St. Paul’s School and a New Definition of Rape

Article here. Excerpt:

'An eighteen-year-old male student’s sexual encounter with a fifteen-year-old female student at St. Paul’s School has led to his being sentenced to one year in jail, followed by five years of probation, and registered for life as a sex offender. Both feel their lives are destroyed. Our fascination with the secret sex rites of the New Hampshire prep school put Owen Labrie’s bespectacled face in all the papers. But the deeper pity and fear the case inspired revolved around a basic question we increasingly project onto the bodies of our young: What makes sex rape?

Based on an incident in a campus mechanical room, Labrie was charged with an array of crimes and convicted of five. The three most serious charges were “aggravated felonious sexual assault,” corresponding to penetration with a finger, penis, or mouth. For a conviction, the prosecution needed to prove that the accuser had shown, by speech or conduct, that she did not freely consent, and that the accused knew or should have known she was not consenting. But the jury acquitted him of these charges, meaning that it did not regard the acts as lacking consent.
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The jury did convict him of three charges of misdemeanor sexual assault, which, in New Hampshire, did not require  proof of non-consent but were based instead on the fact that the girl was under the age of sixteen. Even if the girl had sworn that the sex was fully consensual, Labrie still would have been guilty of these charges. (Minors cannot legally consent, no matter what they feel.) Similarly, Labrie was convicted of endangering the welfare of a child, a misdemeanor charge that asked the jury only to find that he solicited sex from a minor. Presumably, the jury saw such a solicitation in the so-called Senior Salute, the campus tradition of graduating boys inviting younger girls to a romantic encounter. Labrie’s felony conviction for using computer services—e-mail and Facebook—to “seduce, solicit, lure, or entice” a child under sixteen to have sex was also unrelated to consent. If he had used e-mail to ask the girl to meet and they had unambiguously consensual sex, all these criminal convictions could still stand.
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We are in the midst of a significant cultural shift, in which we are redescribing sex that we vehemently dislike as rape, and sexual attitudes that we strongly disapprove of as examples of rape culture. For centuries, the legal definition of rape was intercourse accomplished by force and without consent. Many states have done away with the force criterion, and no longer require proof that the victim physically resisted the assailant or failed to do so because of reasonable fear of injury. With force absent from rape definitions, there has been increasing pressure on how to define consent. In the past several years, on many college campuses, consent has become affirmative consent, according to which not obtaining agreement before each sexual act is sexual misconduct. California and New York require affirmative-consent policies at schools receiving state funding. Some college campuses have gone even further and defined consent as not only positive but “enthusiastic” agreement to have sex. Anything short of that becomes sexual assault. It is not surprising that Judge Smukler, presumably influenced by these ideas, would say that, even though lack of consent had not been proven, this didn’t mean that the girl had, in fact, given consent. Far-fetched at the time, Catharine MacKinnon’s 1981 statement, “Politically, I call it rape whenever a woman has sex and feels violated,” is effectively becoming closer to law, even if it is not on the books.'