students claiming, alleging, or trying to establish the fact that there was some kind of sexual offense that they were involved in and that is extraordinarily high, much too high, it is dramatically high. What should the university be doing that it is not doing?

Dauber: I think that is a great question. I want to agree with the prior guess that we do need to get better. We need to help universities get better at doing these procedures. I think this case illustrates the fallacy that we can just hand this all off to the criminal courts and universities should have no role here because I think that this case really demonstrates that is not a magic bullet.

Krasny: Excuse me but aren’t we back to the culture? Even president Hennessy used the word culture here that needs to be changed.

Dauber: Well yes and I think that Stanford especially has not done a good job and that goes back decades. Stanford has had some highly publicized incidents involving fraternities misbehavior towards women recently and clearly knew that it needed to do a better job with fraternity culture and I think we can usefully contrast for example how Harvard President, Drew Faust, has really stepped up and tried to address the problem of fraternities and the toxic masculinity that can build up around single sex institutions and she has really taken that on and we just have not seen that kind of leadership from our provost  John Etchemendy. He really hasn’t tackled the fraternity problem and to some extent this is the natural result of that. We do need to address problems in the Greek system, there is a lot of research that one of the highest risk factors for whether a student will be assault is whether they go to fraternity parties. And so even once a month elevates the risk factor of being sexually assaulted. At Stanford, the 4- year rate for women undergraduates is over 45%.

Krasny: It is appalling.

Dauber: It is really appalling, yes.  

Krasny: Let me go back to Shan Wu because I want to ask you Shan Wu, a lot of this is alcohol fueled obviously and to a great extent we get questions often in the courtroom of who made the first move and that often tends to be a deciding factor, doesn’t it?

Wu: No the deciding factor is really what objective evidence is there that the victim may have lacked the capacity to consent. So while it is certainly true that in the college campus setting often times both parties have been drinking, unlike this case where it seems like no brainer that the person was unconscious and of course incapable of consent, there are more nuance situations where you need to depend on the observations of other witnesses. Ideally, if there was forensic evidence like a BAC level test, that would be quite dispositive but truly needs some objective validation of what the perceptions are. Typically, you will have the accused saying “no everything was fine. Sure we had a couple glasses of wine but we were both cogent” and on the other hand the survivor maybe saying that they had never felt so drunk or disoriented. They may think they have been drugged. You need some way of looking at those two different views with some objective measurement.

Krasny: And its often exceedingly difficult to put it understated.

Wu: Absolutely. Sex crimes are among the most challenging and most difficult crimes to investigate and prosecute. No doubt about it.  

Krasny: Shaking your head, Michele, why?

Dauber: Well I mean to some extent these things are always credibility determinations and any jury is going to listen to both witnesses or both parties and make a credibility determination in any civil litigation or criminal case and the same would be true in the college context so I don’t understand why people always think credibility is so much harder to assess

Krasny: Well sometimes with no witnesses, it can be very complex and I think this case was one that was not at all complex as we have been outlining it. And you might want to respond tho this case as I said it has gone viral and in fact a lot of students are turning to twitter to report sexual assault because they feel that college campuses aren’t doing enough and that is the broader topic here. We do welcome your involvement to the program and let me tell you how you can participate. Our toll free number 866-733- 6786. Join us at that number or email us [email protected]  This is forum. I am Michael Krasny. A short jail sentence for a Stanford sexual assault case has triggered anger and has called for a judge’s recall and we are discussing it this morning and we do want to hear from you, hear your thoughts and certainly welcome your comments. Our toll free number 866-733- 6786. Join us at that number or email us [email protected] There are other ways of course you could participate in the forum and join in the conversation. going to our website at kqued.org/forum and clicking on this segment or you can tweet us. Our twitter handle is @kquedforum. Shan Wu is with us from Washington. He is an attorney who specializes now in student defense including sexual assault cases and former federal prosecutor and is an attorney with Wu, Grohovsky, and Whipple and with us in the studio is Stephanie Pham, a student and leader of the Stanford Stanford association of students for sexual assault prevention. Michele landis dauber with us as well. Professor of law and sociologist of Stanford who helped to lead the process that revised Stanford’s policy on sexual assault and harassment. And sam Levin with us as well, who is a reporter for the Guardian US and former staff writer for the East Bay Press. I just want to go to sam Levin on when you were observing the proceedings, in the court room, how much was really given to the factor of alcohol and how did that play out?

