The state Commission on Judicial Performance meted out one of its rare public admonishments this week to Orange County Superior Court Judge Derek G. Johnson for comments he made in a rape case four years ago.

In explaining why he was sentencing a man convicted of rape, forcible oral copulation, domestic battery and stalking to just six years in prison instead of the 16 years recommended by the prosecutor, Johnson said:

“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 in inflicted, and we heard nothing about that in this case.”

Johnson, noting that the victim “didn’t put up a fight,” called it a “technical” rape and said the case “trivializes rape” and was “an insult to victims of rape.” Prosecutors said that Metin Gurel threatened to mutilate the victim’s face and vagina with a screwdriver he had heated up on the day he raped her.

The commission, which said in its decision that it hadn’t learned of the comments until last May, chastised Johnson for relying on information about biology he had learned as a district attorney, not from the bench during the course of the case’s testimony. It called his comments “outdated, biased and insensitive.”

The commission also said he got the law wrong when claiming the victim’s lack of fighting spirit was a mitigating factor in rape.

The judge apologized to the commission for his 4-year-old comments and remains on the bench.

Public admonishments of judges are unusual. There were just five in 2011.

That year, the commission received 1,158 complaints involving 862 active and retired judges. Many of the complaints alleged legal error or dissatisfaction with a judicial decision, not misconduct. Of those cases, the commission ordered 95 staff inquiries and 77 preliminary investigations.

Very few of the 1,138 cases completed last year ended with disciplinary action. The commission threw out 995 for insufficient showing of misconduct and closed another 99 without discipline.

The commission issued 10 private admonishments, and sent out 26 advisory letters to judges. But it publicly censured just one judge.

Johnson’s remarks four years ago were similar to those spoken during the Senate quest of Representative Todd Akin, (R-Missouri) in November.

On the campaign trail in August, Akin explained his feelings about abortion after a pregnancy from rape: “Well you know, people always want to try to make that as one of those things, well how do you, how do you slice this particularly tough sort of ethical question. First of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.”

Those remarks cost Akin the job.

–Ken Broder

To Learn More:

Judge Who Said Rape Victim Should Have “Put up a Fight” Is Rebuked (by Christopher Goffard, Los Angeles Times)

Decision and Order Imposing Public Admonishment (Commission on Judicial Performance) (pdf)

Active & Former Judges – Statistics (Commission on Judicial Performance)

Commission Issues Rare Public Scolding to Judge for Telling Attorney to “Work All Night” (by Ken Broder, AllGov California)