Why Mandatory Minimum Sentencing For Sexual Assault Isn’t The Answer

By Meghan Racklin

Brock Turner is a rapist. Brock Turner assaulted an unconscious woman. He was convicted of three felony counts of sexual assault. He blamed alcohol, “party culture,” peer pressure — he blamed everything and everyone but himself. He was sentenced to six months in jail. Six months — of which he will serve only three. Six months because a judge was concerned about the “severe impact” of a prison sentence on him. Six months, when men of color convicted of similar crimes are sentenced to much more.

This story is familiar by now. Yet, this story was also all anyone could talk about when the verdict came. It has come to serve as a cultural fable about the injustice of our justice system, a system that protects the powerful when they have done wrong. One response to the injustice of Turner’s light sentence has been the introduction of a bill in the California State Assembly to impose a mandatory minimum sentence of three years for similar crimes.

The impulse to impose mandatory minimums is understandable. It seems like a way to demand that the justice system take rape seriously, that it will ensure consistency in a system that too often allows bias and privilege to tilt results in favor of the powerful and privileged. In the wake of a story like this one, rage is natural; so too, often, is the desire for retribution. But the horrific nature of Turner’s crime, or even the horrific nature of gender-based violence in general, cannot be an excuse to overlook the consequences of instituting mandatory minimum sentencing statutes. Turner’s case clearly shows that something is wrong — with our responses to gendered violence and with the race- and class-based inequities in our legal system. But if we are truly committed to dismantling racism and bias in our legal system — and to adequately addressing gender-based violence — we must find ways other than mandatory minimum sentencing.

Conservative Rape Law Reforms

While mandatory minimum sentences for rape have a long history, dating back to the 19th century, recent discussion of mandatory minimums for sex offenses have their roots in conservative efforts to reform rape law. These efforts emerged as reactions to infamous instances of child rape and murder in the ’90s, and emphasized stranger rape mythology to justify harsh punishments.

Following cases such as that of Megan Kanka, a seven-year-old from New Jersey who was raped and murdered by her neighbor, the right-wing “tough on crime” movement began to shift its focus from the drug war to sex offenses. Many states enacted Sex Offender Community Notification and Registration statutes, and at least 18 states raised the terms of incarceration applicable to rape. Mandatory minimum sentencing also expanded; from 2001 to 2010, the share of federal sexual offenders subject to mandatory minimum sentencing increased from 5% to 51%. These narratives, and the conservative reforms they inspire, position rape as rare, and fail to account for the most common forms of gender-based violence — in which the perpetrator is an acquaintance, a family member, a partner, or a friend. Per the National Institute of Justice, for example, 85–90% of sexual assaults reported by women in college are committed by someone the survivor knows.

With stranger rape as their core narrative, however, mandatory minimum sentencing proposals neglect the lived realities of acquaintance-perpetrated sexual assault, and position the predatory stranger as the central problem in legal and cultural understandings of sexual violence. When survivors of gender-based violence know their assailants, as most do, increased penalties may deter reporting, since mandatory minimum sentencing laws often lead to sentencing much harsher than believed appropriate by those involved.

This, in turn, may contribute to reinforcing stranger rape mythology — if assaults by a stranger are disproportionately reported, it contributes to erasing the reality of acquaintance-perpetrated assault. If acquaintance rape is erased, then the narrative of rape as an exceptional event perpetrated by a stranger in the bushes persists, and “tough on crime” activists can continue to use it to justify harsh punishments. This is a dangerous cycle. Emily Doe, the survivor in the Turner case, did not know her assailant — so again, we see stranger rape used to push for harsher penalties for sex crimes.

We empathize with Emily Doe, and we want to see her get justice, but we must extend that empathy and desire for justice to every survivor. In seeking further reform, it’s important to create systems that support all survivors — rather than silencing them.

