A Verdict of Acquittal, Twisted

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.

And so,

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.

17 thoughts on “A Verdict of Acquittal, Twisted

  1. PDB

    I think the point of this article was not to inform or illuminate anything, but to give the presumed audience the validation it was hoping for. This was published in Slate’s XX section, i.e. the “women’s interest” section. This article is just another commoditized product to sell to women, like makeup, shoes, clothes, and oversized Starbucks drinks.

    1. SHG Post author

      I agree, but feeding the gender outrage is what makes it increasingly impossible to sustain a viable legal system, at least when it comes to sex crimes. Having wasted a lot of time watching Dunning-Kruger manifest itself in the ugliest and nastiest ways, neo-feminists and allies have created a cottage industry to deny their hypocrisy and irrationality in which they take complete comfort and no logic can ever penetrate.

      If we cannot bridge this gap, things just continue to get uglier, nastier, stupider for all of us. Bad shit.

  2. mb

    Quick question, if you’re in a mood to indulge: Is the “penetrative sex” part of the statute gender neutral? That is, if an 18 yr old girl and a 15 yr old boy do it, consensually, using one of her holes and one of his appendages, is that a crime?

    1. SHG Post author

      The language is gender neutral, “when the actor engages in sexual penetration with a person,” but you do the math. Certainly, it’s not inconceivable that a female force an orifice upon a male appendage, but then…

      1. mb

        I’m confused, isn’t it the actor’s body penetrating the victim’s body?

        I only ask because I wonder if the hypothetical girl in a mirror image of this case would be guilty of a felony for using email to arrange to do something that is not a crime at all.

        I think that’s the case, because women have agency when they use computers, but not when they use vaginas.

        1. SHG Post author

          This is why charging decisions are so critical, as the verdict may well be based in no logic at all. If an actor causes nonconsensual penetration by the victim’s appendage of the actor’s body, does it fit the statutory language? Will the jury ponder the words (mind you, they’ve only heard and don’t have in hard copy to deconstruct at length and in detail) for their meaning with linguistic accuracy? Or do they do the best they can with what they have to work with?

          1. mb

            Now that I can see it properly (not on a phone)

            “If an actor causes nonconsensual penetration by the victim’s appendage of the actor’s body, does it fit the statutory language?”

            Some acts are listed without reference to the actor/victim, but the catch-all provisions are uni-directional. It’s a narrower problem than I thought, but it would still have been at least as honest to have said that guilt or innocence hinged on the sex of the parties as it was to say it hinged on consent.

            1. SHG Post author

              But they can’t do that, so they frame it in neutral language even though basic anatomy disagrees. And even then, some guy will come forward to say that it can, and did, happen to him. Hang around a while, and you will see that no matter what the physics of the situation, someone will tell you otherwise. The outlier always shows up to “prove” that the norm isn’t the norm. It’s a big internet.

            2. mb

              It wouldn’t be all that weird for a fifteen year old boy consent to screw an eighteen year old girl. But for some types of activities, she’d only be sexually contacting, whereas an older dude in her position would be sexually penetrating, making his offense greater than hers. But since they list the main ones without the directional language, it’s not likely to come up.

              It also wouldn’t be that weird for women to bitch about being oppressed by a law that punished only men and protected only women. If I remember correctly, common law rape was carnal knowledge of a woman, not his wife, against her will, and I’ve definitely been told that it proves that society hates women.

            3. SHG Post author

              Is there a reason why you’re still pursuing this? It wasn’t that hard to grasp in the first place, so if you’re still struggling with it, let it go, have a drink, find something better to occupy your mind.

  3. TeeJaw

    When juries find a defendant guilty of the less serious charges and not guilty of the more serious charge and when being guilty of the lesser charges would seem to make the defendant likely to be also guilty of the more serious charge, I chalk it up to a form of jury nullification. They just don’t hate the guy enough to saddle him with the more serious charge. They don’t want to let him off altogether either though. They may believe that he is in fact guilty of the more serious charge, but for some reason they have enough sympathy for him to let him go on that one.

    I doubt that they articulate any of this with each other in the jury room, they just sort of act on it.

    I don’t claim to know this, and so I don’t claim it to be so, I just believe it.

  4. Fubar

    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.

    A new jury instruction to relieve unemployment in the crucial pundit sector of today’s postmodern economy:

    The defendant here isn’t your brother,
    And he might have his eyes on your mother.
    If you think he’s just wrong,
    Don’t deliberate long.
    Find him guilty of something or other!

  5. Osama bin Pimpin

    What I don’t understand is why accusers’ names are still kept confidential by the press even after the accusation is shown to be false, even just plain made up.

    It’s bad enough that there are no legal consequences for false accusations. But even no social consequences. Because “something must have happened to her.”

    1. SHG Post author

      The argument goes that by outing the accuser, it will cause others who are victims of rape to fear coming forward. The extent of the problem is clouded by the same problematic guestimates and definitional issues as everything else surrounding sexual assault, but it remains a dogmatic argument.

      1. Osama bin Pimpin

        I mean’t “I don’t understand” to mean “I understand and think it’s total bullshit.”

        The idea that we need to protect the identity of false accusers because that may to deter sincere accusers from coming forward is total bullshit.

        Jackie Coakley Jackie Coakley Tawana Brawley Jackie Coakley.

        Yeah, that just happened.

  6. Hal

    “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.”

    I’m pretty sure I understand what you meant when you wrote this, but I’m also pretty sure you didn’t mean what it says…

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