Unrecompensed Rape: Race and Judicial Discretion’s Responsibility for the Disparities in Sex Crime Sentencing
By: Meg Deitz
On January 17, 2015, in Stanford, California, a female college student woke up in a hospital room to learn she had been sexually assaulted while lying unconscious behind a dumpster. Five months later, her rapist, Brock Turner, a Stanford University swimmer, received a six-month jail and three-year probation sentence for three counts of sexual assault of an unconscious person, but Turner was released after three months based on time served. After Turner’s sentencing, public accusations rose blaming “white privilege” for lenient rape and sexual assault sentencing. However, outliers to harsh sentences for black men and a lack of data articulating the race, background, and sentence severity of sex offenders handicaps current analysis and reform. Yet, highly prominent in recently reported lenient sentences is the power of judicial discretion to disregard mandatory or advisory rape sentencing guidelines based on racial and gender stereotypes.
Following Brock Turner’s lenient sentence, race came to the forefront of the discussion of sex crime sentencing disparity after Corey Batey, an African American college football star, received a sentence of fifteen years for raping an unconscious fellow student. Batey’s comparably harsh sentence to Turner’s six-month incarceration for raping an unconscious woman remains highlighted as an example of the overzealous punishment of black men by the courts. However, soft sentences and a lack of recent research complicates asserting a claim blaming sentencing disparity primarily on racism.
Despite Batey’s conviction, several cases involving lenient sentences for black sex offenders emerged in the media over the last few years. Notably in Corey Batey’s case, the circumstances varied from Turner’s assault. Batey was involved in the filmed group assault of an unconscious woman along with three fellow football players. The cameraman and only white member of the group, Brandon Vanderburg, currently faces an upcoming sentencing hearing with the same convictions and sentence range as Batey. Last year, another black college football player, Sam Ukwuachu, received only a six-month jail and ten-year probation sentence for raping a conscious and resisting freshman. Finally, Jamil Cooks’ situation remains the most unusual of the group. Cooks, who is also black, obtained a court martial and conviction while a student at the Air Force Academy, leading to his expulsion and required registration as a sex offender. Despite his conviction in 2013, Cooks enjoyed the opportunity to play football and obtain an education at Alcorn State the following school year with Alcorn State noting Cooks’ sex offender status on a school website.
Along with these lenient cases, recent research fails to specifically identify the race and incarceration period of sentenced sex offenders; however, past collective research suggests race plays a primary role in disparate arrest for sex crimes. A 1997 sex offender analysis by the Bureau of Justice Statistics noted that more whites were arrested and eventually incarcerated for rape and sexual assault than African Americans. However, a 2013 study of felony defendants by the Bureau of Justice Statistics reported that from 1990 to 2009, 42% of black defendants versus 29% of white defendants possessed a charge of rape as the most serious charge against them. The study also noted that 89% of convicted rapists experienced incarceration, but failed to detail the length of incarceration or the race of these offenders. Five years have passed without more recent, reliable statistics detailing the relation of race to rape sentencing from 2009 to 2016 and studies citing the length of incarceration for rape by race of the defendant remain largely non-existent. However, the high trend of rape arrests in 2009 suggests that racial stereotypes play a role in present-day enforcement and adjudication of sex crimes.
An explanation of the previously mentioned lenient cases may be tied to Sam Ukwuachu and Jamil Cooks’ athlete status. Athletes maintain a unique status in the social fabric of collegiate institutions where their skills and energy provide them a celebrity status complete with adoring fans. While many college athletes lack the stardom of professionals, college athletes do receive special treatment from courts. In fact, only one in five convicted college athletes ever serve any jail time compared to four out of every five convicted professional athletes. Also, both professional and collegiate athletes enjoy reduced charges, particularly in sex crimes, the most commonly charged crime against athletes. In the case of Corey Batey, the harsher sentence, despite his athleticism, possibly extends from the film and group assault factors of his crime as well as his race. By contrast, the cases of Jamil Cooks and Sam Ukwuachu featuring leniency for black college students may have more to do with their athlete status than any other factor.
Athleticism may have also played into Brock Turner’s reduced sentence; but, regardless, Turner’s reduced sentence did not go unnoticed by California lawmakers. Following Turner’s sentencing hearing in June 2016, the California legislature introduced a new bill, AB 2888, setting a mandatory minimum three year prison term for the sexual assault of an unconscious person. The proposed mandatory minimum is in between the six months Turner received and the six years requested by Santa Clara County prosecutors. However, the blanket mandate of three years’ incarceration still creates problems for sentencing disparity.
Despite United States v. Booker changing the federal mandatory guidelines to advisory in 2005, some states maintain a sentencing system of more obligatory than advisory guidelines for all or some crimes. Mandatory guidelines tend to foster higher enforcement against minorities and increased guilty pleas for lesser offenses as defendants attempt to avoid a mandated prison sentence. Thus, criminal defendants are forced to gamble between seeking a jury trial and opting to just plead guilty, even if innocent, to avoid an unfavorable verdict and fixed sentence. Additionally, despite their name, mandatory guidelines are not always mandatory as judges may still depart from the guidelines for substantial or compelling circumstances. Judicial discretion enabling departure from both advisory and mandatory guidelines traditionally causes many judges to pass judgment on the victim rather than the attacker based on the judge’s personal opinions. The answer to sex crime sentencing disparity exists somewhere between robbing judges of all discretion and refusing to limit their discretion. Judicial education on rape statistics for unreported, charged, and convicted rape claims; increased prosecutorial appeal of overly lenient sentences; or sanctions against judges for inappropriate and erroneous sentencing are possible solutions in need of further investigation.
