The St. Paul's Rape Case Shows Why Sexual-Assault Laws Must Change
Owen Labrie listening as some of his former classmates testified in Merrimack County Superior Court on Monday, Aug. 24, 2015, in Concord, N.H.CreditCreditPool photo by Jim Cole
By Emily Bazelon
In the rape trial of Owen Labrie, unfolding this month in a county courtroom in Concord, N.H., this much is settled: When Labrie was an 18-year-old senior at the boarding school St. Paul's, he competed with other male students over who could "score with" or "slay" the most girls. In the days before his graduation in June 2014, Labrie invited a girl, then 15, via email to join him for a "senior salute," which could involve anything from kissing to sex. He had a key, passed around by students, to a mechanical room at the school, and the girl went there with him.
The girl testified last week that she and Labrie had sex, though she "said no three times." Labrie, who testified today, denies this. "It wouldn't have been a good move to have sex with this girl," he said. 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.
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."
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. Tuerkheimer finds that in more than half of the 50 states, a judge or jury must find that a person used force to find him or her guilty of rape. The Model Penal Code, created by the American Law Institute in 1962 to influence and standardize criminal lawmaking, also continues to include a force requirement in its definition of rape.
Beginning in the 1970s, reformers pushed states to stop making victims prove that they physically resisted for a rapist to be convicted. But the idea that rape necessarily includes force has persisted — even though it is "woefully out of step with modern conceptions of sex," Tuerkheimer argues. This idea is changing, but slowly. "The trend is in the direction of removing force requirements, and defining sexual assault in reference to a lack of consent, but there are a lot of laggards," she told me.
New Hampshire is among the minority of states that do not require showing force was involved to prove rape. In 1995, the state adopted language providing that a person is guilty of sexual assault if he or she sexually penetrates another person when "the victim indicates by speech or conduct that there is not freely given consent." 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 jury also has the option of finding Labrie guilty of the lesser charge of having sex with a 15-year-old, even if she consented, when he was 18. But this is a misdemeanor rather than a felony.)
On cross-examination, the alleged victim conceded that she lifted up her arms so Labrie could take her shirt off and raised her hips so he could pull off her shorts. She also told the police, when they interviewed her soon after the incident, that "other than me saying no to the first part, I don't think he would have known for a fact that I would not want to do that." At trial, she explained, "I wanted to not cause a conflict," and "I felt like I was frozen." Labrie testified, "I thought she was having a great time." He also admitted to wearing a condom, and his former classmates testified earlier this week that he told them he did have sex with the girl. ("I wanted to look good," Labrie said by way of explanation in his own testimony.)
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.
And yet in many cases, consent is still not the test at all. In her article, Tuerkheimer describes a number of such cases around the country. A recent one in Oregon involved a 12-year-old girl who was raped by her father. The girl — who was living with her mother at the time — was visiting her father in his mobile home when he called her into his bedroom, where he was waiting naked, according to the state court of appeals' account. He proceeded to have sex with her, even though she told him that she "didn't want to do it." She also said she did not "put up a fight" because she thought "he would just fight right back."
The father — who sexually abused his daughter several years earlier, too, according to the appeals court — was convicted of rape under an Oregon law that required a showing of "forcible compulsion," which could include "a threat, express or implied, that places a person in fear of immediate or future death or physical injury." But the appeals court reversed his conviction, finding that "nothing in the record suggests that defendant engaged in any force." The court upheld two related convictions the father also appealed, and recognized the history of sexual abuse, saying it "compelled her to submit," but still found this did not qualify, legally speaking, as a threat.
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.
Tuerkheimer and others are pushing to reform state rape laws and the Model Penal Code. As the American Law Institute re-examines the code's sexual-assault provision for the first time since 1962, a heated debate is taking place over how to replace the old language. Should the code follow states like New Hampshire, or go further and adopt the standard of affirmative consent? States including New York are weighing the same question. It's a hard one. Eliminating the force requirement for rape, on the other hand, is a no-brainer.
Correction: Aug. 26, 2015
An earlier version of a summary that appeared with this article on the home page of NYTimes.com misstated who would, in many states, likely not face felony charges of sexual assault. It is the St. Paul's student accused of rape, Owen Labrie, not the accuser.
Emily Bazelon is a staff writer for the magazine and the Truman Capote Fellow at Yale Law School.