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At appellate oral argument, attorney says Turner sought ‘outercourse,’ did not intend rape

Brock Turner’s attorney argued to three appellate justices on Tuesday that the former Stanford swimmer’s sexual assault conviction should be overturned.

Turner, who attended Stanford on a swimming scholarship for just over one academic quarter, was convicted on three felony counts of sexual assault in the spring of 2016. On Jan. 18, 2015, authorities arrested him after he was found thrusting his body on top of an unconscious woman, now known publicly as Emily Doe, behind a dumpster at an on-campus fraternity party. Turner’s representatives filed the appeal in Dec. 2017.  

Eric Multhaup, the attorney, cited a “lack of sufficient evidence to support three convictions” in the appeal. He honed in on the fact that Turner’s clothes were still on by the time two Swedish graduate students, bicycling by, stopped the assault. That Turner sought fully-clothed “outercourse” with Doe, according to Multhaup, proves that he did not intend to rape her.

Multhaup also called into question the point at which Doe lost consciousness, seeming to suggest the possibility of consent. He said, “There’s no evidence at what point she went from being incapacitated from alcohol to loss of consciousness.”

But Alisha Carlile, the State of California lawyer, quickly countered this claim, asserting that the men who intervened identified that Doe was unresponsive from quite a distance away.

As a rule, appellate courts do not consider new evidence or listen to fresh testimony. Rather, they determine whether the law was correctly applied at the trial level.

California appellate justices Adrienne Grover, Franklin Elia and Wendy Duffy must hand down a decision on the appeal by late October. Because the Constitution’s fifth amendment guarantees a defendant’s right against “double jeopardy,” or a second punishment for the same crime, Turner could not receive additional prison time as a result of the appeals process.

Should Turner lose, he could theoretically appeal his case again to California’s Supreme Court. Unlike the Court of Appeals, though, California’s Supreme Court is not obligated to hear the case, and grants fewer than 5 percent of the “petitions for review” submitted to them.

“What we are saying [is] that what happened is not a crime,” John Tompkins, Turner’s legal adviser, told NBC when the appeal was filed. “It happened, but it was not anywhere close to a crime.”

Unless he is successful in his appeal, Turner must register as a sex offender for the rest of his life. Now 22, he lives with his parents in Ohio.

Following his arrest, Turner — facing a lifelong campus ban — immediately withdrew from the University. Judge Aaron Persky ’84, M.A. ’85, who presided over Turner’s case, handed down a six-month jail sentence, but Turner was released in Sept. 2016 — having spent only three months incarcerated — on account of good behavior.

Many criticized the sentence as overly lenient. This June, Persky was recalled from the bench. Persky’s recall, the culmination of Stanford Law professor Michele Dauber’s two-year effort to remove the judge from the bench, was itself controversial. Many in the legal community, including some of Dauber’s colleagues, have said that the recall sets a dangerous precedent for judicial independence.

 

Contact Courtney Douglas at ccdouglas ‘at’ stanford.edu.

 

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