Loopholes in the Law


Due to recent sexual assault cases that received national attention, we are learning more about the laws and in some cases, the loopholes that exist. In April, it was a case in Oklahoma, and more recently, in California, the “Stanford Rape.” The latter case involved the prosecution of Stanford student Brock Turner for his sexual assault on an unconscious woman.

Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration.

This case made national headlines (when Judge Aaron Persky gave a very minimal sentence to Turner (6 months), outraging victim advocates across the nation. Several loopholes in California sexual assault law made this lenience possible.

According to California legislators, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.

The Turner case served to bring this unfortunate loophole to the awareness of the California legislature, which has now passed a new bill that would prohibit judges from sentencing offenders to probation in cases of sexual assault against an unconscious victim. In the Brock Turner case, this would have led to a minimum sentence of three years in prison.

Definitions of rape and sexual assault differ from state to state as do the laws pertaining to these crimes. If you are interested in reviewing the current laws in your state, take a look at this excellent database put together by RAINN. According to an investigation by Reveal last year, two states lagging significantly behind the other 48 when it comes to sexual assault laws are Mississippi and Idaho.

While it’s important to make sure the laws regarding sexual assault and rape are logical and reasonable, prosecution of this crime is an after-the-fact remedy that may or may not have an impact on prevention. Changing our rape culture is also a critical component, albeit one that cannot happen overnight. Still, we do need to take steps to educate young people, especially boys, to respect girls and women.

In my work with high school girls, I always ask them what they think needs to be done to lower the rate of sexual harassment and sexual assault in our country. Invariably, they are clear that prevention training prior to high school is the key. In other words, educating boys in middle school, or even elementary school would have the biggest impact on changing the culture in schools, communities, and beyond. The girls are always pleased to know that Esteem offers trainings to boys focused on changing attitudes and behaviors regarding respect, consent, and empathy for others.

Of course, rape culture isn’t just about the socially conditioned actions of individuals; it’s also about systemic and institutionalized privilege, the kind that allows legislators to remain nonplussed about laws that do not prosecute those who perpetrate against a person who is unconscious or incapacitated. As a result, Turner was released last Friday (3 months early) due to “good behavior.” This bill is too late to make a difference in this case, but for the sake of other victims, Governor Brown can’t sign this new bill fast enough.

Meanwhile, everyone – families, schools, and communities—can redouble their commitments to educating the young people in their lives about appropriate, respectful behavior aimed at taking care of others, particularly those in a vulnerable state.



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