If you’ve sold your body, you deserve leniency.
If your felony was low-level enough, you deserve to vote.
If you sexually assaulted someone, you deserve to go to prison.
Such was the message from Sacramento’s Capitol this year, as a trend away from strict law-and-order policies came with a notable exception for sex crimes, prompted by public fury and demands for change.
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Rapists should go to prison, period.
Santa Clara County District Attorney Jeff Rosen
After decades of tough-on-crime policies that swelled California prisons to the point that they had to be depopulated under a Supreme Court order, support has mounted for rethinking criminal punishment.
Voters embraced lighter penalties for offenses such as theft and drug possession. Gov. Jerry Brown is trumpeting a ballot measure that would allow parole for some nonviolent criminals, softening the effects of the rigid sentencing laws he helped enact decades ago. Lawmakers this year sent Brown bills – on which he has not yet acted – to decriminalize prostitution for minors, to dissolve mandatory minimum sentences for prostitution, to shield human trafficking victims from criminal convictions, and to restore voting rights to low-level felons.
But on sexual assault, legislators have moved in another direction. Tough bills connected to lurid, heavily publicized cases of rape and assault have made civil liberties advocates, public defenders and some legal experts fearful that Sacramento is returning to the sort of knee-jerk responses they say fueled an incarceration boom in the first place.
“We should not simply, because of the crime du jour, go back to old habits,” said Michael Vitiello, a professor at McGeorge School of Law. “Every time there was a headline crime in the past the Legislature would throw all these enhancements at the law. … It’s bad to make criminal justice policy based on the outlier, horrible case because we’re going to end up forgetting about basic fairness.”
One measure, Assembly Bill 2888, would mandate prison terms for sexually assaulting unconscious victims. It was inspired by the case of Stanford swimmer Brock Turner. He received a six-month jail sentence, widely lambasted as too light, after digitally penetrating an unconscious woman. Technically, the crime was not rape under California law. Another bill on Brown’s desk, AB 701, would define such crimes as rape.
Another, Senate Bill 813, would remove the statute of limitations for bringing sexual assault charges. It followed months of headlines about women accusing entertainer Bill Cosby of rape, at times years after the alleged incidents. Some of them testified in support of the bill.
Voters supported rolling back stringent criminal penalties in overwhelmingly passing Proposition 47, which reduced crimes such as drug possession and theft from felonies to misdemeanors.
We’ve made this mistake over and over again.
Natasha Minsker, head of the American Civil Liberties Union’s Sacramento offices
Just as emphatically, said Assemblyman Evan Low, D-Campbell, constituents have responded to the Turner case by calling for tougher sentences for such offenders. He argued that Turner’s act, as a crime of violence that involves intentional harm, demands a commensurate response.
“As a result of (the Turner) case the general electorate and population said, ‘What can we do to fix this wrong, such that we can get justice under the law?’” said Low, a co-author of AB 2888.
The senator seeking to abolish rape statutes of limitations argued that rape is a uniquely egregious offense.
“We cannot let concern about prisons being overcrowded deter us from pursuing these rapists and putting them in jail,” said Sen. Connie Leyva, D-Chino.
Support for that position has spanned the political spectrum. Both bills passed the Legislature with broad bipartisan support. Leyva’s bill was co-sponsored by San Bernardino District Attorney Mike Ramos, a fierce critic of Proposition 47.
Low’s bill was sponsored by Santa Clara County District Attorney Jeff Rosen, a Proposition 47 supporter who argued for the need “to reduce the number of individuals sent to prison and to reduce the time that nonviolent offenders are sent to prison for.”
“But we must draw a line between nonviolent crimes like petty theft and violent crimes like rape. Rapists should go to prison, period,” Rosen said. “We have room in our prisons for rapists.”
Civil libertarians, public defenders and even some anti-gender violence activists question that assertion.
In requiring prison terms, AB 2888 embraces a policy of mandatory minimum sentences that many criminal justice reformers have rejected as disastrously rigid. They have decried mandatory drug sentences, in particular, for filling prisons and shattering communities of color.
A coalition that included campus-based organizations and the National Alliance to End Sexual Violence sent Brown a letter urging him to veto AB 2888, calling mandatory minimums “a harmful, mistaken solution to our rightful anger over the Brock Turner case.”
“We have 40 years of experience in California that show mandatory minimum sentences, like California’s three-strikes law, increase racial disparities and lead to more people of color going to prison for more time,” said Natasha Minsker, director of the American Civil Liberties Union’s Sacramento office. “We’ve made this mistake over and over again.”
Yet even lawmakers who have fought to reduce drug penalties supported sending more sexual assailants to prison.
“We all respond to horrific crimes in our districts and we feel a responsibility to do something, and oftentimes it has been to the detriment of the proportionality and consistency of our Penal Code,” Sen. Mark Leno, D-San Francisco, who battled mandatory felony sentences for drugs, said during a committee hearing. But he voted to crack down on assaults of unconscious victims, who he said are “the weakest, the most indefensible, the most vulnerable.”
Public defenders also worry the proposed laws would shift the balance of power too decisively toward prosecutors. They say a required prison sentence could push innocent people to plead guilty or, in other cases, force trials that victims are reluctant to endure.
Defending against rape allegations after more than a decade (generally the current limit) is nearly impossible, they argue, as memories fade and witnesses can’t be located. Current law essentially suspends any limits when a DNA match emerges.
“You really run the risk of convicting the innocent,” said Alameda County Public Defender Margo George. “Justice evaporates with the absence of a statute of limitations.”
But there’s a broader societal argument made by advocates of tougher sexual assault laws. For too long, they argue, such crimes have been ignored or brushed off as minor youthful transgressions. Cracking down on perpetrators can correct that.
“I think we live in a culture of rape, and until we start changing some laws and make sure rapists know that the Legislature, the state, is behind victims, I think it continues,” Leyva said.
Particularly troubling, Rosen and allies say, is the prevalence of sexual assault on college campuses. Turner was not so much an outlier, Rosen argued, as a routine crime that caught enough attention to illuminate its ubiquity.
“We’ve had many studies that talk about how much sexual assault their college campuses, and there’s been no legislation to address that,” Rosen said. “Sometimes it takes such a case to galvanize the public’s attention.”
Crime and punishment measures
On Gov. Jerry Brown’s desk:
Assembly Bill 2888: Bars probation or a suspended sentence for sexual assault felonies if victim is unconscious or too intoxicated to provide consent.
Senate Bill 813: Removes statute of limitations to bring rape charges.
Senate Bill 1129: Eliminates mandatory minimum sentences for repeatedly soliciting or engaging in prostitution.
Senate Bill 1322: Prohibits arresting or charging minors for prostitution or loitering with intent.
Assembly Bill 2466: Allows people convicted of low-level felonies and serving their terms outside of prison, such as in jail or under community supervision, to vote.
Assembly Bill 1761: Seeks to allow human trafficking victims to avoid conviction for nonviolent, nonserious crimes they committed while being trafficked.
Assembly Bill 1762: Creates a process for human trafficking victims to vacate past convictions for nonviolent crimes committed while being trafficked.
Assembly Bill 701: Defines all types of non-consensual sexual assault, including the kind of which Brock Turner was convicted, as rape.
Proposition 47: Passed in 2014, reduced a number of crimes from felonies to misdemeanors, including drug possession, shoplifting and receiving stolen property.
Proposition 57: If passed in November, will make more nonviolent felons in prison eligible for parole. Gov. Jerry Brown has championed it, signing an official ballot argument lauding it for “rehabilitating juvenile and adult inmates and saving tens of millions of taxpayer dollars.”