Column: The judge who gave a light sexual assault sentence to a Stanford swimmer now faces a reckoning with voters

Jan. 26, 2018 3 AM PT

In June, voters in Santa Clara County will be asked whether Superior Court Judge Aaron Persky should be removed from the bench.

This is not the standard, every-six-year retention vote faced by California judges. This is a recall, born of outrage and frustration at the way Persky mishandled a sexual assault case involving a Stanford swimmer named Brock Turner and an unconscious young woman, known to the public only as “Emily Doe.”

Rather than send Brock to prison for six years, as the prosecutor recommended in 2016, Persky opted for a lenient penalty: Six months in jail and three years of probation. Turner served half his sentence and was freed after 12 weeks in county jail. For Turner, a slap on the wrist. For his victim, a slap across the face.

More than 96,000 signed the recall petition in Santa Clara County, which stretches from the upscale tech environs of Silicon Valley to the garlicky fields of Gilroy.

If the effort succeeds, Persky will become the rare judge to be recalled. His supporters — and even critics who found Turner’s sentence too lenient — claim the recall represents a threat to judicial independence.

I say hogwash.

In the same way that Democratic U.S. Sen. Al Franken’s resignation last year sent a clear signal that Democrats would not tolerate sexual harassment of any stripe in their ranks, the recall of Persky will send a powerful message that the abuse of women — by men or by courts — will no longer be tolerated by Californians.

In the words of Stanford law professor Michele Dauber, a leader of the recall campaign: “Enough is enough.”

On a drizzly morning this week, I met up with Dauber in her third-floor campus office. We had 90 minutes before she was due downstairs to teach a course on campus sexual assault law. Several years ago, she led the process that revised Stanford’s policy on sexual assault.

Dauber, 52, a constitutional scholar with an expertise in the American welfare state and disaster relief, is also, as it happens, a family friend of Emily Doe’s. She was galvanized by her outrage at Turner’s light sentence.

In the past 18 months, the “Recall Judge Aaron Persky” campaign has raised more than $700,000 and is on track to raise an additional $500,000, Dauber said. “We have over 4,000 individual donors, averaging around $100. There are a couple of really generous larger donors, but this is a grass-roots effort.”

The campaign used both paid and volunteer signature gatherers. “We left no area uncovered,” Dauber said. “We walked precincts in every incorporated community. We went to turkey trots, farmer’s markets, coffees, block parties, all kinds of political and social events.”

When I first met Dauber at the beginning of the recall effort, I was impressed by her passion. But I was also pretty sure that the recall process would take so long and create so many procedural hurdles that by the time the signature gathering got underway, people’s outrage about the Turner sentence would have cooled.

Then came the Donald Trump “Access Hollywood” tape where he bragged about sexually assaulting women, his subsequent election, the Women’s March, the pussy hats. Last year, came the exposes about Harvey Weinstein, Charlie Rose, Matt Lauer, Garrison Keillor, etc., etc., etc. Getting fired for sexual harassment is the new black.

And the botched Turner sentence still feels as fresh and outrageous as the day it was handed down.

In 2016, a bereft Emily Doe stood in a Santa Clara County courtroom and addressed Turner, who had sexually assaulted her while she lay unconscious outside a frat party on the Stanford campus. It was more than a year before dozens of women in Hollywood found the courage to reveal the sexual harassment and assault perpetrated upon them by powerful men.

A jury convicted Turner of three felonies, including digital penetration and attempted rape. Emily Doe wanted to bear witness, to tell Turner to his face how she was tormented to learn after the fact what he had done to her.

It was the victim impact statement that was heard around the world.

“You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice,” she said, “until today.”

Then Persky began his remarks. He acknowledged that Emily Doe’s life had been “devastated” by Turner.

But then, in an extraordinary misstep, Persky handed down his minimalist sentence.

“Obviously,” Persky said, “a prison sentence would have a severe impact on him.”

Isn’t that the very point of prison sentences?

Of course, she couldn’t have known it at the time, but Emily Doe was at the forefront of our current national reckoning about sexual harassment and assault.

She insisted on being heard. She refused to allow the crime against her to be minimized.

In November 2016, Glamour magazine named her a woman of the year, and said she had changed the conversation about sexual assault. At that point, her statement had been read more than 11 million times.

She inspired the California Legislature to change the legal definition of rape to include digital penetration, and to require prison terms for rape when victims are unconscious or unable to give consent.

Persky, who has widespread support in the legal community, tried to keep the measure off the ballot on a number of technical points. None of them succeeded.

His own day of reckoning awaits.

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Twitter: @AbcarianLAT