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.”