Levin: The judge in issuing and defending the sentence which you know was more lienent than what the statute recommends in this case, specifically referenced the fact that the defendant was intoxicated and cited that as an advantage to him which I think a lot of folks saw that as potentially problematic. He specifically used a phrase that there is “less moral culpability attached to it because he was intoxicated as compared to a sober defendant” and I think that a lot of folks, given that alcohol is involved in almost 100% of cases of campus sexual assault see that as a minimizing of the seriousness of the offense and it was one of the many factors he cited that was favorable to the defendant.

Krasny: No one said to the judge, “rape is rape?”

Levin: I think that was the exact quote of the prosecutor afterwards and I think that is how a lot of people see this. In his perspective he was arguing that this should be taken into consideration in giving him a lighter sentence and I think that other people who see this as just a way that is essentially perpetuating rape culture on college campuses.

Krasny: Lets find out what our listeners have to say. Let me begin with a column from san ramon. Cynthia, you are on the air with us. Welcome.

Cynthia: Hello, good morning, thanks for taking my call. I wanted to say I am getting emotional starting to talk about it. My daughter was raped when she was a freshman in high school by an upperclassman. She didn’t tell us for a long time but she had a lot of emotional issues. Its been 20 years and she is married with a child and she feels safe now. But she called me last night after she heard about this negation of this kid’s sentence by this judge. She was devastated and crying and said that she was shocked that it felt so raw to her after she felt this verdict. As her parent, I had to listen and be sympathetic and told her she needs to get involved in some way.  I am very heartened to hear there is a recall of this man- I don’t even call him a judge now. He needs to be recalled and more people need to stand up and say this will not stand.

Krasny: What I am particularly struck by in your call, Cynthia, is 20 years later It is still haunting your daughter.

Cynthia: Haunting her in a way that ruined her self esteem for years. It robbed her of her childhood and it robbed her of any decent relationship in her 20’s. she just couldn’t trust people, she didn’t trust herself. There was a horrible amount of shame and self blaming even though she was 14 and this boy was a senior. We did not press charges. We didn’t really hear about it until almost a year later. I heard about it from another parent that said “you know this happened to your daughter.” We were devastated as parents. we tried to get her to come forward but she wouldn’t by then. She was young and I didn’t blame her. I didn’t push her too hard. We did immediately start therapy.

Krasny: I’m just so sorry that you and your family had to endure this and it certainty came out in the statement by the victim in this case. Feelings and sentiments that you have expressed about her own family and the shame and the indignation and anger and hurt and all the rest of it. Ms. Stephanie Pham let me go back to you on this. It highlights perhaps in another way the importance of young women or young men coming forward.

Pham: Definitely, and thank you so much Cynthia for sharing that story. Hearing those stories every day and meeting survivors, hearing how survivors are reacting not only to this case, but the issue of sexual assault at college campuses and at Stanford, it is terrible that universities, still to this day, 20 years later  institutions are not prioritizing the safety and well – being of students and they are not seeing that survivor’s interests need to be forwarded and that is why we do the work that we do and that is why I think people are reacting so strongly to this case right now because this is such an important issue and survivors are constantly being silenced. They don’t think it is safe to come forward with their story, there is so much underreporting, not only on college campuses, but also in the legal system and this case is just further proof of how much work needs to be done today.

Krasny: Let me bring one more caller on here. Robin, thank you for calling us, you are on the air.

Robin: Yes hi, I wanted to add into the mix of discussing this issue, the component of class because clearly this judge was not only sympathizing with the perpetrator maybe, from a male perspective but also from a class perspective and there is no question in my mind that had this perp been African American, latino, and not of such economic means that the outcome would have been very different.

Krasny: I am afraid you bring up a very important point here and I would like to get professor Dauber to opine on this. Judge LaDoris Cordell whom I am sure you know from down in the south bay talked about this mans good upbringing and the fact he goes to Stanford and said if it were a black kid from east Palo Alto, forget it. This is essentially a racist system and very deeply divided class system we are talking about.

