What Is the Proper Punishment for Sexual Assault?

June 19, 2016

Before we decide what the proper sentence is in a particular criminal case, we should be able to explain what purpose the punishment serves.
Like many people, my initial reaction to the sentence imposed on Brock Turner, the Stanford student convicted of sexual assault, was that it was too lenient. Six months in a county jail did not reflect the seriousness of his crime.
This reaction seemed to be justified by the numerous condemnations of the sentence by various politicians, jurists, and commentators. As I read these condemnations, however, I was disappointed by the lack of any convincing argument regarding the outrageousness of Turner’s sentence based on accepted notions of criminal justice. Many of us felt outraged, but what objective principles supported this subjective feeling?
One law professor argued the sentence was far too lenient by comparing the sentence to the punishment Turner would have received under federal law. But so what? What makes federal law better as a guide to an appropriate sentence as opposed to, say, the recommendation of the probation office on which Judge Persky relied?
The purposes of punishment
Why do we punish? We need some justification for having the government impose suffering on others, presumably. Punishment must serve some valid public purpose. Modern jurisprudence has moved away from retribution as a justification for punishment, for good reason. Retribution is simply another way of saying the offender “deserves” punishment. But then we still have to explain why the offender deserves punishment.
Three objectives are often cited as a rationale for punishment: removal of dangerous persons from society; rehabilitation; deterrence. These are valid purposes as they all relate to the important and undeniably legitimate goal of containing and reducing crime.
However, if we analyze the sentence Turner received using these criteria the sentence does not necessarily appear outrageously lenient. Turner is not a socially dangerous person in the sense that we need to keep him confined for a long time to prevent further harm. With respect to rehabilitation, a longer term in jail or prison is unlikely to make him a better person. Up to a certain point, long prison terms increase, they do not reduce, recidivism. (For obvious reasons, a life sentence does reduce recidivism.)
Would a longer sentence have been a better deterrent? Arguably. But if so, Judge Persky merely made an error in calculation instead of imposing a wholly inappropriate sentence—and the harsh criticism Judge Persky has received would seem like an overreaction. Furthermore, a two-year or three-year sentence may have been more effective as a deterrent, but it’s difficult to say how many more potential offenders would be deterred from engaging in sexual assault if Turner had received two years as opposed to six months. Sexual assaults don’t always occur after the offender has made a careful weighing of the magnitude of possible punishment against the benefit of immediate gratification.
But after going through this analysis, there remains, at least for me, the conviction that Turner’s sentence was too lenient, and not just because Judge Persky may have miscalculated the deterrent effect. Something seems to be missing from this analysis. It is.
The expressive function of punishment
To locate the missing element in our analysis, I suggest we consider our determination, in some instances, to prosecute and sentence individuals who decades ago may have been complicit in some crime, but who since have been law-abiding citizens. Why do we do this? To make this analogy concrete, let’s consider the prosecution of Nazi concentration camp guards. I recognize this doesn’t seem immediately relevant to the Turner case, but bear with me.
Just the other day, a 94-year-old man, Reinhold Hanning, was sentenced to five years in prison for serving as a guard at Auschwitz. Significantly, he was convicted and sentenced even though there was no evidence that he directly participated in the murder of inmates. What purpose does the punishment of this nonagenarian serve? Rehabilitation? Given Hanning’s age, that’s not a consideration. Removal of a dangerous person from society? Again, he’s 94. He’s been a peaceful citizen for seventy years. Deterrence? Fortunately, it is highly unlikely that Germany will ever again experience a campaign of genocide like the Holocaust.
Unless we can think of another legitimate purpose for punishment, it would appear that the sentencing of Hanning is an unjustified act of vengeance. 
Punishment does have another purpose. In addition to rehabilitation, incapacitation, and deterrence, punishment serves an expressive function. This is a function that a number of philosophers and jurists have acknowledged, but unfortunately it is not widely recognized among the general public.
What is meant by the expressive function of punishment? State-sanctioned punishment is the means by which the community expresses strong disapproval of certain types of action. It is a means of communicating to the entire community the seriousness of the offense. This may seem like a trivial purpose, but it is not. Condemnations through the criminal justice system are a critical part of the social glue that holds the community together. Punishment conveys the clear message that certain actions will not be tolerated and it reassures victims of crime that the community is aligned with their interests and considers the harm they have suffered to be significant.
This is why we continue to punish concentration camp guards. Not to deter others or to seek vengeance. It is to send the message that the community condemns this conduct and that the harm to the victims was significant, so significant that it requires the state to prosecute offenders even seventy years after the actions in question.
To convey the message of condemnation, to fulfill the expressive function of punishment, the punishment must be proportionate to the offense. As the symbolic vehicle of public condemnation, the punishment must reflect the harm to the victim and society. Here is where Judge Persky failed. In too many cases, crimes involving sexual assault have not been taken seriously. Judge Persky’s light sentence unfortunately lends support to the view that sexual assault—especially when alcohol is a factor—isn’t that significant an offense. 
What sentence should Judge Persky have imposed? There’s no magic number here, but a sentence closer to the prosecutor’s recommendation of six years would have been more appropriate. In California, aggravated battery, when treated as a felony, can result in imprisonment from two to four years. Sexual assault should be treated as a violation of societal norms at least as serious as a barroom brawl that results in a broken wrist or a dislocated shoulder.