News Law and Policy

California Judge Tells Victim of Rape Her Body Should Have “Shut Down” Her Rape

Jessica Mason Pieklo

It's not just conservative politicians who believe women can simply "shut down" a rape.

California Superior Court Judge Derek Johnson faces a rare public reprimand after comments from the bench that a woman didn’t “put up a fight” during her rape and that if her body didn’t want the rape to happen it would “not permit this to happen.”

Johnson made the comments in the case of a man who threatened to mutilate the face and genitals of his ex-girlfriend with a heated screwdriver, beat her with a metal baton and made other sexually violent threats against her before beating and raping her. Johnson’s comments criticized the victim for failing to report the assault immediately.

“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.

Johnson is a former prosecutor in the Orange County district attorney’s sex crimes unit.

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The California Commission on Judicial Performance voted 10-0 to impose a public admonishing, calling the comments 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 “In the commission’s view, the judge’s remarks reflected outdated, biased and insensitive views about sexual assault victims who do not ‘put up a fight.’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.

California law does not require a rape victim prove they resisted or were prevented from resisting an assault because of threats in order to prove their claims against an attacker. Johnson’s statements, therefore, were not just inappropriate and disgusting, they were legally baseless as well.

Johnson has since apologized in a sense to the commission, claiming the comments came as a result of frustration with the prosecutor who was urging Johnson to impose a longer 16-year sentence rather than the six year sentence Johnson imposed. According to Johnson, the case was “worth” only six years given the victim’s failure to sufficiently fight back in Johnson’s view.

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