Dauber: Yes and it even goes deeper than that because I am certainly not saying this as 100% of the explanation but this judge himself is a Stanford alumni, he was captain of the Stanford lacrosse team, he was a Stanford athlete so this sort of natural inclination to identify with someone who comes from your same class background and perhaps shares some other biographical characteristics are the things that are the building blocks of human empathy that certainly in fact create unconscious biases throughout the system. That is just another reason why I see this decision as so dangerous it is going to diminish reporting, make women less safe and it creates a two- tiered system of justice that if you are good at swimming and have high grades, you can be treated leniently.

Krasny: Let me get a response from you though professor Dauber on a comment from Trisha who says I have been horrified by the Stanford rape case but I would like to know if Judge persky has a history of other light sentences in these cases because a recall for one case seems extremely harsh.

Dauber: Well I am not familiar with his entire background but I can tell you that one interesting story is that while we were sitting in the court room waiting for the sentencing in this case, they were disposing of some other cases and there was a young woman who came to the sentencing of a man who committed domestic violence against her and she was nearly murdered by this man and she had photographs, he beat her extremely severely. It was sort of unbelievable. She held up the pictures and I thought it had been from a morgue. He beat her so severely and he was being given I think a weekend or a couple of weekends in jail by the judge. And the judge, we all sat there waiting while he tried to make sure that the guy was going to make it to work on Monday. And she was a Chinese immigrant and she said “there is no justice for me. What about me? Look at this picture.” She held it up for the judge. “Look what he did to my face. Look at what he did to me.” And I thought when that happened we are in huge trouble.

Krasny: I don’t know what you can do about a judge’s bias. I mean Judge Cordell again and we spoke to you about this. With everyone that sits on the bench at least a vulnerability or a possibility but what do we know about judge Persky, Sam Levin, in terms of his record?

Levin: I mean he has overseen past cases and there has been other sexual assault cases he has been involved in and I am not an expert on them but I know there were questions on past cases. Specifically, I think there was one case in which he had allowed defendants of accused students to show photos of the woman, the victim that were being used against her in a biased way and I think there were concerns in his decisions allowing those photos to be used and whether they were sort of perpetuating this kind of victim blaming unnecessarily. But I think that in general just given his language in sentencing, people are seeing there is sort of this obvious bias that you can’t really ignore. For example, one thing he really relied on was character letters. He took in a lot of and read from one of them. It was from a former friend of Brock Turner and talking about how he was just such a good kid and all this stuff and I think one of his exact quotes was “that just really rings true to me” and I think there is a certain question about well what do these character letters actually have to do with the assault that he committed and does it really make a difference and should it make a difference in how he was sentenced.

Krasny: Let me bring more callers on. We go to you, Pam. Pam thanks for waiting, you are on.

Pam: Yes, hi, just a brief comment. One of the things, and I don’t know the facts of the case and to what degree this may have been involved but one of the things that I am understnaidng is young boys learn about sex through pornography. In the olden days it used to be a playboy magazine and now they are seeing videos that treat women as objects, don’t have any empathy about the relationship, and I think that is something that needs to be addressed in our culture particularly for young children and adolescents.

Krasny: Thank you for bringing that up. I think that is a factor and can’t be dismissed. Here is a comment from a listener and let me go to you Stephanie Pham. Here is a listener who says, “to play devil’s advocate, how does this fit into the restorative justice movement. We are pushing for restorative justice because we want to focus on rehabilitation, not punishment. Isn’t this sentence appropriate for rehabilitation. For the record I am against restorative justice and think Turner should have been harshly punished but if you are for restorative justice you cant pick and choose who to rehabilitate, can you?” And that goes back to the Hayes letter I eluded to and asked you about earlier because he is saying we are against incarceration as punishment, it doesn’t necessarily help. We want restorative justice and so maybe a harsher sentence would appeal to us emotionally but what about in terms of the effects.

