The case of Brock Turner revived long-held doubts about a criminal justice system that seems to go easy on the men who perpetrate sexual assaults of women. Turner, the former Stanford swimmer, was gifted a six-month jail sentence in June by a Santa Clara County judge despite Turner’s conviction on three felony counts, including assault with intent to commit rape of an intoxicated or unconscious person.
Witnesses caught Turner in the act of violating an unconscious woman by a dumpster.
There are reasons, both legally arcane and morally disturbing, that favored Turner in the eyes of the law. For example, did you know that Turner isn’t legally considered a rapist?
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Because Turner penetrated his victim with a foreign object and not his penis, he was never convicted of rape – a fact that seemed to elude many in the public and even some in the media. Though probably not appropriate for a family newspaper, the distinction between what is and isn’t called rape under California law is critical to understanding the daunting road facing women who have been sexually assaulted.
Both rape and sexual assault trials often become exercises in attacking the credibility of the victim. They often become about establishing doubts among jurors by raising questions of whether there was some consent in the alleged attack. That’s what happened in the Turner case: Defense lawyers questioned how long the victim had been unconscious.
In the end, the judge in the Turner case ignored the recommendation of prosecutors seeking a six-year prison sentence for Turner. The judge sided with a probation recommendation of six months in jail. The probation officer made the recommendation based on Turner’s youth, lack of a criminal background and that he would be registered for life as a sex offender.
Even so, there are other complications – too many to cite here – that can influence sexual assault and rape cases. How a victim is treated depends on the facts of each individual case, on existing law, the prosecutors assigned to the case, the judge, the jury, the jurisdiction.
Get the picture? Rape and sexual assault victims have to negotiate these legal minefields, while at the same time coping with the shock and shame of their experience. They can become outcasts among their peers and friends. They can be blamed. What were they drinking and how much? Why were they in harm’s way? Did they provoke the attack? Why didn’t they fight? Scream? Kick? Flee?
“You can have communities turn against you,” said Christine Ward, executive director of the Sacramento-based Crime Victims Action Alliance.
Yee Xiong was a 20-year-old student at UC Davis when her community turned against her. This began the day after she awoke to find a young man she knew and trusted on top of her in the predawn hours of of July 9, 2012. What would follow was a nightmare scenario with elements common to all victims who expect and demand justice and press their cases.
The first people she told about what had happened to her were fellow classmates she barely knew in a summer session Asian American Studies course. It was hours after the incident. She was ashamed, scared, shocked, horrified. Part of her felt she had to hide, but she told them anyway. Why? “I didn’t know how else I was going to be able to live with myself,” she said.
Her admission met stunned silence. “They didn’t know what to say,” Xiong said. “A few classmates comforted me, and everyone else was still trying to process what I had just shared.”
Her professor offered to get her help from an on-campus counselor. Xiong said she tried to absorb her legal options as she went back to her place alone. What would she do? She knew her assailant, a fellow UCD student named Lang Her. He knew her family of 12 siblings. The attack happened at his house, after a party where many people socialized. A court document in this case stated: “… Those in attendance played drinking games. Xiong consumed at least five shots of vodka and additional mixed drinks.”
Xiong had attended the gathering with friends. She had gone to parties at Her’s house before, stayed over, and had never felt a reason to feel unsafe. On the night in question, Xiong said, she felt ill from drinking too much and she fell asleep at the house. Her friends later left to take other friends home. Housemates of Her also had left.
Court documents said: “At some point (Xiong) woke up to feeling intense pressure on her lower body and intense pain. … He was having sexual intercourse with her without her consent. Her arms were pinned down by his, and she was unable to speak. She could not explain why. Shortly after she woke up, the defendant ceased the assault, pulled up her pants, and got into his bed.”
After Xiong was certain that Her had fallen asleep, she went into another room and called a friend who had accompanied her to the party. But her cellphone battery ran out before she could fully explain what had happened to her. She said she felt trapped in the home with her assailant.
“I felt if I confronted him then and there, I don’t think I would have made it out of that house,” she said. She allowed him to drive her to her apartment so she could collect some of her belongings, then he drove her to UCD so she could attend her class.
