There has been widespread outrage at the six-month sentence handed down to American student Brock Turner, following his conviction for sexually assaulting an unconscious woman. A compelling, haunting description by the victim of her experience has been read millions of times online after being released by the district attorney – its power so at odds with the court’s apparent leniency.
Around the world outraged headlines have referred to the “Brock Turner rape case”. And that’s quite accurate – he was originally charged with rape of an intoxicated person and rape of an unconscious person. But those indictments were dropped at a preliminary hearing, reportedly after prosecutors received the results of DNA testing.
As such, the case continued on the basis of ‘lesser’ charges: assault with intent to commit rape of an intoxicated or unconscious person; penetrating an intoxicated person with a foreign object; and penetrating an unconscious person with a foreign object. In essence, Californian state law defines rape as penetration by the penis. Since that did not occur Turner is a criminal, a sex offender – but he isn’t, according to the law, a rapist.
It is notable that America’s Federal Bureau of Investigations defines rape differently, as “penetration, no matter how slight, of the vagina or anus with any body part or object…without the consent of the victim”. That reflects the trend in state laws, although there remains considerable variation between jurisdictions, both with regard to the terminology used and the ranking of distinct types of sexual assault as to their seriousness. California is among a handful of states which continue to criminalise ‘object penetration’ to a lesser degree than penile penetration.
Even so, Turner’s crimes could have seen him receive a maximum of 14 years in prison. Even putting aside the precise definition of his conviction, it is no wonder that his six month sentence has received such criticism.
Under English law, Turner wouldn’t be classified as a rapist either. As in California, the offence of rape is strictly confined to a man penetrating another person with his penis in the absence of consent. That is why a woman cannot be convicted of rape except in circumstances where she assists a man commit the crime.
Whether existing definitions are appropriate entirely depends on your point of view of course. It is not an awfully long time ago that rape was regarded fundamentally not as a crime of violence against women, but as a crime against the property of men (ie their wives or daughters), which is why marital rape was for so long excluded. We have – for the most part – moved on from the deepest depths of that patriarchal approach but there any many who argue that the maintenance of ‘phallo-centric’ rape definitions means that the seriousness of other forms of penetrative assault are underplayed.
Brock Turner’s conviction, and the bravely stark testimony of his victim, have helped to bring these questions about how sexual crimes are defined – and how that impacts on attitudes towards sentencing – out into the open. The tragedy is that no level of public debate or outrage can undo the despicable harm he caused to an unconscious woman.
