As 15-year-old Audrie Pott lay unconscious at a party in September 2012, three boys sexually abused her, wrote comments on her body and texted photos of their act to other students at Saratoga High School in Santa Clara County. Audrie committed suicide several days later.
The teenage attackers got off with a few weeks in juvenile hall; two were allowed to serve their time on weekends. Anger over the light sentence crystallized in the form of SB 838 – also known as Audrie’s Law – which increases penalties against juveniles who sexually assault people who have passed out.
But they didn’t, and the maddening result is that lawmakers are now repeating their mistake by rushing to pass more headline-driven bills tailored to the circumstances of a particular case and the highly unpopular sentence that followed.
When the Brock Turner sentence hit the headlines, Assemblywoman Nora Campos (D-San Jose) quickly announced that she would introduce a bill on sentencing in cases in which an unconscious victim is raped (it’s worth noting that Campos is running against state Sen. Jim Beall, another San Jose Democrat, who is author of Audrie’s Law). She was beaten to the punch by AB 2888, a bill that once covered funding for food displays at California fairs, but was hastily rewritten and now prohibits probation for a variety of sex crimes, including rape or sexual assault of an unconscious person.
The problem in existing rape sentencing law is real. Just as killing an unconscious person is still murder, rape remains rape whether the victim is alert or passed out. Laws that treat it as somehow a softer crime may be remnants of a sexist outlook that protected rapists by unfairly focusing on the status, condition, demeanor or sexual history of the victim. The substance of AB 2888 may be one needed, if narrow, reform.
But legislate in haste, lament at leisure. A lasting cure to irrational laws comes not from the latest brutal rape, tragic suicide or mind-boggling sentence, but from a more thoughtful, deliberate and contextual reshaping of criminal statutes. That’s the kind of thing that could come from a sentencing commission, or, absent that, a Legislature somewhat like California’s – but with a little less focus on the headlines and a lot more on justice.