All is Well that Ends Weller

“Voters recall judge who sentenced Brock Turner to 6 months in jail for sexual assault.” I have had this article link in my email inbox for almost two years now with the plan to write something about it that relates to my own research. I’m on a writing roll thanks to my guest appearance on the California Historical Society’s blog. Aaron Persky was, of course, a Santa Clara County Superior Court judge that presided over the rape trial of disgraced, convicted, sex offender Brock Turner. 

I have three motivations for writing about this case. First, to describe the circumstances of a similar case that I encountered in the course of my research that occurred a century earlier. Second, to have the material ready that I need for my future talk at the California Historical Society about the political activities and power of San Francisco women. One of the collections that I will be discussing is the League of Women Voters records and they participated in the effort to recall Weller for reasons that were similar to their involvement with my main topic, which was the elimination of vice in the city. And third, I submit a contrary argument to those expressed in the Vox article above about the possible dangers of Persky’s recall. That is, that judges will be more worried about facing the voters and losing their seat if they issue sentences that may be well within their legal right but appear to the community to be grossly unjust. 

Judge Weller (center foreground with cane) attends the first mass meeting to defend his actions.

As the year 1913 began, so too did a group of women belonging to the Oceanside Woman’s club (OWC) begin their campaign to recall Police Court Judge Charles P. Weller. The OWC took exception to the ruling by Judge Weller that lowered the bail from $3,000 (about $80,000 in 2020 dollars) to $1,000 for Albert Hendricks who stood accused of attempting to sexually assault sixteen year old Marie Bruhn after luring her and her friend into his automobile and driving out to Golden Gate Park [1]. After his release on bail, Hendricks disappeared [2].

Following his failure to appear in court for his trial in early January, the women of the OWC organized the first ever campaign to recall a judge in the state (and only the second use of the recall at the time for any elected official) [3]. The voters of California approved the right of women to vote in 1911 and at the same time they also approved amendments to the state’s constitution providing for the initiative, referendum, and recall. All four of these political innovations were meant to add firepower to the Progressive’s tool kit for reform. The recall, referendum, and initiative were designed to give the people more power over the “special interests” they believed controlled local and state governments. In this case, the women involved believed it was systemic corruption that had been allowed to fester in the city’s police courts that repeatedly allowed men accused of sexual assault to escape punishment. Upset at the “lax methods of punishment in such cases”⁠[4]. Miss Mary Fairbrother, president of the Women’s Political League declared “The women of this city are getting tired of the lackadaisical manner in which seducers are punished by judges”⁠ [5].

The campaign slogan became “All is Well that Ends Weller.” Well played.

In fact, much of the arguments made in support of recalling Judge Weller had little to do with his specific conduct in the Bruhn case. Fairbrother continued that “It has come to a point where young girls are not safe unless they are in their homes” [6]. In their endorsement of the recall campaign, the Mission District Mothers’ Union explained that it was not in response to the charges “against this one judge, but because it was the consensus opinion that such a step will be but the stepping stone to a general cleaning up of the police courts in San Francisco” [7] Repeating a common argument made for women’s suffrage, Mrs. W.H. Campbell told the Call that “We are going to clean up the city…The men have failed to force good government in San Francisco. The women will”⁠[8]. Ironically, Weller’s attempt to defend his actions only served to reinforce the argument about the rotten state of the police courts and the enthusiasm of the women to remove him. Speaking before the mass meeting on January 15, he claimed his actions followed well-established precedent⁠ [9]. To say as he did that, “Bail that has been set by one judge has been reduced by fellow judges in hundreds of cases” only stoked the crowd’s anger [10].

