Examining public anger and certainty in the Brock Turner case and sentencing

Update Jan 2023: Years after writing this, I realized it was related to the problem of social media amplifying our anger and to the problem of us-versus-them polarization, two topics I’ve been thinking about for a while. Some points made in this piece were referenced in the 2019 book ‘Crowdsourcing The Law: Trying Sexual Assault on Social Media’. Some of the nuance this piece examines was also discussed in Malcolm Gladwell’s Talking to Strangers, amongst other places.

This article is about the public reaction to and perception of the Brock Turner sexual assault case and sentencing. This is not a defense of Brock Turner. The point of this article is to examine the certainty and the anger that many people had about the case and about Turner’s sentencing. Some of the extreme anger people had can be seen to be a result of believing some wrong and distorted information about the case. Some of the extreme anger can be seen to be the result of taking the most pessimistic interpretations of events that contained a good amount of nuance and ambiguity.

A tweet that is a good representation of the immense amount of anger directed at Brock Turner. This Twitter account was responding to fake news: Brock Turner’s father did not say this. (source: Snopes)

Because this piece is about perceptions and opinions, and not the case itself, I believe that these points will hold up well regardless of details that come out about the case later (for instance, when the court transcript is made public).

My research for this case involved reading the police reports and the court documents released so far, and various articles and opinion pieces. I have not read the court transcript, which to my knowledge is not available at this point.

I won’t be talking about every aspect of the case, as there are obviously many. I will talk about some basic elements of the case, just to make the read more coherent for people who aren’t familiar with the case, but this is not any sort of complete analysis of the case.

Misperceptions about the brutality of the crime

I saw many statements in the media that the assault in this case was “violent,” “brutal,” or “horrific.”

Here are a few examples of this type of language from articles and blogs:

• A piece describing it as an “incredibly horrific rape case.” (XOJane.com)
• A piece describing it as a “brutal attack.” (LA Times)
• A piece pointing out that the charges were for sexual assault, not rape, “no matter how horrific [the incident] sounds.” (NYMag.com)

Here is one court document detailing the plaintiff’s injuries:

To sum up: 1) many abrasions and 2) debris inside the labia.

The following is from the police report produced from the officer talking to Jane Doe approximately 20 hours after the incident:

Since the incident, she still feels ‘really out of it’. She does not have any noticeable injuries. She also did not feel any pain from the incident. She only had a small bruise from the intravenous needle, which was used on her while she was at the hospital.

Taking the police report into account, with its mention of “no noticeable injuries,” it seems reasonable to assume the abrasions listed in the court document were not major.

The police report also mentions that the ground around the dumpster (where the incident occurred) was covered with pine needles, which might, along with the digital penetration, help partially explain the “debris” in the labia. In any case, the word ‘debris’ is ambiguous and there is no way to know what that is describing or what amount of debris there was.

It’s theoretically possible that a normal (consensual) intimate encounter on the ground would have resulted in similar abrasions. It’s also theoretically possible, with our limited information, and keeping in mind that Jane Doe has no memory of most of the night in question, that the abrasions might have been caused by another incident that night. (For example, this may have happened when she went out earlier that night, with her sister, to urinate in the nearby wooded area, which Jane Doe testified to.) (It’s also possible that the abrasions were shown to be tied to the incident, I do not know.)

This seems like a good place to remind you that I am not saying that I believe Brock Turner is innocent. I am raising hypotheticals and drawing attention to the flimsy amount of information that we, as the distant public, have about this case (and which is also true for most court cases).

“Brutal” and “horrific” are of course subjective words, as all language is subjective. It’s possible to categorize something as brutal or horrific without any physical harm occurring, if an incident is considered to be psychologically damaging.

But I believe most people would agree that these are not accurate descriptors of this incident. Considering the many violent rapes that occur, some of them ending in murder, using such language to describe this incident is hyperbolic and unhelpful. This language directly affects people’s perceptions of the incident and the defendant, potentially unfairly. It also weakens the impact of such words when used to describe legitimately violent and sadistic crimes.

Misperceptions about rape vs. sexual assault

In California, where the incident occurred, in order to legally be a “rape,” sexual intercourse must have occurred. While the initial charges filed against Brock Turner included rape, those were dropped at a preliminary hearing, before the trial even began. There was only determined to have been digital penetration of the plaintiff. Brock Turner was charged and convicted of sexual assault, not rape.