Bias In The System

It seems clear that Turner’s light sentence in this case had to do with his privilege as a white man, since the judge justified Turner’s short sentence by saying that “a prison sentence would have a severe impact on him,” and black defendants convicted of similar crimes — and ones far lesser — have received much longer sentences. Those who advocate mandatory minimums seek to correct this bias by removing judicial discretion in sentencing. If judges are required to apply the same rules to everyone, surely, the thinking goes, there is no room for racial bias. But we cannot pretend that the bias in our justice system lives in judges alone, or that it only emerges at the point of sentencing. It also lives in prosecutors, who choose which charges to bring, if any at all, and in jurors, who decide whether or not to convict.

Mandatory minimums, rather than eliminating discretion in the criminal legal process, work to shift the lion’s share of that discretion from judges to prosecutors. Evidence indicates that when mandatory minimum sentencing laws are in place, prosecutors find a variety of ways to circumvent the effects of these laws. Prosecutors may decide to try a defendant for a lesser charge than the one with which they were initially charged, or encourage defendants to plead guilty to a lesser charge than the one covered under the mandatory minimum statute. This discretion leaves significant room for racial bias.

According to the ACLU, black defendants are often prosecuted for more serious offenses than white defendants, even when the characteristics of the crime are similar. In instances of sexual violence, this seems to be particularly true when the victim is white. In the ACLU’s analysis of almost 900 cases of forcible sexual assault investigations, cases in which a black defendant is accused of raping a white woman are disproportionately likely to be brought to trial, and black men accused of raping white women received more serious charges.

Once a defendant is brought to trial, the decision by a judge or jury to convict provides another point in the process at which bias may manifest. In a study of white male and female mock jurors in a rape trial, for instance, the mock jurors were found to give black defendants significantly harsher penalties than white defendants. The race of the victim also had a significant effect here. Black men who assaulted white women received the longest sentences, while white men who assaulted black women received the shortest.

Under mandatory minimum sentencing statutes, juries would not have the ability to impose sentences, but this research indicates a pattern of significant racial bias in jury decision-making. Mandatory minimum sentencing statutes reduce the likelihood of a conviction for a charge covered by the statute overall, but it’s all too likely that that reduction would disproportionately benefit white defendants and those convicted of crimes covered by the statute; those who would bear the brunt of the sentences are defendants of color.

With room for racial bias in prosecution and conviction, mandatory minimum sentencing statutes cannot adequately address systemic bias in the criminal legal system.

The Failure Of Prison As Response To Gender-Based Violence

Mandatory minimums for gender-based violence convictions reinforce the notion of prison time as the appropriate response to gender-based violence in America, and in the age of mass incarceration, prison as the solution to social problems is taken as a given. As activist Angela Davis writes in her book Are Prisons Obsolete?, “prison is considered an inevitable and permanent feature of our social lives.” Strengthening the carceral state as a corrective response to gender-based violence, however, raises serious concerns.

Prisons perpetuate a culture of toxic hyper-masculinity and gendered violence, and we cannot hope to prevent sexual assault or find meaningful justice for survivors while such a culture persists. Rashad Shabazz describes prison in the U.S. in his book Spatializing Blackness: Architectures of Confinement and Black Masculinity as places in which “the will to hurt others, the celebration of toughness, domination, hierarchy, and social control are part of the gender landscape.” Legal scholar Angela P. Harris extends this idea by naming the toxic masculinity in prison as gendered violence. Manhood as enacted in prison, she writes, “relies on two negative identities — not being a woman, and not being gay — and violence is the means by which these identities are disavowed.” There are also nauseatingly high rates of sexual violence in American prisons.

How can a place that allows for toxic masculinity and sexual violence be our best hope for ending the same?

In reinforcing the toxic masculinities that exist outside, prisons simply strengthen a culture that excuses and allows for sexual violence. Toxic masculinity is predicated on the idea that dominance — particularly sexualized dominance — over women and LGBTQ+ folks is good and necessary to masculine identity. Toxic masculinity is everywhere in our culture, and it is by no means a construction unique to or originating from prisons, but prison can serve to incubate and intensify this construction, reinforcing rape culture in the process. When sexual dominance is seen as the currency of power, those who are sexually dominated — most often women and LGBTQ+ folks — are not seen as fully human, and sexual violence is accepted and excused. We cannot expect institutions that sustain rape culture to provide adequate responses to gender-based violence, and in a culture that condones and excuses gender-based violence, simply locking up more people — and disproportionately men of color — cannot solve the problem.

