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​Who Will the Jury Believe in the New England Prep School Rape Trial?

As the trial of former St. Paul's school student and alleged rapist Owen Labrie concludes, the outcome hinges on which side of the story the mostly male jury finds more credible.

Susan Zalkind

Susan Zalkind

Owen Labrie testifies during his trial in Concord, New Hampshire. Labrie is charged with raping a 15-year-old freshman. Photo via AP Photo/Charles Krupa, Pool

Over the past week, national media outlets have been swarming over a quaint New Hampshire courthouse as a jury deliberates on a case involving two students from an elite prep school and the time-honored sex game that may have resulted in the rape of a 15-year-old girl. Owen Labrie, a 19-year-old St. Paul's graduate, is charged with raping a freshman two days before graduation, when he was 18. The encounter, which the girl said she at first entered into willingly, was part of what students on campus call Senior Salute—a tradition where in the last weeks of the school year, seniors reach out to younger students to hook up with them. The girl says she went with Labrie to the roof of a school building with the expectation that they would kiss.

Instead, she says, Labrie violently raped her in a room in the attic.

The case has pulled the curtain away from a sordid culture at one of the nation's most elite institutions. Senior Salute encounters, or "slays," as some members of the St. Paul's soccer team called them, were tallied on a school wall. And Labrie's statements to police and testimony from his classmates on the stand suggest some male students had turned the Senior Salute into a competition. Yet UNH Law Professor Buzz Scherr says the national fascination with the trial may boil down to a more basic curiosity.

"We're curious whether rich people, smart people, behave differently to us," he told local news station NH1.

But if you take away the pricey tuition and the decades-old ritual objectification of young girls, the St. Paul's trial essentially boils down to a standard acquaintance—or date rape—trial. These cases, legal experts say, are notoriously difficult to prosecute. Without witnesses to attest to specifics of the sexual encounter, the jury is essentially left to decide whether the alleged victim consented based on he-says-she-says arguments—a gut decision. And a juror's gut may have an ulterior motive. Although lawyers and judges try to weed out jurors with ingrained biases, the jury's assessment of whether or not the alleged victim is telling the truth, or if they even qualify as a victim, is frequently based on factors like gender.

Often, jurors will make a decision based on their own interest of self-preservation. In other words, they'll believe what they want to believe.

"Most jurors come in with a bias [of] not wanting to believe it could happen," says Carla Carlstrom, a prosecutor who specializes in assault cases in King County, Washington. "It's easier to think that it didn't happen or it's somehow the victim's fault."

Believability is a hurdle all alleged victims of date rape face in the courtroom. The now 16-year-old blonde teenager in this case, who spent much of this trial in tears, is no exception. Ultimately, the jury in New Hampshire v. Owen Labrie, consisting of nine men and three women—mostly white and middle-aged—will have to make a decision based on which teenager they think is full of shit.

Labrie faces up to 20 years each for three felony sexual assault charges.

Previously: A Rape Trial Is Revealing the Details of a Competitive Sex Ritual at an Elite New England Prep School

Before closing arguments on Thursday, prosecutors presented physical evidence, as well as testimony from students, school employees, experts, and police. The defense presented only one witness: Labrie himself.

At least until Labrie's testimony Wednesday, it seemed almost impossible for the defense to come up with a believable argument that he didn't penetrate the girl—which, because of their age, meant Labrie would likely be convicted of misdemeanor sexual assault under New Hampshire law.

A nurse testified that the alleged victim had a vaginal tear. Criminologists who examined the underwear she wore that night testified they found Labrie's DNA and sperm on the inside of her panties. Four of Labrie's friends took the stand and testified that Labrie told them he had sex with the girl. Before that, jurors heard about how Labrie made a list of the girls he wanted to "slay" and the girl's name was at the top in capital letters.

Then there are the Facebook messages Labrie sent to his friends.

"How'd it go from no to bone?" asked Tucker Marchese.

