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Brock Turner's sentence was par for course, legal experts say

Prosecutor: Sentences for sex offenses tend to "minimize" what happened to victim

CNN  — 

Too lenient is how critics condemned the six-month jail sentence for Brock Turner, the former Stanford University swimmer convicted of three felonies for sexually assaulting an unconscious woman.

The fact that he left jail after serving three months only deepened perceptions of injustice in a case that has generated controversy and action on numerous fronts: a campaign to recall the judge, who will no longer hear criminal cases; approved legislation in California to make prison time mandatory in some sexual assaults; and a ban on hard alcohol on Stanford’s campus.

To those who study and work in the criminal justice system, Turner’s sentence came as little surprise.

Little to no time in jail or prison is common among college athletes convicted of first-time sexual offenses – if they are charged at all, according to judges, prosecutors, academics and criminologists who spoke with CNN. Turner’s sentence may have been unpopular, but it was within the bounds of the law.

As with Turner, their age, clean record and community support – athletic privilege by another name – tend to weigh heavily in their favor. The athlete was 19 at the time of the assault.

Studies have attempted to prove this with little empirical satisfaction. One frequently cited study, published in Sociology of Sport Journal in 1997, found that even though athletes are more likely to be arrested for sexual assault than the general population, they are less likely to be convicted. Based on the analysis of 217 criminal complaints, the study found that 54% of arrests in the general population for sexual assault result in conviction, compared to 31% of athletes arrested for sexual assault.

Since then, there has been no meaningful, long-term research on the topic. But former Philadelphia prosecutor Jennifer Long said she has no reason to believe much has changed, especially in cases of one person’s word against another.

“As stunning as the Stanford outcome was, it was not uncommon. Far too often we look at perpetrators in a less blameworthy way and minimize what happened to the victim,” said Long, chief executive officer of AEquitas: The Prosecutors’ Resource on Violence Against Women.

“More often than not in these cases, you see punishments that are way lower than the conduct seems to require.”

A ‘negotiated’ outcome

Outcomes are hard to quantify because there’s no national database of college athletes accused, charged or convicted of sexual offenses.

Through news reports and public records, CNN found 52 cases of NCAA Division I athletes investigated by police for allegations of sexual violence over the past 20 years; 13 of them resulted in prison or jail time.

Each case was different, tried under different state laws by different prosecutors and defense lawyers and presided over by different judges, offering a window into the divergent paths seemingly similar accusations can take.

Of those 52 cases, 33 led to criminal charges, resulting in 13 cases of prison or jail time, ranging from 20 years to three months. Eleven cases ended with no time, either through probation or suspended or deferred sentences; 9 ended in acquittals or charges being dropped.

In most of the cases, those involved were acquaintances, friends, former lovers or occasional flings. Usually, it involved a party or social gathering that included alcohol, after which people retreated to a dorm or apartment. Sometimes, encounters turned into he said/she said cases, with a woman claiming she was forced to the ground, a bed or against a wall, and raped as she shouted no, while the man said it was consensual.

Often, one allegation would lead to another. University of Missouri running back Derrick Washington served 120 days in a program for first-time offenders on a charge of deviate sexual assault of a former tutor. After he finished the program in 2012 and transferred to Tuskegee University – where he continued his football career – ESPN revealed in 2014 that another Missouri student had accused him of rape in 2008, but police decided to not press charges, citing inconsistencies in her story. Washington said the encounter was consensual, according to a police report.

Former University of California Berkeley football player Noah Smith was convicted in 2009 of raping one student and trying to rape another. The first woman, a fellow student, said Smith invited her to his apartment for a tutoring session. When she arrived he pushed her onto his bed, straddled her chest and forced her to perform oral sex before raping her, according to court documents. Another student who knew Smith said he tried to rape her but she managed to escape Smith by biting his shoulder while he was on top of her.

