To those who think it is reprehensible for Suk to speak publicly on these issues: She has WAY more justification for doing so than (many? most? all?) of the people posting on this board have. As a member of the American Law Institute, she holds an important policy position that is EXTREMELY influential in shaping the law. The job of the ALI is to draft documents called the Restatements that purport to synthesize complex legal principles throughout the country into the prevailing view of what the current state of the law is on numerous topics. This is an extremely influential document that is regularly cited by lawyers and courts in all jurisdictions, including by the US Supreme Court. She has good reason to grapple with these issues publicly. Much more reason than most of the rest of us do. Don’t get me wrong – I find the discussion on this boatd interesting and informative. But criminal law professors at Harvard Law School have a much stronger justification for writing about the case, and I think her credentials alone make her opinions worth reading and considering carefully before they are rejected out of hand.
To the best of my understanding, this case does not illustrate the issue that Suk is discussing.
“the jury acquitted him of these charges, meaning that it did not regard the acts as lacking consent.”
This statement reflects, in my opinion, lazy editing. But it’s not reprehensible to make that sort of mistake in a magazine article.
If its an editing mistake, she should have asked for a correction or clarification by now.
@quantmech, I think if you tweak the facts of this case, it is what Suk is discussing. She is using this case as a launching point to take the discussion to the next level assuming a slightly different set of facts. This is what lawyers do when they are in charge of forming public policy (as apparently Suk is, in her position). They take the facts, and then tweak them to say, “well what if the facts were X instead? Would the law we are crafting still be good law in those circumstances?” A good law will cover a range of circumstances, not just one particular circumstance. So, you need to examine a range of hypothetical situations to test whether the proposed law would be a just one.
As I read the piece, Suk is focusing on the game/competition part of what Labrie did, and asking whether this alone should be a punishable crime. She is saying: presume that there was consent and then tweak the facts such that the age of the victim is not in play. Say these were two 18-year-olds on a college campus. Say there was this competition, and the man lured the woman to have sex with him, and she froze, thereby not communicating her “no.” However, she didn’t say, “yes” either. And what if, later, she discovered she was the victim of a game and pressed charges.
Would the man have committed a crime in that circumstance? THIS is the discussion I think Suk is trying to provoke in her article. Under a strict “no means no” standard, I don’t think a crime would be committed. Morally reprehensible, no question, which is where the “sex we don’t like” discussion comes into play, but I’m not sure it would be a crime under the old-fashioned no-means-no standard that exists in many states today. Under a “yes means yes” standard, indeed a crime would have been committed, and I think Suk is trying to make us understand the difference.
I’m in favor of a “yes means yes” standard; it introduces the responsibility of seeking clarity between the partners which is a good thing in my opinion. However, it is NOT currently the standard, and Suk is debating whether this is indeed the standard that we want in all possible circumstances.
I think what got Suk’s attention was the idea that the defendant was charged with crimes A and B, convicted of B, and then sentenced as if he’d been convicted of A. I have to say that I also think that’s what happened here, and I find it pretty troubling. One of the points of trial by jury is to protect us from things like that.
One thing I see in a lot of discussions about crime and punishment is the sentiment that if what the person did is really bad, then he should be subject to extreme punishment, and we don’t care about what it is. But, in my opinion, that isn’t how we really want to go about deciding how to punish people. I hope saying this doesn’t make anybody think that I’m an apologist for what this kid did–it was bad. But, in my opinion, the sentence didn’t really match the crimes for which he was convicted.
That’s not my understanding of what Suk wrote, but more to the point, I don’t think that’s what happened. The judge said that if Labrie had been convicted of felony rape he would have been sentenced to a lot more than one year. I think, but am not certain, he also said that he would have been sent to the state prison rather than the House of Corrections too.
I think that what most people who have trouble with the sentence dislike is the “lifelong” sex registry. (He can ask for removal in 15 years.) As I understand it, once he was convicted of the computer charge, the sentence to the sex registry was mandatory. I don’t think the judge had discretion.
So, IMO, he was sentenced for the crimes he was convicted of–one year --out of which he’ll serve 8 months if he behaves himself–for the misdemeanor of having sex with someone underage and probation on the felony computer count.
Personally, as I’ve said before, I’m not a fan of automatically imposing the lifetime sex offender status. I think some kind of psychosexual exam should be done and that it should be possible to remove it in less than 15 years. But Labrie was sentenced for the crime of which he was convicted–even if a lot of people don’t like that sentence.
