Lesbian Public Defender Stands by Embattled Rape Trial Judge

As public support grows for the recall of Santa Clara County Superior Court Judge Aaron Persky over his lenient sentence of former Stanford swimmer Brock Turner for sexually assaulting an unconscious woman, Santa Clara County Public Defender Molly O'Neal disagrees.

O'Neal, 53, was appointed to the job by the Santa Clara County Board of Supervisors in 2013. A lesbian, she is one of the most prominent public figures - and possibly the only LGBT - to proclaim strong support for the judge's recent decision to sentence Turner to six months in jail - with the possibility of parole after three months - after he was convicted of intent to commit rape of an intoxicated or unconscious person and two related charges, all felonies.

In a statement from the public defender's office, O'Neal called the sentence "totally fair, not out of line, given [the defendant's] lack of a criminal record." O'Neal added that she stood behind Persky because "the judge listened to everyone involved and made a difficult call."
Brock Turner was convicted of sexual assault. Photo: Santa Clara County Sheriff's Office

The crime, which took place in 2015 near a Stanford fraternity house, involves a 22-year-old woman, who has remained anonymous, who was found unconscious, bloody, and half naked by passersby. Turner, who was banned from the university after Stanford conducted an investigation, contends that the woman had given her consent. A jury convicted him in March.

Since the sentencing was announced June 2, public outrage has grown. Within one week, more than 1.2 million people have signed online petitions demanding that Persky be recalled.

In her statement, O'Neal, the first openly gay person to hold the job, said, "We need to be very careful we're not hanging judges out to dry based on one decision, especially because he is considered to be a fair and even-tempered judge."

A firestorm of criticism has erupted over what many see as a lenient sentence by the judge, who made his decision after a recommendation by a parole officer. The parole officer recommended that the judge be lenient in part because the defendant was intoxicated and also because of his "sincere remorse and empathy for the victim" and his lack of a prior criminal record, according to court records.

Turner could have faced a maximum sentence of 14 years in state prison; the district attorney prosecuting the case urged the judge to impose six.

Michele Dauber, the Stanford law professor heading the effort to recall Persky, told the Bay Area Reporter that the sentence was "dangerous" and makes life less safe for women at Stanford and other college campuses.

Dauber, who was co-chair of a Stanford group that helped lead the process to review the school's policy on sexual assault, explained that the decision was "not within sentencing guidelines."

Dauber explained that one of the crimes for which Turner was convicted - assault with intent to commit rape - has a minimum guideline sentence of two years with a "sort of expected sentence being four years." It is also not eligible presumptively for probation.

But Persky, in granting probation after the jail term, found that this was an "unusual case" for several reasons, and that he was, prior to committing these crimes, "a very successful young man who had a great academic record and a lot of athletic accomplishment," said Dauber.

But Dauber argued that Turner's description "fits essentially every campus rape at Stanford, certainly, and many schools across the country."

Persky's decision "has essentially taken campus rape out of the category of things you can go to prison for, and awarded it a lighter sentence," said Dauber. "This is absolutely an outrage," she added.

The recall measure will be on the ballot next year, predicted Dauber. The new group, http://www.RecallAaronPersky.com, started by the state political action campaign Progressive Women Silicon Valley, has launched a fundraising campaign to gather signatures to place the measure on the ballot, said Dauber.

"We are definitely going to do it," she said. "We won't know until next year if the citizens will vote to remove him."

But O'Neal argues that the victim was vindicated by the jury verdict, "which sent a strong message that such assaults are not to be tolerated," according to the statement from her office. "Nothing would be gained by sending Turner to prison," she said.

O'Neal said she is appalled at the venom directed at Persky, whom she says has received multiple threats.

She noted that prosecutors could have declined to let Persky hear the case if they were concerned that his background as a Stanford graduate and assistant coach of the university's lacrosse team would influence his decision. She also said that trying to recall the judge based on one decision is wrong.

"I stand with the judge," O'Neal said.

Santa Clara County District Attorney Jeff Rosen was disappointed with the sentence.

In a statement he released outside the courthouse, Rosen said, "The punishment does not fit the crime. The predatory offender has failed to take responsibility, failed to show remorse, and failed to tell the truth. It does not factor in the true seriousness of this sexual assault, or the victim's ongoing trauma."

Sandy Feinland, deputy public defender in the Sexual Assault Unit in San Francisco, noted in an email to the B.A.R. the sentence is unusual because "in the current political climate, sentences for sex crimes are typically disproportionately harsh."

But, Feinland also wrote that the sentence is being mischaracterized as a "slap on the wrist."

"Mr. Turner will not be done with his sentence after his jail term," he wrote. "He will face rigorous terms of probation, which include mandatory intensive counseling, lie detector testing and any other restrictions deemed appropriate. And any slip up will mean that he could face up to 14 years in prison. Most significantly, he will be required to register as a sex offender for the rest of his life, which restricts where he can live, what jobs he can get, and ensures that his neighbors will always know his shameful status."

In regard to the decision and the efforts to remove Persky, Bay Area Lawyers for Individual Freedom, a gay legal group, said the organization "does not believe any judge should be disciplined or removed from office for a single decision in a single matter because such a practice would remove the necessary independence of the judiciary."

That said, BALIF noted that the impact of this particular decision undermines the severity of what happened to the victim and re-enforces white privilege in society.

"We convey our deepest sympathy to the victim and laud her strength in the face of severe adversity," BALIF's statement said.

"We share the community's outrage at the seemingly disproportionate sentence given the sentences given to people of color and the minimization of the impact of Turner's actions on his victim," BALIF's statement said. "The one positive aspect to the disproportionate Turner sentence is that it has galvanized the broader community to focus on obtaining justice for victims of sexual violence, and the sentencing equity for all people, not just privileged white defendants."