Seven years after Brock Turner’s three-month sentence for sexually assaulting Chanel Miller drew outrage and led to a judge recall and law changes in California, a judge in Illinois has reversed his own verdict for a man found guilty of raping a 16-year-old. The similarities show how, in 2022, sexual assault survivors are still fighting against a system that empathises more with their attackers, writes Rachel Sharp
He was the model student with dreams of swimming for Team USA at the Olympics who “fell into the culture of alcohol consumption and partying”.
She was the “party girl” who drank too much at a frat party.
Or so went the narrative in a California courtroom back in 2016.
One year earlier, in January 2015, 19-year-old Brock Turner had been caught by two fellow students sexually assaulting 22-year-old Chanel Miller on the Stanford University campus.
Ms Miller was unconscious, lying on the ground in the dark behind some bins while Turner was penetrating her.
When he realised he had been spotted, Turner ran. He was chased by the two bystanders and held until the police arrived and took him into custody.
Ms Miller was still unconscious on the ground and, as she later described, “butt naked all the way down to my boots, legs spread apart”.
She woke up on a hospital gurney hours later and learned she had been sexually assaulted.
Her underwear was missing, debris was found in her vagina, she had pine needles in her hair.
Despite the evidence, Turner claimed Ms Miller consented and pleaded not guilty, sending the case to trial where the victim’s sex life, lifestyle and most intimate details were laid bare.
Just moments before Ms Miller took the stand, the courtroom was shown a huge closeup image of her vagina.
She was asked questions about whether she had ever cheated on her boyfriend.
She was probed about how much she would party and drink back in college.
In all, Ms Miller spent 14 months after the attack waiting for Turner to be found guilty of three charges of felony sexual assault. He then spent three months in prison for what he did to her.
Turner was facing up to 14 years on the charges, with the prosecution asking for six.
Judge Aaron Persky sentenced Turner to just six months and he walked free after three.
The sentence drew outrage around the globe, being held up as an example of the biases that have long plagued the criminal justice system when it comes to rape cases.
Major changes were introduced as a result, with Judge Persky being recalled and California implementing mandatory minimum sentences for sexual assault cases in a clear message that future Brock Turners must not get away with simply a slap on the wrist.
But, around six years after the California judge decided six months was an appropriate punishment for the lasting impact on Ms Miller’s life, a judge in Illinois went one step further.
On January 3, Adams County Judge Robert Adrian changed his verdict from guilty to not guilty in the bench trial of Drew Clinton.
The 18-year-old man was accused of raping a 16-year-old girl while she was passed out at a grad party at the home of another student in Quincy.
The victim, who The Independent is not naming because of her age, told the court she woke up to find her attacker holding a pillow over her face so no one could hear her while her attacker penetrated her.
Judge Adrian found Clinton guilty of the attack in October and he was due to be sentenced on 3 January.
But, at Clinton’s sentencing, instead of handing him at the least the mandatory minimum sentence of four years, the judge said he would “reconsider” the verdict and find Clinton not guilty.
He made no mention of the victim in his comments other than to say he was “disgusted” at the situation where young people were swimming in their underwear in a pool and drinking underage.
That day, Clinton walked out of the court a free man – with no probation and without being placed on the sex offender’s register.
Parallels were instantly drawn between the treatment of Clinton and the treatment of Turner.
Both were found guilty of raping unconscious victims.
Both walked away with a slap on the wrist.
And both cases have reignited questions over to what extent the criminal justice system still favours rapists over their victims.
Protecting rapists, blaming victims
“Like the Brock Turner case, this case illustrates the obscene length to which the legal system will go in order to protect rapists and blame victims,” Michele Dauber, the Stanford law professor who led the successful campaign to recall Judge Persky in the wake of the Turner case, tells The Independent.
“The message it sends to perpetrators is ‘don’t worry, the system will have your back’.
“And to the victim it’s ‘don’t bother coming forward as even if they are convicted, it can be taken away again or the sentence can be so light that it doesn’t feel like justice’.”
Professor Dauber says that, in both cases, the “judge clearly empathised more with the accused than with the victims”.
Based on the language used by the judges, Turner and Clinton’s ages and lack of trouble with the law was the focus of their decisions – not the crimes they had committed or the impact on their victims.
In Illinois, Judge Adrian said he believed Clinton had already received “plenty of punishment” after serving five months in county jail and that it would be “not just” for him to serve more prison time.
“There is no way for what happened in this case that this teenager should go to the Department of Corrections. I will not do that,” he said, according to the court transcript.
In Turner’s case, Judge Persky spoke of his concerns that a longer sentence would have “a severe impact” on the rapist and said he believed “he will not be a danger to others”.
He made no mention of the impact on Ms Miller.
The sentencing came after Turner’s father pleaded for leniency in a controversial letter to the court that appeared to paint his son as the real victim.
“His life will never be the one that he dreamed about and worked so hard to achieve,” he said.
“That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”
Santa Clara County District Attorney Jeff Rosen, who prosecuted Turner’s case and later condemned the lenient sentence given by the judge, tells The Independent that while the age of the perpetrator is considered in cases, it should never be the only factor.
