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Old 08-29-2015, 06:41 PM
LinusK is offline
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Legal analysis of the Owen Laurie rape case


Yesterday, Owen Labrie, who had been charged with 9 crimes, was convicted of 5, and acquitted of of four. The charges originated because of a sexual encounter between Owen (then 18) and a then 15 year old girl.

The convictions were for:

1.) Three counts of misdemeanor sexual assault.

In New Hampshire, it is illegal to have sex with a person between the ages of 13 and 15. If the age difference is less than 4 years, it’s a misdemeanor. If it’s more than 4 years, it’s a felony. (Legally, it is a crime for two 15 year olds to have sex, and they could both be convicted. Though it’s possible, I doubt NH prosecutors prosecute those cases very often.) Consent is irrelevant.

Statute:
Quote:
632-A:4 Sexual Assault. –
I. A person is guilty of a class A misdemeanor under any of the following circumstances:
...
(c) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.
The three counts were for cunnilingus, inserting his finger, and for intercourse. Again, consent is irrelevant.

2.) Endangering the Welfare of a Child

The only section of NH’s Endangerment law that appears to apply is the following one:

Quote:
639:3 Endangering Welfare of Child or Incompetent. –
I. A person is guilty of endangering the welfare of a child or incompetent if he knowingly endangers the welfare of a child under 18 years of age or of an incompetent person by purposely violating a duty of care, protection or support he owes to such child or incompetent, or by inducing such child or incompetent to engage in conduct that endangers his health or safety.
This section is sort of poorly written, because it’s not clear whether “such [a] child” refers to a child the defendant owes a "duty of care, protection or support”; or whether “such [a] child merely refers to a person 17 or younger.

If the jury interpreted it to mean 17 or younger, it means they decided what he did with her endangered her welfare.

There are two felony version of endangerment, but one involves felony sexual assault, for which he was acquitted, and the other involves child pornography, for which he was was never charges.

3.) Prohibited use of a computer.

In New Hampshire, it’s illegal to "seduce, solicit, lure, or entice” a child to do any of three things: (a) engage in aggravated sexual assault; (b) commit indecent exposure; or (c) commit endangerment of a child. However, (a) refers to felony sexual assault (which Owen was acquitted of) and (c) refers to child pornography (for which he was never charged). That leaves (b): Indecent exposure and lewdness.

Quote:
649-B:4 Certain Uses of Computer Services Prohibited. –
I. 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.
II. (a) A person who violates the provisions of paragraph I shall be guilty of a class A felony if such person believed the child was under the age of 13, otherwise such person shall be guilty of a class B felony.
Indecent exposure and lewdness involves sexual contact with a person who is less than 16.

Quote:
645:1 Indecent Exposure and Lewdness. –
I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.
II. A person is guilty of a class B felony if:
(a) Such person purposely performs any act of sexual penetration or sexual contact on himself or herself or another in the presence of a child who is less than 16 years of age.
Interestingly, the law as written makes it a felony for two 15 year olds to have “sexual contact" with each other, and makes it a class B felony. And while I doubt prosecutors often prosecute such cases, the law explicitly makes such conduct illegal. It is a classic example of legislation that was written with (I assume) good intentions, but is so poorly drafted it makes 15 year-old kids felons for making out.


Owen was acquitted of 4 crimes.

1.) He was acquitted of 3 counts of felony sexual assault.

The difference between felony sexual assault and misdemeanor sexual assault, in NH, is consent.

Had the jury found that Owen had “overcome” the victim, applied “physical force or violence,” “coerced” her, “threatened” her, “kidnapped” her, or “administered an intoxicating substance” without her knowledge, or that she’d been “unable to resist," they would have found him guilty of the three felony charges

2.) He was also acquitted of misdemeanor assault. Prosecutors had said Oven had bitten the girl’s chest. The jury found him not guilty of that.

In summary, the jury found that the couple had consensual sex, and convicted Owen for that.

Strangely, the reason he’s still facing a felony sentence is that at some point he contacted her over the internet. It’s also why he’ll have to register as a sex offender for the rest of his life.
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Old 08-29-2015, 07:33 PM
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Fair enough. Anyway you look at it, he's a rapist. (statutory).
He's got a long life to live with that on his record.
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Old 08-29-2015, 07:42 PM
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True. But strictly speaking it's not statutory rate in the way normally think of it: he wasn't convicted for being too old. Had he been 15, instead of 18, it would have been the same crime. Well, except they both would have been equally guilty, in that case.
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Old 08-30-2015, 08:09 AM
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Originally Posted by LinusK View Post
Interestingly, the law as written makes it a felony for two 15 year olds to have “sexual contact" with each other, and makes it a class B felony. And while I doubt prosecutors often prosecute such cases, the law explicitly makes such conduct illegal. It is a classic example of legislation that was written with (I assume) good intentions, but is so poorly drafted it makes 15 year-old kids felons for making out.
Do you believe that this is a true statement?

