About a year and a half ago we mentioned the Owen Labrie case in New Hampshire, where an 18-year-old senior at the St. Paul School was charged with a variety of crimes, including forcible sexual assault, of a 15-year-old at the school. To briefly review the case: Labrie was alleged to have been participating in a longstanding tradition, “senior salute,” where male seniors competed to see who could get sexual favors from the most underclassmen. The victim in the case alleged that Labrie had invited her out as part of the senior salute, then raped her in an attic in the school.In August 2015 a jury acquitted Labrie of the felony forcible sexual assault charge, but found him guilty of three misdemeanor counts of statutory rape, and the felony of using a computer to lure a minor for sex. The latter conviction requires Labrie to register for life as a sex offender.
Throughout the trial, there was criticism from some in the legal community about both the charges brought, and the way the case was being handled by Labrie’s lawyers. As news reports noted, Labrie fired at least three lawyers before settling on famous Boston criminal defense lawyer J.W. Carney and Worcester lawyer Samir Zaganjori, and rejected a number of plea deals that would have prevented him from having to register as a sex offender for the rest of his life. One article reported that a law-enforcement official involved in the case said that if Labrie had acknowledged wrongdoing and expressed regret he would have likely been sent into a sex-offender program without being convicted of any of the crimes with which he was charged. Former federal judge and Harvard Law School professor Nancy Gertner told a reporter, “This was a fundamentally ‘untriable’ case,” and indicated surprise that the defense had taken the case to trial.
Another issue that got some attention during the trial was whether the statute related to use of a computer to lure a minor (NH Rev Stat § 649-B:4, entitled “Certain Uses of Computer Services Prohibited”) was appropriate in the Labrie case. Commentators argued that the purpose of these types of statutes was to prevent adults from preying on minors via the internet by disguising their own identities and luring minors into sharing sexual photographs or meeting with them; none of which occurred in the Labrie case. Labrie’s trial lawyers moved to have the verdict on that charge set aside, arguing that applying the statute literally was inconsistent with its purpose. The court disagreed, noting that Labrie had not raised these issues at trial, and that as his lawyers acknowledged, the plain language of the statute applied to Labrie’s case.
Labrie’s local New Hampshire lawyer raised a number of concerns in a motion for a new trial filed in April 2016. She argued that her colleagues provided Labrie with ineffective assistance of counsel for the following reasons:
- They failed to challenge the charge relating to computer use at all, mistakenly believing that that charge could not stand if Labrie was not found guilty of aggravated rape;
- They failed to impeach witnesses who testified at trial with information they had that could have undermined their credibility;
- They failed to get records of the victim’s Facebook account, that allegedly would have shown that the victim was fine with her interactions with Labrie until a Facebook post caused her to become concerned with her reputation;
- They failed to use evidence in their possession to demonstrate that the victim lied at trial about other senior salute invitations she received, and evidence that would have undermined her statements about the physical ailments she suffered as a result of that night;
- They failed to object to misstatements in the prosecutor’s closing arguments.
The Superior Court ruled that Labrie’s trial attorney, Jaye Rancourt, could not pursue the ineffective assistance of counsel claim on his behalf since she was part of the team that was alleged to have been ineffective. Instead, she testified as a witness on Tuesday at the evidentiary hearing that will determine if Labrie is to be granted a new trial. She testified that Labrie’s Boston lawyers did not include her in any trial strategy, and that she did not see any motions before they were filed. She also testified that her co-counsel told her after the verdict that he thought Labrie couldn’t be convicted of the computer charge if he was acquitted of the aggravated rape charge. On Wednesday she testified that during Labrie’s trial she considered asking for a mistrial because of failures of Labrie’s Boston-based lawyers, but failed to do so. The hearing is scheduled to continue to the end of this week, after which the judge will decide whether Labrie is entitled to a new trial on the charges against him.
Labrie’s challenge to the application of the computer use statute raises interesting legal questions. The law is states, in relevant part:
No person shall knowingly utilize a computer on-line service, internet service, or local bulletin board service to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to commit any of the following:
(a) Any offense under RSA 632-A, relative to sexual assault and related offenses.
(b) Indecent exposure and lewdness under RSA 645:1.
(c) Endangering a child as defined in RSA 639:3, III.
In her motion for a new trial, and in testimony during this week’s evidentiary hearing, Labrie’s local trial lawyer Jaye Rancourt testified that the trial team did not challenge the charge under 649-B:4 at all because Labrie’s other lawyers believed that if the state could not prove that he committed aggravated sexual assault, the computer charge could not be sustained. It is unclear why the defense team would have believed this; RSA 632-A includes the statutory rape crimes of which Labrie was convicted as well as the aggravated sexual assault crime of which he was acquitted.