Pham: Sure, I have definitely heard those arguments of restorative justice over and over and same with Hayes’s op ed. However, I think when it comes to the issue of sexual assault and the fact that when you read the victims letter that within those 20 minutes of action she was robbed of her body. The effects of sexual assault on the survivor of the case are unimaginable and I think that restorative justice doesn’t allow for that. I think that the survivor went through this case and this long, one to two-year process to get justice and because there has been such a lenient sentencing going back to the fact that now suriors who are already underreporting sexual assault are going to be further discouraged to come forward with their stories and that is the opposite of what we should be doing. We should be encouraging people to speak up and stop silencing them.

Krasny: Let me go back to shan wu before I take more calls because I want to get you on the record about something that you wrote saying that “in practice with the sexual assault cases, nearly every allegation goes forward to a hearing and you call that an avoation of responsibility” why?

Wu: It is an avocation of responsibility because there is again a lack of professional investiagion done up front. The way most of the conduct procedures are set up is there is supposed to be some type of preliminary investigation after which a decision is made whether there is sufficient evidence to go forward. That system only works if it is a good professional investigation. Otherwise, the safe thing to do for the school, justice prosecutors tend to just throw cases into the grand jury or try cases is to give yourself cover, by putting everything forward into a panel and as with any proceeding, once you are in front of a panel, then it is always a little bit of a crapshoot as to how it is going to come out with that. I also would just like to add one thing on restorative justice. I think there is a place for that on campuses even with campus sexual assault, but in order for there to be a restorative justice system and the ques must take responsibility for what has happened and without that, there is no possibility for restorative justice and that is one of the issues because it makes it really impossible to use that model.

Krasny: Sam Levin, this did not take place in this case.

Levin: No, brock turner at the sentencing gave a very short statement that apologized generally for the pain he had caused but then again refused to sort of acknowledge the very basic facts of the assault he committed and this actually came up as a debate in the sentencing because the prosecutors were arguing he is yet to acknowledge that what he did was an assault and instead he is focused on alcohol and he said he is going to do awareness on the problem of alcohol abuse on campus without acknowledging the underlying problem of sexual assault and so the judge didn’t seem to really think this was a problem. He specifically said you know I don’t see this reflecting his lack of remorse just because he has a different version of events and I think that a lot of people in the courtroom who were there to support the victim were pretty appalled to hear that wouldn’t reflect remorse on his part and that he is not acknowledging the assault he has committed.

Caller (Brianca): Good Morning! First of all, thanks to NPR for talking about the issues that matter. My comment was that I was just curious, I was having a conversation with someone and they brought up this point that, given the people are two people are under the influence of alcohol, yet in the beginning the act is consensual, but during the act one of the persons involved falls asleep, I’m just curious as to what’s the legality of that.  Like, how do you deal with that?  

Krasny: Well, we’ll defer to Professor Dauber here.

Dauber:  Well, first of all, you can be way to intoxicated to consent, even if you’re not, quote-unquote, asleep.   But second of all, the testimony in this case is that she was completely unconscious and he was assaulting her completely unconscious body.  So this is just beyond question that this would not be legal.  

Krasny:  I wanted to get you on the record first because you’re familiar with this case.  Shan Wu, though, a general sense from you?

Wu: It’s- consent has to be affirmative, that’s what the definition is.  The practical answer to that question is if someone were to pass out, or to fall asleep, there’s no consent, and a responsible person stops.  That’s obvious.

Krasny: Yeah.  Okay, let me get Nancy.  Let’s see, your next Nancy, good morning, you’re on.

Caller (Nancy): I’m sorry, who is this?  

Krasny: I’m sorry, are you Nancy?  You’re on, yeah.

Caller (Nancy): Yeah, sorry.  Thanks for taking my call.  I was just really saddened  that this whole case is one more issue of people who raise their son saying boys will be boys.  Brock Turner’s dad said that one time too many.  And our current maturity situation may reflect the fact that boys have been raised with a lot of excuses to exert their power and their physical prowess over girls, but it does not have to be that way.  And I’d like to remember, that above all in this case, that the guys who found this woman, and who got help, were guys.

Krasny: Yeah, I’m looking at an email here, just in fact, apropos your comments Nancy and thank you for them, Deborah says, or asks, what about the national fraternal organizations? What are they doing to combat this terrible problem?  Do you know Stephanie?

