Bazelon Forfeits Her Credibility (Update)

Among the very small world of established and credible legal pundits, three women stood at the pinnacle:  Linda Greenhouse, Dahlia Lithwick and Emily Bazelon. They earned their cred from years of hard work, honest writing and legal acumen. But like any other pundit, regardless of gender, their credibility is at risk when they trade off their politics for their integrity. Today is Bazelon’s turn to fall.

The case is a difficult one, still on trial and hotly contested, dealing with terrible allegations of rape at the private prep school, St. Paul’s.  The alleged victim says she was raped by a senior.  The senior denies they engaged in sex. Bazelon will have none of it.

The dispute is a familiar-enough scenario for a rape case. But the fact that it has gone to court is also relatively unusual for a reason that may seem surprising: Labrie’s guilt or innocence hinges on the question of consent. This is much less common than you might assume — in fact, in many states, Labrie probably would not face felony charges of sexual assault at all. (Emphasis added.)

This premise, upon which the balance of her commentary relies, is not merely wrong, but a deliberate distortion, a lie if you will.  As already noted, consent has nothing whatsoever to do with anything in this trial. He testified that he did not have sex with her, consent or not.

Why?  What possible reason would Bazelon have to burn her hard-established credibility as a legal commentator to write something so flagrantly false, to intentionally mislead as many New York Times readers as she possibly can?  She has an agenda to push, and willingly uses this trial, deliberately distorts this trial, to give her a soapbox to do so:

The message that “no means no” has been central to the movement to reduce sexual assault on college campuses. “If she doesn’t consent, or if she can’t consent, it’s rape. It’s assault,” the actor Benicio Del Toro declares in a video released last year by the White House, and featuring President Obama and Vice President Joe Biden. Some schools, in an effort to make rape easier to prove and punish, have shifted the standard of consent to require a showing of active agreement — “yes means yes” as a substitution for “no means no.”

This is, under the most charitable characterization, an attempt to shift societal norms and, in time, law developed over hundreds of years to adopt the neo-feminist view that the criminal law, as applied to every other crime, should be singularly different when the crime is the current sacred cow of feminism: rape.

But this message often doesn’t line up with legal reality. A majority of states still erect a far higher barrier to prosecution and conviction by relying “on the concept of force in defining rape,” as the Northwestern University law professor Deborah Tuerkheimer writes in a forthcoming article in The Emory Law Journal. 

This is an artful, and false, characterization. States do not “still erect,” as crimes aren’t redefined day by day, week by week, according to feminist whims.  Most absurdly, the case under discussion has zero, absolutely nothing, to do with proving force. It’s a complete red-herring, but it’s the strawman through which Bazelon tries to sneak her narrative. Force plays no role in New Hampshire, or in this trial. The senior denies that he had sex with her.

This explains how the case against Labrie has proceeded — it’s the source of the central felony charge against him. And so Labrie’s lawyer is trying to convince the jury that the girl did not make her lack of consent clear enough.

The senior has testified under oath that he did not have sex with her. That is the defense, not that the girl did not make her lack of consent clear enough.

So the crucial question for the jury may well be: Did Labrie know, or should he have known, that the girl did not freely consent? That seems like the right question to ask.

No, the crucial question for the jury was whether they had sex at all, because the senior testified that they did not have sex.  And ultimately, Bazelon succumbs to the “big lie”:

This is chilling and retrograde. And it shows the gap between the definition of rape in many states and the “culture of consent” at universities, Tuerkheimer argues. As she puts it, “On campus, this is rape; off campus, it often is not.” The discrepancy, she argues, diminishes the violation of victims outside universities, even though studies show they are actually more vulnerable to sexual assault than college students.

Law requires definitions, and rape is no exception.  The campus version provides no cognizable definition of rape, which Bazelon shiftily avoids by contrasting it with this meaningless “culture of consent,” upon which she then quotes a flagrantly false assertion: that it is rape on campus but not off.

