The California State Legislature passed a bill this week that would impose a mandatory three-year minimum sentence on any person “convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.”
We might as well call it the Brock Turner Law, because it was introduced as a response to what many saw as the unfairly lenient sentence that Turner, a 20-year-old Stanford swimmer, received after he sexually assaulted an unconscious woman.
It’s hard to argue with the impulse behind the move. Currently, California treats “rape by force” as a different kind of crime than a rape committed against an unconscious person who can’t resist or consent. The former carries a three-year minimum sentence; the latter does not.
This change, according to lawmakers who support the bill, is just the legal equivalent of saying that rape is rape.
"Sexually assaulting an unconscious or intoxicated victim is a terrible crime and our laws need to reflect that,' California Assemblyman Bill Dodd, a Democrat from Napa and one of the bill's sponsors, said in a statement after the bill passed. "Letting felons convicted of such crimes get off with probation discourages other survivors from coming forward and sends the message that raping incapacitated victims is no big deal."
But there are a few major problems with this approach. For one, various studies have shown that mandatory minumums have "no apparent deterrent effect" and "are ineffective as a crime control measure." And decades of mandatory minimums for drug crimes show that they hit black and Latino men much more harshly than their white peers, even though they use drugs at similar rates.
All of this is to say that mandatory minimums probably won’t stop the next Brock Turner—and there will be a next one—from committing sexual assault.
As Alexandra Brodsky, a graduate of Yale Law School who co-founded the anti-rape organization Know Your IX, wrote earlier this month in The New York Times, mandatory minimums also don’t actually eliminate discretion in sentencing. They just shift it from judges to the prosecutors who decide which charges to bring in a given case. And this shift in discretion tends to benefit white defendants like Brock Turner.
A section from a 2013 report by The Sentencing Project that analyzed decades of research on our criminal justice system gets at the disparity pretty directly:
Federal law allows prosecutors to request that a judge “depart” from the mandatory minimum sentence for a crime in a particular case when the defendant has provided “substantial assistance” to law enforcement.
Research shows that prosecutors request substantial assistance departures at higher rates for “salvageable” and “sympathetic” defendants—those who are white, female, and have children. A 2001 analysis of more than 77,000 cases in the federal system from 1991 to 1994 revealed that black and Hispanic male defendants were significantly less likely to receive substantial assistance departures than white male defendants.
Translation: mandatory minimums don't solve racial disparities in sentencing. They entrench the old disparities and create new ones.
There are no easy answers here. One of the more challenging things about resisting harsher sentences for sexual offenses in a culture that pathologically condones and excuses rape is that it can feel like just another way of saying that it’s OK to ignore rape and coddle rapists.
This thirst for punishment is understandable when there are judges who suggest a 14-year-old rape victim wasn’t a victim because she wasn’t a virgin. Or when Brock Turner’s swim stats are treated as though they somehow matter more than the woman he assaulted.
When consent education is laughed at or stonewalled in conservative legislatures, or when men’s sense of sexual entitlement goes unexamined inside homes, schools, churches, militaries, and locker rooms, mandatory minimums may feel like the only kind of justice available in a relentlessly fucked-up world.
But this is the problem with a system that—in the rare instance that a rape is both reported and taken seriously—only considers the harm of rape once an offense has been committed.
There are reforms that can make the system more accountable without doubling down on minimum sentencing standards that don’t deter crime and only further entrench the racist disparities in our system.
Teaching consent as part of comprehensive sex education is one place to start since most boys (and people more generally) enter adulthood without any kind of vocabulary to talk about sex, consent, or rape. Increasing access and funding for legal services for victims is another. And, as Brodsky notes in the Times, “increased access to the civil legal system where victims, not prosecutors, can decide whether and how to bring a case” is another way out of a system that is more focused on punishment than accountability or harm reduction.
We already know so much about how this system works, and mostly doesn’t work, for victims. There's no reason to believe that digging in deeper on mandatory minimums—just as the country is beginning to turn away from them—will fix that. But one thing we do know about mandatory minimums is that they can make things a whole lot worse. The terrible details of Brock Turner's crime don't change that.