The Role of Probation in the Brock Turner Rape Case: A System Failure

The country’s attention has been riveted on the outcome of a single rape case in Santa Clara County to an extent rarely seen before. We have been collectively touched by the victim’s impact statement: the clear and painfully honest public airing of her trauma and pain. Though this jury returned a guilty verdict on all three counts, the legal system still failed her. It has also failed Brock Turner, his father, his supporters, and the community by not making a clear statement against this behavior.

As a former probation officer and a BWJP trainer and technical assistance provider on probation issues, my heart sank when I read the victim’s description of the report by the probation officer on the case:

“When I read the probation officer’s report, I was in disbelief, consumed by anger which eventually quieted down to profound sadness. My statements have been slimmed down to distortion and taken out of context. I fought hard during this trial and will not have the outcome minimized by a probation officer who attempted to evaluate my current state and my wishes in a fifteen minute conversation.” 

The pre-sentence report, upon which Judge Aaron Persky relied in offering the offender a mitigated sentence, effectively silenced the victim and fell far short in the minds of many professionals in the field. I would argue that the goals of a victim interview in the context of a probation officer’s presentence investigation are:

  • to understand the victim’s concerns and needs and how a potential sentence may impact her;
  • to recognize the ways in which a sentence or sanction may help to restore this victim to her whole self; and
  • to educate on the legal system.

Probation must consider and understand the damage that has been done to the victim. Victims deserve more than 15 minutes of our time. They deserve the same amount of time that is given to defendants. This victim should have been given a meaningful opportunity to voice her opinion about a 6-month sentence and its effect on her, and all of that should have been included in the PSI report.  

“The Probation Officer has stated that this case, when compared to other crimes of a similar nature, may be considered less serious due to the defendant’s level of intoxication. It felt serious. That’s all I’m going to say.”

The probation officer in this case did send her a message – and him – that this was about drinking. That this was youthful boys-will-be-boys behavior. Instead, they should have sent this message: 

     You are 100% responsible for your actions, no matter how intoxicated, how horny, or how      privileged you are.

     You will be held to account for your criminal behavior. 

The victim deserves that, and so does this community. There are no excuses for this behavior. 

In fact, I would argue that there could have been more severe sanctions since alcohol was used as an excuse for criminal actions: recovery classes, enforced sobriety, AA meetings, etc. Why can alcohol be used to minimize responsibility in this case? We don’t do that for drunk drivers…why are we giving this man a pass? What does this say to the community? 

“Unfortunately, after reading the defendant’s report, I am severely disappointed and feel that he has failed to exhibit sincere remorse or responsibility for his conduct. I fully respected his right to a trial, but even after twelve jurors unanimously convicted him guilty of three felonies, all he has admitted to doing is ingesting alcohol. Someone who cannot take full accountability for his actions does not deserve a mitigating sentence.”

Probation may indeed take into account factors such as a lack of prior convictions and age, as well as the other “natural consequences” of the offender’s criminal behavior (e.g. loss of a swimming scholarship). However, we also may consider the fact that the offender has not taken responsibility for the crime that was committed. They should consider Turner’s statement: “My poor decision making and excessive drinking hurt someone that night…” and consider the risk he continues to pose to other women.

Turner has never acknowledged that the crime he committed was the crime of rape. His risk of re-assault was not reduced by the message sent by probation and the court. Guys who commit any act like this often continue to do it. We failed him and all the other young men on campus; we failed this entire community.

Although the probation officer and the whole justice system failed in this case in many ways, I can only hope that the attention garnered by this decision will critically impact the ways we think about gender-based violence, the way the system may respond to future crimes, and the light in which the community regards these crimes. We must do better. 

-James Henderson


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