She deliberately conflates the amorphous campus concept of rape with the legal definition of rape, as if everybody is entitled to come up with their own definitions of crime, and by doing so, is entitled to supplant the definition of a legal term of art.

Feminists circled up amongst themselves find it easy to ignore their own definitional vagaries, because “they know” is a good enough definition for them. The law requires more. Bazelon knows this, but doesn’t care. Bazelon knows this but has studiously avoided letting her readers know that her favored definition of rape is whatever a woman says it is, whenever she chooses to do so.

To the extent the campus version offers any limitations, it’s whatever sense a woman has before, during or after, taking into account all rationalizations that explain away facial consent based on secret feelings or internal conflicts, that fully consensual sex wasn’t at all consensual if the woman later decides it wasn’t.

If this is what Bazelon feels should be the case, that’s her business. She is as entitled to have a gender agenda as anyone else, and blindly ignore its irresponsibility, its unconstitutionality, its legal impossibility to apply. But she is not entitled to lie about it, to mislead about the St. Paul’s trial, or to manipulate the story to suit her politics.

By doing so, Emily Bazelon has forfeited her credibility as a legal commentator, proving conclusively that she will lie to further her agenda. The New York Times provides a very big soapbox on which she can, and will, do so. That is something she has no more right to do than her sister pundits.

Far worse, Bazelon deliberately lied about a trial of a high school senior, that should he be acquitted, it’s not because he’s not a rapist, but only because of bad law “erected” in conflict with this wonderful law that all the intellectuals on campus (plus Bazelon) explain is what the law really ought to be, if not for those evil laws that have nothing to do with the case at all.  For that, Bazelon cannot be forgiven.

Update: The verdict in Owen Labrie’s trial is in:

The jury of nine men and three women delivered a not guilty verdict on the three felony sexual assault charges on the second day of deliberations.

He also was found not guilty of simple assault, a misdemeanor.

Labrie was found guilty of four misdemeanors relating to sexual assault and endangering the welfare of a child. He was also found guilty of one felony for using a computer to “seduce, solicit, lure or entice a child under the age of 16.”


38 thoughts on “Bazelon Forfeits Her Credibility (Update)

  1. William Doriss

    Brazen Emily Baselon,
    Steps out into the midday sun.
    She mangles legal precedent,
    Before the day is done.
    Shame on you, Emily!
    The Defendant’s rights are sacrosanct.

    Rape on campus is no different than rape off campus,…
    just more expensive: Tuition! A distinction without a difference?!?
    More newsworthy too, depending upon the “victim”.
    Take me off “Emily’s List”, please.

    1. Brenda

      annoying listening/reading to bloviators about rape.

      There is no consent when one is attacked by a stranger, on the street, with perhaps more than rape on his mind.
      But on campus? with some wimpy kid? Or in most other cases, a fellow drunkard? There is no comparison whatsoever, and that these ludicrous cases have wended their ways through court and the blogosphere, as unfortunate.

      1. William Doriss

        There once was a girl named Brenda,
        Who felt compelled to defenda,
        Baselon’s assertions notwithstanding,
        Penetration need not contenda,
        That rape was indeed intenda.
        We assume that is your understanding?

        Or did we get it backwards! Wimpy kids, FYI, don’t commit rape.
        Only football and basketball players commit ghastly crimes. They don’t go
        to school to learn; they go to earn. Wimpy kids carry briefcases
        full of something, but not condoms. Pretty girls are not on their “radar”.
        Quantum mechanics, theories of “relativity” and “black holes”, maybe.
        They seldom drink or smoke, and wear button-down clothes.

        1. SHG Post author

          Great. Now that the comments to this post have turned into total incomprehensible stupidity, suggesting that SJ exists for the exclusive benefit of nutjobs, my work here is done. Between this, Brenda and Hollander, I have this overwhelming urge to end comments altogether.

