The Controversial St. Paul Verdict: Why Selecting a Rape Case Jury Is Particularly Difficult

·Contributing Writer

Owen Labrie looks around the courtroom during his trial, in Merrimack County Superior Court, on Aug. 18 in Concord, N.H. (AP Photo/Jim Cole, Pool) (Photo: AP/Jim Cole)

Late last week, a New Hampshire jury found Owen Labrie, a recent graduate of the elite St. Paul’s boarding school, not guilty of felony rape of a teenager known only as Jane Doe (her identity is being protected because she is a minor). Labrie was, however, found guilty of a misdemeanor sexual assault charge as a result of having had a sexual encounter with a minor.

The case focused around a long-standing tradition at the prep school — the “Senior Salute,” where graduating seniors earn “points” by having as many sexual encounters as possible with underclassmen before graduation. Jane Doe alleges that Labrie made contact with her to schedule such an encounter. Because she was only 15 years old at the time, she says she was unsure of what would and would not occur, and mentioned to a friend that she would consider performing oral sex. Ultimately, however, she claims that after repeatedly voicing her dissent, Labrie initiated vaginal sex — taking her virginity and raping her.

Labrie, meanwhile, admits that an encounter between the two took place, but testified that after putting on a condom in preparation for sex, “divine inspiration” prevented him from actually engaging in the act. Thus, according to Labrie, there was not only no rape, but no sex itself.

This combination of guilty and not guilty verdicts was called a “compromise verdict” by ABC News’ Chief Legal Analyst Dan Abrams — a sentiment echoed throughout much coverage of the complicated case’s resolution. The verdict is especially nuanced, and perhaps even self-contradictory, in that the misdemeanor sexual assault charge means that the jury did believe that a sexual encounter involving a minor did occur. New Hampshire law, however, stipulates that an individual can only be found guilty of felony rape if the other party does not “freely consent.” Thus, the jury chose not to believe Labrie’s assertion that a sexual encounter never took place — but also chose not to believe Jane Doe’s allegations that the sexual encounter was non-consensual.

The jury of nine men and three women deliberated for roughly eight hours before reaching their verdict. In all criminal cases, both prosecutors and defense attorneys look for certain kinds of jurors, individuals that can evaluate evidence and testimony free of bias. In cases of rape and sexual assault, determining bias can prove to be especially challenging.

Crafting the Jury in Rape Trials

A little insight into how the jury-selection process works: During the process of voir dire, wherein jurors can be questioned to determine bias, a prosecutor may not strike a juror on the basis of gender alone, but can instead ask questions to ascertain bias. Voir dire, though, is not a uniform process; different regulations apply in different jurisdictions, often even within the same state, on the ability of both prosecutors and defense attorneys to question jurors.

While voir dire traditionally focuses on “jurors’ abilities to follow the law, assess witness credibility, [and] understand the burden of proof … [t]he prevalence of rape myths, however, weighs in favor of judges creating exceptions to the general rule of strictly limiting juror voir dire in sexual assault cases,” according to a 2010 article published by AEquitas, a group of legal experts who provide consultation to prosecutors on cases involving violence against women.

“Just like the rest of the criminal justice system, there is no magic formula for jury selection,” Viktoria Kristiansson, an attorney advisor for AEquitas who has specialized law experience in sexual assault and violence against women, tells Yahoo Health. “You do what you can in your own jurisdiction, with what laws are in place, in that courtroom.”

In some places, a prosecutor is able to submit a list of questions in advance to the judge, which is seen by both the judge and the defense attorney and then asked by the prosecutor during voir dire. In other jurisdictions, no questions may be asked of jurors. And then there are some jurisdictions where “it’s something in the middle — a prosecutor might be able to submit a list of questions, and a judge might determine that she’s allowed to ask three of 12 of them [during voir dire], but that the judge will conduct the voir dire herself,” Kristiansson explains.

Related: Many Female College Freshmen Report Sexual Assault, Rape

When advising prosecutors of cases involving sexual violence, “we encourage them to ask questions that generally go to victim-blaming and generally go toward holding someone accountable for behavior especially when there are other things involved, like alcohol,” Kristiansson says. “When it’s an alcohol-related sexual assault, for example, one question that might be asked during the jury selection might be regarding the use of alcohol to determine if a potential juror will blame someone whether that person has voluntarily consumed any amount of alcohol.”

Kristiansson notes that rape is so often perpetrated by someone the victim knows — someone the victim may even have had a close friendship or romantic relationship with — it’s not uncommon for the victim and the accused to be engaging in typical social behavior, like meeting at a restaurant or party. “These are things that most of society does. This is how we all meet people, congregate, socialize,” Kristiansson says. “When these things happen in a case of sexual assault, we find, though, that people are blaming the victim for engaging in normal social activity — and for having spoken to the offender. So we have to ask questions about that.”

And while prosecutors are not permitted to consider gender as a qualifying, or disqualifying, factor for a juror in and of itself, Kristiansson explains that all prosecutors and defense attorneys use the training they’ve received to look for anything that might bias a juror. Both male and female jurors can engage in victim-blaming. “We are all human beings and come to the jury selection process with our own life experiences — we’ve all heard, read, and seen certain things that can impact how we process information and how we qualify criminal activity,” she says.

