Owen Labrie verdict: It's confusing because of a New Hampshire sexual-consent law.

The Odd Sexual-Consent Law That Explains the Bizarre Owen Labrie Verdict

The Odd Sexual-Consent Law That Explains the Bizarre Owen Labrie Verdict

The XX Factor
What Women Really Think
Aug. 28 2015 5:56 PM

The Odd Sexual-Consent Law That Explains the Bizarre Owen Labrie Verdict

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A 19th-century map of New Hampshire and a sign marks the entrance to St. Paul’s School in Concord, New Hampshire.

Photo illustration by Lisa Larson-Walker. Photo by Brian Snyder/Reuters. Map courtesy Norman B. Leventhal Map Center/Flickr Creative Commons.

On Friday, a jury found former New Hampshire prep school student Owen Labrie not guilty of felony rape—but also convicted him of several lesser charges. At a glance, the complex verdict does not seem to answer the burning question at the heart of the case: Did Labrie, then 18, force a 15-year-old girl to have sex without consent? While the full answer is thorny, the upshot is simple. The jury found that Labrie did have sex with the girl—but didn’t force her to engage in any unwanted contact.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Under New Hampshire law, an individual is guilty of aggravated felonious sexual assault if he penetrates someone after she indicates that she doesn’t “freely consent,” or before she has “an adequate chance to flee and/or resist.” The jury found Labrie not guilty on these counts. With that finding, the jury essentially held that prosecutors had not proved the girl resisted sexual contact. The jury also found Labrie not guilty of simple assault. Prosecutors had alleged that Labrie committed this misdemeanor by biting the girl’s chest.

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However, the jury did find Labrie guilty of endangering the welfare of a child, and of using a computer to “seduce, solicit, lure, or entice a child” in order to commit a sexual assault. The jury also found Labrie guilty of misdemeanor sexual assault. But Labrie wasn’t even charged with statutory rape. If that seems to make no sense, it’s because of a strange quirk in New Hampshire law.

Like many states, New Hampshire has a “Romeo and Juliet” exception to statutory rape. Such exceptions allows individuals to have sex with minors if they are close in age. These laws are designed to allow teens to engage in consensual sex without fear of prosecution. Florida provides a good example. The state has a general age of consent of 18. But under a Romeo and Juliet law, people aged 23 and under can legally have sex with individuals aged 16 and 17.*

New Hampshire’s law follows this model—with a twist. It sets a hard age of consent at 13: Before then, all sex is illegal. After 13, the rules change. It isn’t illegal to engage in consensual non-penetrative sexual contact with an individual between ages 13 and 16 unless you are at least five years older than the younger person. (Think necking and fondling.) It is always illegal, however, to engage in penetrative sexual contact with any individual between ages 13 and 16. (16 is the universal age of consent in the state.)

Here, the Romeo and Juliet law only affects the severity of the punishment. If you have penetrative consensual sex with an individual between ages 13 and 16 but are within four years of age, you are guilty of misdemeanor sexual assault. If the age difference is more than four years, you’re guilty of felony sexual assault.

Labrie was 18 when he allegedly put his penis, tongue, and finger in a 15-year-old’s vagina. The jury did not find that the girl resisted, so he isn’t guilty of felony rape. But he still had penetrative sex with a girl under 16, the jury believed. Thus, Labrie is guilty on three counts of misdemeanor sexual assault, one for each form of penetration.

For prosecutors, this verdict is likely bittersweet. Labrie faces up to 11 years in prison, a fairly severe penalty. But the jury did not accept the argument that Labrie raped the 15-year-old. The practical result of the ruling should cheer prosecutors. But the details illustrate, once again, that it is exceedingly difficult to prove a rape charge in American courts.

*Correction, Aug. 31, 2015: This article originally misstated Florida’s Romeo and Juliet law. It allows people under 24 to have sex with 16- and 17-year-olds, but does not legalize sex below age 16.