Pham: I know, that perhaps some fraternity organizations, at least on Stanford’s campus, that are trying to forward the movement and have awareness campaigns.  There have been various concerts to promote awareness of sexual assault.  However, I don’t think that that directly addresses the deeply embedded rape culture that continues to permeate every single college campus, and especially at Stanford University.

Krasny: And I got a tweet from Lola, that says, “Brock Turner’s mug shot has not been shown in the media, only a Stanford headshot. We’re back to the mug shot here, anybody, can you clarify on that Sam?

Levin: I’m not an expert on how this all played out.  But my understanding is the mug shot wasn’t released until yesterday.  But there’s a very important debate that’s happening right now about how the media treats different defendants-

Krasny: And how the college campuses respond to the desires of the media to get mug shots, yeah?

Levin: For sure.  And, I mean, in this case the photo that’s been used of Brock Turner over the last year and a half has been his sorta smiling, actual headshot and not his mug shot.  And it clearly plays into the concerns about a bias in the way these defendants are treated in the media.  He looks like a star athlete, and not like a defendant that he actually is in this case.  

Krasny: We’ll bring some more callers in.  Allison, you’re on, good morning.

Caller (Allison):  Hi, thank you!  My comment is given most of the assaults occur at fraternities.  Would the girls at the school be willing to take this into their own hands and refuse to go to any fraternity events until the fraternities keep themselves to keep this from happening?

Krasny: What do you think about that, Stephanie Pham?

Pham: I, well, respectfully disagree with that point.  I don’t think that women should stop themselves from going to any event just because they think they’re going to get raped.  That’s definitely now a question of should we just accept that boys are going to be boys and that they’re just going to rape women all the time now?  And, so there definitely needs, well, I definitely disagree, completely.

Krasny: Thank you to that caller.  We’ll get some more opinions and thoughts from more of our listeners.  We’ll go to Carter next.  Carter, you’re on.

Caller (Carter): Hi, thank you, good morning.  I’m an attorney, I represented a woman about 10 years ago, who was a victim of, we think she was given Rohypnol at a bar.  In a civil lawsuit, that was successful, what I learned in that case is that beyond what they can learn in the emergency room from blood-alcohol, women can have their fingernails and hair tested by qualified toxicologists, and you can find GHB and Rohypnol in a women’s hair and fingernails and toe nails up to six months or sometimes even a year after the fact.  So, I would encourage any women out there who think that this has happened to them, to seek out toxicology testing because this can be the kind of solid, objective proof that your attorney guest from DC is talking about that often lacks in these cases.  

Krasny: Yeah, that’s good advice, and I thank you for it.  I must confess I never understood this desire to have sex with someone against their will or when they’re intoxicated.  I mean, or give them Rohypnol, also known as roofies, of course, I mean, it just seems beyond understanding.  Wouldn’t you want desire from your partner?  At least a modicum of desire? Instead of just having someone who’s drugged or alcoholically in a state of total inebriation?  Michelle, you’re the next caller, good morning.

Caller (Michelle):  Hi, thank you so much for taking my call.  I’m calling because I was taken aback by the comments about the response to the woman who’s daughter was raped in high school and now that 20 years later was experiencing such strong emotions.  I think the public needs to understand and be clear that rape is a sentence for life.  It is relived.  It can- anything can trigger those experiences of emotions that occurred in the time of rape.  And that’s all I needed to say.  

Krasny: Are you talking from your own experience, Michelle?

Caller (Michelle): I have been raped.  

Krasny: Yeah, I thought so.  And thank you for going on record here, I appreciate your candor.  Leona tweets, “The intersection injustice, misogyny and privilege.  I am trembling with anger, I support the recall.” I’m getting a lot of those kind of responses, aren’t you, Michelle Landis Dauber?

