Former Stanford swimmer appeals sexual assault conviction
Brock Turner sought ‘outercourse’ with victim, his attorney tells justices
SAN JOSE >> A lawyer for a former Stanford swimmer whose conviction on sexual assault charges led to the extremely rare recall of a judge tried to convince an appellate court Tuesday to overturn his client’s conviction — on the novel grounds that the athlete wanted “outercourse” with his intoxicated victim, not intercourse.
“Outercourse,” his lawyer Eric S. Multhaup explained to the three poker-faced justices, is sexual contact while fully clothed. Turner had his clothes on when he was caught by two Swedish graduate students making thrusting motions on top of a half-naked, intoxicated, unconscious woman, his lawyer noted.
The hearing is the latest development in a high-profile case that led last month to the recall of the judge, who gave Turner what many considered a lenient sixmonth jail sentence for the sexual assault outside a campus fraternity party in 2015. It was the first time in 86 years that voters
have recalled a judge in California.
Although Turner wound up serving only three months, he is required under state law to register as a sex offender for the rest of his life because of his conviction on the charge of attempting to rape an intoxicated person. The jury also found Turner guilty of two counts of digital penetration.
Multhaup focused Tuesday on trying to convince the justices to overturn the attempted rape charge, arguing there wasn’t sufficient evidence for the jury to find him guilty beyond a reasonable doubt. Turner never intended to rape the woman, he said.
But the justices appeared skeptical of his argument. The panel has 90 days — until late October — to issue a ruling.
“I absolutely don’t understand what you are talking about,” Justice Franklin D. Elia said, adding that the law “requires the jury verdict to be honored.”
“We are not in a position to say (of the jury), you should have gone a different way.”
Justice Adrienne Grover tried to clarify Multhaup’s argument. “You’re saying (the jury) made unreasonable inferences?”
“Yes!” Multhaup said. “They filled in the blanks.”
But Elia didn’t seem to buy it.
“Intent is rarely proved by direct evidence,” he said, noting that it’s typically based on circumstantial evidence. “You can’t surgically remove things and look at them separately.”
Assistant Attorney General Alisha Carlile didn’t mince words. She argued that Multhaup had presented a “far-fetched version of events” that didn’t support the facts of the case.
The Stanford law school professor who led the campaign to recall Judge Aaron Persky said Turner had a chance to make that argument at trial, but did not.
“Now, he has a brand-new story,” Michele Dauber said in a phone interview Tuesday, contending Turner, who testified in his own defense, lied on the stand. “It’s inappropriate to ask the appeals court to substitute its judgment for the jury.”