O tempora! O Associated Press!

I haven’t been following the St. Paul’s School rape case. Apparently a senior boy told his buddies he’d had sex with a freshman girl when the girl was 15; seducing freshmen seems to have been considered a badge of honor among seniors. He was charged not only with sex with a minor but also with rape; the girl claimed he forced himself on her. He asserted that everything was consensual and stopped short of full intercourse.

The jury convicted him of sex with a minor (a misdemeanor) and using a computer to seduce a minor (weirdly, a felony) but acquitted him of rape.

Rather than lamenting the sexual mores of the rising generation, I want to lament its journalistic standards.

The Washington Post, which in my youth was a newspaper, with reporters and editors, where at least some of the reporters knew something about the topics they covered and at least some of the editors tried to keep obvious falsehoods out of the paper, ran an AP story that included the following sentence:

The jury by its verdict Friday signaled they didn’t believe Labrie’s assertions that he and the girl didn’t have intercourse but also didn’t believe her contention that it was against her will.

No, no, no, no, NO!

The jury “signaled” no such thing. Assuming that the jurors were following instructions, the verdict means that they were unanimously convinced beyond reasonable doubt that the accused penetrated a minor but were not convinced beyond reasonable doubt she had not consented. They could have all gone home saying “Yeah, seems way more likely than not that he forced her, but in a swearing contest it’s hard to be morally certain.” (Of course it’s also possible that the verdict was a compromise among conflicting jurors, which is against the rules but isn’t unknown.)

The more I think about this, the angrier I get. The victim, having been victimized once by the older boy and again by the criminal justice process, now suffers a gratuitous third victimization from the AP and the WaPo, which proclaim to the entire word, indelibly, that a jury found her to be a liar, when in fact it did not.

It seems implausible that there will be a retraction – not that it would do much good – and impossible that she can successfully sue for damages, since for this purpose she’s a “public figure” under the precedent in N.Y. Times v. Sullivan.. Why should reporters, editors, and publishers be allowed to negligently damage people by failing to do their job up to professional standards of competence, and escape scott-free? Note that this isn’t a matter of opinion; what the story says about the meaning of a “not guilty” verdict is simply wrong.

Apparently the strongest evidence against the accused was his own post-incident boasting to his classmates. He and his lawyer had to claim at trial that the boy was bragging about molesting an underage girl but hadn’t actually done so. Who knows? It might even be true. But it isn’t hard to see how the jury could dismiss that claim as far-fetched while remaining in some doubt on the consent question.  

The whole thing – more carefully described in this New York Times story – makes me wonder just how far New Hampshire law allows an eighteen-year-old to go with a fifteen-year old. And, as always, I wonder what a just sentence would look like for what the defendant was convicted of doing, rather than for the even worse thing he may well have actually done.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

9 thoughts on “O tempora! O Associated Press!”

  1. It would also be nice to revisit the conclusion that someone becomes a public figure for purposes of slander and libel just because that person has been a victim of a crime. Hey, you've been victimized once, let's make sure to make you more vulnerable to other torts!

  2. J Michael — agreed. I like to think that since so much of privacy law has been created under conditions of gender inequality, legislative and otherwise, that I get to pretend it doesn't really apply. So much nonsense!

    But what I came on to say was two things. One, since the Post is owned by the Amazon guy, I think I am boycotting it too. (Which is easy since I don't usually read it.)

    Two, I thought the issue with the jury was that they didn't think it was proven that the young woman had sufficiently indicated her lack of consent — which is a bit different. And/or that it wasn't proven the young man perceived it. That is, they might well have believed her but thought … somehow… that it might somehow have been excusable that the young man did not notice. (Note: *I* am not saying this… I'm just saying, I could see a jury agreeing to disagree on *that.* How the bleep could anyone prove otherwise? It's the standard that's wrong, imo. If she said "no," then it's no even if he didn't hear it … in my world. But I don't know what the law is there. Recall, it was not that long ago that you had to have bruises and things just to get into court.)

