Last week’s primary elections in eight states were closely watched, in part to see whether the so-called Blue Wave would materialize for November’s midterms. But in California eyes were also on a special inclusion to the ballot, one nearly two years in the making.
It was the recall effort to remove Judge Aaron Persky from the bench, an effort spearheaded by Stanford law school professor Michele Dauber following his sentencing of former swimmer Brock Turner for the sexual assault of “Emily Doe.” Turner was found guilty on three felony charges, and though the maximum sentence in the case was 14 years, Judge Persky (also a Stanford alum) sentenced him to six months.
Turner ended up serving just three months of that sentence.
Dauber’s mission to unseat Judge Persky had many critics. Many of her Stanford colleagues did not support the campaign; she received an envelope containing white powder (which turned out to be harmless) and a letter that threatened to treat her like “Emily Doe” for leading the recall.
When we spoke on the day of the vote and I asked if any of this had taken a toll on her, she responded with zero hesitation: “Not at all,” Dauber said. “Not even one bit. You can’t do something like this and not expect that there will be pushback. That’s not realistic. No part of that has had any impact on me in any serious way.”
She still receives threats on a regular basis, but she said that’s to be expected. “There’s no way that you can do something like this that is so directly challenging so many powerful institutions and so threatening to the status quo without engendering some backlash,” she said. “It hasn’t slowed us down not even one bit.”
In the end 60 percent of California voters said Persky should be out. Prosecutor Cindy Hendrickson was voted in to replace him, with nearly 70 percent of the vote.
Dauber, who has been described as a den mother to Emily Doe, declined to describe Doe’s reaction to the verdict. But she sees the removal of Persky as a victory for all women. “The voters of Santa Clara County are the winners of this election,” she said in an emailed statement. “We voted today against impunity for high-status perpetrators of sexual assault and domestic violence. We voted that sexual violence is serious and it must be taken seriously by elected officials. Our message is: Violence against women is a voting issue—alongside reproductive freedom, gun control, and the other issues that progressive Democratic women care about. If candidates want the votes of progressive Democratic women, they will have to take this issue seriously. If they do not, they will hear from women at the polls.”
“The right result here is not to change the law to tie the hands of 1,000 good judges who didn’t abuse their discretion. The right result is simply to unelect the bad judge who did abuse his discretion.”
The decision isn’t that clear-cut for Persky’s supporters, though, who argue that the recall will set a dangerous precedent. LaDoris Cordell, a spokesperson for Persky and a retired judge, told The New York Times that the recall was an attack on judicial independence that “encouraged people to think of judges as no more than politicians.” (Cordell did not respond to Glamour’s requests for comment.)
Santa Clara University law professor Margaret Russell told Glamour that the recall sends the message to state judges that they should “consider public opinion in their sentencing decisions.”
“This runs counter to the judicial oath or affirmation to protect and defend the United States and state constitutions,” Russell said.
Other Persky supporters also argue that he wasn’t handing down lenient sentences for certain defendants, especially privileged, white athletes, pointing to his record in criminal court, where he followed California sentencing guidelines, as reported by the Associated Press.
But Dauber argues that such reasoning is flawed. “What we have here is a judge who has repeatedly abused his discretion in order to help out privileged offenders, often athletes, college athletes, who have committed serious violence against women,” she told Glamour. “I don’t believe that judges are going to start imposing sentences that they think are wrong just in order to save their own political skins. I just don’t think that that’s how judges operate.”
She thinks the impact will be limited to this judge, for his behavior in this case. “Judge Persky made an exception for Turner and gave him probation even though the law provided a two-year minimum that was presumed not eligible for probation,” she said. “That’s the law of our state. As a result of that abuse of discretion, Jeff Rosen, our district attorney, went to the legislature and had them pass a new mandatory minimum.”
In 2016 California Governor Jerry Brown signed two bills to expand the definition of rape and impose mandatory minimum sentencing for crimes similar to the one Turner committed. (Persky’s supporters point out that the judge followed the sentencing recommendation from the county probation department.) At the time Brown voiced his opposition to adding mandatory minimum sentences, but said that the bill would bring “a measure of parity to sentencing for criminal acts that are substantially similar,” The Atlantic reported.
“The right result here is not to change the law to tie the hands of 1,000 good judges who didn’t abuse their discretion. The right result is simply to unelect the bad judge who did abuse his discretion,” Dauber said. “This victory is not for Emily Doe; this victory is for girls and women everywhere.”
When asked what the recall means for women and movements like #MeToo, Russell had a different view: “The chilling effect on the independence of the judiciary is palpable,” she said. But she did find one thing everyone can agree on: “Both the anti-recall and recall campaigns were led by self-identified feminists,” Russell said. “It is abundantly clear that the #MeToo movement is intersectional, complex, and not subject to simple classifications.”