His conviction was for three felony counts:

• Assault with intent to commit rape of an intoxicated woman
• Sexually penetrating an unconscious person with a foreign object
• Sexually penetrating an intoxicated person with a foreign object

Despite Turner not being convicted of rape, many news organizations and bloggers used and continue to use the word ‘rape’ and refer to Turner as a ‘rapist.’ (A sample headline from NY Daily News: “Convicted rapist Brock Turner gets lifetime ban from Team USA swimming”) Some of the more tabloid-esque news outlets also stated that he was “convicted of rape” (NY Daily News), which is clearly untrue.

The more respectable media outlets often used the construction “the Brock Turner rape case” (CNN.com), which is misleading but still can be defended as accurate because the initial charges, although quickly dropped, did include rape. (It also seems more common in non-U.S. media to use the term “rapist,” which is presumably due to less fear of libel charges.)

The use of the word ‘rape’ led many people to believe that Turner had had sexual intercourse with Jane Doe. I saw that idea repeated on social media and in article comments.

Of course, many people would make the argument that more sexual assaults should be classified as “rape,” both legally and philosophically, and that is a valid point. But the above points are still relevant in showing how unrestrained the press has been in covering this case, which has been a factor in increasing the public’s anger. (It is also my opinion that the publications that decided to use the words ‘rape’ and ‘rapist’ in their headlines mainly did so not for moral or philosophical reasons, but to increase clicks and improve search engine results for those terms.)

Misperceptions about the incident’s location

The defendant and Jane Doe were discovered, by witnesses, behind a dumpster. The location has been prominently mentioned in many media reports, seemingly as a way to emphasize the degrading, secretive nature of the crime.

Here is one example of this phrasing, from a CNN article: “Turner took the victim to a dimly lit, isolated area and sexually assaulted her behind a dumpster.”

Here is the police report description of the area:

The area in which we found (V01) is a student residential area, specifically fraternity houses with walkways that have ambient lighting and high foot traffic near a basketball court. I walked down a service access driveway on the west side of Kappa Alpha behind a dumpster between the Kappa Alpha and Jerry houses.

Several things stand out:

• There was ambient lighting.
• There was high foot traffic nearby.
• The dumpster was between two fraternity houses, one of which was where the party was and which was presumably not far away.

While the police report is a bit ambiguous in its description, the high visibility of the location is supported by the fact that two witnesses saw the victim and defendant behind the dumpster, and later, when the defendant and the two witnesses had left the scene, at least two other people noticed the victim.

The location of the incident is not relevant to the actual case. Sexual assaults can of course happen anywhere. But the perception that the incident took place in an isolated, hidden area may have led to increased anger about the case. (Although one could make the argument that the incident taking place in such a highly visible place is actually more disturbing than had it been an isolated location.)

Also, the location theoretically supports the idea that Turner was not functioning well mentally, because one would think that, no matter what his goals were, he would have tried to choose a more private location. The seeming lack of thought about the location also theoretically asserts Turner’s claim that he and Jane Doe were walking, and then she fell, and he accompanied her to the ground.

Misperceptions about their first intimate encounter

Some articles and public comments stated or implied that Brock Turner had initially made first intimate contact with Jane Doe (the anonymous victim) when she was alone, in the backyard of the fraternity house. Here is one example of how this version of events was phrased: “The victim had been at a party at the Kappa Alpha fraternity house when she went outside and was attacked by Brock.” (from an article in The Daily Mail)

This version of events seems to be contradicted by the plaintiff’s pre-sentencing impact statement. Here is a segment where she talks about the party:

“The night after it happened, he said he didn’t know my name, said he wouldn’t be able to identify my face in a lineup, didn’t mention any dialogue between us, no words, only dancing and kissing. Dancing is a cute term; was it snapping fingers and twirling dancing, or just bodies grinding up against each other in a crowded room? I wonder if kissing was just faces sloppily pressed up against each other?”

Here, she seems to be tacitly accepting the idea that kissing and dancing occurred in a “crowded room,” in the fraternity house. It’s logical to assume there must be witnesses to the dancing and kissing because one would think if there no witnesses who testified to that, the plaintiff would never have brought it up. (Admittedly, there are unknowns here as I haven’t read the transcript, but this seems like a logical supposition.)

To be clear: sexual assault can occur no matter what preceded it, so this is not an important detail in regards to the case itself. Also, it does not address the argument that Jane Doe was too inebriated to give consent and that Turner should have known that.

But the idea that Turner first initiated intimate contact with Jane Doe when she was alone in the backyard seems predatory, compared with a version of events where the two had ongoing intimate behavior over a longer period of time and in front of other people. The “backyard attack” perception may have contributed to increased public anger.

