Editor’s Note: Because of the complex nature of sexual assault cases, SwimSwam has reached out to contributor and attorney Ceci Christy to analyze the charges filed against former Stanford swimmer Brock Turner.
SwimSwam reminds our readers that the accused is presumed innocent until proven guilty in a court of law. The analysis below is based upon official court filings and police reports of the incident, and includes details that may be inappropriate for or disturbing to some readers.
The police initially arrested Brock Turner for suspicion of attempted rape immediately after the incident on January 18. The reason for this charge was because the police only had Turner’s explanation and the two cyclists’ statements as the alleged victim was unable to make any statements at that time. Additionally, Turner was dressed and there did not appear to be any overt evidence of intercourse at the scene of the incident.
Since the arrest, Turner has been charged with five felony counts: rape of an intoxicated person, rape of an unconscious person, sexual penetration by a foreign object of an unconscious woman, sexual penetration by a foreign object of an intoxicated woman, and assault with intent to commit rape. .
Under the section 261 of the California penal code, “Rape is an act of sexual intercourse accomplished with a person …
(3) Where a person is prevented from resisting by any intoxicating substance … and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the alleged victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.”
Sexual penetration by a foreign object under California penal code occurs when there is “any penetration, no matter how slight, of the genital … opening of another, done for the purpose of sexual arousal, gratification or abuse, by any foreign object, substance, instrument, device or by any unknown object.” A foreign object, substance, instrument, or device includes any part of the body (other than a sexual organ) if the alleged victim does not know what is penetrating her.
Consent is defined under section 261.6 as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”
In order for Turner to be charged with these five felonies, the prosecutor must have some evidence of the crimes. That evidence would include the information that, according to police reports, the alleged victim was intoxicated, unconscious, and therefore in the interpretation of the prosecutor, unable to have given consent to have sexual intercourse.
Further, the prosecution must have some evidence, no matter how scant, that there was sexual intercourse or penetration. The alleged victim’s SART results may have shown some evidence of penetration – no matter how slight. Turner’s attorney will challenge the SART results and any other evidence the prosecutor produces to prove sexual intercourse.
Turner stated in his statement to the police that “he never took his pants off, that his penis was never exposed and that he did not penetrate the alleged victim’s vagina with his penis.”
Regarding the charges of penetration by a foreign object, a foreign object under the statute includes fingers if the alleged victim does not know those fingers are penetrating her. In his statement to the police, Turner stated that he did touch the alleged victim’s genital area with his fingers. The prosecution now needs to prove that the alleged victim was not aware of this touching and that the touching involved penetration, no matter how slight, with the fingers. Again, the SART results may provide this evidence.
Turner’s arraignment on the charges is scheduled in the superior court on Monday. Turner will enter his pleas to the charges and the court will review the prosecution’s bail request. Until all the evidence is presented, we will not know the full details of the case – and maybe even not at that point as many pieces of evidence in rape cases do not always get presented in court given the rules of evidence.
Speculation about what really happened on January 18 does not benefit Turner or the alleged victim, nor their families.