          Would it kill you to show me the courtesy not to come off like you’re totally insane? Please.

  2. Reed Hollander

    I agree that Bazelon’s article glaringly fails to explain that the core defense is lack of intercourse, which goes to the first element of the charge described in the indictment.

    However, if the jury finds that they did have intercourse, and thus that the first element is met, then consent would become the next issue for the jury, since the second element is “at the time of said act, female juvenile indicated by speech and/or conduct that she did not freely consent to the performance of the sexual act.” Given that the defense isn’t focused on this element, having denied that intercourse even happened, Bazelon’s assertion that “Labrie’s guilt or innocence hinges on the question of consent” is grossly misleading, although her assertion could end up being true if the jury finds yes on element one.

    1. SHG Post author

      Not “end up being true,” as it will never be true. What I think you are trying to say is that it could come into play should the jury reject the defense. These are very different things, and feeds into the very confusion that Bazelon is trying to sow.

  3. Reed Hollander

    His innocence doesn’t hinge on anything – he’s innocent as a matter of law until the jury decides otherwise. His guilt hinges on the jury deciding three things to be true, only one of which is “the question of consent”.

    So, as you correctly state, Bazelon’s statement can’t ever be true.

    1. SHG Post author

      First, use the “reply” button rather than start a new thread. Second, what is your purpose in writing “his innocence doesn’t hinge on anything”? No one has suggested otherwise. Commenters who go off into their own batshit crazy world of pontification get banned very quickly. You’re teetering on the edge.

      1. Reed Hollander

        Sorry about the “reply” screwup. I noticed it as soon as I posted, but it was too late to fix it. Won’t happen again.

        My comment about innocence was about the false premise of Bazelon’s statement that his “guilt or innocence hinges”, not about anything you had said about innocence. Phrasing like “innocence hinges” is a layperson’s erroneous usage that Bazelon should know better than to employ, consistent with your point that her agenda is distorting her accuracy.

        1. SHG Post author

          That makes perfect sense, but it would be helpful if you explain why you are raising a point that is otherwise not in dispute. Neither I nor anyone else lives inside your head, so we can’t see the missing piece.

          And yes, Bazelon’s inclusion of “innocence hinges” is completely wrong, and a common error that adds to the public’s misunderstanding that every defendant is innocent until proven guilty.

          1. Robert Davidson

            “…the public’s misunderstanding that every defendant is innocent until proven guilty.”
            As a member of the public, I share the presumption of innocence misunderstanding. Is there grammar missing here, it it a poke at Title IX turning the presumption of innocence on its head, or am I just returning from an alternate universe and really need to keep my eyes open for differences like this?

            1. Beth


              Thanks for the link to the presume innocent post. I hadn’t read it before.

              As a statistician, the concept of presumed innocent is equivalent to the null hypothesis of not guilty. Given the evidence, is it enough to reject that null at a high level of confidence? It makes for a nice illustration of type I (send an innocent man to prison) and type 2 (let a guilty man walk free) errors.

              My experience sitting on a jury was that 10 out 12 people thought he was guilty because he was being prosecuted. The eleventh thought maybe he was guilty of something else but the DA had not sufficient evidence of other crimes. I didn’t think he had sufficient evidence because I was the only one actually presuming innocence.

              I hope you find that an interesting observation of the cross-section of two professions rather than thinking that you don’t want that dull math stuff cluttering up your blog. You’ve been quite cranky with commentators lately. What kind of comments do you want?

            2. SHG Post author

              I’m up to my eyeballs lately in comments that aren’t funny, illuminating or even interesting to lawyers. For example, you tell a (thankfully brief) story of your jury experience. The collective experience of readers here includes 100,000 jury stories. Ask yourself, “is my one story so monumentally special, so outrageously unique, that everyone else wants to know about it?” If not, then why tell it? This is a law blog, not therapy.

