Before the day was out, the acquittal of the senior at St. Paul’s school of the charge of rape was “explained” by Mark Joseph Stern at the Slate XX Factor. No, Stern is not a lawyer. No, Stern has never tried a case, never debriefed a jury after a verdict. No, Stern is not responsible for having any substantive knowledge of the subject of his post, but that doesn’t preclude him from punditry.
This is America, and anyone with a soapbox is entitled to tell others about things they know nothing about.
I avoided using the name of the male senior, because after the verdict, should he be acquitted, he would remain innocent and should be able to go through the rest of his life without the taint of this charge. It was, of course, silly of me. After all, his name was smeared across the media, and he will forever be known for this charge. That was under the best of circumstances.
The name of his accuser, on the other hand, is a closely-held secret. Purported victims shouldn’t be tainted. Fair enough. Neither should the innocent accused, which is every accused until they’re convicted, but nobody gives a damn.
But now that there is a verdict, a sense of entitled outrage will fill the hearts and minds of people who, under any other circumstance, would defend the rights of the accused. Not, however, when it involves a sex crime. When it’s about a sex crime, all dearly held beliefs reverse. Such is religion, blinding people to their hypocrisy and ignorance, because they believe.
There is an abiding, if usually tacit, understanding among all trial lawyers that jury verdicts can never be truly understood. Whatever the verdict, the “reason” for it rarely, if at all, aligns perfectly with the salient facts and law. We do not require a jury to explain itself. Even when jurors, post hoc, give reasons, they aren’t quite reliable. Jurors don’t want to admit that they can’t give comprehensible reasons for the verdict, so they come up with something.
But Stern knows why. From the outside, pundits play the game of making sense of that which defies sense, of rationalizing outcomes that may not be rational. He does so by creating a paradigm of his own, a paradigm that makes sense to the uninitiated who isn’t bogged down by knowledge of law, practice or reality, in which he’s entitled himself to conclude that the acquitted senior wasn’t acquitted because the jury determined that he wasn’t guilty of rape, but because of Stern’s religious beliefs.
At a glance, the complex verdict does not seem to answer the burning question at the heart of the case: Did Labrie, then 18, force a 15-year-old girl to have sex without consent? While the full answer is thorny, the upshot is simple. The jury found that Labrie did have sex with the girl—but didn’t force her to engage in any unwanted contact.
No, the jury found nothing of the sort. This is Stern’s interpretation of the outcome, which he attributes to a jury about which he knows absolutely nothing, not that ignorance is relevant to Stern. If we assume a rational verdict, it suggests that the jury rejected pieces of testimony from both the male and female, his denial that he penetrated her at all, and her assertion that she said “no.”
The verdict did not require that Labrie had sex with the girl, but that he penetrated her in some way. It may be that they didn’t reach this conclusion at all, but issued a compromise verdict for lack of any conclusive finding at any level. The verdict did require that the jury found the girl not credible when she testified that she said “no” three times, but that too may have been part of the compromise. Who knows?
However, the jury did find Labrie guilty of endangering the welfare of a child, and of using a computer to “seduce, solicit, lure, or entice a child” in order to commit a sexual assault. The jury also found Labrie guilty of misdemeanor sexual assault.
To his credit, Stern gets the names of the offense down, though the elements remain unexplored. Like most non-lawyers, he succumbs to the ignorance of titles. They explain little, but enough for a quick tarring.
If that seems to make no sense, it’s because of a strange quirk in New Hampshire law.
Stern’s “strange quirk” is what the knowledgeable world might call a critical protection when both parties are young. It’s a very different thing for a 42-year-old to have sex with a 14-year-old than when two teens do so.
But where a caveat that would otherwise be a beloved exception produces an undesired outcome, it’s characterized as a “strange quirk” to cast an evil and nefarious pall over it. It’s a dishonest rhetorical device, as it’s neither a quirk nor strange, but remember, Stern isn’t responsible for knowledge because, well, he’s just not.
Labrie was 18 when he allegedly put his penis, tongue, and finger in a 15-year-old’s vagina. The jury did not find that the girl resisted, so he isn’t guilty of felony rape. But he still had penetrative sex with a girl under 16, the jury believed. Thus, Labrie is guilty on three counts of misdemeanor sexual assault, one for each form of penetration.
Not a word of this is necessarily accurate or true. It may be. It may not be. It may be partially accurate, but what parts will forever remain a mystery. Stern doesn’t care. He’s got an agenda to pound, and he will pound it as hard as he can. No one can stop him.
Except Owen Labrie was acquitted of rape, and Stern (and no doubt others who write more slowly) will explain why this is a condemnation of the law, rape culture, and misogyny, rather than a jury finding that Owen Labrie did not commit rape.
If one is inclined to twist ignorance into a knot, then there will always be some excuse, some rationalization, that will allow the conclusion that a person acquitted was guilty, and no one can walk away from a trial not guilty with pundits like Stern around. Then again, he wouldn’t leap atop his soapbox to smear a young man but for the fact that this was a sex crime.