#MeToo. These two simple words represent today’s era of women’s empowerment and holding powerful men accountable for sexual harassment. These two words do something that has never been done before in sexual assault cases: it unites its victims.
But while the movement has brought tremendous empowerment to women across the country and told them they should not be afraid to step up and report harassment, there are negative side effects of grouping together sexual assault victims under the single umbrella of #MeToo.
Such is the case in the Aaron Persky recall.
Santa Clara County announced in January that Santa Clara County Superior Court Judge Aaron Persky’s removal from judgeship will be determined by a countywide vote in June. Judge Persky presided over the Brock Turner trial, a case that received national attention when a 19-year-old Stanford University student athlete was convicted of three felony counts: assault with intent to commit rape of an intoxicated or unconscious person, penetration of an intoxicated person and penetration of an unconscious person.
But the sentencing phase of Turner’s trial delivered just the opposite of justice in the eyes of many. Presiding Judge Aaron Persky’s light sentence gave Turner a mere slap on the wrist for what the judge called just “20 minutes of action.” Judge Persky sentenced Turner to a mere six months in a county jail and three years of probation. After serving three months, Turner was released in September for exhibiting good behavior.
While a convincing argument can be made that the judge exercised his sentencing discretion wrongly, he did not do so illegally. As such, it is a mistake to recall him, and he should not be removed from judgeship. There are remedies to fix the gross injustice that took place, but recalling a judge who acted lawfully because of public disapproval – however overwhelming and justified it may be in the #MeToo era – is a dangerous precedent to set.
Even the office of the district attorney – the head criminal prosecutor in the county – explained that Judge Persky’s decision “was authorized by law and was made by applying the correct standards.” The office strongly criticized the sentence, but maintains that Judge Persky acted in accordance with the law should not be unseated.
One can only speculate as to why the judge delivered such a lenient sentence. The Santa Clara County Bar Association and the State Commission on Judicial Performance both said they found no evidence of judicial bias. Perhaps there was subconscious gender bias, racial bias, or maybe it was because the defendant came from an affluent family and attended the prestigious Stanford University. In any case, we will never know.
Proponents of the recall suggest that if Persky is removed from judgeship, the people of Santa Clara County can be sure he will never let a criminal off the hook again. But the Santa Clara County District Attorney’s Office already made sure of that. Shortly after the Turner case, the DA filed a motion to reassign a sexual assault case coming up on Judge Persky’s calendar. That motion was granted. Furthermore, in Aug. 2016 Judge Persky voluntarily switched from criminal to civil court and has not presided over any criminal court proceeding since.
Other advocates of Judge Persky’s recall argue that Turner’s sentence will deter victims of assault from reporting their assailants. But recalling a judge who lawfully (although potentially wrongly) used his discretion in sentencing will not solve this problem. Instead, changing the laws to make sure no other judge can do the same will have a greater effect. In light of the Turner case, the California legislature introduced two state bills, AB 701 and AB 2888, which were signed into law in 2016. These laws give judges the power to treat sex crimes analogously to rape during the sentencing phase and provide mandatory prison sentences for convicted sexual assault felons.
Aside from disgust with Judge Persky’s sentence, there is no basis to recall and unseat him. The implications of unseating a judge who acted in accordance with his legal discretion are tremendously dangerous. A functioning court system should indeed be moved by public opinion, but it cannot be fully constrained by it. If Judge Persky is unseated, it will undermine judicial independence.
As hard and painful as it may be, the people of Santa Clara County ought to put their personal opinions about the #MeToo climate and Turner’s sentence aside when casting their recall vote. They must understand what Judge Persky’s removal would mean for the future of the court system.