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The problem with Brock Turner and the “outercourse” defence

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Sarah Biddlecombe
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Brock Turner’s lawyer tried to overturn the sexual assault charges against him by claiming his client’s actions were “outercourse”. But what is outercourse, and is it ever used as a defence in UK courts?

Three and a half years ago, Brock Turner sexually assaulted an unconscious woman behind a dumpster. The then-19-year-old Stanford University student was apprehended by two fellow students, who witnessed him on top of his victim. In 2016, Turner was charged with the following offences: sexually assaulting an intoxicated victim, sexually assaulting an unconscious victim and attempting to rape her. His unnamed victim, who was 22 at the time, wrote a powerful open letter describing the “violation”, which quickly went viral and has now been read by more than 11 million people.

Despite the serious nature of the offences, Turner was sentenced to just six months in prison, and released after serving only half that time. The lenient nature of his punishment led to such national – and international – outcry that the judge preceding over the trial, Aaron Persky, was removed from office by voters earlier this year.

The only permanent punishment handed to Turner was a lifetime on the sex-offender’s register – a decision he still felt the need to appeal. Last month, his lawyer Eric Multhaup told court justices that there was no evidence to prove the woman was unconscious, and that Turner had not intended to rape her because he was still fully clothed when he was found. Instead, he described Turner’s actions as “outercourse” – a term that is used commonly in the US, but rarely heard of here in the UK.

This week, Turner’s appeal was rejected, and his convictions upheld. But what does the term “outercourse” mean, and does it ever appear in the UK legal system as a defence? Stylist investigates.

Brock Turner’s mug shot

What is outercourse?

The Oxford Dictionary defines outercourse as “non-penetrative sexual activity”.

Outercourse can be used as a form of contraception. US non-profit organisation Planned Parenthood has a section dedicated to outercourse and abstinence on its website, where it states that outercourse “can prevent pregnancy the same way abstinence does: by keeping sperm away from an egg”.

Planned Parenthood offers the following examples of outercourse: kissing, massage, masturbation, dry humping (grinding) and talking about your fantasies.

Is outercourse ever used as a defence in UK courts?

“In our law, outercourse doesn’t exist,” Jonathon Enston, a lawyer at Slater and Gordon, tells Stylist. “It seems to be an American term, although it’s certainly been met with confusion in the American justice system as well.

“When courts look at what counts as a sexual assault, they look at whether the nature of the activity itself is sexual. We’re dealing with words here, and dry humping is one stage removed from sexual intercourse. Dry humping is a sexual activity, and the act is intentional. Here in the UK this defence wouldn’t work; I think it’s nonsense.”

What defines sexual assault in UK law?

To convict someone of sexual assault, the motive of the perpetrator and the consent of the victim both need to be considered.

“You need to look at the motive and what the person is intending,” Enston says. “If [the action] is considered sexual, and the person doesn’t consent to it, then that in a nutshell is sexual assault.”

What counts as consent?

“You would have to look at all the circumstances,” Enston says. “You need to consider the evidence of the complainant and what she said, and look at the wider circumstances to see whether that belief is reasonable.”

Would Brock Turner’s appeal have been approved in UK courts?

Enston is believes that Turner’s defence of outercourse would not have stood up in a UK court of appeal.

“In the case of a sexual offence, you are dealing with one person’s word against another’s. But the [case of Brock Turner] is different because there are other witnesses who have given eye witness testimonies, and they gave consistent accounts. This would strengthen the prosecution’s case.

“The definition of the offence is to do with consent. The woman was unconscious, so I don’t think you could say in a month of Sundays that she gave her consent.”

If you, or anyone you know, wants support or information regarding rape or sexual assault, please visit the Rape Crisis website here or the Women’s Aid website here.

Images: Getty