I’m a mother, a feminist and a woman of color. I’m in favor of the recall of Judge Aaron Persky.

Sexual assault is a horrible crime that inflicts severe trauma on all victims. But women of color often experience very severe consequences compared to other victims. In many cultures, women are blamed for the assault very overtly and they are told that it is their fault for allowing it to happen. Police, prosecutors, and judges may devalue the experience of the victim. Stigma, Shame and guilt are overpowering.

Even families in some immigrant communities blame their own daughters. She may be told she is a slut, or that she has brought shame on the family. Parents sometimes worry that such an assault will make their daughter a “damaged property” and that no one will want to marry her. Parents may feel guilty themselves for the fact that their daughter was drunk or not ‘respectably dressed.’ These outmoded ideas, which are present to a degree even in the most modern and American households, are sometimes magnified in immigrant families. These ideas are false, harmful, and also contribute to the lack of reporting.

In order for victims to raise their voices, society must send a consistent message that it is not her fault. It is the perpetrator’s fault.  If predators are punished this sends the message that the victim is not at fault and that encourages reporting. Only then will women raise their voices.

When I first read about the Brock Turner case I was horrified. This young woman could be my daughter. The predator got a lenient sentence. His own father minimized the severity of the crime, saying that sending his son to jail would be a “steep price to pay for 20 minutes of action.” When I read the father’s statement, my first thought was ‘like father, like son.” What if those 20 minutes or even few minutes involved his daughter?

Judge Persky apparently agreed with the father’s really outrageous statement and gave the perpetrator only 6 months in jail — of which he served only 3 months!

I was so disgusted by this case. That is why I was so happy to know that there is a campaign to recall the judge. I had a chance encounter with the recall leader, Professor Michele Dauber, at a Democratic Party meeting and I had the chance to ask her a few questions:

Michele, some people are concerned that the recall will make things worse for people of color. Will it?

No. Recall opponents have a well-intentioned, but incorrect concern that recalling a judge will make all other judges afraid of losing a recall election and will make them impose longer sentences on all criminal defendants, the majority of whom are people of color. But there are a lot of incorrect assumptions that underlie this concern.  

First of all, local county judges like Judge Persky are elected officials. They are elected in competitive elections and have to stand for re-election every six years. Unlike federal judges they do not have lifetime tenure and are not completely independent of the political process — they are elected.

Second, recall elections of judges are incredibly rare. There have only been two such elections in California history. The judicial recall was added to our state Constitution in 1911 and it is part of our system of checks and balances to ensure that judges, particularly local county court trial judges like Judge Persky, are accountable to the people they serve. Since 1911 there have been 2 such elections — one in 1913 when the Women’s Clubs of San Francisco recalled a judge named Charles Weller for being too lenient on rape, and another in 1932 when the Los Angeles Bar Association led a recall of three judges. Thus, the last recall of a judge was more than 80 years ago. That’s because it is incredibly expensive and difficult with a very high signature requirement to put a judicial recall on the ballot.

Why would a judge fear the political equivalent of being struck by lightning but not the certainty of facing the voters during a regular election? If judges are going to bend to political pressure, their own scheduled elections are going to be far more concerning to them than a recall of another judge, when they are extremely unlikely to face a recall themselves.

Furthermore, I also have trouble understanding the argument that other county trial court judges will react to Judge Persky’s recall election by sentencing poor and minority defendants to longer sentences. The recall is entirely focused on the fact that Judge Persky favors privileged defendants and does not take seriously the harm experienced by victims of sexual assault and domestic violence. The messaging from our campaign has been thoughtful and careful at all points. This is not a generic “get tough on crime” campaign. The media reporting has always emphasized the special treatment given to privileged offenders, as well as the impact of these crimes on women. I think Superior Court judges can easily distinguish privileged defendants from poor and minority defendants.

Our campaign is incredibly diverse. It is predominantly comprised of people of color. Many, if not the majority, of our elected endorsers are women and men of color. If you look at the list you will see this very quickly. Kevin de Leon and Ro Khanna were some of our first endorsers and Assembly members Anna Caballero, David Chiu, and Tony Thurmond have endorsed, along with San Jose Vice Mayor Magdalena Carrasco, San Jose City Councilmember Raul Peralez, Milpitas Mayor Rich Tran, and many, many other elected officials of color have endorsed the recall.

I simply reject the idea that we have to choose between supporting women, especially women of color on the one hand, and men of color caught in the criminal justice system on the other hand. We don’t have to choose. We can support justice for victims of sexual and domestic violence We can care about both things by being — as Senator Kamala Harris says — smarter on crime rather than tougher on crime.

Will this hurt judicial independence?

No. As I noted above, under the California Constitution local county judges like Judge Persky are elected and are accountable to the people. They are not fully independent the way federal judges are and that is by the design of our system.

If the recall opponents want to oppose the California Constitution’s provision for judicial elections, they are entitled to do that — but criticizing a recall for introducing politics into judicial selection fundamentally misunderstands and misrepresents the fact that judges are already elected officials.

Moreover, there is no perfect method of judicial selection. Every method of choosing judges involves tradeoffs in institutional design between democratic accountability, independence, and preserving the legitimacy of the system. California does not have merit selection with lifetime tenure as Federal Article III judges enjoy and that kind of selection mechanism is almost unheard of at the state level for trial court judges like Judge Persky. We need to stop acting like Judge Persky is a federal Article III judge and acknowledge that is not the kind of independence that county judges enjoy.

The nonpartisan UC Berkeley Center on the California Constitution did an extensive analysis of the Persky recall and concluded that it would NOT reduce judicial independence in California, because the California Constitution strikes a balance among the competing value sets of judicial independence and democratic accountability. This is an impartial expert analysis by a group with no connection to either side of the recall campaign. See http://scocablog.com/what-does-californias-experience-with-recall-of-judges-teach-us/

How does a recall election work?

Judges have significant protection against recall elections, primarily in the form of a very high threshold for signatures in order to qualify a recall for the ballot. We have to get signatures equal to 20% of the number of voters for that seat. In the case of Judge Persky that is 58,634 valid signatures. In order to ensure that we have that many signatures we have to collect almost twice that many — nearly 100K signatures.

We have been collecting for about 2 months and have over 65K signatures. We have until February 3 to collect the rest. Once we turn in the signatures to the County, they will check each signature to ensure it is valid and then if we have enough they will put a recall election on the ballot for June 2018. Because it is in June with other countywide elections in the primary, the cost to the taxpayers of the election will be very small.

Once the election question is certified in March 2018, then other candidates can register to run. There will be two questions on the ballot: First, should Judge Persky be recalled, and second If he is recalled, then who should replace him and there will be a list of candidates. If more than 50% of the voters vote “YES” on the first question, then the other candidate with the highest total will be the winner. There is already a strong candidate with stellar qualifications who has announced, Cindy Hendrickson. Cindy is a 22 year veteran of the Santa Clara County District Attorney’s Office and a prosecutor with a lot of experience in domestic violence and sex crimes.

You had already started this recall and now the high profile sex abuse cases are coming out from film industry. This is breaking the culture of silence. Will this make more women of color speak out?

I sure hope so. I think that women of color face special disadvantages in terms of being believed and treated fairly in the justice system. Many, if not all, of the victims who were denied justice by Judge Persky were women of color and that is one very important reason I feel it is so essential that we continue this recall.

Deepka Lalwani is the founder of Indian Business and Professional Women. She serves on the Board of DAWN (Democratic Activists for Women Now) and serves in an advisory capacity for Silicon Valley Reads.

 

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