The Law Professor Fighting for Rape Victims at Stanford and Beyond

An interview with Michele Dauber, who is trying to get the judge behind the Brock Turner case recalled.

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In less than a week, 11 million people shared the statement that sexual-assault survivor Emily Doe read to Brock Turner in court. You probably did. I did, scrolling through it at work on an almost-summer afternoon, realizing only after a few minutes that I was digging my nails into my palms. Doe described her violation, how she was attacked while unconscious behind a Stanford University Dumpster, how she woke up in a hospital, looking for her underwear, how nurses measured the abrasions on arms and legs and a torso that didn't felt like hers anymore. She recounted how the humiliation persisted after the attack, after the physical exam, after she went home. Turner, vouched for by teammates on the swim team and his parents, hired an expensive team of experts to discredit her. He claimed his innocence, despite all the evidence. He insisted she "liked it."

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Turner was sentenced to six months in jail and probation by Judge Aaron Persky, who worried that a harsher punishment would have "a severe impact on him."*

Watching the proceedings, Stanford Law professor Michele Dauber seethed. Dauber has known Doe since she was a kid and been invested in issues of campus sexual assault and prevention for most of her career. She dug into Persky's record, finding that this lax verdict fit a pattern of lenient sentences for young men convicted of violence and assault. And she decided to act. Dauber launched a recall movement that, if successful, will force Persky to face reelection this coming November and ideally remove him from the bench. The initiative has organized fund-raisers in Brooklyn today, March 3, and in Los Angeles on March 4 to raise money for the race. And in the midst of all that, Dauber found time to discuss judicial recalls, the epidemic of campus sexual assault, and how one work of political literature can change the world.

Mattie Kahn: How did you first get involved with this case?

Michele Dauber: I was in court when the sentence was delivered and had actually, at the request of the prosecution, written a letter to the judge pre-sentencing, talking about the environment at Stanford and the need for a deterrent for impact. When judges impose sentences in criminal cases, there is a series of factors that they are supposed to consider under the law. One of those is the rehabilitation of the defendant. One of those is the need for justice for the victim. [And one of those] is deterrence. Will the sentence adequately deter both this defendant and others from committing similar crimes in the future?

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I wrote a letter suggesting that the judge impose the two-year minimum sentence, which I felt balanced the factors appropriately and would take into account the fact that we need to deter similar crimes, which are occurring all the time with alarming frequency on our campus. We need to send a clear and direct message to students on our campus and on other campuses around the state that these actions are serious felonies, and serious felonies mean that you go to prison.

MK: And you have a connection to the victim as well, yes?*

MD: Yes. She is a friend of my daughter from way back, elementary and secondary school.

MK: We should never have to know a victim to be horrified for her, but the effect of Emily Doe's letter was that her case got worldwide attention. Did the response that it provoked surprise you at all?

MD: Well, yes, to some extent. I mean, I read the statement just immediately before it was filed. I thought it was breathtaking. She said to me, you know, "What do you think?" I was like, "If I tried to even make a suggestion about this, it would be like touching up the Mona Lisa." I said, "I wouldn't change a word."

I would say a great deal of the credit, perhaps all the credit, for the significance that this case has taken on really has to go to her writing, Emily Doe's writing, because it is a great work of political writing as well as a great work of literature. For people who have had the experience of being a sexual-assault victim, including men, it very powerfully put that experience into words. For people who have never had this experience, it created empathy and it allowed people a window into what that is like. That was quite remarkable, and that's of course what great literature is supposed to do.

A great deal of the credit, for the significance that this case has taken on really has to go to Emily Doe's writing, because it is a great work of political writing as well as a great work of literature.

MK: During the case, many people, hundreds of people, in various student communities at Stanford spoke out and wrote letters to the court and op-eds in student papers. But what did you make of the university's official response, a statement in which Stanford said it "did everything within its power to ensure justice was served"?

