Not-Guilty-of-Rape Verdict in St. Paul's Trial - “No” Doesn’t Always Mean No

WASHINGTON - Aug. 28, 2015 - PRLog -- Not Guilty of Rape Verdict - “No” Doesn’t Always Mean No
But Absence of “Romeo/Juliet” Provision in Computer Law Is Arguably Unfair, an Oversight

WASHINGTON, D.C.  (August 28, 2015) - The jury’s finding that Owen Labrie was not guilty of raping a 15 year-old girl as part of “senior salute” should serve as a stark reminder to women that the frequently-repeated refrain of “no means no” isn’t always true, says public interest law professor John Banzhaf.

        But his conviction of a Class B felony for using a computer to invite her to a meeting which she readily accepted may be unfair, since the statute does not contain any age exceptions, argues Banzhaf.

        Although the girl testified that she had said “no” three times, she also admitted that she lifted up her arms so Labrie could take her shirt off, and also raised her hips so he could pull off her shorts.

        It also appeared that any protests beyond the three “no”s were minimal at most, since she admitted that “I wanted to not cause a conflict” and “I felt like I was frozen.”

        Thus, since whether or not there was consent depends by law on the totality of the circumstances at the time of sex, and no single word trumps everything else she may have said or done, it’s quite possible that Labrie interpreted her cooperation in removing her own clothing, and apparent lack of strenuous objection to what was happening, as a change of heart, and that she subsequently agreed to have sex.

        At the very least, there could be reasonable doubt as to whether or not he could have entertained that belief, and any such reasonable doubt would mandate a non guilty verdict.

        Labrie was also convicted of statutory rape, but only as a misdemeanor because the statute, like that in most states, provides an exception - often called the “Romeo and Juliet” provision - if the two are close in age, since the much more serious wrong occurs only when an older man takes advantage of an innocent teen.

        But the computer statute, although apparently also aimed at the all-too-typical situation where a much older male lures young female victims into sex, and not when two teens who know each other use a computer to simply arrange a meeting, contains no such exception.

        So, under its terms, a 16 year old boy, who uses his computer to communicate with a 15 year-old -girl with whom he is having sex, can be tried and found guilty of a felony, even if she is the real instigator.

        Indeed, since the statute is not gender specific, girls who use computers to send pictures or provocative sexual invitations to their boyfriends could conceivably likewise be charged and possibly be found guilty of a felony, especially if the boy’s parent is an effective and persistent lawyer, or otherwise has considerable clout with a prosecutor.

        More broadly, the whole issue of teens who know each other sexting or otherwise engaging in provocative digital communications with each other should be carefully re-examined, not only in light of the very legal serious consequences, but also because of possible First Amendment implications of governmental interference with two teens voluntarily engaging in sex-related banter, suggests Law Professor John Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf