Page 92 - Malcolm Gladwell - Talking to Strangers

D: After you obtained her concurrence or permission to finger her, and you did finger her, what
happened then?
Turner: I fingered her for a minute. And I thought she had an orgasm. And then I—well, during
that time, I asked her if she liked it, and she said, “Uh huh.”
And then:
D: And then after that, what did you do?

Turner: I started kissing with her again and then we started dry humping each other.
Under California law, someone is incapable of giving consent to sexual activity if they are either
unconscious or so intoxicated that they are “prevented from resisting.” Here is legal scholar Lori
Shaw:
It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced
the victim’s sexual inhibitions.…Instead, the level of intoxication and the resulting mental
impairment must have been so great that the victim could no longer exercise reasonable
judgment concerning that issue. As one California prosecutor explained, “the intoxicated victim
must be so ‘out of it’ that she does not understand what she is doing or what is going on around
her. It is not a situation where the victim just ‘had too much to drink.’”

So was Doe a willing participant at the time of the sexual activity—and passed out afterward? Or
was she already incapable of consent at the time Turner put his finger inside her? People v. Brock
Turner is a case about alcohol. The entire case turned on the degree of Emily Doe’s drunkenness.

In the end, the jury ruled against Turner. His version of events was simply unconvincing. If—as
Turner suggests—they had a warm, consensual encounter, why did he run the moment he was
challenged by the two grad students? Why was he “dry humping” her after she had passed out? Just
after midnight, Doe left a voice mail for her boyfriend. The tape of that conversation was played for
the jury. She’s barely coherent. If the legal standard is “so ‘out of it’ that she does not understand
what she is doing,” then she sounded pretty close to that.
During the trial’s closing arguments, the prosecutor showed the jury a picture of Doe, taken as
she lay on the ground. Her clothes are half off. Her hair is disheveled. She’s lying on a bed of pine
needles. A dumpster is in the background. “No self-respecting woman who knows what’s going on
wants to get penetrated right there,” the prosecutor said. “This photo alone can tell you that he took
advantage of somebody who didn’t know what was going on.” Turner was convicted of three felony
counts associated with the illegal use of his finger: assault with intent to commit rape of an
intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual
penetration of an unconscious person. He was sentenced to six months in prison and must register as
a sex offender for the rest of his life.
The who of the Brock Turner case was never in doubt. The what was determined by the jury. But
that still leaves the why. How did an apparently harmless encounter on a dance floor end in a crime?
We know that our mistaken belief that people are transparent leads to all manner of problems
between strangers. It leads us to confuse the innocent with the guilty and the guilty with the
innocent. Under the best of circumstances, lack of transparency makes the encounter between a man
and a woman at a party a problematic event. So what happens when alcohol is added to the mix?

4.

Dwight Heath was a graduate student in anthropology at Yale University in the mid-1950s when he
decided to do the fieldwork for his dissertation in Bolivia. He and his wife, Anna Heath, flew to
Lima with their baby boy, then waited five hours while mechanics put boosters on the plane’s
engines. “These were planes that the U.S. had dumped after World War II,” Heath recalls. “They
weren’t supposed to go above 10,000 feet. But La Paz, where we were headed, was at 12,000 feet.”
As they flew into the Andes, Anna Heath says, they looked down and saw the remnants of “all the
planes where the boosters didn’t work.”

From La Paz they traveled 500 miles into the interior of eastern Bolivia, to a small frontier town