People have been rightly outraged at the leniency shown to Brock Turner, a white student who was convicted of sexually assaulting an unconscious woman. The sentencing highlighted how class and race privilege can turn a perpetrator into a sympathetic figure in the eyes of the justice system, a leniency that is not granted to most people who enter a courtroom.
California has responded by passing a new law creating a mandatory minimum sentence for sexually assaulting an incapacitated person. While their desire to respond to the case is understandable, the new law is likely to do more harm and won’t help in deterring sexual assault.
As Know Your IX co-founder Alexandra Brodsky and her classmate Claire Simonich wrote in the New York Times, mandatory minimums disproportionately impact people of color and still allow those with privilege to escape punishment:
Although mandatory minimums were meant to reduce disparities, in practice they hurt the populations some reformers sought to protect. Minorities and people with lower incomes are more likely to be arrested, and then more likely to be charged with crimes that carry higher mandatory minimums than others who commit the same act…
…With mandatory minimums, the privileged can still get off easy. Leading victims’ groups oppose mandatory minimums in part because judges and juries may be less likely to convict at all if they are uncomfortable with imposing a long sentence on a “sympathetic” (read: white and wealthy) person.
These scenarios seemingly put into conflict progressives’ desire to punish sexual assault and to reduce mass incarceration. But as German Lopez notes at Vox, studies show that longer sentences aren’t the most effective way to punish crime. The “three levers” are swiftness, certainty and severity of punishment, and severity turns out to be the weakest. Certainty becomes the most important factor.
The US National Institute of Justice agrees, writing earlier this year, “Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment.” They added, “Research has found evidence that prison can exacerbate, not reduce, recidivism. Prisons themselves may be schools for learning to commit crimes.” So more certainty of punishment can deter crime, while more severity can actually make it worse after a certain point.
To some degree, this is common sense: People tend to commit crimes thinking they’ll get away with them, so whether they’re punished by 10, 20, or 100 years in prison is really not very important. But if you change their notions that they can get away with crime by making it more likely the criminal justice will punish them, then you can make an impact.
The problem remains that law enforcement is not willing or prepared to take sexual assault seriously, and that in combination with overall rape culture makes reporting and convictions much less likely than they are for other crimes:
As RAINN’s statistics on sexual assault show, out of every 1,000 rapes, 993 will go unpunished. Only about a third — 344 — are reported to police, 63 of those reports lead to arrest, 13 of those cases are referred to prosecutors, seven of those cases lead to a felony conviction, and just six of those rapists will be incarcerated. In comparison, for every 1,000 assault and battery crimes, 41 lead to a felony conviction and 33 lead to incarceration — still relatively low rates, but much higher than sexual assault rates.
So the problem is that way too many rapists can get away with their crime. There is simply no certainty that they’ll get caught, which makes the deterrent effects of a very severe punishment next to negligible. (Of course, there is a value to some severity to incapacitate serial rapists. So there’s a balancing act here.)
The mandatory minimum law in California is still awaiting the governor’s signature, and many groups have spoken out against it. Whatever happens in this case, it’s clear we need to think more creatively and comprehensively about preventing and punishing sexual assault, and not rely on reinforcing a broken system.