On Friday, a New Hampshire jury of nine men and three women found former St. Paul's School senior Owen Labrie not guilty of felony sexual assault. The story that landed Labrie there is a deeply familiar one, even to those of us who didn't attend elite prep schools: an older boy wooing a younger girl, a younger girl struggling to say no while still remaining polite and respectful. Though the jury ultimately decided that the victim did not clearly indicate by speech or conduct that she did not freely consent, as required by New Hampshire law, there is one heartening takeaway from the trial: that the jury was discussing consent at all.
As Emily Bazelon noted in the Times on Wednesday, New Hampshire's laws surrounding sexual assault are actually quite progressive compared to most states'. In the majority of U.S. states, a victim's lawyer must prove that some sort of physical force occurred in order for the defendant to be convicted of rape. New Hampshire is one of the few states where a defendant can be convicted of felony sexual assault simply by proof of non-consent.
"What I think is important in the case is that with respect to the felony charges, the questions that jurors were asking and that the trial was centered on were about consent, and that is a really important place for the law to be moving," Deborah Tuerkheimer, a professor at Northwestern who specializes in feminist legal theory, told me. "The question wasn’t whether he used enough physical force to overcome her, but about whether or not she consented."
Let's state the obvious here: It's horrifying and barbaric to think that this is how the system still works, that it is so fundamentally broken that the fact that consent was even a consideration in the courtroom is somehow celebratory. But here we are.
Of course, while New Hampshire's definition of sexual assault is comparatively more progressive, it still places the burden of proof of consent on the victim — there's no "yes means yes" in the courtroom. Even if you "freeze up," as the victim testified she did, the law says it's your responsibility to say no rather than the responsibility of your partner to secure a yes. And unfortunately for the young victim in the St. Paul's case, the jury didn't believe she proved "beyond a reasonable doubt" that her no really did mean no.