"Just pulled every trick in the book," replied Labrie.

The girl took the stand over the course of three days, and described in graphic detail how she says she was raped. Labrie was someone she only knew in passing, a friend of her big sister's, she said. After the cajoling of a mutual friend, she agreed to Labrie's request that she come with him to the roof of a school building for a Senior Salute.

In her testimony, the girl said she blamed herself for not being stronger, and for not saying no more forcefully.

After they spent a few minutes taking in the view, Labrie brought her back inside to the attic, a dark room roaring with the sound of the building's industrial machinery. Though she claims she said "no" three times and insisted on keeping her underwear on, the girl alleges that Labrie proceeded to finger her, "scraping" the inside of her body. When he began to lick her vagina, she says she "froze" and that he then proceeded to penetrate her with what she thought was his penis (she deduced this because she could see his hands). He then stopped to spit on her when wasn't able to get all the way in, she claims.

Later, when she messaged Labrie about wearing a condom, he replied that he wore one, and asked if she was on the pill. She was not.

"Praise jesus I put one on halfway," Labrie replied.

In her testimony, the girl said she blamed herself for not being stronger, and for not saying no more forcefully. Instead, she said she was polite to Labrie, before and after the alleged assault, because she didn't want "to come off as bitchy" to one of the most popular boys in school. Later she said she replied to his flirty messages because she was in denial, and didn't want him to contact her in person. "I wanted to tell myself that I had the control in this situation," she told the court.

Labrie has changed his appearance from last spring, when he was a shaggy-haired 18–year–old. He got a haircut, and at the trial wore a collection of navy and tweed sports coats, along with a pair of thick-rimmed glasses.

When he took the stand, Labrie told the court he was the only child of a broken family, that his mother is a school teacher, his father a landscaper. He had a full ride at St. Paul's, and had been on his way to Harvard, where he had won a scholarship and planned to eventually study divinity.

Perhaps it was because of those humble beginnings, at least compared to his trust fund baby peers, that Labrie became so devoted to steeping himself in St. Paul's culture. He was a prefect. He won a character award for his "selfless devotion to the school."

He also tried to excel in the school's more unseemly traditions, according to testimony from students at the trial and the messages they exchanged on Facebook.

What Labrie said next on the stand will either make jurors think he is a real-world version of the protagonist in The Talented Mr. Ripley or the victim of an elaborate plot: His invitation to the roof of the deserted Lindsay building wasn't really a Senior Salute, he said. "It was my understanding that Senior Salutes were between two students who sort of missed each other and hadn't had time to connect." This was different, because he knew the girl, he said, and they were "friends."

"I wanted to ask her out," he told jurors.

Except for a "romantic" scene that Labrie painted of the couple exploring old school artifacts, up until the point of alleged penetration, Labrie's and the girl's stories more or less match up. There was kissing, and dry humping, though the duo's interpretations differ. Labrie "thought she was having a great time," while the girl insisted she he was petrified. He described romantic foreplay, and she said he was "chewing" on her breasts.

But where Labrie's story and the alleged victim's really diverge is on the question of contraception. He says sex was something the two of them "talked about performing"—before he had second thoughts. When Labrie first spoke to police last year, before his arrest, he described it as a moment of "divine inspiration," and said he had "sprinted" off with the condom still on.

In court, he added that he may have also prematurely ejaculated.

"I had a second thought while I was looking down trying to put on a condom," he said. Though he claims the girl seemed interested in going to the next step, he decided sex was not a "smooth" thing to do in that situation. "I lost of little bit of my erection standing there," Labrie added.

He went on to say he suggested to the girl that they should "check the time," that they realized they were late for an acapella concert, kissed, got dressed and left. As he was walking to the concert, Labrie said he realized the condom was still on and discovered his "shorts were wet."

When the girl later asked him about birth control, Labrie told jurors, he was just trying to comfort her, and thought she may have felt some of the precum too.

