He wasn’t trying to rape her, he was attempting ‘outercourse’, says lawyer for ex-Stanford student Brock Turner

A lawyer for Brock Turner, the former Stanford student convicted of sexually assaulting an unconscious woman, argued in court during an appeal hearing that his client was seeking “outercourse” with his victim.

The attorney’s appeal of the high-profile case, which led to international outrage after Turner received a lenient sentence in 2016, advanced in a California court this week, with an unusual legal claim that experts said was shocking and hurtful to survivors of sexual violence.

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Turner was originally convicted of assault with intent to commit rape of an intoxicated woman and penetration of an unconscious person after passers-by spotted him thrusting on top of a motionless woman outside of a fraternity house in 2015. But his lawyer Eric Multhaup argued in court Tuesday that his client was not attempting rape, but was seeking “outercourse”, which he said was sexual contact while clothed and a “version of safe sex”, the Mercury News reported.

The language and claims at the hearing, which came a month after voters recalled the judge who gave Turner six months in jail, stunned legal scholars and activists.

“It’s just breathtaking in its cruelty,” said Anne Coughlin, a University of Virginia law professor. “It feels like a juvenile, adolescent joke that utterly denies the extent of the injury that was proved at the trial. It’s just awful.”

Turner, now 22 years old and required for life to register as a sex offender, was found guilty of penetrating his victim with his finger, a fact that made his lawyer’s “outercourse” defence all the more perplexing and offensive, critics said.

“This is just a vile attempt to overturn his client’s felony charge,” said Shaunna Thomas, co-founder of UltraViolet, an advocacy group. “For survivors, it’s just another really tragic example of our rape culture epidemic at work.”

The justices considering the appeal appeared to be sceptical of some of Multhaup’s arguments.

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“I absolutely don’t understand what you are talking about,” Franklin Elia said, according to the Mercury News, adding that the law “requires the jury verdict to be honoured”.

Numerous legal experts said they had never before heard the term “outercourse” used by defence attorneys in sexual assault cases, though some noted it was common for lawyers to argue that the accused had different intentions than charges suggested.

“Defendants have historically tried to say in attempt cases that that they were trying something else,” said Corey Rayburn Yung, a University of Kansas law professor, adding that Turner’s legal team faced an uphill battle to make this claim after conviction. “At the appeal level, it seems doomed to fail.”

Mary Fan, a University of Washington law professor, noted that legal conceptions of assault and rape had expanded and changed dramatically over time and that the “outercourse” claim seemed to be rooted in outdated notions of sexual violence.

“It’s a throwback to olden times when sexual assault was defined very narrowly and in archaic ways,” she said.

Coughlin also said that “outercourse”, as Multhaup appeared to be defining it, would still be a criminal act, adding that it was an “ugly play on words” that “seems to be an effort to undercut the terrible harm [Turner] caused to this woman”.

Multhaup did not respond to a request for comment Wednesday. Turner, who returned to his hometown in Ohio, did not attend the court hearing.

The case originally received widespread attention after the anonymous victim published a powerful statement about her assault and the aftermath.

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Stephanie Pham, 21, a recent graduate and a founder of the Stanford Association of Students for Sexual Assault Prevention, said she thought the case had been concluded and that it was hard to see Turner’s name in the news again: “It’s extremely disappointing to see that this is still going on.”

Given the progress in recent years in society’s understanding of sexual violence and support for survivors, Pham, said, it was especially challenging to see Turner’s attorney use such damaging language.

“It’s unbelievable that he is bringing this into a courthouse and expects people to buy it,” she said. “It’s an absolute insult to every survivor and every advocate. It’s horrendous.”