Dauber: Yes we are.  And I think  that again is a testament to the survivors letter, and I would just like to encourage anyone who hasn’t had the chance to read it in full to go to Buzzfeed and read her entire letter.  I think that apropos the last comment and the one earlier from the mother, I’m very sorry about your daughter, women all over America are responding to this and I think that it really helps us to understand that one in five statistic, that that’s real.  You know, when anyone watched Ashley Banfield on CNN read this and break down reading it, it’s very clear that people are having, women are having, a very emotional response to her statement because they can identify.  They understand.  And that’s because there are a lot of women out there who have had this experience personally, and see themselves in those words. And that’s why I think you should read it.  

Krasny: Let me also say again, on behalf of my gender, there are a lot of men who are very outraged at this, too.  And who are quite indignant about it, and who come to the defense of whatever needs to be defended.  In fact, let me get a caller on here, Tara, who is a mother of a boy in a fraternity.  Tara, go ahead. You’re on the air.

Caller (Tara): Yes, and I am deeply offended by generalizing and globalizing myself or none of my friends raised our sons with a ‘boys will be boys’ philosophy. And I would like to note, even one is too many for rape, it is horrible and disgusting, but how many women are being raped.  But how many women are being raped and how many men are being castigated with the same brush? That they’re all guilty somehow just by being men.  And I just feel like we’re in danger of a generalizing and globalizing to our detriment, on this issue.  And alienating a lot of people who would support stricter controls and more awareness around this issue.  

Krasny: Yeah, let me go to you on this, Shan Wu.

Wu: Yeah, I think the important point, and it’s echoing the idea of the overcorrection, is the system simply reacts blindly by doing hasty cases, unprofessional investigations.  It undermines the credibility of the entire outcome, and that’s good for no one.  It makes the survivors and victims distrust the system, when it does or does not work out, and it makes the accused distrust the system, thinking that these are just kangaroo courts.

Krasny:  And what do you suppose can be done to remedy that, or to diminish that?

Wu:  It really has to be on the universities to spend the resources, I mean, frankly, spend the money, on better training, professional type of training.  And one of the callers points about the forensic evidence that may be available in date-rape drugs, most of the universities we have dealt with are woefully unprepared to deal with any type of scientific evidence. And they really need to come up with some way they can have objective forensic evidence in these cases.  

Krasny: Let me thank you Shan Wu, and let me try to get one more caller on here and that’s, Sonia, who joins us from San Francisco.  Sonia, you’re on the air, welcome.

Caller (Sonia): Hi, thanks for taking my call.  My question is for the attorneys on the show, is this: The management of the underlying trial, in this matter, I mean, the judges obviously being criticized for the inappropriate sentence that he imposed. But, were there any steps, anything that went on, an underlying trial for example?  I know in the victim impact statement she mentioned that she felt she had been inappropriately questioned by the defense attorney, but I’m wondering, does that kind, was the trial judges oversight of that part of the process, inappropriate and, you know, did he allow the defense attorney to overstep, vigorously representing Brock Turner, to delve into issues or subjects that were inappropriate for the survivor?

Krasny: Yeah it’s a good question.  Sam Levin, what were you able to observe?

Levin:   I mean I think that that sentencing was obviously the biggest concern for folks, but there were certainly questions about the way that the victim was interrogated.  I think yeah, one of the most powerful parts of her victim impact statement’s that really made the rounds on social media is just this list of questions that she was subjected to.  And the way that, you know, she was interrogated like a suspect herself, and kind of blamed for all sorts of things that have nothing to do with the assault.  And so I think there’s questions about when those kinds of and lines of questioning is allowed in the courtroom, and what value that has.  Ultimately, obviously, the jury decided that there was clear evidence and he was convicted of three different felonies.  But there are still certainly questions about how the trial played out.

Krasny: Final word from you, Michelle Dauber on this.

Dauber:  Yeah, I think there were questions about what kind of or how much of a cumulative nature it really seemed that the judge disagreed with the jury’s verdict, and was trying, to some extend, to undo it.  And I think that’s a travesty, and that’s why I think we need to recall this judge.  

Krasny: Well we’ll leave it there.  And I thank all of you for your participation this morning.  Again, Michelle Landis Dauber is a professor of law and sociologist at Stanford, Stephanie Pham, student and leader of the Stanford students for sexual assault prevention, Sam Levin, reporter for the Guardian, and Shan Wu, attorney with Wu, Grohovsky, and Whipple.

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