I agree that Labrie is a poor poster child for the point Suk seems to be trying to argue. If both parties had been of age, I could see this as an instance of a societal push to redefine consent. But Labrie was convicted of statutory rape, which is exactly what we call it when an 18 year old has sex with a 15 year old, consensual or not. Of course, any time we’re dealing with an age of majority issue, the age is going to reflect social values rather than unassailable biological truths. We could just as easily have decided that “minor” status stopped at age 16, or age 21. But we need to draw a line somewhere, and it seems reasonable to me to decide that, for the purposes of sex, 16 is the age of consent, and that an 18 year old who wants to be intimate with a 15 year old is going to have to wait.
The judge’s sentence doesn’t at all seem to me to be a case of punishing a defendant for a crime he wasn’t actually convicted for. Rather, it seems to be a perfect exercise of discretion in sentencing. An 18 year old who slept with a 15 year old at a party not knowing that she was 15 would be guilty of misdemeanor statutory rape, as would an 18 and one month year old having unequivocally consensual sex with a 15 and 11 month year old girlfriend. That 18 year old would deserve a lot more clemency than Labrie, who engaged in a concerted campaign to persuade a significantly younger girl into sex knowing full well that it was against the law.
Here are a few specifics from Suk’s article that I find objectionable. At least one has already been pointed out by jonri:
“But the jury acquitted him of these charges, meaning that it did not regard the acts as lacking consent.”
I don’t think that is what the jury found. I think the jury found that they could not say beyond a reasonable doubt that the acts lacked consent. This is a high bar. That is as it should be. But the height of the bar should be kept in mind, if one is trying to make an accurate statement.
Then there is the comment about “the so-called Senior Salute, the campus tradition of graduating boys inviting younger girls to a romantic encounter.” Does anyone who read the facts of this case view this encounter as “romantic”?
Then there is the statement, "The jury rejected the idea that the girl had expressed her non-consent, . . . " Do you think that is an accurate statement of the facts? I think that a) the jury did not find beyond a reasonable doubt that the young woman had expressed her non-consent, or b) the jury did not find beyond a reasonable doubt that the young man understood that she was not consenting. I am not certain of the legal requirements in New Hampshire.
Then there is “What we are really talking about here is not rape, as we have until recently understood it, but rather sex that we strongly dislike.” Was the situation not statutory rape, given the age of the young woman? Perhaps some other legal term applies in New Hampshire?
Then there is “It is not surprising that Judge Smukler, presumably influenced by these ideas, would say that, even though lack of consent had not been proven, this didn’t mean that the girl had, in fact, given consent.” Isn’t this exactly what we mean when we talk about proof beyond a reasonable doubt?
Then there is “And their outspokenness at that moment, not harsh measures after the fact, is what is most immediately likely to spare them tragedies like the one that has happened at St. Paul’s.” This is sadly untrue in cases that I am familiar with. I wish it were true that a young woman’s outspokenness at the moment were likely to stop a young man.
Also, none of the comments from Suk’s article that I have quoted above involve “tweaking” the facts of the case. They are directly connected with this case, except for the last one, which is counter-factual in my experience.
I very much liked this statement because I think it gets to the heart of the issue. He broke criminal law, but given a different state he could be considered an accidental criminal because he was in New Hampshire and we all should take a pause before we accept that this could be a lifetime punishment by virtue of a law that frankly I don’t think a rational being could say was enacted to keep high school kids from soliciting potential sex from each other. Personally I’m not sure I consider 15 to be too young to be having sex with fellow high school student…but that is just my opinion. In New Hampshire there are probably dozens if not hundreds of accidental criminals. The jury did not find that she did not consent…and that whole issue of consent is very murky as the author points out.
The jury did not find beyond a reasonable doubt that she did not consent.
There may be a few states with ages of consent below 16, but I doubt that there are many.
Edit: I took a quick look at Wikipedia, and found no US state with an age of consent below 16. I found several that set the age of consent at 17 or 18. I found a few that had “close in age” exemptions.
I don’t buy that. Not in the New Yorker, with its famously rigorous editing. If Suk had said something like the quoted statement in an interview, I’d say she was just being a little sloppy. But she wrote it. In the New Yorker, which has editors that go over articles with a fine-toothed comb. Her statement is infuriating, and misstates the situation in a dramatic way.