However, the issue of inconsistent rape and sexual assault conviction and sentencing demands an expedited remedy to remove nineteenth century mentalities from twenty first century justice and reform. This week, public critiques of sex crime punishment increased not only in the United States but also in Canada after a Canadian judge asked a rape victim why she couldn’t “just keep [her] knees together” and then proceeded to acquit her attacker.  Greater public outcry, tailored research, and prompt, informed legislative action is needed to protect the most disadvantaged party, the victim, from runaway judicial discretion and to ensure justice for their suffering.
 Emanuella Grinberg & Catherine E. Shoichet, Brock Turner Released from Jail After Serving 3 Months for Sexual Assault, Cable News Network (Sept. 2, 2016), http://www.cnn.com/2016/09/02/us/brock-turner-release-jail/.
 See Ashley Fantz, Outrage Over 6-Month Sentence for Brock Turner in Stanford Rape Case, Cable News Network (June 7, 2016), http://www.cnn.com/2016/06/06/us/sexual-assault-brock-turner-stanford/; Shaun King, King: Brock Turner and Cory Batey, Two College Athletes Who Raped Unconscious Women, Show How Race and Privilege Affect Sentences, N.Y. Daily News (June 7, 2016), http://www.nydailynews.com/news/national/king-brock-turner-cory-batey-show-race-affects-sentencing-article-1.2664945.
 David Boroff, Former Vanderbilt Football Player Cory Batey Sentenced to 15 Years in Prison for Raping an Unconscious Woman with His Teammates, N.Y. Daily News (July 17, 2016), http://www.nydailynews.com/news/crime/ex-vanderbilt-football-player-cory-batey-sentenced-15-years-article-1.2712969.
 Fantz, supra note 3; King, supra note 3.
 Boroff, supra note 4.
 Id.; Mike McPhate, Former Vanderbilt Football Player Found Guilty in Campus Rape, N.Y. Times (June 19, 2016), http://www.nytimes.com/2016/06/20/us/brandon-vandenburg-vanderbilt-univeristy-guilty-rape.html.
 Joe Nocera, Baylor, Football and the Rape Case of Sam Ukwuachu, N.Y. Times (Sept. 1, 2015), http://www.nytimes.com/2015/09/01/opinion/joe-nocera-baylor-football-and-rape.html.
 Megan Chuchmach & Brian Ross, Registered Sex Offender Emerges as Star College Football Player, Am. Broad. Co. (Oct. 28, 2014), http://abcnews.go.com/US/registered-sex-offender-emerges-star-college-football-player/story?id=26491067.
 Cassia Spohn, Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries, 44 Crime & Just. 49, 92 (2015) (citing research studies from the seventies and nineties concerning the punishment of African Americans for murder and rape and the need for new research on noncapital sentencing for rape).
 Lawrence A. Greenfeld, Bureau of Just. Stat., Sex offenses and Offenders 10-21 (1997) (For rape convictions and sentences, 52.2% of the prison population surveyed was white and 43.7% was black. For sexual assault prisoners, 73.9% were white and 22.8% was black. For arrests of rape by race, 56% were white and 42% were black.).
 Brian A. Reaves, Ph.D, Bureau of Just. Stat., Felony Defendants in Large Urban Counties, 2009 – Statistical Tables, 7-29 (2013).
 Kadence A. Otto, Report: Criminal Athletes: An Analysis of Charges, Reduced Charges, and Sentences, 19 J. Legal Aspects of Sport 67, 69-80 (2009).
 Id. at 79.
 Id. at 78.
 Cheryl Miller, Calif. Lawmakers, Citing Turner Case, Embrace Tougher Sex-Assault Penalties, Recorder (June 27, 2016), http://www.therecorder.com/id=1202761231655/Calif-Lawmakers-Citing-Turner-Case-Embrace-Tougher-SexAssault-Penalties?slreturn=20160816202208.
 Grinberg & Shoichet, supra note 1.
 U. S. v. Booker, 543 U.S. 220, 270 (2005); see Nat. St. Cent. St. Cts., State Sentencing Guidelines: Profiles and Continuum 5-27 (2008).
 Gary T. Lowenthal, ARTICLE: Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform., 81 Calif. L. Rev. 61, 121-22 (1993).
 See Nat. St. Cent. St. Cts., supra note 19.
 Izabelle Barraquiel Reyes, Student Scholarship: The Epidemic of Injustice in Rape Law: Mandatory Sentencing as a Partial Remedy, 12 UCLA Women’s L.J. 355, 375-76 (2003).
 See Id. at 377 (commenting on the recommendation of education in schools and the judicial system to understand the effects of rape); Lowenthal, supra note 20 (noting the availability of prosecutorial appeal to limit the abuse of judicial authority in sentencing); Jenna Greene, A Just Punishment in Stanford Sexual Assault Case?: Why We Need Judicial Elections, Recorder, June 13, 2016 , at 6 (discussing the removal of Turner sentencing judge from criminal cases and the need for judicial elections).
 AJ Willingham & Carma Hassan, Judge to Woman in Rape Case: ‘Why Couldn’t You Just Keep Your Knees Together?’, Cable News Network (Sept. 13, 2016), http://www.cnn.com/2016/09/12/world/robin-camp-rape-comments-trnd/.