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MD: I thought it was tone deaf.

MK: Why?

MD: Because they didn't do everything right. There were serious failures of communication with her. They didn't issue their first public apology to her until very late in the game. They just didn't initially provide support.

If you look at the statistical research that Stanford itself did, 43 percent of female undergraduate students at Stanford experience sexual assault or serious sexual misconduct. That number is in line, by the way, with our peer schools — Harvard, Yale, Dartmouth, Brown. That's a shockingly high percent. Now doesn't seem like a moment for self-congratulations.

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MK: What would it have looked like to have a serious inquiry into cases of sexual assault and harassment on campus in the aftermath of this decision?

MD: To my knowledge, Stanford did not at the time, and has not yet done, a full Title IX investigation of what happened. We have a case here of a Division I recruited athlete — Olympic-bound — as his mother and father so wanted to point out. So, first, one hopes that steps would be taken to address a climate of misogyny on the men's swim team, which, by the way, has a long history of sexual-harassment allegations.

Second, he committed his crimes at a fraternity party that was an official registered Stanford event, that happened on Stanford land, at a Stanford-owned house, in front of a Stanford Dumpster. So, this is a Stanford problem. And even now, Stanford hasn't asked, "Can fraternities be made safe for women? Do they represent inequalities that were emblematic of an earlier age but are no longer consistent, we hope, with our 21st-century values?" I'm not saying I think we should eliminate Greek life, but I am saying Greek life has to be made safe for women, and if it can't be made safe for women, then we do need to realize what that means. That needs to be on the table, and it needs to be on the table in a serious way that shows that Stanford University promotes equality, and we never did that. We never went there. Nothing happened.

I'm not saying I think we should eliminate Greek life, but I am saying Greek life has to be made safe for women, and if it can't be made safe for women, then we do need to realize what that means.

MK: At what point did you decide that you needed to take direct action to recall Judge Persky?

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MD: I've been an advocate on these issues for a decade. I've been an advocate, in particular, for greater accountability for perpetrators and greater accountability for the university. And I am very involved with the group of women Democratic donors and fund-raisers here, so this wasn't a complete shot in the dark.

After the sentence was announced, my friends and I said, "We can't let this stand. What can we do?" As a group, we worked together to consult with experts and settled on the recall strategy pretty quickly.

MK: What does that mean exactly — a "recall"? And what progress have you made?

MD: In California, all judges are elected — not appointed. And there's very little quality control. Anyone can run for office, assuming they meet the very minimum criteria. Once they're elected, they serve for six-year terms. Unfortunately, Judge Persky announced the sentence for Brock Turner the week before the state primary. It was too late for anyone to run against him. He was up in the 2016 cycle, and it was a few days before the election. In November, he was reelected to six more years on the bench.

If we don't do something to utilize the recall process, Judge Persky will be a judge until 2022.** From our perspective, that is unacceptable. This case is not a one-off for him. He has a history of bias in cases of sex crimes and violence against women. When we reviewed his records, it became clear he doesn't understand these crimes as the serious felonies that they are, and he treats them as misdemeanors, like shoplifting or graffiti. Once we examined his record, I had an "Aha!" moment where I realized that his sentencing of Mr. Turner made complete sense in the context of his other cases that involved collegiate athletes.

He once sentenced a young man, Ikaika Gunderson, who played football for a junior college here. He was hoping to play DI football and get recruited. He's a big guy, a linebacker. One night, he punched [his ex-girlfriend] in the face six times with a closed fist, strangled her until she started to lose consciousness, and threw her head-first out of a car. For that, he got a felony conviction for domestic violence. But instead of sentencing him even to probation, Judge Persky held his sentence for over a year so that he could go to the University of Hawaii and play football. Predictably, this scheme did not work out. Mr. Gunderson washed out from school, left Hawaii, and went to a third state, Washington, where he re-offended and was rearrested for domestic violence.

