JUDY WOODRUFF: But, first, we return to questions and concerns being raised about sexual assault among teens at the high school and college level, and what sort of consent can and should be given.
A trial over an alleged case of rape at an elite boarding school in New Hampshire concluded today. The case has attracted national attention, and it touches on some broader issues.
Jeffrey Brown starts with some background.
WOMAN: Guilty or not guilty?
JEFFREY BROWN: Owen Labrie wept as the verdict was read aloud in a New Hampshire state courtroom. The former prep school student had been accused of raping a freshman girl before his graduation in May 2014.
But the jury this afternoon cleared him of felony rape and instead convicted him on three misdemeanor sex charges and one felony count of using a computer to lure a minor for sexual contact. During the trial, prosecutors argued Labrie forced himself on the alleged victim during a so-called senior salute, a tradition at Saint Paul’s where some older students arrange trysts with younger ones, including for sex.
OWEN LABRIE, Defendant: I thought she was having a good time.
JEFFREY BROWN: Labrie said there was consensual sexual contact between the two, but later testified that — quote — “divine inspiration” compelled him to stop short of intercourse.
OWEN LABRIE: I thought to myself, maybe we shouldn’t do this. It hadn’t been my intention going into the night to have sex.
JEFFREY BROWN: The identity of the victim, now 16 years old, has not been released. She testified that she said no to Labrie three times during the encounter.
Prosecutor Joseph Cherniske:
JOSEPH CHERNISKE, Prosecutor: He didn’t care that she said no or froze up. He cared about what he wanted.
JEFFREY BROWN: The defense countered that the victim lied about what happened to protect herself, after Labrie bragged about having sex on Facebook. Labrie later said he had made up that claim.
OWEN LABRIE: Yes, it was a lie. I wanted to boast to my friends afterwards.
JEFFREY BROWN: In a statement this afternoon, the victim’s family called the verdict — quote — “a measure of justice,” adding, “This conviction requires him to take ownership for his actions and gives him the opportunity to reflect upon the harm he has caused.”
Labrie faces one year in prison for each of his misdemeanor charges and up to seven for the felony computer conviction.
Every case comes with its own particulars, of course. This one had the added public attention because of its setting at an elite prep school.
But it does, say our two guests, speak to difficult larger questions about the law and what constitutes sexual consent.
Emily Bazelon is a staff writer for “The New York Times Magazine” and senior research fellow at Yale University Law School. Deborah Tuerkheimer is professor of law at Northwestern University. She has written widely on rape and domestic violence.
And welcome to both of you.
Emily Bazelon, let me start with you. You have followed this case. What can you read from today’s verdict? What can you see from it?
EMILY BAZELON, The New York Times Magazine: It’s a nuanced, mixed verdict.
I think you can see that the jury believes that Owen Labrie had sex with the girl who accused him of rape and were convinced that, because she was younger — she was 15 at the time, he was 18 — that this an offense, a criminal offense.
But the jury didn’t see enough evidence to be certain that this girl didn’t freely consent to the sex, and so, for that reason, found Owen Labrie not guilty of the felony charge.
JEFFREY BROWN: And, Emily Bazelon, just to clarify, the misdemeanor conviction is because under the law a 15-year-old really cannot give consent?
EMILY BAZELON: That’s right. So, the jury could say, whether or not she consented, this is a misdemeanor offense because of the age difference between the two of them.
JEFFREY BROWN: So, Deborah Tuerkheimer, what do you see in the verdict? And tell us what kind of issues it begins to raise in the larger question.
DEBORAH TUERKHEIMER, Professor of Law, Northwestern University: Well, these are incredibly difficult cases.
As you mentioned, Jeffrey, each is different and they’re all very fact-specific. But cases like this tend to involve two different versions of events. And the jury is forced to grapple with difficult questions of credibility. I think that surely was the case here.
It seems, as Emily says, that the jury didn’t believe Owen Labrie’s account that there was no sex. At the same time, it was, I think, incredibly difficult to sort out this question of consent and whether the signals were clear enough, whether the no’s in the context of what came before and after were clear enough.
And so, for me, what’s really interesting about this trial and this case is that it centered on questions of consent. Notwithstanding the misdemeanor charges, at the heart of this case was this issue of consent, which is where rape law is moving toward, in this direction of looking at consent as the central issue.