Ambiguity regarding witness accounts

Two Swedish passersby, Jonsson and Arndt, intervened on Jane Doe’s behalf when they noticed she was unconscious with Brock Turner on top of her. The police reports say that the witnesses saw Turner “thrusting” on top of the unconscious woman before they intervened, followed by Turner’s running away. (It will be interesting to read the court transcript to see exactly what they testified to, and what questions were asked of them, as this is clearly the most important part of the case.)

From what is publicly known about their testimony, it is at least theoretically possible that Turner either:

• Did not notice that Jane Doe was unconscious until Jonsson and Arndt intervened.
• Noticed that Jane Doe was unconscious and then stood up, which happened to coincide with the arrival of Jonsson and Arndt.

Again, I am not saying I believe that Turner is innocent. I am merely bringing up hypotheticals based on the information available.

Ambiguity regarding Turner’s running away

Running away from the incident seems like something a guilty person would do. This detail understandably affected people’s perceptions of the case and of Turner.

It is theoretically possible that Turner, having just noticed that Jane Doe was unconscious, and being simultaneously confronted by Arndt and Jonsson, and being inebriated and confused, panicked and ran away. It is also possible that Jonsson and Arndt were (understandably) somewhat aggressive with their intervention, which could have caused Turner to become more confused or fearful than he otherwise would have been. As unlikely as these possibilities may seem, they are still possibilities.

Running away from the incident serves no logical benefit and obviously hurts the perception of Turner’s motivations and character. There is no doubt that Turner, even if he’d been able to get away at that moment in time, would quickly have been identified and apprehended, considering the two witnesses and the many other witnesses from earlier in the night who could place him at the nearby fraternity house. Leaving the scene in such a way could theoretically support the idea that Turner wasn’t functioning well mentally.

Of course, there are many people who commit crimes and who do illogical things; it’s entirely possible Turner would be capable of leaving the scene in such a way after committing a crime. But at the same time it is not evidence, in itself, of having committed a crime.

Ambiguity of witness who was crying

One of the Swedish witnesses, who intervened on the victim’s behalf, was crying when one of the initial responding officers questioned him.

This was referenced in Jane Doe’s statement when she said: “When the policeman arrived and interviewed the [Swedish student] who tackled you, he was crying so hard he couldn’t speak because of what he’d seen.” This detail was mentioned in many media reports to emphasize the horrible nature of the crime and its emotional impact on this witness.

But this detail does not give us any actual information. A person is capable of crying for many reasons. For example, a person might cry due to being stressed in a tense, confrontational situation. Or a person might cry due to fully believing they’d seen something horrible take place when they were in fact mistaken. (The trial transcript may contain testimony about why the witness was crying. But again: my points are focused on people’s reaction to the case and sentencing, not about the case itself.)

Misperception: Turner was witnessed taking a photo of victim

I saw some articles that mentioned that Brock Turner had sent a photograph of Jane Doe’s breast to his friends, but that the photograph had been deleted and was unrecoverable. That of course would be very damning for Turner, as it would be supporting evidence that he was cognizant enough to realize that Jane Doe wasn’t in a state to be able to give informed consent.

But in the court documents I reviewed, I saw no evidence mentioned his having taken a photograph of Jane Doe. (It’s possible this information came out after the case was over, or was not admissible for some reason.)

There was a witness who saw a man taking a picture of the unconscious Jane Doe, and some articles stated or implied that the picture-taker was Turner. But the police report shows that that was almost certainly not the case. Here is the police report about a witness, named Bolton, who saw the picture-taking:

He also noticed a male subject standing over her with a cell phone. He was holding the cell phone. The cell phone had a bright light pointed in the direction of the female, using either a flashlight app in his phone or its built in flash. He approached this subject and asked if everything was okay. The male subject did not say anything to (W) BOLTON. He told the male subject to roll her over on her side to breath [sic]. The male subject did not do this. (W) Bolton then got down on his knees and checked her pulse. When he got back up, the male subject was gone.

There is no time of night given for when this witness saw this, but it makes no logical sense that that person would be Turner. Leaving the scene in such a way fits no version of events involving Turner. Despite this, some media outlets stated that that person was Turner (Daily Mail). Here is another article (News.com) that references that version of events.

