When is Rape not Rape?




nurse arial,sans-serif; font-size: 12pt;”>By Leo G. Alvarez

The Public is in an uproar over the perceived meagre sentence meted out to Brock Turner, a Stanford University student and swimmer, found guilty of sexual assault of a fellow student.  He is scheduled to be released from jail on September 2, after serving half of his six month sentence, according to a Santa Clara County jail spokesman. 

There is plenty of blame to go around, none of which can be attributed to the victim since every person, regardless of the circumstances is entitled to an expectation of safety, or aid, when in need.  But what the Public does not know and has not been told is that Brock Turner was not tried for Rape nor convicted of Rape.

When initially arrested Brock Turner was charged with two counts of rape and the three charges he was ultimately convicted of.  No news source has cited the Penal Code Sections under which Turner was tried.  Judging from the sentence and the fact that Turner is serving time in a jail rather than Prison one scenario presents itself and that is that the charges filed may have been felonies but reduced to misdemeanors under Section 17b of the California Penal Code.  This is applicable to California Penal Code section 243.4.  This Section is regarded as a “wobbler” because it can be prosecuted as either a felony or a misdemeanor at the discretion of the District Attorney and covers some of the facts (probably not introduced) of the case.  Conviction on the Section carries lifetime registration as a sex offender and a jail, or prison term, plus other conditions.

As far as the Public’s is concerned Turner was on trial for rape.  Although he was arrested on those charges, he was not prosecuted for rape by the District Attorney.  He was charged with sexual assault which carries a lighter sentence depending on circumstances.  Any case filed by the DA is reviewed and “graded” on the possibility of being proven in court.  Not being privy to those deliberations one can only speculate that the DA felt charges of Rape could not be proven, even though California Penal Code Section 261, Rape, includes circumstances under which the victim may be asleep, intoxicated, or unconscious as has been alleged in interviews of persons with knowledge of the circumstances. 

The District Attorney could have filed all 5 charges, attempted to prove them and then let the Jury decide on innocence or guilt.  The Jury, at its discretion could decide guilt or innocence on the charges tried before them.  The Jury found him guilty of the three charges he was tried on.

Judge Aaron Persky

What transpired next, the sentence meted out by Judge Aaron Persky, is what has caused an outpouring of outrage from the Public and brought the case national attention.   In one recent trial a pool of Jurors claimed that they did not want to be in a jury trial overseen by Judge Persky.

The part of the sentence that carried a mandate of having to register as a Sex Offender is probably the harshest sentence Mr. Turner faces since most States have Reciprocal Agreements to honor other States’ registration requirements.

Judge Persky cannot, by Statute or requirement, defend his actions while the case is still “open”.  He did state that a prison sentence would have a severe impact on the Defendant, Brock Turner, which indicated that he may have felt that the crimes did not reach the severest level.

No known comments have been directed at the Santa Clara County District Attorney for not filing and prosecuting all charges Turner was arrested on. Someone should pose that question. 

The case also brings out the fact that there is an inequity in sentencing when a person is found guilty of a crime.  Judges should not have discretion in sentencing.  All those convicted of a crime should have the expectation of the same sentence as those previously found guilty of the same crime.

In my opinion, all five initial charges should have been filed and tried leaving the decision of guilt or innocence to the discretion of the Jury. 

Leo Alvarez retired from Law Enforcement after 33 years and is the Co-founder, with his wife Jane, of The Children’s Wall of Tears™ www.thecwot.org




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