The Meaning Of Justice

When we talk about strengthening responses to sexual violence, we need to reflect on what we mean when we talk about justice, who that justice is for, and be sure that our responses account for all survivors. Justice is not synonymous with vengeance, it cannot be found by substituting one kind of violence for another, and the current criminal legal system fails to provide a useful means of response to gender-based violence for many survivors. People of color, undocumented immigrants, Muslims, Native Peoples, and LGBTQ+ folks may find little comfort in a system that causes real harm to their communities. The movements against gender-based violence that have received the most mainstream attention have been led by white feminists, and have often sought to address gender-based violence by strengthening criminal legal responses. This approach fails to address the ways in which the state has been and continues to be a perpetrator of violence in many communities.

Mandatory minimum sentencing strengthens a criminal legal system that hurts communities of color, and fails to provide the kind of transformative social change that is needed to reduce either gender-based violence or racial bias in our legal system. Much of the rage surrounding Turner’s sentencing stemmed from the way in which his privilege afforded him consideration of his humanity, of the effect prison might have on him, in a way that it is not for offenders of color. Any new laws or statutes must still center the needs of survivors, but all defendants must also be treated justly in the process as well. California’s mandatory minimum sentencing statute, however, seeks to create fairness by denying the humanity of all defendants, rather than accounting for it.

What To Do Next

So, then, what can we do? How else can we conceive of justice for survivors? I think the first step is to move beyond what Alexandra Brodsky, co-founder of Know Your IX, refers to as “the monopoly that the criminal law has on our imaginations about how we can respond to gender violence.” In focusing activist efforts on responses outside of the criminal legal system, we can move toward responses to sexual violence that address the needs of survivors and incorporate a vision of justice with an eye towards a fairer, better world, rather than simply retribution.

Civil law can provide valuable alternatives to the criminal legal system for survivors. The civil protections afforded to students by Title IX and many workers by Title VII allow for important recourse that the criminal legal system cannot provide — suspension, expulsion, changes in scheduling or housing, and more. As a society, we can do more to strengthen and defend these protections. We can also work to ensure that all people, including those not covered under these laws, have access to civil legal options by pushing state legislatures to create civil rights of action.

When Congress passed the Violence Against Women Act (VAWA) in 1994, it included a federal civil remedy for victims of gender-based violence. The Supreme Court, in the 2000 case U.S. v. Morrison, ruled this section of the VAWA unconstitutional, leaving survivors to rely on state law. Some states have civil remedies, though they are often inadequate — many do not address the full spectrum of sexual violence, do not have a sufficiently long statute of limitations, and fail to make civil action financially accessible for many survivors. These options can be improved and expanded. Under a civil right of action, survivors could recover monetary damages — and the significance of money to survivors should not be understated. Money can mean the ability to pay hospital bills, access mental health care, move, or leave an abusive relationship.

We can also look to transformative justice and community accountability models. These processes require perpetrators to accept responsibility for the harm they have caused as a prerequisite for participation in their communities, often involving mediated dialogue between survivor and perpetrator. Restorative justice processes work to develop ways to repair or address harm done, with the ultimate goal of reintegrating the perpetrator into the community; transformative justice takes this a step further, centering an intersectional analysis and calling for a transformation of oppressive systems.

Community accountability models, like some restorative and transformative justice models, locate responses to gendered violence outside the state and within the community. Communities can work together to develop responses to abusive behavior by its members, and to transform their own social dynamics. Turner, for example, was held responsible by his community when he was banned from USA Swimming for life. With such action, members of his community asserted they do not condone his behavior.

Brock Turner is a rapist. He caused real harm, and his privilege protected him from the consequences faced by others who have caused similar harm. Of course this makes us angry. But we cannot allow our anger to justify reinforcing a system that fails to provide justice.

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Lead image: flickr/Julie, Dave & Family

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