In a classic defense move in rape trials, his lawyers says the alleged victim is simply not credible.

In his own way, Labrie accounts for all the evidence. And in a classic defense move in rape trials, his lawyers says the alleged victim is simply not credible.

The girl's roommate told police that before the encounter, she said, "I'll probably let him finger me and at most I'll blow him."

The defense attorney recalled to jurors that when he asked her about this, she told him, "I don't remember." This, Labrie's high-powered defense attorney Jay Carney said in his closing statements, was evidence that she "deliberately and intentionally lied to you under oath."

In his closing, prosecutor Joe Cherniske responded, "So what? Does that mean she can't change her mind?

"She can agree to kissing without being fingered," the prosecutor added. "She can agree to taking off her pants without taking off her underwear."

Carney dealt with the most damning testimony against his client—the accounts from four of the accused's friends who testified that Labrie told them he had sex with the 15-year-old—by saying that the young man had lied to his buddies. Sperm got on the girl's underwear because he prematurely ejaculated while dry humping, said Carney; it was embarrassing, and his client didn't want to tell his friends, "I think I might have prematurely ejaculated in my shorts, [and] then when I got up to get a condom, my penis was losing my erection, so I said I don't know I think we better head out."

Carney also conceded that Labrie exaggerated about his sexual escapades regularly while making nice with the mostly male jury.

"I'm not trying to be a traitor to my gender here," he said, adding that lots of men exaggerate about these sorts of things.

But will playing a diluted " boys will be boys" argument—that they brag about objectifying minors but don't actually do it—work with a jury that's 75 percent male? One might argue Carney—and Labrie—would have been better off with a majority female jury.

"Women are harder on other women, they're just much harder," Lisa Friel, the prosecutor in charge of New York City's Sex Crime unit from 2007 to 2011, said in a 2011 documentary called Sex Crimes. The National Center on Domestic and Sexual Violence reports that many prosecutors share this belief as well.

A 2004 study by the American Journal of Criminal Justice—"Women's hostility toward women in rape trials: Testing the intra-female gender hostility thesis"—found that more than any other factor, the gender composition of a jury can predict which way its members will rule in rape trials. And female jurors are significantly more skeptical of women who allege rape than male jurors are.

The reason for this bias, the study suggests, is because of an unconscious desire not to believe sexual assault could happen to them. "Because women find rape threatening, they may try to increase the psychological distance between themselves and the victim," the authors conclude. Women who have experienced some form of sexual assault without realizing it may try to diminish their own trauma by diminishing the impact that a similar event may have had on someone else.

Carlstrom says that in her own work, she tries to look for "individual jurors" and weed out biases in both men and women. Her main concern trying date rape cases involving young people is looking for jurors who "know what kids do and don't do." Most worrisome are "old-fashioned people," or those who don't understand the modern-day hook-up culture.

(Save for one youthful-looking man with a shaved head, the jury in New Hampshire appears to be entirely middle-aged, and it's not clear the nine members are as excited about this case as the national media is. One juror reportedly fell asleep during the testimony of an ER doctor. Another asked for a bathroom break during the prosecution's closing arguments.)

Earlier in his direct examination, Labrie told the court "scoring" was synonymous with dating. And "slaying" a girl didn't mean sex, it could be as innocent as a kiss.

The prosecution pulled up a letter to his friends asking them to join him on "an exploration into the innermost meaning of the word sleeze-bag."

"You would agree that it would take a sleeze-bag to take advantage of a 15-year-old girl?" asked Prosecutor Joe Cherniske.

"Yes," said Labrie.

"It would take a sleeze-bag to have sex with a 15-year-old girl?" asked Cherniske.

"Yes," said Labrie.

"It would take a sleeze-bag to slay a 15-year-old girl?"

"Not necessarily."

"Right," retorted Cherniske. "Because that would mean a walk in the park."

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