Opinion: The Stanford rape case judge messed up. But does it make sense to recall him?

Stanford law professor Michele Dauber in an interview with the L.A. Times editorial board in June.
Stanford law professor Michele Dauber in an interview with the L.A. Times editorial board in June.
(Jason Hanasik / Los Angeles Times)

The Internet exploded several weeks ago when Brock Turner, the Stanford rape case assailant, received only a six-month jail sentence for sexually assaulting an unconscious woman; the typical sentence for a first-time offender is two years in prison. This week, public outrage surrounding the case was reignited by court documents that showed Judge Aaron Persky had previously sentenced Raul Ramirez, a Salvadorian immigrant, to three years in prison for a similar crime. Ramirez, unlike Turner, had shown genuine remorse and pleaded guilty, factors that should have reduced his sentence.

Two years “is not a life-destroying sentence,” Michele Dauber said, referring to Turner’s case. “All the poor and black and brown people are not enjoying jail either. Twenty-two is plenty young to get out and start over.” Dauber is a Stanford law professor who was instrumental in revising the school’s sexual assault policy. She is also a longtime family friend of the victim in this highly-publicized assault. Alongside campaign manager John Shallman, Dauber is now leading the charge for voters to remove Persky from the bench — to “recall” him — in response to this ruling.

But even if Dauber’s team is successful in gathering the necessary signatures, the Persky recall wouldn’t be voted on until November 2017. Percy was just re-elected in an uncontested election; his current term runs through 2022.

Dauber’s team decided to pursue a recall rather than an investigation by the state’s Commission on Judicial Performance. It’d be unlikely to win such a case, as the commission examines judges for corruption, ethical lapses or incapacity. Many lawyers who disagree with the sentence have noted that it was still within the law. A straightforward appeal could yield a harsher sentence for Turner, but would not remove Persky from the bench.

Because recalls are so expensive and labor intensive to run — often requiring tens of thousands of signatures within the relevant county, a media plan, and a team of organizers — they are uncommon. Electing Women Silicon Valley, a PAC that is working to elect women to the U.S. Senate, has stepped in as the new effort’s main funder.


For now, Santa Clara County prosecutors have blocked Persky from hearing an upcoming sex-crimes case. He is one of only three judges that handles sexual assault cases in the county, and could potentially review Stanford student cases in the future.

Judge Persky made a lenient ruling “on the basis that [Turner] was young, previously high-achieving and intoxicated,” Dauber told the Times. “Every sexual assailant at Stanford University is young, they are all intoxicated, and they are all high-achieving, because that’s how you get into Stanford.”

The Times’ editorial board hasn’t questioned whether the crime was horrific or the sentence was too lenient; it was, and it is. Probation should be granted only if it serves the best interests of justice, and it is extremely hard to conclude that the best interests of justice were served by this ruling. On this point, Dauber’s team and The Times’ editorial board strongly agree.

Where we differ with Dauber’s team is on the best procedure for addressing a poor ruling from the bench. We’re generally skeptical of challenges to sitting judges on the basis of their opinions: we believe that it interferes with the independence of the judiciary and can pave the way for politically motivated recalls of competent judges. We need to examine a judge’s full record, not just one or two cases, to get a better sense of his or her discernment.

These issues are incredibly complex. Dauber’s argument hasn’t yet persuaded us, but it has given us more to think about.

Things are always changing: this is the force of news. Things could be very different: this is the force of opinion writing.

Also happening this week: The Times’ editorial board wrote about the Academy of Motion Picture Arts and Sciences’ decision to diversify its membership, the waste of time and money that was the latest congressional report on Benghazi, the loophole that stops the U.S. from deporting some of those who’ve been convicted of serious crimes, L.A.’s housing crisis, and the counterproductive efforts of those who’ve been violently counterprotesting hate groups.

Our op-ed contributors wrote about why hyper-patriotism is un-American, Trump and the Brexiteers, breaking up the major tech companies, and more.

We listened to the ‘On Being’ podcast featuring writer (and occasional Times op-ed contributor) Rebecca Solnit. “So much of what we’re burdened by is bad stories… [by] people who have amnesia, who don’t remember that the present was constructed by certain forces to serve certain elements, and can be deconstructed in that things could be very different, that they have been very different, that things are always changing,” she said.

Things are always changing: this is the force of news. Things could be very different: this is the force of opinion writing. On Thursday afternoon, these forces came together when the Pentagon lifted its ban on openly transgender service members. A policy that needed to change was deconstructed, and things did become, suddenly, very different. It’s a good story.