Ambiguity added by alcohol, youth, and the college party scene

There are several ambiguities in the case that make it difficult, especially from a distance, to confidently judge the level of criminal egregiousness or moral responsibility of the defendant. Here are a few factors contributing to ambiguity in this case:

• Turner’s blood alcohol level was .13 (approximately the level of intoxication someone might have after drinking 5–6 beers in less than an hour). Turner’s inebriation increases the possibility that he would a) not realize Jane Doe’s level of inebriation and that she could no longer give informed consent, and b) not realize immediately that she’d become unconscious.
• Turner was 19 years old. It’s hard to say how much of his behavior was due to youthful idiocy and recklessness, and how much was due to malevolent intent.
• Turner used drugs. Text messages between Turner and his friends (CBSnews.com) contained references to acid, ecstasy, and marijuana. I haven’t seen it reported whether he was tested for drugs on the night in question, but if he was high on acid or ecstasy, this might alleviate some moral responsibility for his behavior (however slightly).
• The party culture of the school. The more drunken hook-ups occur at a school, and the more this is a part of the school’s culture, the more likely it becomes that something bad will eventually happen. It’s possible that the school’s social scene encouraged reckless sexual behavior. Even if such behavior, as it was reported Turner displayed (NY Daily News), only went without comment or punishment, that potentially could lead to an environment that made sexual assaults more likely.
• Regarding the ‘assaulting an intoxicated person’ charge specifically: it’s impossible for anyone to say how much alcohol it takes for a person to no longer be able to give actual consent, so it seems illogical to expect college students to be able to make that determination, especially when drunken hook-ups are part of the “culture.”

Many of the people angriest about this case were on the liberal, progressive side of the political spectrum. Many liberal-minded people espoused views like: “There is no excuse for this. His environment and his youth don’t matter. Rape is rape.”

This polarized reaction to this type of case by people with progressive philosophies is interesting to me, because the liberal philosophy on crime is traditionally one that takes into account the impact of environmental, social factors on criminal behavior and questions of personal responsibility, and uses that analysis to estimate how much of a threat a criminal will be in the future. In many sexual assault cases, it is common to see people with liberal philosophies not make the same allowances for environmental factors as they presumably would make for other crimes. (Of course, many progressives are passionate about women’s rights, and their passion on this topic might understandably overpower other philosophies about criminal punishment.)

The judge’s decision

Many people were angry about Judge Aaron Persky’s sentencing Turner to only 6 months for the three felony counts, out of a possible maximum sentence of 14 years. Many people believe this was a clear and major injustice.

Many people stated a belief that Persky sentenced Turner to such a light sentence for reasons such as:

• Turner was white.
• Turner was from a wealthy family.
• The judge did not take rape or sexual assault seriously.

Many articles and blog posts compared this case to a case where a black Vanderbilt student had sexually assaulted an unconscious young woman (WashingtonPost.com) and had gotten a sentence of 15 years in prison. This comparison was used by some people as supporting evidence of a racial or socio-economic double standard.

One opinion piece, from the NY Daily News, was fairly representative. Its title was: “Brock Turner and Cory Batey, two college athletes who raped unconscious women, show how race and privilege affect sentences” (NY Daily News). Here’s another article: “Meme of Brock Turner and Cory Batey ignites debate about race and sexual assault sentences” (KansasCity.com)

But the Vanderbilt case was clearly a more egregious incident: there was video evidence of the unconscious woman being carried to a dorm room, and photos and videos of the assault taken by the defendant’s teammates.

But even if the details were exactly the same between these two cases in every way except for race, the sentencing differences would not be very meaningful. There is a lot of difference in sentencing laws and guidelines in different jurisdictions, and there are also large differences in sentencing from judge to judge. To compare this case to a case tried in another state, by another judge, is illogical.

In order to prove that Judge Persky was biased in this case, one would need to have a sample of the same judge’s past hearings in similar cases. To accuse the judge of giving Turner a lighter sentence due to his class or race, one would need to find a similar case where the judge gave a higher sentence to a minority defendant or a poor defendant. A single case does not make a pattern.

It is probable that Persky’s philosophy is that young people should not be imprisoned for a long time unless they are considered to be a danger to the public. There is a lot to support the idea that long prison sentences have a negative effect on the imprisoned, making them more anti-social and more likely to commit crime. If Persky believed Turner was a very low threat to society, his choice of a low sentence is defensible.

Also a factor in sentencing: the environment of an offender. Judges, for better or worse, take into account the home life and surroundings of an offender. A juvenile with a stable family life, the logic goes, is less of a threat to re-offend than is a juvenile who returns to an unstable, erratic environment. These decisions can seem classist, racist, or otherwise unfair, but it is hard to argue with the logic behind them.

Again, these points are not to say that I believe Persky made the right decision in his sentencing. (I think Turner most likely deserved a longer sentence, but I don’t have a strong opinion about this.) My point is that there seem to be so many unknowns about the case, at least on the part of the general public and press, that it seems difficult to say with certainty that the judge is unfit to do his job, as many people seem to passionately believe.

