Tuesday, September 6, 2016

On that Sexual Assault Bill in California

In response to the Brock Turner case, a bill is headed to Jerry Brown's desk that would require jail time for anyone convicted of sexual assault. Probation won't be an option. Jail.

If you are on the left, or, more accurately, a Jezebel-reading, MSNBC-watching, partisan Democrat, you probably believe there are certain classes of criminals our justice system has failed to adequately punish in the past few decades/centuries: white collar criminals, particularly those at the upper echelons of Wall Street; police who have abused their power; sexual offenders. You also probably believe our justice system punishes other classes of criminals too harshly: non-violent drug offenders, including dealers, users, and traffickers; petty thieves. You probably welcome the new bipartisan movement to reform our prison system, so that we no longer lock up about one percent of our country's population at any given time. And you probably believe that non-violent drug offenders should be the first people we should release.

The problem, as has been noted by anyone who has studied the issue across the political spectrum, is that in order to pursue serious prison reform, we will have to free many people who have committed terrible crimes. We will have to free murderers who took people away from those who loved them and armed robbers who may have cursed their victims with a lifetime of trauma when they pointed a gun at their heads and demanded their wallets. And, unfortunately, we will also have to free people who defrauded the elderly and we will have to free at least a few rapists and child molesters.

Should everyone who commits a sexual assault be sentenced to jail time? Maybe...Absolutely maybe. The answer may be yes, but I don't know. I don't know if society would be better off if every sexual offender had to spend time in jail or if that would bring all that much more comfort to the victims of sexual assault. I do know that there are various degrees of sexual assault. And as a believer in restorative justice, I wish we didn't consider jail the first solution whenever we want to think about solving crime.

(I don't like using the personal to define objective truth here, but for what it's worth, I was twice a victim of what would legally be considered sexual assault. Not rape. I don't have lasting trauma from the experiences. I remember both moments the way I would a bad car accident or a broken finger. That is to say, I remember that I felt physical pain and fear, but I no longer have access to the feelings I had at those moments. I don't consider my lack of trauma a sign of any inner strength. I attribute the absence of trauma to luck. I recognize that not everyone would feel the same way if they were victims of these two particular sexual assaults. My experience is not universal.)

It's always a bad strategy to pass a law based on the facts of one sensational case in the media. It's bad strategy for the public to pressure any judge or prosecutor to be more bloodthirsty. Brock Turner is one kind of rapist, the kind of rapist my friends on the left would hate the most -- white, privileged, capable of affording a smart, aggressive lawyer who doesn't much care about his victim's feelings -- but there are many other people who will be affected by this law. Many of them are non-white and indigent. And just as there is a long history in this country of authorities treating rape and sexual assault victims like garbage, there is also a long history of black and latino men being falsely accused and convicted of crimes, particularly the rape of white women.

Maybe this law will make life better for women in California, as well as the minority of sexual assault victims who are male. Maybe it will lead to a world with less rape. But forgive me if I'm worried about unintended consequences.

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