Labrie said that the jury didn’t find him guilty so they concluded that she consented. But that’s crap, the judge knew it was crap, we know it’s crap, and Suk knows it’s crap. Why is she repeating Labrie’s crap as if it were true? Why is she taking his side?
@momofthreeboys… Except that he was a proctor, held other leadership positions in the school as well, he knew she was 15 and too young, his friend/s joked about bailing him out of jail (since she was too young and sex was illegal), he feigned interest in her as a means to score the highest number of points… the two were not in a relationship (let alone in one where having sex would be taking said relationship to the next level)…there is nothing about their sexual encounter that parallels “dozens if not hundreds of (high school) accidental victims.”
““And their outspokenness at that moment, not harsh measures after the fact, is what is most immediately likely to spare them tragedies like the one that has happened at St. Paul’s.””
I think she’s right. In the kind of cases I deal with – the ones that don’t make it to the police – outspokenness might well have ended the encounter. In fact, in several of my cases, it is undisputed that when the accuser said “no” (late in the encounter), the accused stopped; the alleged assault was everything that occurred prior to the “no.”
If at some point in the future, “yes means yes” becomes part of our sexual culture, then young people will presumably understand that quiet participation doesn’t evince consent. THAT is the change in definition we’re talking about. Right now, a lot of Americans believe that a partner can silently agree to engage, so a little clarity in communication goes a long way in preventing unwanted sex.
Sure, a predator may rape someone despite clear protests. But it can also happen that person A genuinely, but wrongly, believes that person B consents.
(I’m leaving out my one case where it is undisputed that the accused asked for, and got, affirmative verbal consent, and was suspended anyway…I hope that that case remains an outlier.)
You weren’t sitting in the jury box so it’s a bit of a stretch to call the jurors ‘crappy jurors.’ Even from the anecdotal bits that were released to the public she may not have intended to have full-on sex, but she was game for some degree of hanky panky…only the jurors can parse what was presented as her version and what was presented as his version about the consent issue. The jury did not believe that there was a total lack of consent…if they had they would have convicted. She took no sides in her article as I see it…she pointed out the issues surrounding ‘consent’ and how incredibly difficult it is to legally define “consent” in the absence of the old meaning of rape and use of force. She says:
That, in my opinion, was a very measured statement, her point is that while the Judge may have been influenced by the ideas that are swirling in the media and in education…they are for now only ideas about what defines consent…it is up to people who shape law to come to consensus about how to define what is legal and what is criminal. We can all have opinions, but it is law that will shape the outcome of the debate. Absent the charge for the computer use and the legal age difference, only the jurors knew at what point she ‘withdrew’ consent and if she did it in such a way that it was clear…we cannot make that determination and they could not make that determination.
Sure there is…there are plenty of high school kids having sex and I’m sure out of that plenty there are freshman and seniors where the senior may be 18 and the freshman or sophomore may be 15 in New Hampshire. There’s probably kids sending instagram messages or FB messages from computers about hooking up. He got convicted because of the age difference and because he used a computer, it’s naive to think other kids are having sex with the age difference and using computers.
Go back. Read what I said. Read it carefully.
What is crap here is Labrie’s lie. We have no reason to believe the jury concluded she consented.
You don’t know that. You can’t know that…only the jurors and to some extent within what the law allows, the judge can weight what they hear against the legal instructions and that is the point that author was making. The law is not clear what constitutes consent and that is exactly the point of the op-ed piece.
Yes I do know that. I know exactly that. I know that we can’t make any conclusion about what the jury thought, except that they thought that the prosecutor had not proved beyond a reasonable doubt that she communicated non-consent to him. That is not at all the same as concluding she consented.
Look, suppose you are the entire jury for a rape case, momofthreeboys. A jury of one, you. The accuser says that she fought against her attacker, said no loudly and repeatedly, and was raped. The accused attacker denies this, and says that the sex was consensual. You’re a conscientious juror. You carefully review the evidence. You’re pretty sure, based on the evidence, that the guy did it, but you aren’t sure beyond a reasonable doubt, so you very properly acquit.
Now, can we say that you concluded she consented? No, you don’t think she consented. Just the opposite-- in fact you think he probably raped her.
Similarly, the jury in the Labrie case might have thought he probably raped her (but not beyond a reasonable doubt). Or they might have thought she definitely unambiguously consented. Or they might have thought they weren’t sure what happened. We don’t know what they thought. But we do know we can’t say they concluded she consented.