In just over a month of circulating petitions, the “Woman’s Recall League” submitted more than ten thousand signatures to the city’s registrar, forcing a special election [11]. By a very small margin, Wiley F. Crist, the only person to run against Weller, won 30,784 to 29,934 [12]. Weller’s loss made him the first judge to be recalled in the state of California [13]. On the eve of his victory, Crist made a revealing comment that aligned with much of the rhetoric from the recall advocates. Crist noted that he should be retained in office only to the extent he represented “the spirit as well as the letter of the law.” [14]  In other words, the “spirit” of protecting women and punishing men who attack them. The “letter” may have permitted Weller’s actions but he was not “reading the room.” And this of course is where we can see obvious parallels with the 2018 case of Aaron Persky [15].

Miss Mary Fairbrother said “I do not altogether blame Judge Weller in this particular instance,” again clearly suggesting he was merely part of a larger, more problematic whole. She goes on with refreshing honesty: “but the same thing is likely to happen again and again, and a stop must be put to it somehow. If he is recalled the lessons will be a wholesome one to magistrates in the future” [16]. The Reverend Robert L. Webb also made no secret of the recall’s ultimate aim. He told the Call “There has been too much leniency manifested toward assaulters by our magistrates in the past, and I am sure that a good, wholesome example is needed to stimulate our judges” [17]. (Indeed, Weller modified his behavior during the campaign: Charles H. Mills, accused of attacking a fifteen year-old girl had his bail raised to $20,000 by Weller [18].) And it is exactly that sentiment, making an example of the judge, that concerned modern observers in the Persky case. Although the opponents of the recall did defend Persky’s sentence, “they worry that if judges suddenly have to worry that lenient sentences could lead to public outrage…that could perpetuate mass incarceration.” As one of the experts quoted in the Vox article notes, being tough on crime already presents far less risk for judges. Further encouraging that inclination “could disproportionately impact poor, minority groups” given their higher rates of arrest. 

Certainly mass incarceration–of non-white men–is a problem of historic proportions. But the sexual abuse of women and the likelihood that an arrest or conviction would follow has a much, much longer history [19]. It may be no coincidence that Turner’s case gained national prominence and resulted in Persky’s ouster when it did. The sentencing came in mid-2016 when then-candidate Donald Trump was criticized for his own sexism that generated an enormous response by women at his inauguration. And in 2018, the same year as Pesky’s recall, female candidates for public office made historic gains in the the numbers who ran and won office as part of this larger backlash against patriarchal privilege and structural misogyny. While it may be true that Persky’s recall generated some angst among the judiciary, the American legal system (and American society for that matter) still faces a tremendous deficit in the protection and treatment of female victims of violent crimes.    

All of this is to say, from a feminist and historian’s point of view, the fear that the American judicial system will be compromised as a result of Persky’s recall is grossly exaggerated. It is probably true that Persky’s conduct was (is) not different from many that of other male judges. Thus it was not striking a mortal blow to the protection of rapists by removing him. However, the legal system clearly needs a course correction and the balance between judges sensing and responding to a cultural shift in favor of protecting women needs to give way to the strict adherence to a legal system predicted on precedence but also one that is absolutely based on the sexual exploitation of women.

1. A Chronicle article reported she was seventeen and several subsequent Call articles claimed she was fifteen. In this case, the distinction was important. The age of consent for girls at the time was sixteen. Thus, if she was fifteen, the crime would by extension be rape. This was particularly important because if she was older, as the San Francisco Center observed in their investigation into the matter, “If the charge its made by girls who have been indiscreet and have placed themselves in a compromising position, they are apt to discredit their entire testimony by an attempt to avoid criticism and to justify themselves…if a girl’s past conduct has not been good it becomes almost impossible to reach a decision even as to the probability of guilt, and entirely impossible to secure a legal conviction. “Weller’s Recall Urged in Meeting,” Chronicle, January 15, 1913. Untitled report to the members of the San Francisco Center concerning the Weller recall, February 21, 1913, League fo Women Voters Records, folder “Judicial System, 1912-1932, 1951,” California Historical Society.

2. It appears he was never recaptured and the police believed he committed suicide by jumping the bay. “Private Detective is Placed on Probation,” Call, May 18, 1913.

