As the case against Brock Turner, the Stanford swimmer who sexually assaulted a woman when she was unconscious, unfolded in court, his attorneys presented him as a young man whose inexperience with alcohol and desire to fit in with his teammates led to a drunken night of consensual sex.
Following Turner’s conviction and six-month sentence, the victim released her 12-page courtroom statement to Buzzfeed and it went viral. The sympathy she received kept the story in the news.
Details that have emerged in the aftermath of the trial – about the crime, Turner’s robust partying past and predatory sexual behavior, as well as his parents’ statements pleading for leniency in sentencing – reveal, I would argue, the extent to which the judge’s decision to go easy on Brock Turner was grounded not in the facts of the case, but in a protective orientation toward young, privileged, white men.
My research into how women’s testimony about sexual assault is discredited demonstrates that facts are only one element in rape prosecutions. Facts are often not enough to offset cultural stereotypes about rape in court.
Biases that work against women
In my forthcoming book, “Tainted Witness: Why We Doubt What Women Say About Their Lives,” I examine how women who bring forward accounts of sexual assault and harassment find their credibility attacked.
Phrases like “he said/she said” or “no one knows what really happened” are used commonly to describe rape as a matter of interpretation. Such phrases actively harm women’s credibility in general and erode our capacity to engage with the truth of specific cases. They allow savvy defense teams to substitute bias against women for the facts of actual cases and to turn sympathy towards perpetrators.
Because these stereotypes have entered the law and permeate everyday life, doubt has become a legal weapon that can be used against any woman who testifies about rape. And in criminal cases, like rape, reasonable doubt is the standard the evidence must meet.
Yet even when the facts in a case confirm guilt, as they did in the case against Brock Turner, who was caught in the act of sexually assaulting an unconscious woman behind a dumpster, defense teams can rely on bias: that women send “mixed signals” about sex, that women say no and mean yes, that women regret sex and cry rape.
Why, then, are the stereotypes that women “cry rape” so durable? When the crime is rape, why are women doubted?
The Brock Turner trial offers an opportunity to examine a familiar and successful set of strategies his legal team employed in the rape defense. These strategies shift responsibility from perpetrators to victims.
While there are numerous strategies, here are the three that predominate:
Blame the victim: This includes attacking her entire history and turning everything in her life into a sordid example of her loose morals. The focus especially is on what she wore and what she drank, as if the natural consequence of getting drunk is not an awful hangover but a sexual attack. This shifts responsibility from her attacker to her.
Elicit sympathy for the accused: Emphasize his many accomplishments and bright future (including his career as a promising athlete). Attach the word “ruin” to the risk to the perpetrator’s future and reputation and not to the victim’s. Ensure his visual image makes him appear as clean-cut and respectable as possible.
For example, on the night Turner was arrested, he gave a statement that said he did not know the victim. Later, new elements were added to Turner’s testimony to create the illusion of consent, including alleging the victim, who did not regain consciousness until after being in the hospital for three hours, consented because she “rubbed my back.”
Turner’s light sentence distills the legal notion that women are not to be trusted and men’s – especially white men’s – reputations are not to be marred by what Dan Turner, the rapist’s father, called “20 minutes of action.”
To be sure, these legal strategies are used because they work. The law allows them. We are susceptible to them because no one wants to see an innocent person wrongfully accused. However, the commonality among numerous cases allows us to understand the rape defense for what it is: a cynical and legally effective use of cultural stereotypes about rape and women’s unreliability to deflect blame from rapists and lighten their sentences.
Although women are often doubted, lose in court or see perpetrators given light sentences, and endure having their lives distorted and sensationalized, their testimony can have a second act.
Anita Hill was smeared after testifying during Clarence Thomas' Senate confirmation hearing that he sexually harassed her as “a little bit nutty and a little bit slutty.” Yet journalists Jill Abrahamson and Jane Mayer’s investigative study found no evidence of what Clarence Thomas’s supporters accused her of. Instead, Thomas’s own behavior, including his penchant for pornography and hitting on women who worked for him, was confirmed.
Similarly, the former head of the International Monetary Fund, Dominique Strauss-Kahn, was not charged in criminal court for sexually assaulting Nafissatou Diallo. She pressed her claim against him in civil court, where the standard of proof is a preponderance of the evidence, and received a settlement for undisclosed damages.
What can be done to expose the rape defense for the cynical misogyny it traffics in?
No one has done this better than the young woman Brock Turner assaulted. In her moving courtroom statement, she detailed the trauma she experienced and its impact on her and her family. She also exposed and countered every strategy that had been used against her in a singular feminist voice.
She sounded both like herself, and, powerfully, through her decision to remain – thus far – anonymous, she sounded like every woman.
She explicitly turned the “he said/she said” format against Brock Turner, countering six disclaimers from his statements. Here is the first one:
You said, ‘Being drunk I just couldn’t make the best decisions and neither could she.’
She followed with her rebuttal:
Alcohol is not an excuse. Is it a factor? Yes. But alcohol was not the one who stripped me, fingered me, had my head dragging against the ground, with me almost fully naked. Having too much to drink was an amateur mistake that I admit to, but it is not criminal. Everyone in this room has had a night where they have regretted drinking too much, or knows someone close to them who has had a night where they have regretted drinking too much. Regretting drinking is not the same as regretting sexual assault. We were both drunk, the difference is I did not take off your pants and underwear, touch you inappropriately, and run away. That’s the difference.
Once the victim’s statement left Judge Persky’s courtroom, it entered the court of public opinion. Vice President Joe Biden published an open letter to the victim, her statement was read in its entirety in the congressional record, a petition to recall Judge Persky is circulating, at least 10 potential jurors in his courtroom have refused to serve and evidence of Brock Turner’s alcohol and drug use continues to surface. On June 14, Santa Clara District Attorney Jeff Rosen filed a peremptory challenge against Judge Persky to remove him from deciding whether a former Kaiser Permanente surgical nurse should be tried for the alleged sexual assault of a sedated patient.
The ideology of gender bias operates under the deceptive cover of common sense in everyday life and as reasonable doubt in criminal court. In this way, the rules of evidence are biased against women. However, one of the most important outcomes of the current public attention is that we see how a new voice can disrupt the recycling of the the same old story.
In this case, the testimony of the woman survivor has galvanized student activists at Stanford, catalyzed protest against Judge Persky and promises to continue to expose systemic bias against women.