Labrie raises several reasons that the law does not apply to the factual situation of his case, and argues that his trial lawyers should have raised the issue in his first trial. First, he argues that the system he used to send messages to the alleged victim was not a “computer on-line service, internet service, or local bulletin board,” because the messages between him and the alleged victim went over St. Paul’s intranet system and never entered the wider internet system. Second, he argues that the term “utilize” in the statute has a special meaning, and requires that the defendant took advantage of the “special characteristics” of internet service to seduce, solicit, lure, or entice a child. He argues that simply using the internet as a mode of communication between two people who already have an established relationship does not fall under the statute. Labrie’s position, then, is that the statute requires that the defendant utilize the computer to entice a child in a way that would not be possible via another medium.
The State of New Hampshire filed a memo contesting Labrie’s reasons for requesting a new trial. The State argues that St. Paul’s intranet system falls within the computer systems named by the law, particularly when one takes into account that the law was written in 1998, at a time when all of these terms were relatively new and not widely understood. The State argues that Labrie’s reading of the statute would run contrary to the purpose of the statute (to protect children from sexual predation) and is inconsistent with how similar federal legislation has been interpreted.
The Supreme Court of New Hampshire seems to have clearly rejected Labrie’s second argument, in a case brought against a man who “utilized” his computer to show his daughter pornography while he sexually assaulted her. The Supreme Court declined to read the statute restrictively, and instead looked to the statutory history and noted that “we believe that the legislative history acknowledges the new technology presented by the computer, the expanse of possibilities presented by the internet, and the need for new and broader statutes to assist law enforcement in the protection of children from the types of dangers presented by the same.” State v. Jennings, 159 N.H. 1, 5 (2009). In that case the Court found the defendant’s actions violated the statute. In subsequent cases, the Supreme Court of New Hampshire has reaffirmed that it reads the statute broadly. In State v. Farrington, 161 N.H. 440, 447 (2011), the Court rejected the contention that the terms “seduce, solicit, lure, or entice” required the defendant to make requests of the alleged victim, and held that conduct fell under the statute as long as “the defendant intended his communications to attract, tempt or invite” the alleged victim. In that case the Court held that what the defendant did was “[h]e preyed upon [the victim’s] youth and innocence to develop a relationship with her, and had the ultimate goal of consummating a sexual relationship,” a description that the prosecution will likely argue also describes Labrie’s actions.
While Labrie’s hopes for succeeding in arguing that the statute doesn’t apply to him seem slim (if he is even granted a new trial), the case highlights two troubling issues in our criminal laws. The first is that the New Hampshire computer use law was written nearly 20 years ago. As someone who was in high school in 1998, I can say that my internet world at age 15 (characterized by AOL chat rooms and extensive chain emails that threatened years of bad luck if they were not forwarded) bears little resemblance to the technology and methods of internet use that are available today. The statue was written at a time when our current uses of the internet were not fathomable, and has not been updated to account for ever-changing technology. For a start, New Hampshire courts do not appear to have addressed whether a smartphone — the primary mode of communication for most people, particularly teenagers — is considered a “computer” under this law. Laws like this one that deal with technology need to be revised to reflect not only the current state of technology, but the current ways in which that technology is used in our society.
The second larger issue Labrie’s case raises is one that we see in other criminal contexts: the ways in which society’s policing of teenage sexuality has perhaps unintended serious criminal consequences. This is an issue in statutory rape law, as my colleague noted in her prior post about Labrie’s case, when states do not have “Romeo and Juliet” exceptions that recognize that teenagers may engage in sexual acts with one another that are fully voluntary and actually, if not legally, consensual. It also comes up in cases related to teenagers sending each other nude pictures who suddenly find themselves charged with distributing or possessing child pornography. Labrie’s various motions draw attention to the fact that a straightforward application of the New Hampshire computer use law makes it a felony for teenagers to engage in any sort of online flirtation or discussion of sexuality if one party intends to “entice” the other (if he or she is under age) to engage in sexual acts. Laws we have enacted to protect children from predation by adults are turning out to be (in my view) dangerously overbroad, particularly when it comes to the intersection of teenage sexuality and technology. Whether or not one is sympathetic to Owen Labrie, we should not have laws that make it a felony requiring lifelong sex offender registration for one teenager to flirt with, talk about sex with, or ask out another teenager with the hopes of engaging in some kind of sexual interaction, just because the two use a particular technology to communicate—especially given the ubiquitous role that technology plays in modern communications. Regardless of the outcome of Labrie’s case, we should be able to agree that making consensual teenage sexual interactions a felony that requires lifelong sex offender registration is a problem in various areas of criminal law, and one that state legislatures should address.