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Blog Post: Judge’s Shocking Misconceptions About Rape Underscore Continuing Need for Legal Momentum’s National Judicial Education Program

Profound ignorance about rape is once again in the news, thanks to a California judge who has just been publicly censured for appallingly misinformed comments he made during the sentencing phase of a rape case. 

Legal Momentum was outraged last week by a report from California about the deeply ignorant, trivializing remarks made by California Superior Court Judge Derek Johnson.  The case involved a man who threatened to mutilate the face and genitals of his ex-girlfriend with a heated screwdriver before forcing his penis into her mouth and raping her.

Judge Johnson faulted the victim because she "didn't put up a fight," stating that “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.”  The judge’s demand that a rape victim fight back and demonstrate her resistance by sustaining major injuries is completely contrary to California law, which eliminated the resistance requirement in 1980.  In addition, major, visible, physical injuries like the ones expected by Judge Johnson are the exception, not the norm, in rape cases.  

The 2008 case just recently came to the attention of the California Commission on Judicial Performance and is making news now because the Commission last week voted unanimously to publicly admonish Judge Johnson, stating that his comments were inappropriate, biased, insensitive, and a breach of judicial ethics.

Such erroneous and reckless remarks from a judge seriously erode public confidence in the entire U.S. judiciary system.  Adding to the enormity of these concerns is the fact that Judge Johnson served in the Orange County district attorney's sex crimes unit prior to his appointment to the bench in 2000. 

This is just the kind of ignorance and victim blaming that Legal Momentum's National Judicial Education Program (NJEP) strives to prevent.  Since 1980, NJEP has presented judicial education programs on adult victim sexual assault cases for judges and other justice system professionals, providing the accurate, factual information judges need to conduct fair trials.  The presentations discuss the various, often counterintuitive, ways in which victims may behave during and after an assault and during their court cases.  For example, rape victims typically delay reporting an assault, and often display little emotion, or a flat affect, while testifying.  

In addition to explaining victim behaviors, NJEP’s educational programs suggest procedures for conducting rape trials that minimize victim re-traumatization without undermining defendants’ rights.  See NJEP’s free to download publication, Judges Tell: What I Wish I Had Known Before I Presided in an Adult Victim Sexual Assault Case which provides research that disabuses readers of 25 common misconceptions about sexual assault.

While NJEP’s programs have been acclaimed by judges across the country, misconceptions about rape and its impact persist in the courts and among law enforcement authorities today.  This news story about Judge Johnson illustrates the continuing need for Legal Momentum’s education programs and our constant vigilance where the prosecution of sex crimes is concerned.

This news story also illustrates an important point of progress in the courts in which Legal Momentum's National Judicial Education Program was instrumental.  The California Commission on Judicial Performance found that Judge Johnson’s comments violated canon 3B(5) of the California Code of Judicial Conduct, which requires a judge to perform judicial duties without bias or prejudice and provides that a judge shall not, in the performance of judicial duties, engage in speech or other conduct that would reasonably be perceived as bias or prejudice.  This Canon of Ethics is also a product of NJEP's work.  In addition to presenting judicial education programs about sexual assault, NJEP was the catalyst for a series of task forces on gender bias in the courts established by state supreme courts across the country.  The findings of these task forces were a key element in the decision of the American Bar Association to amend its model code of judicial conduct to include Canon 3B(5).  This code is the model for state codes of judicial conduct, hence the incorporation of 3B(5) in the California Code.  It has also been adopted in state judicial conduct codes across the country.

The strong response of the California Commission on Judicial Performance to Judge Johnson’s outrageous denigration of a rape victim shows that Legal Momentum's work has contributed to important progress in the courts, but this case also confirms that the fight for justice for victims of sexual assault is one we cannot abandon.