              As for your “dull math stuff,” if it illuminates, then it fine. If it’s pedestrian (as is yours, since most of us went to college, took stats 101 and are well aware of type 1 and 2 errors and null hypotheses), it does not. It doesn’t hurt anyone, other than the time lost to reading it which they can never get back, and I wouldn’t have bothered to reply to your comment had you not included the final paragraph. Instead, I would have posted it, shrugged and never looked back.

              The problem is that your question, “What kind of comments do you want?”, belies its answer. If you have to ask, then you won’t understand the answer.

  4. Shon Hopwood

    How in the hell have I mostly missed this blog for the past five years? Damn, someone speaking common sense in the legal profession. It is almost too much to take!

    I don’t understand why Bazelon didn’t just style this as her personal op-ed without referring to a case that has no application to the argument she is trying to make. I see this often. I think it results from major media always wanting a “news” hook–the piece must be tied to some sort of current event.

    But as Scott points out, the correlation between the case and her claims is nill. She’s a smart lady; thus its hard to believe it was accidental. I wonder why she did it? She regularly writes for the Times, so I doubt she had to have a news hook to get her story published.

  5. Bryan Gates

    Is it accurate to say that “consent has nothing whatsoever to do with anything in this trial”?

    According to news reports (from MSNBC) about the closing arguments:

    Speaking to jurors this morning, defense attorney J.W. Carney attacked the credibility of the accuser in the case, saying the girl, now 16 years old, was a willing participant that night.

    Carney, the defense attorney, asked jurors on Thursday to use “common sense,” saying the girl’s statements to friends and messages with the accuser show she was a willing participant.

    But Carney told jurors Thursday the messages showed the encounter was consensual, and said the girl fabricated a story of assault in order to insulate herself against gossip about a meeting she had willingly participated in.
    “She had to make a decision whether it would be her reputation that would go into the toilet, or Owen’s. She took the easier choice,” Carney said.

    If those accounts of the defense closing are correct, consent was an issue.

    1. SHG Post author

      The question of whether there was a rape or no sexual intercourse is one of credibility. Carney is attacking her credibility, when she claims she wasn’t a willing participate in the “senior salute.” Falsus in uno, falsus in omnibus. This should be fairly easy concept for a lawyer to understand.

      And you would do well to think a little (by which I mean, a whole lot) harder than accepting at face value what someone says on TV.

  6. Osama bin Pimpin

    Consent especially has nothing to do with it because even if they had consensual sex, Labrie would still be guilty of felony statutory rape (under prevailing bullshit standards that criminalize high school hookups).

      1. Osama bin Pimpin

        My understanding is that in NH it’s only misdemeanor statutory rape for messing around, which Labrie basically admitted to, but it would be felony statutory rape for intercourse. My guess is that Labrie is denying intercourse to avoid that felony charge, not anything to do with nonconsensual sex.

        There’s a lot of conflicting and confusing press on the matter.

        1. ShelbyC

          My understanding is that NH has a Romeo & Juliette provision, so that it’s a felony if there’s more than a four year age difference. But IANAL.

          1. SHG Post author

            You are correct.

            632-A:4 Sexual Assault. –
            I. A person is guilty of a class A misdemeanor under any of the following circumstances:
            (a) When the actor subjects another person who is 13 years of age or older to sexual contact under any of the circumstances named in RSA 632-A:2.
            (b) When the actor subjects another person, other than the actor’s legal spouse, who is 13 years of age or older and under 16 years of age to sexual contact where the age difference between the actor and the other person is 5 years or more.
            (c) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor’s legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.

