Legal Ethics

Judge Admonished for Comments About Victim’s 'Technical Rape' and Lack of Body Shutdown

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A California judge has been publicly admonished for saying a sexual assault victim had suffered only a “technical” rape and didn’t display vaginal damage characteristic of rape victims he had encountered as a prosecutor.

Judge Derek Johnson of Orange County had advanced his theory on body shutdowns during rape in a 2008 sentencing hearing, according to the opinion (PDF) by the California Commission on Judicial Performance. The Recorder (sub. req.) and the Los Angeles Times L.A. Now blog have stories.

The defendant, Metin Gurel, was convicted of raping the victim, a former girlfriend, in 2007 after striking and threatening to kill and maim her. Prosecutors had sought a 16-year sentence, but Johnson said he would impose a six-year term. The judicial discipline opinion has a transcript of his explanation why:

Johnson: “I spent my last year and a half in the DA’s office in the sexual assault unit. I know something about sexual assault. I’ve seen sexual assault. I’ve seen women who have been ravaged and savaged whose vagina was shredded by the rape. I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes a rape.”

The prosecutor interjected to point out there was no consent and to argue about aggravating circumstances. Then the judge continued.

Johnson: “I just found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. The forced oral copulation is technical. It’s more of a crim law test than a real live criminal case.”

The commission said Johnson’s remarks reflected biased and insensitive views about sexual assault victims who do not “put up a fight.” Johnson had apologized for the remarks to the commission, saying he was frustrated by a sentencing request he considered inappropriate under the law. He remains on the bench. Johnson’s lawyer did not comment when contacted by L.A. Now and the Recorder.

The opinion outlined the facts of the rape case, as recounted in a prior appellate opinion affirming Gurel’s conviction. Gurel had persuaded a former girlfriend to come to his apartment with threats of blowing up her car and causing her to lose her job. After she arrived, prosecutors alleged, he shattered her cellphone, bruised her breast with a metal baton, threatened to burn her with a cigarette lighter, heated a screwdriver and threatened to use it to maim her face and vagina, and threatened to kill her. Then he ordered her to perform oral sex and raped her, prosecutors said. The victim left the next morning after telling her attacker she had to return home to get her clothes so she could move in with him. She went to the police station instead, but did not report the rape until 17 days later.

Gurel was convicted of rape, forcible oral copulation, domestic battery, stalking and making criminal threats.

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