CHANEL Miller is not to blame for being indecently assaulted by 20-year-old student Brock Turner on the campus of Stanford University in California. However, she is responsible for increasing the risk of her being indecently assaulted by drinking so much alcohol at a party that she passed out in a public area in the dark of night. It was while she was in this self-inflicted state that Brock Turner decided to gratify himself by taking advantage of her. He was apprehended in the middle of his crime by two passing students, and arrested by campus police.
Had the crime been committed by a street punk on a Californian downtown sidewalk, the punk might still be in the state penitentiary today, having been able to afford only the services of a Public Defender against the full onslaught of the outraged State of California in court. Turner had much better lawyers. Indictments for rape were thrown out. Turner was convicted on three charges. The State of California asked the judge, Aaron Persky, for a sentence of six years jail time.
Turner was sentenced to six months, with three years probation. This was despite a heavily-publicised 12-page victim impact statement. Turner served only three months before being released.
There was a global outcry. To add insult, Turner’s family retained the services of a top lawyer to appeal against even this sentence, on the basis that ‘there was no evidence to prove at what point the woman became unconscious‘. The appeal failed. Turner, now a free man, will have to register himself as a sex offender wherever he lives in the USA for the rest of his life.
That was not the end of the matter for Judge Persky. Despite his consistency in abiding by the recommendations of the probation department, plus support from the legal community for his actions, he was subjected to a recall election by the voters of Santa Clara County, which he lost. Persky became the first judge in 80 years to lose his position in this way.
In the USA, some members of the judiciary have to stand for election. They do not rely on the votes of a lofty appointments committee, they have to appeal to ordinary voters. While Persky’s sentencing was regarded as consistent for the nature of the crime, it seems that the Californian public believe that those who have higher to fall should have a larger impact when they hit the ground. People seem to expect better behaviour from those who have advantages in life, and that the punishment for transgressions should be proportionate to that advantage as a form of exemplary justice.
The judiciary are thus integrated into the political process in the USA. And this seems to be on the rise here in the UK, with numerous judicial reviews of government decisions and processes, and the Supreme Court once again entering the politics of Brexit. While this might seem a big hurrah for the rule of law, by showing that no one is above it, it has once again degraded the outcome of the 2016 referendum. The vote is suffering death by a thousand court cases and Parliamentary votes. There is the issue that appointed judges are intruding on a government doing its best to implement the outcome of a democratic vote. If the UK leaves the EU, but remains in the Customs Union and the Single Market, it has not truly left. Brexit would be as much of a sham as was Ukrainian independence during the existence of the USSR, when it remained a vassal state despite having a seat at the UN.
If judges are going to start challenging decisions made by democratically elected politicians, then perhaps it is time to start electing our judges, and recalling them if need be. While they might object to this intrusion into judicial independence, this is an inevitable consequence of the existence of judicial reviews. Judges would remain independent, but they would have to be as accountable as politicians to the public they serve. This would not necessarily politicise the judicial system any more than it is currently; what it would do is to make this politicisation a matter of public debate and action.
Of course, an argument could be made that judicial independence would be vital should Jeremy Corbyn become Prime Minister, but that does assume the persistence of the rule of law. Given Corbyn’s associations, that could be an assumption too far. But if the bench starts helping overrule the ballot box, perhaps it is time to bring in the ballot box to overrule the bench.