After his arrest two more women came forward with similar allegations. The women did not report the incidents to police but the judge in Smith’s case allowed them to testify for the prosecution. They said Smith invited them to his room, restrained them and raped them, according to court documents.

The Alameda County District Attorney’s Office asked for a 17-year sentence. Superior Court Judge Thomas Reardon sentenced him to four years in prison, citing his lack of criminal record and positive character references from family, according to the East Bay Times.

Kansas defense lawyer Christopher Joseph has represented numerous University of Kansas athletes. One of them, another first-time offender, Mark Thomas, was arrested on allegations that he fondled a drunk woman while she was passed out in a car. He pleaded no contest to two counts of misdemeanor battery and received six months of probation, according to court records.

“These are very tricky, very fact-specific cases,” Joseph said. “Most (of the time) there is no right answer, no clear-cut answer. It’s a negotiated outcome.”

One person’s word against another

More often than not, a case hinged on consent, leading in different directions: the decision not to file charges, a plea deal on reduced charges, trials that ended in acquittals. Occasionally, the school intervened to facilitate a plea deal or defend their star player in public. Sometimes, they didn’t report the incident to police at all.

In one case, former Florida State University wide receiver Greg Dent, a first-time offender, was sentenced to time served and six months’ probation in 2014 for misdemeanor battery. He was acquitted of the top charge, felony sexual battery, for attempting sex with a friend who said he forced himself on her.

Friends since high school, the two went out to a nightclub with friends one night in June 2013, according to a police report. After they returned to Dent’s home and fell asleep in the same bed, the woman told police, she woke up to find Dent trying to force himself on her. She managed to escape, she said. In a videotaped interview with police, Dent acknowledged attempting sex, but said he thought she was interested, based on their flirtatious relationship.

Dent’s lawyer, Nathan Prince, told CNN he asked the jury to convict his client of the misdemeanor charge to hedge against the chance of a conviction that could lead to prison time and sex offender designation. During the trial, Prince introduced evidence showing that the woman maintained contact with Dent after the encounter, baking him cupcakes and sending him text messages, in an attempt to undermine her claim that she was scared of him.

The woman acknowledged the interactions in her testimony, but said it did not change what he did that night.

“I’m not thinking, ‘Oh my God, this is my rapist,’ I’m thinking this is someone I’ve known for years and years and years, and [he] messed up,” she said, according to CNN affiliate WCTV.

Not all cases lead to light sentences.

Tevin Elliott – one of several Baylor athletes to face allegations of sexual violence in recent years – used consent as a defense when a nursing student accused him of raping her twice at an off campus party in 2012. The woman said Elliott threw her over his shoulder and carried her outside, according to court documents.

He pushed her up against an embankment, ripped off her pants and began to rape her, according to a lawsuit. As she attempted to find her way back to the house Elliott grabbed her and raped her again, according to a federal lawsuit she filed against the school for failing to protect students from Elliott. The lawsuit alleges that a school counselor told the woman and her mother that other students had reported that Elliott assaulted them.

Two women testified against him at his trial, including one who said he raped her two weeks before his trial. The other woman recounted an allegation from 2009, though she did not report it to police, according to the Waco Tribune.

A 54th State District Court jury convicted him and sentenced him to the maximum 20 years in prison, rejecting his plea for probation so he could raise his sons.

“I apologize, but I am not the bad person they think I am,” he told the jury, according to the Waco Tribune. “I am a great person and I’m just going to grow and stay focused on my kids and work and teach my kids to learn from my mistakes and help them grow up to be better men.”

‘Problematic’ cases, credible witnesses

When evaluating a case, prosecutors typically consider three elements, regardless of the defendant: likelihood of conviction, corroboration of the victim’s claim, and the victim’s credibility, ascertained in a pre-file interview, said Cassia Spohn, director of the School of Criminology and Criminal Justice at Arizona State University.

Reforms in rape laws nationwide in the late-20th century attempted to reduce the onus on survivors to prove the incident by eliminating the corroboration requirement, along with demonstrable proof that the survivor resisted.

