Following Guilty Verdict in St. Paul’s Trial, Many Could Be Civilly Liable for the Rape

WASHINGTON - Aug. 29, 2015 - PRLog -- Although only Owen Labrie was convicted of misdemeanor statutory rape of a 15 year old girl at St. Paul’s, and most of the focus is logically on his fate in the criminal justice system, the verdict raises important issues of from whom the girl’s family might seek some kind of financial recompense, either by actually bringing law suits, or - also likely - by quietly threatening law suits, and then counting on potential defendants to settle to avoid even more adverse publicity.

        Actually, the list of those potentially liable for substantial damages is probably much larger than many might assume, says public interest law professor John Banzhaf who teaches in this legal area.

        In addition to liability by Owen himself, his family, other students who participated in the “scoring contest,” and even St. Paul’s itself could become defendants in civil tort actions, he says.

        Moreover, if such suits - or even the threat of such law suits - by the girl’s family are successful, families of other underage girls at St. Paul’s who were likewise targeted and raped as a result of the senior salute practice might be encouraged to try using the same tactics.

        In the long run, large civil verdicts, rather than a few convictions of one teenage boy, may do more to discourage a culture at St. Paul’s - and probably also at other high schools - where statutory rape is encouraged by a popular contest with the “scores” publicly posted on the campus itself, says Banzhaf.

        Although only Owen has been convicted of rape - allegedly as part of a "senior salute" contest in which senior boys compete to see who can "score" with the most younger girls - all of the boys who participated in the competition could be sued and even held liable for damages for all of the rapes committed as part of the game under a novel but well established legal doctrine known as "concerted action," says law professor Banzhaf.

        The number of male students involved in the contest - and who therefore could be sued by the girl raped by Owen, as well as by other underaged girls likewise raped as part of the contest - could be quite large because the "scores" were so numerous that they had to be kept on line on Facebook.

        The mother of another girl who was involved is already cooperating with authorities, and the police have reportedly subpoenaed information from the Facebook page, presumably including the identities of at least some of the other older male students whose "scores" were also posted, notes Banzhaf.

        While many people think that only the rapist himself could be held civilly liable for the tort of sexual battery, or that at most possibly a person present at the time facilitating the act could also be sued, the liability could actually extend much more broadly where people encourage others to act illegally - in this case, to commit statutory rape with females under the age of consent - as part of a contest or competition.

        In the well known and clearly analogous case of  Bierczynski v. Rogers, two men agreed as part of a contest to race their cars.  One drove negligently, and the negligence injured the plaintiff.  Both, including the one who didn’t drive negligently and did not directly cause the injury, were found legally liable.

        The principle was subsequently adopted by the very influential Restatement of Torts.

        The rule of concerted action says that when two or more people act in concert to encourage each other to engage in wrongful conduct, all can be held liable for the entire amount of the resulting damages, even if only one was the direct cause.  As the authoritative Restatement of Torts succinctly puts it,  it applies where a defendant "does a tortuous act in concert with the other or pursuant to a common design with him, or substantially assists him.”  That’s clearly what happened here, says Banzhaf.

        Moreover, the car-racing case involved conduct which was at most negligent, whereas the senior salute cases involve an agreement to deliberately commit the tort of statutory rape, a serious crime.

        Also, while negligent behavior might be implied (even if not directly stated) from an agreement for a car race on public streets, the central and clearly agreed on element of a contest to take the virginity of underage girls definitely involves an intentional felonious act, notes Banzhaf.

        Banzhaf says it is not clear that St. Paul’s itself could be held liable, although it could be included in the civil complaint for legal reasons, and its officials - who were allegedly well aware of the contest because they kept erasing the “scores” when they were originally posted on campus - are very likely to be required to provide more information, and to be called to the stand as witnesses.

        Under a variety of evolving legal theories, colleges, and universities are being held liable for harm caused by their students.  Since St. Paul’s is only a high school, both its ability and therefore its legal duty to be responsible for the conduct of its students may be even greater, suggests Banzhaf.

        It took large jury awards to force companies to finally and reluctantly take racial discrimination laws, sex discrimination laws, disability laws, and sexual harassment laws seriously.

        Perhaps a few large verdicts - or even some whispered-about secret settlements - growing out of the senior salute contest will finally force schools to take the issue of condoning a culture of rape seriously, suggests Banzhaf.