Why Are Judges So Concerned about the Future Potential of Rapists?

By EJ Dickson
Rolling Stone
July 9, 2019

Stanford swimmer Brock Turner made headlines several years ago when a judge decided his "potential" mattered more than the fact that he raped an unconscious young woman.

In 1989, members of the Glen Ridge, New Jersey football team raped a 17-year-old girl in the basement of one of the boys’ houses. The girl had an intellectual disability, and was later reported to have an IQ of about 64. The boys took turns orally and vaginally penetrating her, and then penetrated her with a broom and a baseball bat, both of which were covered in baggies coated with Vaseline. One of them said they should stop, a suggestion that was ignored. The boys then told the girl not to tell anyone, then told her to leave. The incident was only reported to the police when a teacher overheard one of the boys bragging to another student that they were planning to coax a repeat performance out of the girl, which they planned to videotape.

In 1993, three of the men were sentenced to a maximum of 15 years in a prison for “young offenders” for their role in the gang rape. But many in the town did not even think they should have been charged with a crime, let alone prosecuted. As journalist Bernard Lefkowitz documented in his book Our Guys, many residents of the predominantly white, upper middle-class town immediately rallied around the boys, with many parents blaming the teenage girl for seducing the boys and cheerleaders donning yellow ribbons at graduation to support the accused. In an archival photo of the Glen Ridge football players leaving the courthouse, they look like exactly what they are: privileged, white, upper-middle-class boys. The overwhelming consensus among townspeople was that they had everything to lose by being publicly named sex offenders, and that they shouldn’t have to pay such a steep price for having engaged in such harmless hijinks; they were, after all, “our guys,” as they were called by the adoring female high school students who were known to arrive on their doorsteps with home-cooked meals for them.

Today, the Glen Ridge rape case is largely confined to the annals of Wikipedia; when it is referenced at all, it is usually to demonstrate how much our society has progressed in terms of its treatment of female sexual assault survivors. It’s the kind of story we can look back at in the rearview mirror and give ourselves a gentle pat on the shoulder to remind us of how far we’ve come, and how much we’ve learned since then. But if there’s any real lesson to be gleaned from the Glen Ridge rape case, it’s that we haven’t come very far at all.

Last month, in Monmouth County, New Jersey, about an hour south of Glen Ridge, Judge James Troiano denied prosecutors’ motion to charge a 16-year-old boy accused of sexual assault as an adult. The boy had filmed himself having sex with an intoxicated 16-year-old girl, who could not stand up straight and had slurred speech; shortly after the video was taken, she vomited, and woke up the next morning with bruises all over her body. The boy later sent the video to friends with the text, “When your first time having sex was rape.”

Although New Jersey law allows offenders as young as 15 to be charged as adults for serious crimes, Troiano declined to do so, issuing a nearly two-hour ruling citing the boy’s academic achievements and privileged background to support his decision not to charge the boy within the full extent of the law. “He is clearly a candidate for not just college but probably for a good college,” Troiano said, adding that prosecutors should have told the judge to tell the sexual assault victim — “the alleged victim here, and I call her the alleged victim here,” as he put it — to have considered the boy’s potential when deciding whether to press charges against him.

Troiano’s ruling was concerning enough for an appeals court to issue a 14-page rebuke accusing him of harboring bias against the accused; there is currently a petition on to impeach him, and the media coverage of his ruling has prompted some to threaten him and his family, according to a report from the New York Times. But it is far from an isolated example of a judge prioritizing the welfare of the defendant over that of the victim in a sexual abuse case. Similar arguments were made on behalf of Brock Turner, the former Stanford swimmer who was sentenced to just six months in jail for sexually assaulting an unconscious woman by a dumpster; Aaron Persky, the judge who sentenced Turner, cited the fact that Turner would “not be a danger to others” and his concern that “a prison sentence would have a severe impact” on him when justifying his light sentence. (Persky was later recalled by outraged California voters.) Similarly, last year Judge Stephen Ehlke sentenced Alec Cook, a man accused of sexually assaulting, stalking, and choking multiple female students, to only three years in prison, citing his lack of criminal record; during sentencing, Ehlke addressed one of his victims in court by saying “Please, continue to be kind — I’m sorry — and positive.”

Kevin Scherzer, 22; his twin, Kyle; Bryant Grober, 21; and Christopher Archer, 21, partially hidden at left. The Scherzers and Archer were found guilty of first degree aggravated assault, Grober was found guilty of a third degree count of conspiracy. (AP Photo/Dan Hulshizer)

When you hear enough of these stories, a pattern tends to emerge. The accused are usually young. They are usually white, a fact that was particularly relevant in the wake of Ehlke’s verdict, as one black lawmaker pointed out that the judge had sentenced a 16-year-old black offender to 20 years in prison before sentencing Cook. And they are usually middle-class and fairly well-educated, to enough of a degree that it’s not impossible to imagine the (usually white, usually male, usually well-educated) judges perhaps seeing a younger version of themselves taking the stand. But in justifying these light sentences, judges rarely cite these factors. Instead, they point to the defendant’s lack of criminal record, or their sterling grades, or their history of volunteer work within the community. They express their concern over the impact a lengthy prison sentence would have on these young men’s delicate characters, and they place the burden solely on the accusers to recuperate from the trauma of their assault, urging them to stay kind, stay strong, stay positive. Above all else, they express a desire to protect the defendant’s potential.

The idea of young men like the Glen Ridge football players or Turner or the 16-year-old defendant in Troiano’s case having “potential” is a fascinating one. One wonders what sort of potential one would see in a young man who films himself having sex with an intoxicated girl and brags about raping her to his friends, other than the potential to harm other young women. One wonders what sort of potential one would see in a young man who has the presence of mind to cover a baseball bat with a plastic baggie and Vaseline before using it to penetrate an intellectually impaired girl, other than the potential to commit more violent sexual crimes. One wonders what sort of potential is so great, so fragile, so worthy of protection, that it would be prioritized over that of the young woman who has survived a violent sexual assault. One wonders what that young woman could have accomplished, had she not been told at an early age that her welfare and her future prospects were secondary to those of her assailant. One wonders just how much a good boy’s potential is really worth, when it so clearly comes at the expense of that of the young woman he has harmed.

In expressing his desire to preserve the reputation of the alleged 16-year-old assailant, Troiano got his wish; his name is not public. He will not forever have to answer to prospective employers and girlfriends who Google him and look at the results with horror, wondering how on Earth such a nice boy could have been capable of inflicting such harm. The guys of Glen Ridge, however, were not spared this fate. Their names are a matter of public record, and their crimes will follow them around for the rest of their lives. Three of the boys — brothers Kevin and Kyle Scherzer, and Christopher Archer — were convicted on first-degree aggravated sexual charges and sentenced to a maximum of 15 years in prison, ultimately only serving about half of that time; a fourth, Bryant Grober, on whom the victim reportedly had a crush, and was used by the other boys as bait to lure her into the basement, was found guilty of a single count of conspiracy.

As part of their sentences, the Scherzers and Archer were required to register for a state sex offender database. It’s easy to find their names and faces online, their tired, lined, unshaven faces a far cry from those of the clean-cut, handsome young white men pictured emerging from the courthouse in 1989. Maybe some would compare that photo to the mugshots of the now-middle-aged Glen Ridge rapists and see a tale of woe, a tale of lost potential. But if there is anything to be learned from Glen Ridge, perhaps it’s that these boys — who not only bragged about penetrating an intellectually disabled girl with a baseball bat, but were so unrepentant that they reportedly tried to do it again the day afterwards — and those like them, probably never had all that much potential to begin with.








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