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Dec
26
2017

Brock Turner is Appealing his Sexual Assault Conviction

Good morning, Atlantic Coast Conference (ACC) sports fans.  Hope you are enjoying the holidays season with your family and friends wherever you are.  Thank you to those in the military who are serving in foreign locations – we thank you for your service!!

As you know, we have written on many occasions about the problem of sexual violence on campus, particularly at Baylor UniversityBaylor University had substantial problemsBaylor probably will be spending a lot of future time in the court systemI thought Liberty hiring Ian McCaw, former Baylor Athletic Director, was absolutely wrongI thought Virginia Tech should have waited to schedule Liberty until after Baylor sorted out whether it’s new athletic director, Ian McCaw, was cleared in any Baylor investigation.

We have also discussed issues of Title IX enforcement pertaining to sexual violence on campus on our ACC podcast.   I have also been a guest on Fight On Twist’s podcast to discuss what needed to be done about Baylor’s lack of inaction on Title IX enforcement pertaining to sexual violence on campusI’ve also given some suggestions on what can be done to improve the media coverage regarding sexual violence on our campuses. Finally, I blogged about how campuses can improve their responses to sexual violence – how to be more proactive with enforcement.

We’ve have also blogged about Brock Turner.  Here’s what we said.  I’m going to repost this in is entirety:

By now, you all know about Brock Turner.  If you don’t, here you go:  In March 2016, Brock Turner, a Stanford swimmer, was found guilty of sexually assaulting an unconscious woman.  A jury found Turner guilty guilty of three felonies including assault with intent to rape an intoxicated woman and sexually penetrating an unconscious person with a foreign object..  This woman was so drunk that she was blacked out lying on the ground behind a dumpster on the Stanford campus.  Let’s repeat that again – this woman was so drunk, that she was blacked out lying on the ground behind a dumpster on the Stanford campus.  And Brock Turner sexually assaulted her.

We fast forward to June 2, 2016, Turner’s sentence hearing, and Judge Aaron Persky handed down a sentence of six months in jail.  It blows my my mind that the sentence was so incredibly weak (prosecutors in the case recommended a sentence of 6 years and the sentence could have been as much as 14 years).  There is now an active campaign to recall Judge Persky.  And it now appears that Turner will only serve three months in a county jail.  This is unfathomable to me.  The normal sentence for this crime is generally eleven years – and Turner is going to be out in three months. Turner must register as a sex offender, but when you do something as awful as he did, yes, you need to be held accountable.  Yes, you should have never have an opportunity to represent the USA in international swimming competitions – and yes, you can’t ever be permitted to step foot on Stanford’s campus again.

It is also unconscionable to me that Turner’s father would refer to this as “20 minutes of action.”  But that’s what he did here.  Yes, Turner’s father called it 20 minutes of action.  Apparently Turner’s father is really concerned because his son can no longer eat his favorite meal, which is steak.  Turner’s mother is having difficulty decorating the new house because she can’t put up photos of the happy family.  Unbelievable.  Turner, himself, of course is taking limited accountability for his actions that night.  He is blaming it on the party culture at Stanford University.

This Turner family really does live in a different area code of reality than a lot of us (probably most of us).

The victim, on the other hand, had this to say:  And I urge you to read the entire letter at BuzzFeed (there has been irreparable damage done to her life).  I can’t do it justice by quoting it – again, I urge you to read her entire letter (it is a very significant message).  The victim’s sister is right that this harm can never be undone.

The Vice-President of the United States, Joseph Biden (who has long been an advocate of better handling of domestic abuse and sexual violence), had this to say in support of the victim at BuzzFeed News.  Again, I urge you to read his entire letter.

John Pavlovitz has some terrific insight when it comes to advice for Turner’s father here.  It’s such a powerful blog post – I can’t quote it – I urge you to read the entire column.

Carl-Fredrik Arndt and Peter Jonsson saved the victim’s life. We need more bystanders like Arndt and Jonsson (these guys are heroes) – people that will say, “No more!” and will step in and protect victims.

And that will lead to my next post (stay tuned for it) – what preventative measures can campuses take to be more proactive in combatting sexual violence.    As the Vice-President says, #ITSONUS to stop sexual violence on campus.

We know now that Brock Turner served even less than six months – he was in jail for three months.  Three.

Now Brock Turner wants to overturn his conviction.

According to the San Jose Mercury News:

A former Stanford swimmer whose light sentence for sexually assaulting an unconscious woman outside an on-campus fraternity party drew widespread criticism is appealing his conviction on grounds that include prosecutorial misconduct.

In a 172-page brief filed Friday in the Sixth District Court of Appeal, Brock Turner also takes aim at embattled Santa Clara County Superior Court Judge Aaron Persky for not instructing jurors to consider lesser criminal charges in their deliberations and excluding testimony from character witnesses that might have otherwise convinced them Turner was telling the truth when he claimed the sexual contact was consensual.

…..

“Brock Turner received a fair trial and was justly convicted,” Santa Clara County District Attorney Jeff Rosen said late Friday. “His conviction will be upheld. Nothing can ever roll back Emily Doe’s legacy of raising the world’s awareness about sexual assault.”

…..

Turner’s request for a new trial hangs in part on a claim that Deputy District Attorney Alaleh Kianerci tainted the jury by incorrectly — and repeatedly — stating the sexual assault occurred behind a dumpster. Doe was found in an open space between a three-sided trash enclosure and a basketball court. The brief states the graduate students approached the site from the basketball court, meaning Doe and Turner were not obscured.

“The prejudicial aspects of this ‘behind-the-dumpster’ characterization were twofold: (1) it implied an intent on the appellant’s part to shield and sequester his activities with Ms. Doe from the view of others; and (2) it implied moral depravity, callousness, and culpability on the appellant’s part because of the inherent connotations of filth, garbage, detritus and criminal activity frequently generally associated with dumpsters,” the brief states. “The cumulative effect of this misleading course of conduct deprived appellant of a fair trial.”

In addition, the brief argues that Turner was deprived of due process and a fair trial by the prosecution’s “failure to present constitutionally sufficient evidence as to any of the three counts of conviction” and by Persky’s “failure to adequately respond to a critical jury question during deliberations.” That question related to whether digital penetration had occurred.

There are several problems with this argument, though, as reported by KQED News:

Michele Dauber, the Stanford law professor who is leading a campaign to recall Persky over Turner’s sentence, told the New York Times, “The jury heard the evidence and decisively rejected Turner’s efforts to blame the victim. The problem with this case is not that Judge Persky was unfair to Brock Turner, it’s that Judge Persky was unfair to the victim.”

“Regardless of whether it happened behind the dumpster or adjacent to the dumpster or the dumpster didn’t exist, he committed sexual assault,” Jess Davidson, managing director of the group End Rape on Campus, told the San Francisco Chronicle. “Turner clearly still does not get it.”

According to the Dayton Daily News, it sounds like Brock Turner plans a heavy reliance on not receiving a fair trial, due process, and his right to present a defense.  Apparently, some character witnesses are a big part of his appeal.  The appeal will be held sometime in 2018.

The strategy of an appeal isn’t without risk, because Brock Turner risks a second conviction as reported by the Washington Post:

Turner risks a second conviction by asking for another trial, which, if granted by California’s Sixth District Court of Appeal, would be presided over by another judge.

I can’t imagine many juries are going to overturn this conviction because the criminal justice system generally regards sexually-based offenses as especially heinous.  Here is the powerful letter from Turner’s victimAnd here is Vice-President Biden’s powerful letter to the victim.

Remember, it’s on us to stop sexual assault.

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