Those elements may no longer exist in statute, but many prosecutors still look for them, Spohn said. Without eyewitnesses or documentary evidence, such as videos or photos, prosecutors may be reluctant to try a case, she said.

That’s what made Turner’s case unique – and ultimately winnable, she said: the two passersby who interrupted the assault, providing crucial testimony against him.

“In some ways, the most remarkable aspect of the Brock Turner case was that he was actually arrested and prosecuted,” Spohn said.

“If you look at cases like his, many of them either don’t result in an arrest, or if the police make an arrest and present it to the district attorney, the district attorney refuses to file charges because of the problematic nature of the case.”

Finding corroborating evidence is also in the interest of the defendant, Joseph said.

“Sometimes, it’s problematic for our case, sometimes it helps, but it’s all information that we can use to make an informed decision about where to go with a case.”

Do we need long sentences?

The seriousness of the offense, and the offender’s prior criminal record tend to weigh most heavily on a sentence. Beyond those factors, depending on the state, judges have considerable discretion, applying their own biases to additional pieces of information, including trial testimony, police reports, a probation department’s recommendation, letters from supporters of the victim and the defendant.

“Sentencing is the most difficult job a judge has because even though we’re given guidelines for how to go about it, it’s still very, very subjective,” said retired Santa Clara County Judge LaDoris Cordell, who served on the same circuit in California that heard Turner’s case.

“We are told that every person that comes before us is to be treated as an individual, so there’s tremendous emphasis on the person in front of you.”

The maximum sentence Turner faced for the January 2015 assault was 10 years. Prosecutors asked for six. The head of the campaign to recall Judge Aaron Persky over the sentence believes two would be have been appropriate. The judge followed a probation officer’s recommendation.

Had Turner apologized to her directly for violating her, the victim said she could have accepted a sentence of probation. But in the absence of remorse, he did not deserve probation, she said.

“As this is a first offense, I can see where leniency would beckon,” the woman said at his sentencing, taking a page from the California Penal Code.

On the other hand, “We cannot forgive everyone’s first sexual assault or digital rape. It doesn’t make sense,” she said. “The seriousness of rape has to be communicated clearly. We should not create a culture that suggests we learn that rape is wrong through trial and error.”

Persky, however, felt Turner had showed “genuine” remorse through an apology in open court, a factor that weighed in his favor, among others.

From the bench at Turner’s sentencing, Persky went through the aggravating and mitigating factors judges consider in granting probation instead of incarceration on felony offenses.

In Turner’s favor was his lack of criminal record, his willingness to comply with probation and Persky’s belief that he would not be a danger to others.

The letters from family and friends helped, too, Persky said, serving as character references. They knew him as humble, hard-working, gracious, thoughtful, charming, an AP student, a talented swimmer who loved to cook. “Brock’s guac” was famous among classmates.

Both Persky and the survivor said alcohol was a factor, not an excuse. While she mocked Turner for blaming the incident on alcohol and the “campus drinking culture,” Persky agreed with the probation officer who said alcohol mitigated Turner’s culpability.

And, there was the potentially “severe impact” that state prison could have on someone his age, and the “adverse collateral consequences on the defendant’s life resulting from the felony conviction,” according to a transcript of the hearing.

It may sound laughable, but it’s a question judges face all the time: Will justice be served with a long sentence in state prison, a far harsher environment than county jail?

The purpose of treatment

What some would call a light sentence others may see as a second chance to avoid branding a young person a criminal, with the attendant restrictions on freedom and access to jobs, education, housing and the internet, for the rest of his or her life.

Within that calculus, justice for survivors is not the only goal judges must satisfy. Judges must consider what’s best for society, taxpayers and the offender’s long-term prospects, if the offender is to return to society one day as a law-abiding citizen, said Michael Vitiello, distinguished professor of law at University of the Pacific in Sacramento, California.