Ampersands – Brock Turner & conflicts of justice

georgiaI recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying.

Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy.

Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis.

California’s sex offense laws are deeply flawed and uniquely regressive. We are one of only four states with lifetime, universal sex offense registration, regardless of the offense involved, regardless of the risk for reoffending. The registration requirements for someone who created child pornography a few years ago are the same as someone convicted of a flashing offense 40 years ago who hasn’t re-offended since. We put children on the sex offense registry despite the mountains of neurological, criminogenic, and humanitarian reasons we shouldn’t. The human cost to those directly impacted and their communities is incredibly high. The government experts, including law enforcement officials responsible for enforcing these policies, agree that the financial cost of these failed policies is untenable. When we waste our resources unsuccessfully trying to monitor more than 100,000 people, the vast majority of whom have been found to pose no risk to their communities, we don’t have the resources left to implement sophisticated strategies to address the real threats to public safety.

Solving this crisis calls for challenging conversations that lead to nuanced policies. But this work isn’t as instantly gratifying as engaging in internet clap back or reading about the heroic Swedes who round out this case framed as a perfectly binary tale of good versus evil.

My ampersands at this moment, likely to have evolved again by tomorrow:

(1)   The power of the survivor in this case—her brains, her strength, her righteous rage—launched this firestorm. Maybe Stanford should put up a marker in her honor at every location on campus where a sexual assault has been reported.


(2)   If I had a teenage son who raped a woman behind a dumpster and was facing a sentence of decades of rape and violence in prison, I can imagine that I might stand before a judge and say things—anything—to try to prevent it. Things that might reveal ugly truths about my character and expose my ignorance, or, my desperation might degrade my character. And my enduring love for my child could co-exist with an expectation that my son acknowledge the horrific, rending impact of his acts on his victim and her loved ones, and an expectation that he bear the full impact of a legal punishment justly imposed on him.


(3)  I have witnessed the transformative power of restorative justice and the reflexive harm of vengeance. And I begrudge no victim the right to fanaticize about personal retribution, about committing uncomplicated acts of rage and sorrow. The racism and sexism in Mr. Turner’s case — The internet tells me that I’m not the only one who wants to smash the racist patriarchy starting with the male Turners. We all have our own imagined methods.


(4)   By contrast, government actors—the judges and prosecutors who enforce our criminal justice policies—must balance retributive punishment and equity and rehabilitation and containment and deterrence and public safety and constitutional guarantees. Regardless of the ways in which the judge in this case failed to strike the right balance, I feel heartache about the call to impeach him. The judge’s ruling feels so unjust because of his gender, race, class privilege, and alma mater, which means he can’t be fair in any case, and this is true irrespective of his complete judicial record or the mitigating factors that by law he was required to weigh in this case. Ask Judge Gonzalo Curiel how this kind of thinking undermines the rule of law.


(5)   I have witnessed unlawful bias, and sometimes racialized or gendered rage directed at me and/or the people I am representing in criminal courtrooms. I’m done debating whether institutional racism is a cornerstone of the US justice system just as I’m done debating whether climate change is real. Next steps? Support victim advocacy groups that understand a carceral response to violence harms everyone, including victims. Be brave, lawyers, about systematically striking judges whose unjust rulings or conduct in courtrooms result from unlawful bias. Show up in courtrooms: For jury duty in whatever way you will and for participatory defense in support of survivors of sexual violence and defendants who are subjected to unjust rulings. And not just for defendants who are factually innocent or are charged with low-level, non-violent, non-sexual offenses. We can only really measure justice in our system by how it functions in the most difficult cases.


(6)   Our own unconscious biases undermine the movement to end sexual violence. Every day I see RAP sheets that remind me that we—through our elected prosecutors acting in our names—criminalize and incarcerate adult and child victims of sexual violence and sex trafficking who have been arrested for prostitution. The race and class of a victim of sexual assault—her perceived value to society—dictates outcomes in the criminal justice system and airtime in the media (including on our own Facebook pages) just as Mr. Turner’s privilege dictated his. We must also show up for these victims of sexual violence whose voices have not yet been as powerfully amplified as the woman’s who launched this conversation.

The work of thinking and talking in ampersands is tricky. This morning I had to text an apology to a friend after we had a conversation about this case as we were dropping off our children at school. I worried that I opened old wounds, was too strident, disclosed too much about my own experiences, didn’t leave room for her expertise borne from a personal experience of a sexual assault she survived on a college campus decades ago. It’s all too close to the bone, for all of us. But we have muddle through it, carefully and with love because it’s the only way to achieve policy change that decreases sexual harming and increases justice for the people who are disproportionally impacted by our current policies. And we have to live with the bedeviling truth that once we are successful in reforming these policies for those who most deserve change, we will also have made things more just for unrepentant, privileged rapists. And that is, for so many complicated reasons, a good thing.



Eliza Hersh

Eliza Hersh is a CCRC Board Member and a 2016 Soros Justice Fellow at Berkeley Law School’s Center for the Study of Law & Society. The views and opinions expressed herein are those of the author and do not necessarily reflect the views of the Open Society Foundations.

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