Hold onto that thought. This detail would prove critical later.
Telling her family was excruciating. Xiong comes from a large, tight-knit Hmong family from Laos. She was raised in relative poverty in Marysville. Her parents were refugees. Her father had fought alongside American soldiers in the Vietnam War. In one generation, Xiong’s parents had gone from the bottom rungs of American society to raising several university-educated professionals now fully assimilated into American life.
Her parents were crushed by what had happened. Her siblings expressed horror, despair and rage – not just at her attacker, but at her for being at that party. “My family has an interesting way of expressing concern,” she said. Eventually, they did rally around Xiong. Their initial shock and anger gave way to embracing the central truth of her story: She wasn’t to blame for being attacked that night.
“My name is Yee Xiong, and I am here today to reclaim my worth and my story,” she said in Yolo County courthouse on Tuesday. To do so, Xiong would have to endure two trials, both of which ended in hung juries. In both trials, she felt attacked by Her’s lawyer, Christopher Carlos. Even though her case dated back four years, Her was not arrested until April 2014. There were constant continuances.
During the investigation, Her’s story changed more than once. He went from claiming that nothing had happened on the night in question to saying that he and Xiong had kissed but that they had not had sexual intercourse. However, his DNA, from his semen, had been found in Xiong.
“He had lied to investigators and denied having sexual contact with her because he was afraid he would get into trouble and it would ruin his life,” wrote Yolo County Probation officers in their report.
The first trial ended in a hung jury in which eight of the 12 jurors voted for acquittal. Many times, a hung jury means the end of a victim’s quest for justice. Prosecutors are reluctant to try again. That was not the case in Yolo County, where prosecutor Jonathan Raven was persuaded by a colleague who litigated the first trial to pursue a second. The first prosecutor was about to take a maternity leave, Raven believed Xiong – and that was all the criteria he needed to take the case over and try it again.
“It’s highly unusual for that to happen,” said Ward of Victims Action Alliance. “Many of these cases never even get prosecuted. There isn’t enough evidence or there are too many resources required. … In Xiong’s case, they persevered. They knew it was the right thing to do. They should be applauded.”
Still, the outcome of Xiong’s case should be viewed through the realistic prism of the daunting odds facing rape and sexual assault victims. Cases often devolve into a he said/she said scenario.
During the second trial, the jury came back with 10 people voting to convict and two voting not guilty. The two jurors were men. Raven believes they had an issue with the way Xiong behaved after her attack, including allowing herself to be driven to school by the man she accused of raping her.
Despite another hung jury, “it was a win in my heart,” Xiong said. “Not a lot of survivors get to face their attacker. I got to protect myself and fight for my dignity. It felt good. It wasn’t a win, but it felt good.”
During the trials, she continued to draw strength from family and friends. It’s also worth noting that Her had been dismissed from UCD after he had violated an order not to contact Xiong. His family, also Hmong, had gone to Xiong with an offer. Without admitting guilt, they said that Her would like to marry Xiong. Horrified, she declined.
The Yolo County District Attorney’s Office was prepared to go to trial again. So was Xiong. Instead, a deal was reached where Her pleaded no contest to assault by means of force likely to produce great bodily injury, a felony.
On Tuesday, Yolo Superior Court Judge Paul Richardson sentenced Her, 26, to one year in jail. He’ll get five years of probation, register as a sex offender and be subject to sex offender counseling.
Her will have to pay restitution to Xiong, though the details have not yet been confirmed. It’s not three, six or eight years in prison – what Her might have gotten if he had been convicted. Then again, a third trial might have also failed to bring a conviction.
The fact that Xiong stood up for herself will bring her comfort in the coming years, she said. And with the sentencing, Richardson did what the Turner judge didn’t. He chose not to err on the side of leniency. “There is a signal that needs to be sent,” Richardson said.
Xiong hopes that her case sends a signal to other victims, letting them know they can persevere. But more than anything, she wants to reconnect with her goals of helping others. She graduated from UCD. She is a counselor working with young, economically disadvantaged youths.
“I feel like I can start my life and move on,” she said. “I still feel like I’m fighting every day. I still think about the dark clouds that have been in my life, but I have to think about brighter days ahead.”