By Hannah Koniar | Head Notes Editor

November 22, 2023 

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When someone hears the name “Brock Turner” their head will turn. This is because Brock Turner was a Stanford swimmer before he was “sentenced to six months in county jail after being convicted of sexually assaulting an unconscious, intoxicated woman in January 2015.”[1] If you know about Brock Turner, you most likely know the infamous statement from his father, begging the Court to treat his son gently saying, “[h]is life will never be the one that he dreamed about and worked so hard to achieve.”[2] He continued with his letter, referring to any amount of jail time saying, “[t]hat is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”[3] Implications spread after this sentencing, inclusive of a nationwide petition to remove the sentencing judge, Judge Persky; the questioning of systemic racism; and discussion of “the widespread existence of sexual violence on college campuses across the country.”[4] The sentencing results of Brock Turner sparked conversation.

Sexual assault is a prevalent issue with an incredibly low conviction rate and Congress should implement legislation encouraging states to include specific language to enhance sexual assault statutes that lead to a more successful conviction rate and overall better efficacy. Collected data shows, “[e]very 68 seconds, an American is sexually assaulted.”[5] These statistics do not specify gender, sexual orientation, race, religious beliefs, etc. This statistic proves sexual assault does not discriminate. Sexual violence is not a singular person’s issue, it is a pandemic that can, and does, happen anywhere, anytime, to anyone. Statistics show acts of sexual violence have occurred when the survivor was doing various activities.[6] Activities included survivors who were sleeping, engaging in home activities, travelling to various local locations such as school and work, running errands, working, or simply being at school.[7] With these statistics, the legal system ought to be questioned as to how, “only 25 out of every 1,000 perpetrators [of sexual assault] end up in prison.”^[8]

There is a way to address this question by evaluating the language of the sexual assault statutes of the top three states in America with the highest rate of sexual assault per 100,000 people, Alaska, Arkansas, and Michigan.[9] After evaluating the language in these statutes, it is possible to propose language which Congress can encourage states to implement in their sexual assault statutes as a means to increase incarceration and holding people responsible for their actions. Congress will encourage states to implement this new language by allocating funds to state sexual assault forensic exam labs. If the state implements the proposed language, their state forensic lab will receive additional funding. This is allowed under the holding of South Dakota v. Dole, where the Court ruled, “Congress has offered relatively mild encouragement to the States to enact high minimum drinking ages than they would otherwise choose. But the enactment of such law remains the prerogative of the States not merely in theory but in fact.”[10]

Here, similar to South Dakota v. Dole, there would simply be encouragement for the states to implement the newly proposed language. The model for the proposed language is the “only-yes-means-yes” model.[11] This model is one based on affirmative consent.[12] Essentially, sex will only be consensual if both parties freely and expressly give consent to the act.[13] Without a yes, there is no consent because the survivor should bear no burden to say “no” to have a viable case. Survivors lose so much of themselves when they are assaulted. The legal system should not further hurt them, rather find a way to help them. Chanel Miller, survivor to Brock Turner, wrote in her victim statement, “[I had to relearn] [t]hat I am not just a drunk victim at a frat party found behind a dumpster, while you are the All American swimmer at a top university, innocent until proven guilty, with so much at stake.”^[14] Sexual assault in this world is a pandemic, one capable of being effectively addressed from the top down. Congress can start at the top by implementing the proposed legislation encouraging states to include specific language as a means to enhance their sexual assault statutes and receive additional funding for their forensic labs.

 

[1] Kayla Lombardo, How a Rape Case Involving a Stanford Swimmer Became National News, Sports Illustrated (June 9, 2016), https://www.si.com/more-sports/2016/06/09/brock-turner-stanford-swimming-sexual-assault-rape-case.

[2] Id.

[3] Id.

[4] Id. (“If a first time offender from an unprivileged background was accused of three felonies and displayed no accountability for his actions other than drinking, what would his sentence be? The fact that Brock was an athlete at a private university should not be seen as an entitlement to leniency, but as an opportunity to send a message that sexual assault is against the law regardless of social class.”) (internal quotation marks omitted).

[5] Statistics, Rape, Abuse, & Incest Nat’l Network, https://rainn.org/statistics (last visited Nov. 5, 2023).

[6] Id.

[7] Id.

[8] Id.

[9] Rape Statistics by State 2022, World Population Rev., https://worldpopulationreview.com/state-rankings/rape-statistics-by-state (last visited Nov. 5, 2023).

[10] South Dakota v. Dole, 483 U.S. 203, 211–12, 1987.

[11] Tatjana Hörnle, The New German Law on Sexual Assault and Sexual Harassment, 18 German L.J. 1309, 1319–20 (2017).

[12] Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative

Consent Standard in Rape Law, 58 Vanderbilt L. Rev. 1321, 1345 (2019).

[13] Id.

[14] Emily Doe (Chanel Miller), Victim Impact Statement, The American Yawp Reader (2015) https://www.americanyawp.com/reader/30-the-recent-past/emily-doe-victim-impact-statement-2015/.