An attorney for Brock Turner, who famously served just three months in a California county jail after sexually assaulting a woman on the ground behind a dumpster at Stanford University, appeared in court on Tuesday to appeal Turner’s conviction on the charge of attempted rape. Turner wasn’t attempting rape at all when he thrust his body against an unconscious woman’s naked genitals in 2015, lawyer Eric Multhaup told the three appellate court judges. He was merely attempting “outercourse.”
The particularities of language matter a great deal in Turner’s case. When he first became a household name following his victim’s release of her heart-wrenching, beautifully written impact statement, anti-rape activists argued that journalists should start calling him a rapist, not a Stanford swimmer. And last year, a college textbook about criminal justice placed his mugshot next to the section titled “Rape,” calling him “rapist Brock Turner.”
But Turner was never convicted of rape. He was convicted of three felonies related to sexual assault: assault with intent to commit rape of an intoxicated person, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. In California, rape requires a perpetrator to commit forcible sexual intercourse, which Turner did not.
According to a report from the San Jose Mercury News, Turner is trying to get his conviction on that first charge overturned by arguing that he only wanted to nonconsensually rub his body against hers, without penetrating her. Turner only stopped abusing the woman when two graduate students on bicycles found Turner on top of her and saw she was not moving; when Turner tried to run, they tackled him. Now, Multhaup is trying to convince the appeals court that if those two men hadn’t stopped by, Turner would have stopped on his own, without going any further than penetrating her with his fingers.
The term outercourse is not widely used, but in the sexual health community, it generally means anything besides penis-in-vagina sex. That leaves a wide range of acts Turner could have committed, or intended to commit, under the term’s umbrella. His lawyer’s argument, taken at face value, would also render the charge of attempted rape nearly impossible to prove. Juries and judges can only assess a perpetrator’s intent based on his or her actions—rare is the perp who’ll flat-out tell a victim or bystanders, “I’m trying, unsuccessfully, to rape this person!”
Short of that kind of blatant admission, Turner’s behavior offers about as clear a picture of his intent as a prosecutor could hope for. He pulled off the victim’s bra from under her dress, hiked the dress up around her waist, removed her underwear, and spread her legs. He put his fingers inside her, mounted her, and didn’t get off of her until he was under threat of being caught. There’s nothing to suggest he intended to stop just short of rape and walk away after another minute or two of nonconsensual “outercourse.”
But that’s exactly the story Multhaup tried to sell to the judges on Tuesday. He said jury members unjustly “filled in the blanks” when they deduced that Turner intended to rape the woman in 2015. The Mercury News described the judges as “poker-faced,” but one, Franklin D. Elia, seemed skeptical of Multhaup’s argument. “I absolutely don’t understand what you are talking about,” he said. “Intent is rarely proved by direct evidence.” If direct evidence were the standard for attempted rape, the only real proof would be rape itself.