Judge criticized for six-month sexual assault sentence won't face discipline

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A California judge won’t face discipline for his controversial six-month sentence in a sexual assault case against a Stanford University champion swimmer, a state judicial commission announced on Monday.

The Commission on Judicial Performance found there was not clear and convincing evidence of bias, abuse of authority or other misconduct by Judge Aaron Persky of Santa Clara County, report the Recorder (sub. req.), the Los Angeles Times and the San Jose Mercury News.

The commission said it had received thousands of complaints and petitions about Persky’s June 2 sentence of Brock Allen Turner, a student athlete accused of sexually assaulting an unconscious woman behind a dumpster. Turner was accused of assault with intent to commit rape, and digital penetration of the woman.

In an unusual explanation of its decision (PDF), the commission said the six-month sentence was within the parameters set by law and was consistent with the recommendation in the probation report. Turner also was sentenced to three years of probation and required to register as a lifetime sex offender.

Persky evaluated multiple factors in arriving at the decision, as required by law, including Turner’s youth and lack of a significant record, according to the commission. Persky acknowledged the sexual assault caused “devastating emotional injury” to the victim. He also considered the probation department recommendation for a “moderate” sentence of less than a year, which would be served in the county jail, rather than a more severe sentence to state prison. Persky also took into account probation department findings that Turner was not very likely to reoffend.

Some had argued that Persky’s statement about the impact of a state prison sentence and Turner’s future dangerousness indicated bias. But the commission said cases of judicial bias “stand in stark contrast to the Turner case.”

In one case, for example, a judge referred to the victim as a “horse’s ass” and ridiculed the inspector who accompanied the victim to the defendant’s probation hearing. The judge was censured. In another case, a judge was publicly admonished for stating at a rape sentencing that, “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.”

The commission also said Persky was not required to disclose that he attended Stanford University and played lacrosse there, and was not required to disqualify himself because of it.

The sentence led to an effort to recall Persky and a new state law that increased penalties for sexual assault of unconscious victims.

Related articles:

ABAJournal.com: “Law prof backs recall of judge who sentenced Stanford swimming champ to six months for sex assault”

ABAJournal.com: “Recall effort for Brock Turner’s judge poses serious threat to rule of law, say law profs”

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