“Rape is a serious crime but it is not always treated as seriously as it should be,” he says.
“I think that the focus is sometimes too much on how the defendant’s life is affected by the conviction and sentencing and not enough on the lifetime effects it has – not only on the victim of this particular crime but on all other victims because of the message it sends about whether or not they should come forward and how they will be treated by our justice system.”
While there are clear similarities between the judges’ handling of the cases, Professor Dauber does point out a glaring difference.
An abuse of judicial power
Judge Persky’s decision was shocking but he gave Turner a sentence that was within the confines of the laws in California at the time.
Judge Adrian, meanwhile, told the court he did not agree with the law and so appeared to take steps to avoid it.
In his court transcript, the judge explained that the law did not allow him to give Clinton a lower sentence than the four year minimum and that if he found the statutory sentence unconstitutional, an appeals court would reverse his ruling and send him to prison anyway.
“Mr Clinton has served almost five months in the county jail, 148 days. For what happened in this case, that is plenty of punishment. That would be a just sentence. The Court can’t do that,” he said.
“But what the Court can do, because this was a bench trial, the Court will find that the People failed to prove their case on Count 3.
“The Court is going to reconsider its verdict, is going to find the Defendant not guilty on Count 3. And, therefore, the case – the Defendant will be released from custody.”
Professor Dauber says that the judge’s own statements show he “doesn’t actually believe the defendant is not guilty but just that the punishment in the state of Illinois is too harsh and so for that reason he reversed the conviction”.
As far as the law professor is concerned, this shows both an “abuse of power” and an “abuse of his discretion” as a judge and “essentially a judicial nullification of the law” – where a judge upends a law that they feel is too harsh.
“It is the role of the legislature to set the law and prescribe the punishment standards – not the judge,” she explains.
“In this case, the judge essentially acted to nullify the duly-elected legislation and that move seems to be based on him disagreeing with the legislature and his biases about who is responsible for sexual violence.”
She adds: “The legislative branch had set a punishment but the judge had his own ideas and, in my opinion, abused his powers to do what he wanted rather than follow the law.”
This, she says, is a “very extreme” move from the judge – even more extreme than in the Turner case.
“In the Turner case, the judge had the ability to sentence Turner as he did under the law,” she says.
“He was just wrong to do so and that’s why we voted him off the bench.”
The father of the underage victim in the Clinton case tells The Independent that he feels that the judge “took the law into his own hands”.
“Your job as a judge is to uphold the law, not take the law into your own hands… you found him guilty,” says Scott.
“Your job was to sentence him and because you couldn’t change the law, the only thing you could do was change the verdict.
“What gives you the right to take the law into your own hands?” he asks.
By changing the verdict, Scott explains that his daughter was also robbed of the chance to deliver her victim impact statement to the court about how the sexual assault has impacted her life.
“She felt that the sentencing would be a happier day,” he says.
“A day that she could read her victim impact statement and that justice would be upheld for her.”
It was Ms Miller’s victim impact statement that helped propel Turner’s measly sentence into the spotlight.
“You don’t know me but you’ve been inside me, and that’s why we’re here today,” she began.
Over 12 pages, Ms Miller detailed the moment she woke up in hospital and learned she was assaulted, to her struggles coping in her family life, relationships and work in the aftermath, and how she had endured a trial in a system that looked more kindly on her attacker than her.
When the statement was published in full by Buzzfeed in June 2016, it was read by more than 18 million people.
At the time, Ms Miller was known only as “Emily Doe”, before she waived her anonymity.
DA Rosen says the 16-year-old victim has been “silenced” by taking away her right to deliver her statement at Clinton’s sentencing.
“Justice and healing comes in a lot of different forms but one of the ways some victims of rape can begin the healing process is to be able to give an impact statement where they are able to express their feelings and their feelings be validated in a court of law,” he says.
“To not be able to give that impact statement is a further victimisation. It’s terrible. It’s being silenced.”
Instead, the court heard the judge pushing the blame for her sexual assault onto anyone other than Clinton.
‘Boys will be boys’
He criticised the parents of the student who held the party where the assault took place for allowing “coeds and female people to swim in their underwear in their swimming pool” and for “16-year-olds to bring liquor to a party”.
“And you wonder how these things happen. Well, that’s how these things happen,” he said.
“‘These things happen’ is shorthand for ‘boys will be boys’,” says Professor Dauber.
“That if you put a girl in underwear in a swimming pool and add alcohol then boys will be boys.
“He’s completely minimising the severity of the offence.”
The judge’s reference to alcohol and what the victim wore is a common theme of victim blaming, she explains.
“The judge went out of the way to blame everyone other than the accused,” she says.
In Ms Miller’s victim impact statement she too described being “pummeled” in court with questions about her private life and love life and painted as “practically an alcoholic” who “probably wanted to hook up” with her attacker.
“After a physical assault, I was assaulted with questions designed to attack me, to say see, her facts don’t line up, she’s out of her mind, she’s practically an alcoholic, she probably wanted to hook up, he’s like an athlete right, they were both drunk, whatever, the hospital stuff she remembers is after the fact, why take it into account, Brock has a lot at stake so he’s having a really hard time right now,” she said in the statement.