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  8. mb

    I guess Bazelon would be horrified if she looked through a fifty state survey on robbery. Mostly, violence or the threat of violence is required for conviction on that charge. In her lying pea-brain that can only mean that all stealing other than by violence is completely legal. (how can she be smart enough to tie her own shoelaces?) Even a prosecutor’s decision to charge a thief with theft rather than robbery doesn’t prove that theft is a crime as well. No, it only proves that the thief’s trial hinges on threats of violence. (srsly, I can’t believe she can write her own name!) And how should we resolve this horrible gap in the law where property crime meets crime against the person? Obviously we’ll have to define the felony offense of robbery to include any action involving another’s property without their consent, which, in the case of any female giving consent, must be considered to be contingent upon her not changing her mind, whether or not she communicates the change. (I’m wondering if her entire career was just the burbling noises of a mentally defective person that just happened to sound like words.)

    Naw, you’re right. I take back all my parenthetical statements. It’s too much benefit of the doubt to call her stupid. Dishonest is a better fit. However disgusting it is that so many people who can’t be this dumb will deliberately lie for the cheap satisfaction of pretending that everyone else is in favor of rape, that’s the world we live in. Coming soon to the White House and to a state legislature near you.

    1. SHG Post author

      Hanlon’s Razor states, “Never attribute to malice that which is adequately explained by stupidity.” Bazelon is not stupid. Not at all.

      1. mb

        Right, not stupid, just pathetic. But I think that in arguing directly with these kinds of things, there’s a risk of giving them more validation than they deserve. It’s not as though any of this is complicated or subject to reasonable disagreement. That’s what I like about your blog, calling stupid stupid and lies lies.

  9. John Barleycorn

    Looks like the jury didn’t believe either one of them.

    This whole trial got me to thinking though. No wonder our country is so fucked up, when our “elite” prep schools have traditions of senior classmen trying to bed freshman instead of encouraging them to get out there in the real world and test out their chops on some grown women that could show them a thing or two in-between humiliating the shit out of them little fuckers.

    P.S. “Labrie was found guilty of four misdemeanors relating to sexual assault and endangering the welfare of a child. He was also found guilty of one felony for using a computer to “seduce, solicit, lure or entice a child under the age of 16.”

    Here is how that newspaper you read every day, which I still can’t figure out, phrased your update, “The nine men and three women convicted him of a misdemeanor statutory rape charge and of a charge involving use of a computer to entice a minor.”

    1. SHG Post author

      Knowing quite a few young men and women who are sent off to elite boarding schools by their parents who have things to do at the club and want them to attend Harvard (though they aren’t quite the feeder schools some think they are), they would all do well to get a decent smack and find out their shit does, indeed, stink.

  10. Roger

    As already noted, consent has nothing whatsoever to do with anything in this trial.

    If, as it appears from news reports, the jury acquitted him of aggravated sexual assault (which required proof of sexual intercourse without consent), but found him guilty of the sexual assault count that charged him with sexual intercourse with a minor (in which consent was irrelevant because minors can’t consent), is it possible that consent had something to do with something in this trial, and that Bazelon’s conclusion that “his guilt or innocence hinges on the question of consent” was not, as you said, “a deliberate distortion, a lie if you will”?

    1. SHG Post author

      One never knows how or why a jury reached a particular verdict. What’s interesting, if the verdicts were decided for sound reasons, is that it suggests they didn’t believe parts of the testimony of either of the kids, yet believed other parts. Given the possibilities that might have happened, in light of the positions argued at trial, this was a very surprising outcome. But the outcome doesn’t change the trial arguments, even if it didn’t ultimately reflect them.

      But Bazelon wrote before the verdict (even though it will appear in next Sunday’s New York Times Magazine), and to argue that a bizarre split verdict based on partial acceptance and rejection of both sides ended up making a false assertion appear true, doesn’t change that it wasn’t the crucial issues in the case. Even though, perhaps, it ended up that way.

      So in retrospect, it changes nothing in my view of the falsity of her claim, but she looks omniscient and I look like a dope. It’s not the first time that’s happened. And maybe consent did have a little something to do with the outcome of the case, though not in the way anyone would have thought before the verdict.

