Stanford University sexual assault case sentencing seen as too lenient by legal experts

The six-month jail sentence given to a Stanford University swimmer convicted of sexual assault that sparked widespread outrage is viewed as unusually lenient by some in the legal community.

David LaBahn, president of the D.C.-based Association of Prosecuting Attorneys, said while Santa Clara County Judge Aaron Persky's sentence was reasoned and lawful, it was also disappointing.

"Absolutely. You look at what the conduct was and six months? Really?"

• Stanford University defends how it handled sex assault case
• Petition seeks removal of Stanford rape case judge
• Dad says 6 months is too harsh for '20 minutes of action'

LaBahn said the sentence given to Brock Turner, 20 — which also includes three years of probation and having to register as a sex offender for the rest of his life — was more in line with a first-time conviction for auto theft or a residential burglary, not for the "very serious" charges he faced.

'Emboldens those of privilege'

"The light sentence in the Brock Turner case is problematic for several reasons, but at least in part because it emboldens those of privilege or an athletic background," said Danielle De Smeth, a California-based criminal attorney. 

Turner, formerly an Olympic swimming hopeful, was convicted of assault with intent to commit rape of an intoxicated victim and two charges of digitally penetrating an unconscious and intoxicated victim. He had initially been charged with rape of the 23-year-old woman, but those charges were dropped.

In his sentencing, Persky said he took into consideration Turner's intoxication, letters of support, remorsefulness, clean criminal record and, controversially, the effect the conviction would have on his life. 

Turner and the victim met at an on-campus fraternity party the night of Jan. 17, 2015, and, according to witnesses, had left the party together. Soon after, two graduate students say they saw Turner on top of the woman and thrusting his hips. One of the students said it appeared the woman was unconscious and that Turner tried to run off when they approached to check on her. In an emotional statement read in court, the victim described how the attack has left her emotionally scarred. 

Some are pushing for Persky's recall in Change.org petitions, and Stanford University law professor Michele Dauber, a friend of the victim, launched a campaign to remove Persky from the bench

"The judge's decision does not seem to be driven by the facts of the case, but instead carried by a deep-rooted misogyny which we are only beginning to address in American society," De Smeth said. 

'Thoughtful and intelligent judge'

But that characterization of Persky is unfair, say some who have worked with the judge. Nancy Brewer, a retired assistant public defender with Santa Clara County, said that Persky is widely regarded as "a competent, thoughtful and intelligent judge."

Brewer noted that Persky, a former prosecutor who worked on sexually violent predator cases, is respected by both prosecutors and defenders, is seen as a fair judge who is not soft on crime or someone who gives lenient sentences. 

"Persky, who was familiar with all the facts of the case, carefully evaluated the evidence and did what he thought was a fair and appropriate sentence in the case," she said. "I also find it disheartening that so many people have such strong and virulent opinions based on partial and sometimes inaccurate information."

The sentencing, it seems, was also based on the  Santa Clara County Probation Department's pre-sentence investigation report. That report included interviews with both Turner and the victim and recommended only a year in county jail and probation. Brewer noted, however, that was "quite unusual" coming from a department that is "very tough on sex offenders."

Danny Cevallos, a Pennsylvania based criminal defence lawyer and CNN legal analyst, said the judge "absolutely is obliged to consider very seriously the [probation department] report."

Cevallos said he believes the sentence was lenient, but said people need to consider Turner's prior clean record.

"When people who are not involved in the criminal justice system look at this sentence, it does seem very very light. But when you take a step back ... what you do is is you look at this particular defendant."

'No prior record'

All sentencing is a function of two major factors: the gravity of the crime and the prior record, Cevallos said.

"He has no prior record, he's got letters of recommendation that are far beyond the norm. In the world of sentencing, he is a viable candidate for a minimum sentence," he said.

The prosecution had recommended a six-year prison sentence for Turner.

The maximum sentence for Turner's crimes would be 14 years with two years being the minimum sentence. But the California penal code does allow a judge to depart from the statutory minimum, Cevallos said. 

"The judge has to affirmatively look for justifications in the statute to justify departing from that statutory minimum," he said. Those justifications in the code include a defendant's lack of criminal history and, as the judge stated in his sentencing, the effect incarceration will have on the guilty party.

"This was definitely a candidate for a sentence on the low end of the guidelines, but I don't know if I would have departed from the statutory minimum. The guidelines exist for a reason," Cevallos said.

"He chose to depart from statutory minimum That's a risky thing for [an elected] judge to do, but it's legal."