Many people professed anger that the sentencing set a dangerous precedent for other college assault and rape cases, and that it sent a message to potential sexual assaulters that these crimes will not taken seriously. One of the goals of criminal sentencing is to deter others from committing crimes, it is true. But if higher-than-normal sentences are sought in order to make someone a scapegoat and a public example, this is no longer fair to those seeking fair sentences.

Here is one article about a public defender in California, who is apparently also known as a feminist, who defends Persky’s sentencing decision. I don’t include this because I agree with her opinion, but only to show that there are educated people who defend Persky’s decision, and that the sentencing decision is perhaps not the clear miscarriage of justice that many people feel certain it was.

Here is an opinion piece from Stanford University’s paper that makes the case that a longer prison sentence for Turner serves no benefit to anyone.

[Update Jan 2023: For more analysis of the nuance in this case, see this review of Malcolm Gladwell’s book Talking to Strangers.]

We crave certainty

People crave certainty. We want easy, hate-able targets. We have pent-up frustrations about past injustices, real and perceived. A big part of this is due to the fact that it is so difficult to catch people doing bad things. We want to cut through all the frustrating ambiguity and confidently say, “Here is a clearly bad person who is worthy of our hatred.”

When people form passionate opinions based on a small amount of information, it creates a snowball effect where people are quicker to believe that a passionate, confident opinion is justified. “If it wasn’t a clear, black-and-white situation,” people think, “all these people wouldn’t be so angry.”

Here are a few specific examples of hateful, abusive behavior stemming from certainty and passion in this case:

• People gathered outside the defendant’s house using violent language, with one person brandishing a gun (WHIO.com)
• Judge Persky receiving death threats (Newsweek.com)
• The concerted attempt to punish a person, socially and financially, who wrote a letter of personal support for the defendant (NYDailyNews.com)

For more evidence of the extreme amount of passion and certainty about this case, see the results of an online search for “brock turner castration.” (Sample sentence from my first page of results: “I’d sign up for the job of castrating Brock. I promise I would anesthetize him first.”)

You might think, “What’s the problem if a lot of people are angry? Maybe that’s a good thing. Maybe a lot of anger draws more awareness to sexual assault and makes sexual assault less likely.” I admit there may be some validity to that claim. Perhaps widespread social outrage is an effective way to make people careful about their behaviors.

But it’s also possible that excessive anger and certainty can have negative outcomes, such as:

• An increase in people who believe there should be long prison sentences (or other punishments) for crimes that may not actually deserve that.
• A public that has been taught to place all sex crimes into a single catch-all bucket, and which unfairly demonizes and punishes those convicts even after they have served their sentences, no matter what the egregiousness or circumstances of the crime. (Here is a New Yorker article that discusses the excessive and lifelong hardships faced by people who are placed on sex offender registries as juveniles.)
• An increase in polarized, mob mentality, which makes intelligent, reasoned discourse and problem-solving more difficult.

As I write this today, many people are extremely angry that there will be no criminal charges filed against Hillary Clinton for her use of a personal email server. There are many people who seem to believe that she is guilty of a major crime and should be in prison. (I interacted with one person online who stated his confident belief that she should be in jail for a minimum of ten years.) These people seemed to be very certain and passionate in their opinions, and I think it’s fair to say that most of them have only a small percentage of information about the FBI’s investigation or the specific federal laws involved. This does not stop many people from expressing extreme certainty about Clinton’s degree of guilt and the appropriate punishment for her perceived crimes.

This comparison will seem ridiculous to some people. But in both instances, there are many people who seem passionate and certain about things they cannot be very informed about. (I’m not saying that all passionate and confident points of view in either of these cases are invalid; some people are more knowledgeable and will have more valid reasons for being passionate and certain. For example, the people who actually attended the Brock Turner trial would have more valid opinions than someone just reading articles about the court case.)

Overly passionate and certain points of view degrade the quality of our conversations. It becomes harder to have balanced, rational conversations and reach compromises. “Us versus them” lines are drawn over subjects that don’t warrant such polarization. It becomes harder to reach sensible, logical solutions to problems.

I’m frustrated when I read articles or blog posts that have untrue, easily disproved statements. I’m frustrated when I see people who jump to passionate conclusions about things they seem to have spent little time researching. I wrote this article to try to make the point that we shouldn’t feel rushed to reach an opinion. It’s okay to remain uncertain and non-judgmental until we have more facts. It’s even okay to never reach an opinion at all. We should only feel passionately about something once we’ve studied it thoroughly, while recognizing it can often be hard, even with many points of reference, to know what’s true or what’s fair.