UPDATE: The AP reports that Merrimack County superior court judge Larry Smukler has upheld Labrie's felony conviction (using a computer to lure a minor for a sexual encounter), meaning he will be required to register as a sex offender. He will be able to petition the court to be removed from the registry in 15 years. Labrie is currently awaiting sentencing on 10 charges related to sexual assault. Read more about the trial in this story, originally published on August 31.
Last Friday, a jury found Owen Labrie not guilty of felony rape. He had faced 10 charges related to sexual assault after being accused last spring of raping a 15-year-old girl at the St. Paul's School, when he was a senior. The jury did find him guilty on one felony count, for using a computer to solicit children under the age of 16, as well as on the misdemeanor charges related to statutory rape. The consensus among jurors appeared to be that Labrie had lied about having sex with the girl, but that the girl had lied in saying it was nonconsensual. As reported in most media outlets, this has been called a "compromise verdict."
Of course, this outcome is less a compromise as it is a contradiction. The very laws under which Labrie was convicted state that a minor is not legally able to consent, and yet, in her vivid testimony describing her version of events, the encounter with Labrie went from consensual kissing and touching to violent, forced intercourse. But it seems that her account was trumped by the way she behaved before and after the assault. In other words, per her description of events, she was a "complicated" victim.
That's how ABC's chief legal analyst Dan Abrams characterized the case on This Week last night: "This was a very tough case for prosecutors, from the beginning. You had these messages that she sent after the fact that were friendly and flirty. She told a nurse it was consensual. Doesn't mean it didn't happen, but it does mean it was a very tough case for prosecutors." Abrams added that he'd argue "justice was served," and that he thinks the jury understood that "Owen Labrie behaved terribly." Ultimately, Abrams argues that this case is a win for rape survivors. "To those who say a case like this is going to prevent rape victims for coming forward, I think it's just the opposite," he concluded. "Which is to say, even if someone doesn't do everything that they should have, even if they did things wrong after the fact, they could get some amount of justice, as was the case here."
And therein lies the crux of the problem in this and in so many rape cases: According to the defense's version, the victim didn't do enough. She did it wrong. Her victimhood was unconventional. Yet the fact is, however, that the story told in court — true or not — is actually quite conventional.
It is dismaying to say that, in the least, we must resort to repeating facts that are so widely reported and verified, as it is that we must characterize a victim at all. Yet, as evidenced by this trial, we are in dire need of instruction. And these terrible facts do bear repeating:
According to RAINN, four out of five rapes are committed by someone known to the victim. Furthermore, 47% of rapists are friends or acquaintances, and that number jumps to 93% in juvenile cases. They're classmates, family members, friends, lovers, peers — the kind of people you do send friendly or flirtatious messages to. That the girl's lawyers didn't claim she was assaulted by a stranger, in an alley, with a knife does not make her an exception to the rule. It makes her part of a terrible majority.
It is estimated that 68% of rapes are not reported to police, and it's worth nothing that this is a conservative estimate and that many experts believe the percentage is much higher. There is no "typical" reaction to rape, though there is a general outline of frequent responses and behaviors of Rape Trauma Syndrome. In what is described by trauma experts as the Acute Phase (occurring immediately after the assault and lasting days or weeks), the survivor may often become extremely emotional (including crying spells, anxiety attacks), in shock (appearing disoriented and dazed, or, as the girl in this case described it, "foggy"), or may appear numb and devoid of emotion, acting "as if 'nothing happened' and 'everything is fine.'" After this, there are often phases of further minimization, depression, hopelessness, denial — all the hallmark behaviors of trauma. True, there is no typical response. But it is wholly atypical for a victim to report an assault immediately, clearly, and confidently.
Given all this, is it both astonishing and outrageous that the circumstances and behavior of the girl in this case were used as evidence against her. When lawyers and analysts argue that this "compromise verdict" is a result of her being an atypical victim, they are ignoring the most basic facts about sexual assault. And, now, despite what Abrams and many others believe, this attitude helps to perpetuate a cultural climate that leads survivors to keep silent. In addition to the effects of trauma, this endemic ignorance in our culture is at the root of why 68% or more of rapes go unreported.
Perhaps some may find this an unfair accusation. These men and women did not rape the girl themselves, after all. But there is, without a doubt, another stat that they — we, in fact — are responsible for. Ninety-eight percent of sexual assailants will not serve any jail or prison time. Owen Labrie will not be sentenced until October, when he faces another judge and jury. And, if statistics are a guide, he may never see a day in prison.