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In a different case, he sentenced [Keenan] Smith, another junior-college football player, this time a running back at the College of San Mateo, who was hoping, again, to play DI football. Mr. Smith also attacked his girlfriend in a public place. Some bystanders came up to try to save her, and he cold-cocked one of the bystanders and knocked him unconscious and threatened the other one. He was convicted of three charges and sentenced to a 52-week domestic-violence batterers' program and to weekend work crew. He never showed up. During this same time, he never missed a football game and he never missed a football practice.

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Judge Persky kept giving him chances, more and more chances, and didn't violate his probation and didn't violate his probation, until we, in the course of our systematic review of all of Judge Persky's domestic-violence and sexual-assault cases, brought that case to the attention of the prosecutors, who then motioned it back into court, had his probation violated, and had him resentenced by a different judge, a woman judge, who gave him weekend jail instead of weekend work.

Judge Persky attended Stanford. He was captain of the lacrosse team. He coached a lacrosse team after college. This is someone who I think has a very positive view of men's collegiate athletics and the role that it can play in young men's lives. I don't think that he has dealt with the reality of the situation, which is whatever positive impact male collegiate athletics can have, it also can have some negative implications, as we're seeing around the country right now. He seems to treat this like Friday Night Lights. But the real world is not an episode of Friday Night Lights, OK? Coach is not going to fix whatever is wrong with these batterers and sex-crime perpetrators.

MK: So, what happens now?

MD: We could remove him in 2023 or we could remove him sooner. The way the recall works is that if enough of the registered voters in the county want to have an election sooner than 2022, they can sign a petition to have a new election called now. The term "recall" is a little bit of a misnomer to people, because they think you sign a petition and then he's fired, but the petition is simply a petition to have a new election.

If enough registered voters, which we think is about 80,000, sign this petition, we can trigger an election for November 2017. That is what we're working toward. We cannot start collecting our signatures until April 1, 2017, and it's an expensive process. We've retained a firm, and the cost per signature is about $5. We believe it's going to cost about $400,000. We're about $60,000 short of that number now, but we're feeling confident at this point.

We have to hold both perpetrators and institutions accountable. All this prevention is great, but prevention without accountability is pointless.

MK: Beyond this case and this recall, what are the first steps that young people especially, but also institutions in general, can take to address the cultural problems on campus?

MD: I think we have a real need for research into evidence-based prevention programs. We don't have a lot of good research that tells us what to do. Consequently, schools all invent their own programs, and we don't know if they have a basis in evidence. And that can have a profound backlash effect. We have very strong evidence that suggests that if you subject men to sexual-harassment training or subject white people to diversity training, they often exhibit less progressive and more discriminatory behavior than they would have if they hadn't done the training at all.

So, it seems to me that no one has taken a step back and said, "What if all this is making it worse?" That is a very scary, but real, possibility. And it shouldn't be this way. We're not car companies. We're not Internet search engine companies. We're universities. We're research institutions, and Stanford is probably one of the best — maybe the best — in the world. We are expected to know better.

Next, we have to hold both perpetrators and institutions accountable. All this prevention is great, but prevention without accountability is pointless.

And third, we can't retaliate against students, faculty, or journalists who are talking about the facts and speaking critically. Too many universities are cracking down on student journalists. But shooting the messenger, lashing out at the press — that does not make one student safer. If we betray the core ideals and mission of the university, which is open debate and open discussion, then we may as well just not exist. We may as well just fold the tent.

This interview has been condensed and edited.

Mattie Kahn is a writer at elle.com.

*Correction, March 3, 2017: Due to a transcription error, this sentence originally stated Turner had been sentenced to six months in prison. He was sentenced to six months in jail. In another place, it referred to Emily Doe as the defendant. She is the victim.

**Correction,March 3, 2017: Due to a transcription error, this sentence originally stated Judge Persky's next election is in 2023. It is in 2022.

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