to be two to three shots. It turned out to be maybe three to four shots, because that marking was five ounces.
P: And you’re talking about a red Solo cup.
Doe: Yes.
P: Kind of something that you typically see at parties?
Doe: Yes…
P: OK. Now, when you were—after you poured the vodka, what did you do?
Doe: I drank it.
P: How did you drink it?
Doe: Just—for all.
P: Like, all at once?
Doe: Pretty much all at once. So I was already feeling drunk, because I was able to do that.
And then:
P: How—describe for us your level of intoxication at this point.
Doe: Umm, pretty much empty-minded. I become kind of just a dud, and I’m vacant, not articulating much. Just standing there.1
P: Do you have any idea what time this is in the night?
Doe: Maybe around midnight.
It was at that point that Brock Turner approached Emily Doe. He says she was dancing alone. He says he approached her and told her he liked the way she danced. He says she laughed. He says they chatted. He says he asked her to dance. He says she said yes. He says they danced for ten minutes. He says they started kissing.
D: OK. Did she appear to be responsive kissing you back?
Turner: Yes.
D: Did you have any further conversation with her that you remember?
Turner: Yes. I asked her if she wanted to go back to my dorm.
D: OK. And did she respond?
Turner: Yes.
D: What did she say?
Turner: She said, “Sure.”
D: Approximately, this would have been after 12:30 then, right?
Turner: Yes.
D: Did you ever learn her name that night?
Turner: Yes. I asked her her name while we were dancing, but I didn’t remember it.
He says he put his arm around her and the two of them left the party. As they walked across the back lawn, he says the two of them slipped.
Turner: She just lost her footing and kind of fell down. And she grabbed onto me to try and prevent her fall and that caused me to fall as well…
D: What happened then?
Turner: We laughed about it and I asked her if she was OK.
D: Did she respond?
Turner: Yeah. She said she thought so.
D: What happened then?
Turner: We started kissing.
Normally, in a sexual-assault case, the prosecution would present witnesses to raise questions about the defendant’s account. But that didn’t happen in People v. Brock Turner. By that point, Trea had become so drunk that Emily’s sister and her friend Colleen had taken her back to Julia’s dorm room. Turner’s friend Peter never made it to the party at all: he was too drunk, and had to be taken back to his dorm by two of Turner’s other friends. Presumably there might have been other people at the party who could corroborate or refute Turner’s story. But by this point it was after midnight, the lights had been lowered, and people were dancing on the tables.
So we have only Turner’s account:
D: What happened then?
Turner: We kissed for a little bit after that, and then I asked her if she wanted me to finger her.
D: Did she reply to you?
Turner: Yes.
D: What did she say?
Turner: She said yeah.…
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