3. “Weller Loses,” Call, April 23, 1913. The first use came just months earlier in Santa Clara County where voters recalled state Senator Marshall Black after his conviction for embezzlement. California Secretary of State, “Recall History in California,” https://www.sos.ca.gov/elections/recalls/recall-history-california-1913-present/, accessed May 10, 1913.

4. “Clubwomen Aid Recall Movement,” Call, January 9, 1913.

5 “Clubwomen Aid Recall Movement,” Call, January 9, 1913.

6. “Clubwomen Aid Recall Movement,” Call, January 9, 1913. Fairbrother was only partially correct. Like many statements (then and now) that complain “how bad have things have gotten,” young girls had never been “safe” from sexual predators. The practice of sequestering young women, particularly unmarried women, was a response to the accepted assumption that such women were prostitutes, or at least promiscuous and thus “fair game.” This practice of putting the blame, or responsibility for avoiding attack, on women rather then telling men to “not rape women,” should sound depressingly familiar to us even today. One of the best books on this topic and time is Sharon E. Wood, The Freedom of the Streets: Work, Citizenship, and Sexuality in a Gilded Age City (Chapel Hill: University of North Carolina Press, 2005). One of women involved in the recall claimed it was their intention, by sending a message through the recall of Weller, to end the leniency shown towards men accused of sexual assault. “We women are out to clean up the city–to make it possible for young girls at least to traverse the streets without running the danger of being assaulted.” What is striking about this objective is that it seems to admit that women have the right to be out on the street, alone or with other women, without male escorts or other guardians, young, single women, and not be harassed. Rather than put the burden on women by restricting their freedom of movement, the intention was to change the expectations of the patriarchal culture that viewed unescorted women as “fair game.” In that sense, these middle-class women were more aligned with the literal definition of “progressive.” “Plea win Defense of Self is Made by Judge Weller,” Call, January 13, 1913.

7. “Recall is Endorsed by Mission Mothers,” Chronicle, February 7,1913. See also “Plea win Defense of Self is Made by Judge Weller,” Call, January 13, 1913.

8. “Effort is Made to Head Off the Weller Recall,” Call, January 11, 1913; “Women Determined Recall Battle Started,” Call, January 21, 1913.

9. “Judge Weller’s Plea Fails to Impress Either His Accusers or Grand Jury,” Call, January 16, 1913.

10. “Plea win Defense of Self is Made by Judge Weller,” Call, January 13, 1913.

11. “Recall Petition Filed by Women,” Chronicle, February 21, 1913. The registrar eventually certified 8,818 of the signatures, still more than the approximately seven thousand that were required. “Recall of Judge Weller Will Soon be Voted On,” Chronicle, March 1, 1913.

12. There were 137,718 registered voters and 62,691 turned out to the polls that day (there were three issues on the ballot), making the turnout for the Weller recall at 44%, which the Call considered a high turnout since it was a special election. Although individual votes were not disaggregated by men and women, there were 46,060 registered female voters. “Police Judge Weller Ousted, Crist Wins,” Chronicle, April 23, 1913; “Weller Loses,” Call, April 23, 1913; “Crist’s Election Credited to Men,” Chronicle, May 2, 1913.

13. “Weller Loses,” Call, April 23, 1913.

14. Emphasis added. “Weller Loses,” Call, April 23, 1913.

15. They also shared the facts that a woman was responsible for initiating and leading the campaign against the judge and in both cases recall supporters pointed out the numerous instances when the judge acted against the best interest of justice for the victims.

16. “Clubwomen Aid Recall Movement,” Call, January 9, 1913.

17. “Effort is Made to Head Off the Weller Recall,” Call, January 11, 1913.

18. “Weller Recalls League Asks Aid to Get Signers,” Call, January 28, 1913; “Weller Fixes Heavy Bonds,” Chronicle, January 28, 1913.

19. Some of the best historians on the subject include Sharon Block, Thomas A. Foster, and Estelle Freedman.