      1. Roger

        I’m curious (not that my curiosity matters to you) why you found this a very surprising outcome. It’s been decades since I regularly practiced criminal law, so I have nowhere near your experience (though my criminal experience was as a sex crimes prosecutor), but this seemed like the most likely outcome to me–a compromise verdict that told the upper class white defendant he did wrong without necessarily ruining his life–and the easy way for the jury to get there seemed to be to hold both parties to their pre-trial statements: his boasts that he had sex with her and her statement to the school nurse that it was consensual.

        The fact that the defense lawyer didn’t frame the case this way says next to nothing about how the jury would look at it–how many cases have you tried where the jury didn’t think the key to the case was something that neither side thought mattered. It’s hard to seat a jury in a case involving sex between kids who know each other where no one on the jury thinks (whether or not they admit it in void dire) that girls lie about a lack of consent after a guy embarrasses them by bragging, and his story that he quit right in the middle because of the angel on his shoulder was way too convenient, so the partial acceptance/partial rejection doesn’t seem bizarre. You assumed the case was about what the CDL said it was about, which suggests a bit of a blind spot. Bazelon assumed the case was about what she wanted it to be about, and it turned out that this time she was right.

        1. SHG Post author

          how many cases have you tried where the jury didn’t think the key to the case was something that neither side thought mattered.

          None. Regardless of the verdict, it’s never exactly for the reasons anyone thought it would be.

          You assumed the case was about what the CDL said it was about, which suggests a bit of a blind spot.

          Not quite. The case was tried on theories by both prosecution and defense. The defense didn’t rely on consent to sex. It’s not that I was blind to a possible compromise verdict (and, as I’m sure you know, we really don’t know why the jury decided as it did; we’re just speculating based on a rational view of the verdict. Jurors are under no duty to be rational), but you can’t leap to a non-issue under the assumption that a compromise verdict contrary to the core argument will be reached.

          It’s no different than someone arguing that the female wore red on the stand, suggesting she was unchaste, so the critical issue in the case was how much the jury hated red. We can only look at facts and logic. That law doesn’t turn out that way can’t be helped, but it doesn’t make red the critical issue in the case.

        2. mb

          Scott, why are you letting this guy troll you?

          I call bullshit on Bazelon and double bullshit on Roger. The entire point of the article is to suggest that nonconsensual sex is legal in most states, that “no means no” places an impossibly high burden on female participants in sex to make their refusal unambiguously, or see the law turn a blind eye, that “yes means yes” is just a reasonable step beyond banning sex with someone in a coma.

          The claim that guilt or innocence hinged on consent in this case serves the deception in two ways. First, it allows Bazelon to lead her mostly non-lawyer readers to believe that a fifteen year old girl alone with an older boy, somewhere she shouldn’t be, saying no multiple times is the sort of fact pattern that results in the conclusion that consent was freely given. (note that the additional facts relevant to that point are separated from these in the article, placed much later when the topic has turned to how terribly high the burden of saying no is)

          The second way that the claim that this case is about consent serves the false narrative is that Bazelon is deliberately conflating the prosecutor’s decision as to what the most appropriate charge is with the question of fact that will determine the ultimate resolution of the case. Since the girl was willing to testify that she had indicated a desire to stop, and that the boy had continued, the prosecution had the ability to present evidence on every element of a crime for which lack of consent was an element. This is entirely different from the decision that the jury must make. By failing to delineate between the two (in front of non-lawyers) Bazelon suggests that in most states there simply is no law prohibiting nonconsensual sex.

          The fact that a jury pulled some split the baby bullshit where it shouldn’t have doesn’t change anything. This woman is arguing that her private, unspoken dislike of you is the same thing as you committing a violent assault against her, and that you should be punished accordingly.

          1. SHG Post author

            I don’t think Roger’s trolling me. He’s got a legit point that, if you look at this backward, Bazelon looks brilliant and my calling it a lie that consent had nothing to do with this case looks disingenuous. It doesn’t change my analysis, or every other bit of nonsense about her post, but it’s a fair point nonetheless.

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