St. Paul's Rape Case Shows Some Traditions Aren't Worth Saluting

While there is nothing unique about the ongoing jury trial in a Concord, NH courtroom in terms of the decision to pursue statutory rape charges in a case involving both a teenage defendant and teenage complainant (17 and 18 year olds are frequently charged with rape in cases involving underage complainants such as the 15 year old alleged victim in this case), what is different is the "cultural" backdrop against which the charges were originally brought. As claimed by the prosecution, back in May 2014, St. Paul's senior, Owen Labrie, allegedly took part in a longstanding tradition at the elite New England boarding school called the "senior salute" in which upperclassmen males were supposedly encouraged to have as many sexual encounters with younger female students as possible prior to graduating. Labrie, then 17, now 19, is currently on trial for allegedly raping a 15-year-old schoolmate, whom he allegedly enticed and lured into a sexual encounter using email. Even though the underlying charge is statutory rape (a strict liability offense in which an underage complainant is deemed incapable of consenting to sexual intercourse regardless of whether or not she might have willingly participated), prosecutors allege the intercourse was against her will.

Court watchers suggest the "senior salute" tradition is what provides vital context for this particular case because it furthers discussion about rank, privilege and sexual assault on campuses nationwide. St. Paul's is a school that has graduated many prominent alumni including Secretary of State John Kerry, and is considered a highly competitive institution of higher education. Labrie himself had already been accepted to Harvard at the time of the alleged rape. Further to this, prosecutors have argued that this sexually charged tradition, as well as the competitive nature of an elite prep school, expressly contributed to the creation of a cultural space where sexual assaults can take place without accountability.[1] However, as a former sex crimes prosecutor and long-time sex crimes defense lawyer, I believe the case is better viewed as underscoring the often tragic consequences of bad judgment, teenage stupidity, and (in many cases) unintended consequences of alcohol abuse. The fact is, these cases are taken seriously and often prosecuted to the fullest extent regardless of the age and status of the alleged perpetrator(s); they can and do result in significant penalties, including state prison terms, sex offender registration (possibly for up to life), GPS monitoring, as well as long term damage to reputation, community standing, college placement and future employment and earnings potential.

According to prosecutors, Labrie told police he was attempting to be "no. 1 in scoring" in the longstanding competition at the school-it was his intention to "score" or sleep with as many underclassmen as he could. This ambition is supposedly what led Labrie to connect with his alleged victim online and meet her in a campus building the night of the charged assault. Previous to this event, Labrie is also alleged to have created a list of potential "hookups" for his senior salute, which included the name of the victim in capital letters. Although the complainant testified Labrie forced her to have sexual intercourse against her will, Labrie previously pleaded not guilty to all three felony charges he is facing and continues to maintain his innocence, saying that their encounter was consensual. He also denies having intercourse with the victim. However, prosecutors contend he previously told police that he used a condom, and medical records from Concord Hospital allegedly establish that the victim had injuries consistent with sexual assault. Moreover, the prosecution has introduced testimony from a number of classmates who claim Labrie reported having sex with the complainant. As with any sex crimes case, defense lawyers will attempt to pare the case down to a bare bones he said/she said contest through effective cross-examination and zealous trial advocacy; and will most certainly argue in closings that any statements allegedly made by Labrie to fellow classmates were nothing more than standard teenage braggadocio. Whether or not their client will have a fighting chance all depends upon how well they do all of this.

This case is unique because it will be settled in a criminal court at a time when most public and private education institutions attempt to resolve sexual assault cases via campus-based tribunals, especially at the college/university level, under Title IX dictates. Moreover, it comes on the tail end of a year of highly publicized campus rape cases - such as Emma Sulkowicz's alleged rape by a fellow student at Columbia University- and wide spread discussion regarding the so-called "rape culture" both on campus and off. No matter how careful Mr. Labrie's attorneys were in selecting a fair and impartial jury at the case's outset, they can't help but be concerned about how the dialectic might affect him. Also, while membership at St. Paul's elite academy may have its privileges, it could well be held against him; juries can sometimes be quirky that way. Let's hope not, here, and that Mr. Labrie is tried solely on the basis of the evidence presented. It's not St. Paul's that is on trial here, nor is the supposed "culture" that may or may not have existed on campus. Instead, the alleged acts, statements and intentions of a young man are what are actually at issue, as well as the sole question of whether or not the prosecution has proven beyond a reasonable doubt he is guilty of the crimes charged as a result of the same. If the jury can impartially decide the case, that's worth saluting; St. Paul's senior tradition on the other hand, should be summarily dismissed.