Does America need a ‘War on Rape’?

Does America need a ‘War on Rape’?

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David Becker, like Brock Allen Turner before him, got off light from a rape charge. That sometimes bad people get off easy is not a failure of our legal system, but a design feature.

WASHINGTON, August 25, 2016 — Three sentences in rape and sexual assault cases have drawn intense scrutiny and criticism in the last six months. They have been condemned as evidence that the criminal justice system devalues women and sexual assault and that the system is broken.

They are, in fact, evidence that the system is working as it should.

David Becker, then a high school senior in Massachusetts, was charged in April of sexual assault. He was arraigned on two counts of rape and one of indecent battery for digitally penetrating two unconscious female classmates. The district attorney recommended that he be found guilty on two counts of indecent assault and sentenced to two years in prison.

He was sentenced Monday to two years of probation.

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Former Indiana University student John Enochs was charged in September, 2015 with the rape of two women. DNA evidence tied Enochs to one victim. A conviction would have resulted in up to 16 years in prison. Prosecutors dropped the charge to misdemeanor indecent battery, and the judge sentenced him in June to one year probation.

In March, former Stanford student Brock Allen Turner was found guilty on three counts of sexual assault after he was found thrusting his body against an unconscious, half-dressed woman behind a dumpster. He could have been sentenced to up to 14 years in prison, but instead received six months in jail and three years of probation.

In the Turner and Becker cases, defense attorneys argued that the men were talented athletes and had bright futures, painting their actions as “mistakes.” The judges agreed; the judge in Turner’s case said that a longer prison sentence “would have a severe impact on him. I think he will not be a danger to others.”

The three cases generated intense criticism from women’s advocacy groups and in news and social media. There have been calls to remove Judge Aaron Persky from the bench, and the sentences have been condemned as miscarriages of justice.

The prosecutors have not explained why they agreed to reduce charges against Enochs. In the other two cases, the sentences do indeed seem light. Many observers believe that the judges were overly solicitous to the victimizers and underly concerned with the victims.

The view of advocacy groups is that no rapist should walk free. They favor strict and certain punishment for rape and other sexual crimes, and certain conviction of guilty parties.

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This is a dangerous position. Outrage over lenient sentencing in the 1970s resulted in a national push for mandatory sentences and strict sentencing guidelines. The war on drugs created a climate of zero tolerance, where an ounce of marijuana could land you in prison more easily than homicide could. It created an environment in which smashing down doors and firing flash-and-bang grenades, tear gas and even bullets into a house full of minors became perfectly acceptable.

What some people seem to be calling for now is a war on rape. They want to change standards of evidence, eliminate plea deals, and draw lines such that unwanted touching is sexual assault is rape. They want to treat sexual conduct like the war on drugs treated drug crimes.

Judges are expected to exercise judgment, to take mitigating factors into account, and to ensure a fair trial. Sometimes they mess up, letting rapists, burglars, child abusers and pot smokers go free, when any sane person can see that the accused should rot in prison. Sometimes they impose sentences far harsher than most of us would countenance.

And sometimes they get it right. The fallibility of judges is always a problem, but to make the law into a machine incapable of error also makes it incapable of discretion or variation. It would create a much bigger problem than judicial fallibility.

It would, as the war on drugs nearly has, make the law viciously punitive, interested less in justice than in mechanical efficiency at meting out punishment. It would reduce respect for the law, not enhance it, and reduce belief that the justice system had anything to do with moral justice.

Enoch, Turner and Decker may all belong in prison. Their light sentences may indeed be miscarriages of justice. But only in a system that allows discretion, judgment and mercy will such miscarriages be possible. The goal should not be to eliminate them, but to ensure that their occurrence is random, not systematically restricted to white athletes.

Our goal should not be to see all rapists and sexual offenders go to prison, but to see some go free with no influence from race, ethnicity or gender.

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