But on Tuesday, Turner’s attorney launched a bid to overturn his client’s convictions by arguing that Turner never intended to have sexual intercourse with the woman — that he just wanted “outercourse.”
In a brief and in oral arguments in front of the California 6th District Court of Appeal, the lawyer, Eric S. Multhaup, argued that Turner’s clothes were on when the bicyclists found him. This, he claimed, showed that Turner was engaged only in “outercourse,” a “version of safe sex” with no “penile contact,” the Palo Alto Weekly reported. According to multiple accounts of the hearing, this argument left the three district justices scratching their heads.
Turner’s new legal argument, explained
Turner’s attempt to overturn his 2016 convictions, which included two counts of digital penetration of an intoxicated and unconscious person and one count of assault with intent to commit rape, began in December when Multhaup filed a brief with the California appeals court. In May, the lawyer filed a second brief, which argued that Turner was convicted on constitutionally insufficient evidence and deprived of due process and a fair trial. Specifically, he argued that Turner shouldn’t have been convicted of digital penetration of an unconscious and intoxicated person because the prosecution didn’t prove he “knew or should have known [the victim] was so intoxicated as to be unable to resist digital penetration,” as California statute requires. “There was no proof beyond a reasonable doubt that she had lapsed into unconsciousness at the time of the digital penetration,” Multhaup wrote.
He argued that Turner shouldn’t be convicted of intent to commit rape because it was “outercourse.” In his brief, he described outercourse as “‘aggressive thrusting’ or ‘humping’ while fully clothed.” It “is viewed in modern times as an alternative to or substitute for sexual intercourse, not a precursor to it,” he wrote.
In the police report, Turner’s conduct is described this way: Two young men on bicyclists encountered Turner behind a dumpster thrusting on top of a woman whose dress was pulled up over her waist, whose underwear was thrown to the side, and whose tangled hair and back were covered in pine needles, as sheriff’s deputies would soon discover. The two men noticed she was not moving at all. They decided to interrupt Turner, who fled but was soon pinned to the ground by the men. They said they did not know whether Turner’s pants were undone before the chase. Police soon arrived and found the woman lying unconscious. Turner admitted to digitally penetrating her, police said.
At the time Turner was convicted, California law differed from other states in that rape was specifically confined to sexual intercourse by force, excluding digital or oral penetration. That’s the core reason Multhaup argues that Turner isn’t guilty of “intent to commit rape.” That loophole is what inspired legislation revising the rape statute in 2016 to include any type of nonconsensual sexual assault — but that revision won’t affect Turner’s case because the law was passed after his attack.
How will the judges respond?
Back in 2016, Turner’s sentencing was followed closely and criticized by many. Of his six-month jail sentence, he ended up serving three months. He was also sentenced to three years of probation and was required to register as a lifetime sex offender. Sexual assault survivors and domestic violence groups across the country were outraged, and called for the removal of the judge who sentenced Turner, Aaron Persky. In June, that campaign was successful: Santa Clara County voters recalled him from the bench with 60 percent of the vote.
At Tuesday’s oral arguments, Multhaup’s long-shot legal argument garnered skepticism from the three judges. They reminded Multhaup that the purpose of an appellate court is not to question the jury’s verdict retrospectively.
“We are not in a position to say [of the jury], ‘You should have gone a different way,’” Elia said, the Mercury News reported. Elia added: “Intent is rarely proved by direct evidence” but rather circumstantial evidence. “You can’t surgically remove things and look at them separately.”
The justices have 90 days to issue a ruling.