Rape Mythology, Trauma, and Jury Bias

Labrie’s attorney, J.W. Carney, Jr., drew much attention during the trial to messages that Doe and Labrie exchanged following their encounter. (Labrie wrote to her “J’Adore,” or “I love you,” and she had messaged him back with “good” and “haha,” The New York Times reported.) The defense argued that if Doe were a “real” victim, such communication would not have occurred.

“The victim was criticized for being ‘friendly’ after the encounter, a behavior that is not uncommon especially as someone is reeling after an assault and afraid of retaliation,” Alyssa Peterson, a policy organizer for Know Your IX, a national survivor-run, student-driven grassroots campaign to end campus sexual violence, tells Yahoo Health. “It’s hard to ask survivors to come forward into a system where those types of attacks remain extremely effective in discrediting victims.”

Sexual assault is not like other crimes, in that there is usually a pre-existing relationship between the victim and the assailant. That’s why victims often find themselves in continued contact with those who have harmed them, says Rebecca Campbell, PhD, a professor of ecological-community psychology at Michigan State University and a leading expert on neurobiology, trauma, and sexual assault.

Related: What’s Really Behind College ‘Rape Culture’?

“Research shows that it takes victims time to make sense of what happened,” Campbell tells Yahoo Health, leading victims to wrestle with the question of “How could this happen to me from someone I know?” In trying to understand their own trauma, survivors of sexual assault and rape will in fact often make contact with their assailant to see how the perpetrator responds, she says.

“Part of what it means to be a victim of a major trauma is to be in a state of shock,” continues Campbell. “And when you’re in shock, you don’t always make the kinds of decisions you would make otherwise. The circuits in the pre-fontal cortex, the key part of brain for the decision-making process, are not functioning optimally after trauma.”

It can take 96 hours, and even longer for sexual assault survivors, for the pre-frontal cortex to re-stabilize following a traumatic incident. And while that part of the brain is functioning less than optimally, survivors often attempt to reconnect with their assailant during this time. “They’re just trying to make sense of what’s happened,” says Campbell, “and the parts of the brain needed for complex decision-making are still not ‘back online,’ per se, after a major trauma.”

The jury’s decision in the Labrie trial was “not surprising, given that jurors weren’t given any information on the neurobiology of sexual assault and trauma,” Maureen McDonald, the community relations director of the New Hampshire Coalition Against Domestic and Sexual Violence, tells Yahoo Health. “People who don’t have a lot of experience on this themselves often see sexual assault through the belief that [the victim] should have said ‘no’ or been able to resist. What people need to really start understanding is trauma reactions and neurobiology reactions. Our brains have learned to react by flight, fright, or freeze.”

McDonald specifically mentions the evolutionary concept of “tonic immobility” — the natural state of temporary paralysis or unresponsiveness that animals, including humans, can instinctually enter when feeling threatened. In the animal world, tonic immobility is used to deter predators, and is colloquially referred to as “playing dead.” In instances of sexual assault, victims may enter the state as a result of sheer biology.

“When rape victims learn about tonic immobility, it helps them forgive themselves a little bit because they are often so angry that they couldn’t do something [to resist or protect themselves] in that moment,” McDonald explains.

In the trial, Jane Doe described feeling “’out of her body,’ ‘frozen,’ ‘so mad’ — this is tonic immobility,” McDonald says. “And she blamed herself initially and that’s a really common experience for victims. It’s not surprising that jurors weren’t [able to understand this].”

However, McDonald is quick to add that the verdict doesn’t mean the jurors didn’t believe Jane Doe’s allegations. “I think they believed her, but since they weren’t given the tools to understand her reaction, they couldn’t go further” in the kind of verdict they were able to reach, McDonald says.

It’s this lack of understanding of a sexual assault survivor’s neurobiology that often contributes to the larger, cultural misunderstanding of sexual assault — and the expectations around its survivors.

Related: How 1 Student Can Be Accused of Rape at 2 Colleges — and Receive a Scholarship to a 3rd

“Where I think we are as a society is that we’re now understanding that sexual assault occurs,“ but our first response is still to blame the victim,” Sharyn Potter, MPH, PhD, an associate professor of sociology and the co-director of the Prevention Innovations Research Center at the University of New Hampshire, tells Yahoo Health.

Potter notes that while society as a whole is becoming more accepting of victims of sexual assault when there is explicit pre-meditation by the perpetrator, there is still a lot of resistance to accepting victims whose assaults happen quickly and in the context of some kind of social interaction — seemingly romantic, or otherwise.

“We know that 90 percent of rapes are committed by someone the victim knows,” adds Potter, explaining why it’s especially important to understand how a survivor of assault might attempt to process how someone he or she knows, and even attracts, could perpetrate such a crime.

And it doesn’t help that there are so many cultural instances of objectification of women —such as the “Senior Salute” tradition. “There is this larger culture where women are pieces — they aren’t total human beings, whole people with feelings. And I think this culture is pervasive,” Potter says. “Maybe if we teach respect and how to watch out for one another in kindergarten, by the time students are in high school, they might say something [upon hearing of a tradition like ‘Senior Salute’] like, ‘You know you are about to commit a rape.’ We need to teach people to respect and how to take care of one another.”

Despite the “compromise verdict” reached by the jury on Friday, Potter believes the St. Paul case has been critical in bringing the issues of socialization, bystander culture, and sexual assault to the forefront of American discourse.

“This case demonstrates that high schools and elementary schools have a ways to go to ensure all students can access their education free from violence,” Peterson says.

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