To Turner, she pointed to his attempts to blame alcohol for his actions.
“You said, Being drunk I just couldn’t make the best decisions and neither could she,” she said.
“You have been convicted of violating me, intentionally, forcibly, sexually, with malicious intent, and all you can admit to is consuming alcohol.
“Do not talk about the sad way your life was upturned because alcohol made you do bad things. Figure out how to take responsibility for your own conduct.”
As Professor Dauber explains, the treatment of the two victims – and so many other sexual assault victims – in court is “a centuries old problem” of how men and women are viewed by society.
“It’s indicative of the viewpoint that somehow men can’t help themselves from committing sexual violence in certain circumstances. That the situation, that alcohol, that scantily-dressed women causes sexual violence – not predatory behaviour,” she says.
“In general our society has typically seen women as temptresses and men as unable to contain their sexual impulses.
“No. Rapists cause rape. Lots of people get drunk and don’t rape anybody. Lots of people go to parties with girls and don’t rape anybody.”
Despite efforts to change this attitude, prosecutions and convictions are still extremely rare for sexual assault cases.
Data from RAINN shows that just 25 out of every 1,000 rapists will go to prison for their crimes in the US.
This already put Turner and Clinton in a tiny minority who it seemed would be held accountable for their actions.
That justice was then ripped back away from their victims makes it even more difficult for them to “heal”, says Scott.
He says Clinton’s guilty verdict had meant his daughter was finally able to “start to try to heal”.
The shock verdict reversal then “destroyed” this and felt like the judge “spat in our faces”.
“He has destroyed everything we’ve worked at to get my daughter to start healing … in just 15 minutes he destroyed all of that,” he said.
The power of one person
Both cases highlight the power that a single individual appointed as a judge can hold over the victims of sexual assault getting the justice they deserve.
And over their attackers being free to potentially assault other victims.
With the not guilty verdict, Clinton left prison earlier this month without even being placed on probation or the sex offender’s register.
He won’t be required to attend a sex offender rehabilitation programme and will not be monitored.
“This is why we need to be very careful of our selection of judges as they hold a tremendous amount of power and when they abuse their discretion it’s very hard to do anything about it,” says Professor Dauber.
“We need to have judges on the bench who understand sexual violence and take it seriously.”
A ‘giant step forward’
Following uproar over the Turner case, Judge Persky was recalled from the Santa Clara County Superior Court in June 2018.
He was the first California judge to be recalled in over 80 years.
Professor Dauber, who led the recall campaign, says it marked a “giant step forward” for sexual assault and forced elected leaders to “sit up and take notice”.
The state also introduced stricter laws for sexual assault cases.
DA Rosen’s office wrote a bill, put forward by two Democratic assemblymen, to make prison time mandatory for sexual assault when the victim is unconscious or too intoxicated to consent.
California Governor Jerry Brown signed it into law in 2016.
The definition of rape was also expanded to include digital penetration and rape between a married couple would face the same penalties.
“In Turner’s case it was a systemic issue and the laws needed to change,” says DA Rosen.
“We got these changed to say that rape is rape and the perpetrator should be held strongly whether married or not and whether the victim is conscious or unconscious,” says DA Rosen.
Campaigns encouraging bystanders to intervene – like the two students who rescued Ms Miller – and raising awareness around sexual assault on college campuses were also launched in the aftermath.
Fast forward to Illinois and the judge’s decision has now left the victim with no further legal options.
But, as seen in Turner’s case, questions are mounting around whether changes can be made to stop future victims being let down by the legal system in the future.
Steps have already been made to make an example of what happened.
The victim and her family are speaking out about the case and are refusing to be silenced anymore.
The court has spoken, with Judge Adrian removed from adjudicating criminal cases and assigned only to civil cases this week.
And the community is acting with its feet in calling for his removal.
Judge Adrian was first elected in 2010 for a six-year term then retained for another term in 2016. This means he is expected to be up for re-election in 2022.
A Change.org petition calling for Judge Adrian to be removed from his position had reached more than 20,000 signatures by Friday morning.
Professor Dauber says that change can come about when communities “band together and vote on the issue”.
“Judge Adrian was elected and elected judges can be voted out and if this happens in more cases then sexual violence would be taken more seriously,” she says.
“We elect judges so they don’t show bias and this judge seems to have shown bias in this instance which causes the public to lose faith in the system.”
She adds: “When we see more political action being taken, where judges like Persky lose their elected office, I think that can make a difference over time.”
Change won’t happen overnight, points out DA Rosen, but these cases “should trigger a response from people in the community”.
“The criminal justice system is ever evolving and the status of women both in our society and the system has improved over the last 50 years but we’re not there yet,” he says.
“There’s work to do and cases like Brock Turner and what’s happening in Illinois illustrates that.”
Professor Dauber agrees: “One case is not going to change the system in its entirety.
“We still have a long way to go in terms of fighting for survivors and for sexual violence to be taken seriously.”