JEFFREY BROWN: Well, explain.
Emily Bazelon, you start here.
Explain to us the state of what’s understood and what’s still confusing about consent. We all know the phrase no means no. We hear more about an affirmative consent. We still hear about the possible role of force in these cases.
What can we say that we know at this point, and what’s still confusing?
EMILY BAZELON: In New Hampshire, it counts as rape to have sex with someone who doesn’t freely consent. And that was what was at issue in this trial, as Deborah was making clear.
In many states, however, the prosecution has an additional burden of proof and has to show that force was used in the sexual act. And whether that is still the appropriate legal standard in this time where we really have focused on consent, I think, is an open question. These statutes to me seem quite outdated.
What you can see in this case, however, where consent was at issue, is how difficult it is to know what happened between two people in a private space, where no one else was there.
JEFFREY BROWN: But that means — Deborah Tuerkheimer, that means that, in different states, you can get very different results, even when the facts are clear or understood.
DEBORAH TUERKHEIMER: Right, and in many states, this case would never have come to a trial. No prosecutor would be able to move it forward, except, again, on the misdemeanor charges.
And that in itself is, I think, worth talking about. Is this the kind of case that we want to see go forward, and at least put it to a jury to resolve these questions of credibility?
JEFFREY BROWN: What about, Deborah Tuerkheimer, the issue of affirmative consent, where a yes is required, as opposed to a no means no? How much has that standard come to be accepted at this point?
DEBORAH TUERKHEIMER: Well, the standard is it increasingly accepted on college campuses, where the yes means yes, affirmative consent movement has had considerable attraction; 1,400 schools, maybe even more at this point, have adopted this kind of standard in their disciplinary codes, which is, of course, quite different from a criminal code, where we have really not seen this kind of movement in the direction of requiring affirmative consent, the kind of yes means yes, passivity doesn’t mean consent, the alleged victim must do something to indicate that she is willing to engage in this kind of conduct.
There, only a very small number of jurisdictions actually have this kind of definition on the books.
JEFFREY BROWN: But, Emily Bazelon, it is a moment when a lot of students are starting college or going back to school. How much do you sense an awareness of this on college campuses? What’s being done, for example, for more awareness or more prevention at this point?
EMILY BAZELON: Some schools are really trying to teach students about yes means yes and no means no, to really get them to focus on this idea that, if you’re engaging in sexual activity with someone, you should make sure that both people want to be doing what you’re doing.
I do think that cases like this help drive home the message that there is risk here for boys and men, as well as girls and women, a reason to look out for yourself, a possibility of a prosecution like this. And so that’s something hopefully students will take to heart.
JEFFREY BROWN: Well, then, of course, we’re taking about college.
But then, Deborah Tuerkheimer, in the case like today, we’re talking about a high school. It’s a prep school, so maybe a specialized kind of case. But how much of all that we’re talking about, the awareness — at the college level, for example, do you have any sense of how much that has filtered to high schools, administrators, people in charge that can — are maybe making students aware of it?
DEBORAH TUERKHEIMER: My sense is that the conversation is at an earlier stage of its evolution when it comes to this issue on high school campuses, as opposed to college campuses.
But it’s, of course, really important that we be talking about this. And the younger the population, I think, the greater, in some respects, the likelihood that these kinds of cases are going to come to the fore if we’re open to seeing them.
JEFFREY BROWN: Well, and the one brief last question, Emily Bazelon.
Is that the area where the law follows the culture when you see what’s happening around different states or even in a national level? What leads the conversation or the action?
EMILY BAZELON: You know, that’s such a good question. They tend to take turns or move in tandem with each other.
I think, right now, the culture is ahead of the law, in the sense that the culture is very much about this question of consent, and legal statutes can take time to rewrite and to be reenacted. And so I think we have a number of states that have lagged behind the cultural conversation, and it’s time for the law to catch up.
JEFFREY BROWN: All right, thank you both very much, Emily Bazelon and Deborah Tuerkheimer. Thanks so much.
DEBORAH TUERKHEIMER: Thank you.
EMILY BAZELON: Thanks for having us.