A Southern California judge is being publicly reprimanded for saying a rape victim “didn’t put up a fight” during her assault and that if someone does not want sexual intercourse, the body “will not permit that to happen.”
The California Commission on Judicial Performance voted 10-0 to impose a public admonishment Thursday, saying Superior Court Judge Derek Johnson’s comments were inappropriate and a breach of judicial ethics.
“In the commission’s view, the judge’s remarks reflected outdated, biased and insensitive views about sexual assault victims who do not ‘put up a fight.’ Such comments cannot help but diminish public confidence and trust in the impartiality of the judiciary,” wrote Lawrence J. Simi, the commission’s chairman.
Johnson made the comments in the case of a man who threatened to mutilate the face and genitals of his ex-girlfriend, beat her with a metal baton and made other violent threats before committing rape, forced oral copulation, and other crimes. Though the woman reported the criminal threats the next day, she did not report the rape until 17 days later.
Johnson, a former prosecutor in the Orange County district attorney’s sex crimes unit, said during the man’s 2008 sentencing: “I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case.” Johnson said he believed the prosecutor’s request of a 16-year sentence was not authorized by law. Johnson sentenced the rapist to six years instead, saying that’s what the case was “worth.”
In an apology, Johnson explained that he was frustrated with a prosecutor during an argument in 2008 over sentencing and was trying to make a distinction between the case before him and more aggravated cases cited by the prosecutor, according to the decision.
The commission found that Johnson’s view that a victim must resist to be a real victim of sexual assault was his opinion, not the law. Since 1980, California law doesn’t require rape victims to prove they resisted or were prevented from resisting because of threats.
A public admonishment is the lowest form of public discipline issued by the state commission, which oversees the conduct of judicial officers.
Johnson remains on the bench, and will continue to for the last two years of his term.
Published by Don HoLaw. Don Ho is an attorney in Orange County, California, focusing on criminal and employment law.