Judge Admonished for Opining Rape Requires Proof of Resistance

12/14/12

On Thursday, the California Commission on Judicial Performance voted 10-0 in favor of imposing a public admonishment upon Superior Court Judge Derek Johnson. The Commission held that Johnson’s comments breached judicial ethics and were inappropriate. Johnson is a staunch believer in the medieval age theory that ‘rape’ is impossible, because if someone did not desire sexual intercourse, the body “will not permit that to happen.”


The learned judge, however, ignores the fact that in non-consensual sex or rape, the ‘body’ is compelled to comply under threat to survival of life or other intimidating or physically and psychologically influencing factors. A gun to the head can make people comply to many things that they don’t agree to, including rape. But this Southern California judge’s logic, expressed in court during the matter of a rape victim, is that the victim “didn’t put up a fight” strong enough to prevent rape.

On behalf of the California Commission on Judicial Performance, Lawrence J. Simi, the commission’s chairman, wrote, “In the commission’s view, the judge’s remarks reflected outdated, biased and insensitive views about sexual assault victims who do not ‘put up a fight.’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.”

In the instant case, during which Johnson made the comments, a woman had been threatened by her ex-boyfriend of mutilating her face and genitals with a heated screwdriver, if she did not comply to his sexual demands. The man also beat the victim with a metal baton before committing rape and forced oral copulation.

The woman reported authorities of the criminal threats the very next day, but she did not report the incident of rape until 17 days later.

Johnson, who was a former prosecutor in the Orange County district attorney’s sex crimes unit, said during the sentencing of the man, “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 later issued an apology to the commission admitting that his comments were inappropriate and were the result of frustration over an argument with a prosecutor who wanted 16 years prison for the accused, but Johnson gave 6 instead.

The commission also found that the California law, since 1980, did not require that a rape victim prove resistance or prevention from resistance because of threats.