A Double Injustice Throws a Scare into the Nation's Judges

The June 5 voter recall of Judge Aaron Persky once again brings the Brock Turner 2015 rape case fiasco into the news. Turner, a student-athlete at Stanford, was prosecuted and sentenced for sexually assaulting a young woman at a drunken frat party. The particulars of the case were ambiguous from the start. Both participants in the sexual encounter were heavily intoxicated, and the woman claimed not to remember what had happened. No one saw the two leave the fraternity house. Turner was fully clothed when he was spotted lying on, and presumably molesting, the woman, AKA "Emily Doe," by two passing Swedish bicyclists in the early hours of the morning – not an especially good time, given the hour and a nocturnal peloton, for accurate observation. Many other elements of the case were equally problematic: the woman was already in a state of partial inebriation when she was driven – irresponsibly, in my opinion – by her mother to the party; she chatted to her boyfriend on her cell phone just prior to leaving with Turner on their midnight rendezvous, indicating that she was still more or less compos; the police report swarmed with lurid assumptions that could not be proven or were merely inferential; and much more, detailed both in my previous article and my wife Janice Fiamengo's video on the subject.

Anyone interested in the truth should examine the court documents, all 471 pages, replete with inconsistencies, unverifiable interpretation, bias, conjecture, and twisted logic, before rendering judgment. Here is where the crux of the issue resides, not in the stanchless profusion of articles, blogs, reports, tweets, and Facebook postings that minister to unfounded righteous indignation and accusations of rape or assault. The lede in The Independent, to take just one example among many, already assumed Turner's guilt and the judge's complicity, calling the sentence "lenient" and Turner a "rapist" – the first a matter of opinion and the latter provably false. Sanctimonious ignorance is contagious, a staple of mob cohesion. It is far more gratifying to join an uninformed collective united in pious revulsion than submit to the onerous task of sifting through a voluminous deposition and using one's common sense. After all, that requires honest work and a saving skepticism. Instead, Turner was and is subject to a torrent of hatred spewed by those – journalists, commentators, academics, ordinary folk – who have not bothered to delve into the admittedly turgid and nigh-endless pages of the actual court documentation. You don't think when you're busy lynching. It is interesting, too, to remark that the tsunami of pronouncements, recapitulations, and discussions involving the graphic specifics of the hook-up have an air of voyeuristic relish about them, suggesting the vicarious indulgence of a culture obsessed with sex rather than concerned with justice. (Turner penetrated the woman with his finger. Turner was "thrusting." Turner circulated a photo of the woman's left breast – a photo that was never found. Turner had, according to a police officer, "what appeared to be a cylindrical bulge consistent with an erect penis underneath his pants." Etc.) The tawdry saga continues. Following the 2016 jury trial, Turner was sentenced by Santa Clara County Superior Court judge Aaron Persky to six months in jail, three years' probation, and lifelong registry as a sex offender, a ruling I considered unduly harsh, given the obscure and indeterminate nature of the event, the dodgy narrative the court papers reveal, the lack of conclusive evidence, and the flimsy testimony of the after-dark cyclists. In any sane society, a stern harangue to both the man and the woman and a warning about the hazards of drunken sex and the lack of a sense of adult responsibility would have sufficed.

Judge Aaron Persky (perskyforjudge.com). Notwithstanding, feminists were outraged at what they considered an offensively lenient verdict, and a campaign led by feminist Stanford Law professor Michele Dauber, who accused the court of favoring "perpetrators of privilege," was organized to censure Judge Persky and have him removed from the bench. With enormous funds at its disposal and a nearly 60% approval rating, the campaign succeeded, as was inevitable in the current hysterical climate of anti-male hatred, which sees almost every allegation of male sexual violence, regardless of evidence and due process, as literal fact. That Turner was convicted was a gross miscarriage of justice. The evidence was simply too questionable, the initial affidavits regarding Turner's character and previous achievements were exemplary, and the Salem atmosphere should have been taken into account as a prejudging factor, compromising the integrity of the arraignment. Indeed, the case should never have gone to trial in the first place. But the judicial burlesque was compounded by the treatment handed out to a judge with a stellar fifteen-year record who followed sentencing guidelines. Nevertheless, although an independent commission completely exonerated Judge Persky, he was duly recalled and replaced by a female judge, prosecutor Cindy Hendrickson, his pension sequestered and his future consigned to professional limbo. However one regards Judge Persky's practice and determinations, he was clearly within his rights and obviously followed the dictates of his conscience and the prescriptions of law. His removal from the bench and the punishment imposed on him constitute a morally bankrupt decision and a violation of basic justice, no less grave than the forfeits visited upon the hapless Brock Turner. There is an obvious agenda behind the feminist revenge play and the perversion of justice poisoning the culture. #MeToo means "You're toast." As Janice concludes in her recent video on the Persky travesty, "[t]he blow that the recall delivers to judicial impartiality probably cannot be exaggerated. It is almost inevitable that the next judge ruling in a sexual assault case will think of Aaron Persky[.] ... And that's surely what the recall intended." Persky concurs. "The problem with the recall," he said, "is that it will pressure judges to follow the rule of public opinion as opposed to the rule of law." Judges ruling on sexual assault cases, which as time goes on are likely to proliferate, will now find themselves in the service of feminist madness if they wish to preserve their careers. They will require sensitivity training. They will be enjoined to "follow their hearts," not the established procedures and precedents of the law. They will learn that allegations are dispositive and that "survivors" must be believed. Neither the accused nor the presiding judge can expect that justice will be done. The principles of "burden of proof" and "beyond a reasonable doubt" are on the road to extinction. The ideological zealots are on the hunt and their quarry are unable to defend themselves. This is the world in which men everywhere will find themselves living.