    I think the fact they convicted him of *anything* is a huge vindication of her. I think they believed her mostly, or he'd have walked. The men on the jury would have held out for acquittal. (But I could be wrong.) It is all very sad, and people really shouldn't outsource the raising of their children.

    1. So you're a home-schooler? Coach your own kids at sports? Only let them read stuff you've written. Star on your own television shows? Never let them go to camp, or leave the house unsupervised? How does a child get raised by only its parents, short of a Skinner Box or a Quiverfull Duggar Hell?

      1. Overreact much? I think there is value in seeing one's children most every day when they are in their formative years. One ought not to leave it to their peer group to raise them. And no, that doesn't mean one has to hatch them like an egg. If people find it so horribly laborious, why'd they reproduce in the first place? I've known people who went to prep schools and no, I don't get the impression that it is such a great experience. A good day school is just as good academically and heck, there is one less excuse if the kid gets out of line.

  3. AP: "The jury…didn’t believe her contention that it was against her will."

    This sentence doesn't say that the jury believed that what occurred *was* consentual. In fact, Mark makes a similar statement:

    "The jurors…were not convinced beyond reasonable doubt she had not consented."

    Mark's statement uses the legal standard ("beyond [a] reasonable doubt") whereas the AP uses the word "believe," which is less precise. Mark writes out the word "not" whereas the AP buries it in a contraction. So you could make a case that Mark beats the AP in terms of writing quality. But Mark isn't accusing the AP of poor writing; he's accusing the AP of making a false statement. I don't see any basis for that accusation.

    1. At the very least the AP version is a mis-statement. The O.J. jury, upon being interviewed, nearly unanimously believed he probably did it — but the D.A. failed to overcome reasonable doubt — she was badly out-dueled by his dream team. So if the AP said "the Simpson jurors did not believe he killed his wife", that would not be an accurate statement. Until the AP interviews the jurors, then the statement is certainly not true.

    2. I think you're mistaken here. The whole point of the "reasonable doubt" standard is that you can believe something to be true, yet agree that there is enough uncertaintly about the truth that you're not willing to send someone to prison based on your belief. In ordinary language, which the AP uses (or misuses) the middle is excluded unless explicitly called out. So what the AP was burying in that contraction was the only thing that the sentence could plausible be about.

    3. I don't think we have enough information to know what the jury actually *meant.* From the little information, I see at least 3 possibilities.

      1) they didn't believe there was a lack of consent (in which case, I think they'd have nullified and sent the kid home… but I really don't know.)

      2) they believed she did not consent, but did not believe/did not think it was proven beyond reasonable doubt… that this was adequately conveyed to the young man (which is my guess — that at least *some* of the jurors thought this and that it was in fact a compromise verdict… which would never have happened if most or all of them hadn't believed the young woman on the issue of *consent itself,* seen apart from what was conveyed. See the NYT , emphasis added: "found that the state had not proved that what happened was against the girl’s *expressed* wishes."

      3) most of them believed her about consent and also believed it had been adequately expressed … but there were holdouts for acquittal and this was all they could get. (I also think this is possible.)

      Look, it's always going to be very hard to prove a state of mind, such as a lack of consent. At least when it is a sexual assault case. I don't think it's sexist to admit this.

      Note: I only care about what the jury found and why — I don't really give a hooey about parsing the Post or AP. What worries me is that so many of us seem to be confused about what consent is and isn't. Still… I agree it is sloppy to say that the jury didn't "believe" her… I don't see that anywhere being the case. Probably many verdicts are compromise verdicts to some extent.

  4. Or in the alternative, I might be completely wrong about the jury.
    http://www.slate.com/blogs/xx_factor/2015/08/28/o

    And I may be even more confused now. The Slate guy is still talking as if the jury decided the girl lied. I find this hard to believe, esp as opposed to just finding that that issue had not been proved. (So maybe this guy also made the Mark error.) What a mess.

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