Quote:
The difference between felony sexual assault and misdemeanor sexual assault, in NH, is consent.
Or this one, for that matter?

Last edited by Jimmy Chitwood; 08-30-2015 at 08:13 AM.
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Old 08-30-2015, 11:50 AM
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Originally Posted by LinusK View Post
This section is sort of poorly written, because it’s not clear whether “such [a] child” refers to a child the defendant owes a "duty of care, protection or support”; or whether “such [a] child merely refers to a person 17 or younger.
What do you base that on? Your own reading in this particular case? Or is this a question you have studied for years and know differing jury interpretations of?

Because to me it reads clear as glass, with added line breaks to increase understandability:

Quote:
639:3 Endangering Welfare of Child or Incompetent. –
I. A person is guilty of endangering the welfare of a child or incompetent if he knowingly endangers the welfare of a child under 18 years of age or of an incompetent person

by purposely violating a duty of care, protection or support he owes to such child or incompetent,

or by inducing such child or incompetent to engage in conduct that endangers his health or safety.
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Old 08-30-2015, 12:02 PM
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I'm just a country bumpkin, but it seems to me that "duty of care" charge is getting charged for the same crime twice.

Kind of like "endangering" someone by pointing a gun at them. Because well, you know, you intended to shoot them (and you did and got charged for that).

Or am I missing something?
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Old 08-30-2015, 02:08 PM
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Originally Posted by Morgenstern View Post
Fair enough. Anyway you look at it, he's a rapist. (statutory).
He's got a long life to live with that on his record.
You find it fair? Having a teen register for life as a sex offender beause he had sex with his gf?

And of top of it, if the OP is right, two underage teens having sex will be considered for life as a dangerous sex offender. It makes any sense to you?
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Old 08-30-2015, 02:44 PM
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Originally Posted by clairobscur View Post
You find it fair? Having a teen register for life as a sex offender beause he had sex with his gf?
We should be entirely clear that in this case it wasn't his girlfriend but rather a casual acquaintance, she claimed pretty vociferously ( she was very emotional in court ) he raped her and was rough ( she had bruises on her chest ), but she froze up rather than fight him off. Now apparently there was enough doubt swirling around that he wasn't convicted of the felony rape charges. But this was not two lovebirds caught canoodling, but rather an accusation of assault by one of the parties.

Last edited by Tamerlane; 08-30-2015 at 02:45 PM.
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Old 08-30-2015, 03:00 PM
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Originally Posted by clairobscur View Post
You find it fair? Having a teen register for life as a sex offender beause he had sex with his gf?

And of top of it, if the OP is right, two underage teens having sex will be considered for life as a dangerous sex offender. It makes any sense to you?
Yeah, this was not the scenario at all. The general idea was that senior boys try to have sex with five girls--virgins?--before graduating. And the girls--so he claimed--think this is a real honor. The girl in question did not.
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Old 08-30-2015, 03:09 PM
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Originally Posted by Jimmy Chitwood View Post
Do you believe that this is a true statement?



Or this one, for that matter?
Yes & yes. I quoted the relevant statutes, and looked them up, using a simple google search. You can do that too.
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Old 08-30-2015, 03:20 PM
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Originally Posted by naita View Post
What do you base that on? Your own reading in this particular case? Or is this a question you have studied for years and know differing jury interpretations of?

Because to me it reads clear as glass, with added line breaks to increase understandability:
I'm not quite sure what you're asking, but if it's what I think it is:

The reason I think they based their decision on the part of the statute that reads:

Quote:
by inducing such child or incompetent to engage in conduct that endangers his health or safety.
rather than the part that says:
Quote:
A person is guilty of endangering the welfare of a child or incompetent if he knowingly endangers the welfare of a child under 18 years of age or of an incompetent person by purposely violating a duty of care, protection or support he owes to such child or incompetent
is that I don't thing he (or any student) a has a legal duty to care for, protect, or support another student, just because they go to the same school.

The duty to care for, protect or support someone usually comes from a parent-child relationship, or a duty you've voluntarily taken on - like caring for an elderly person in a nursing home.
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Old 08-30-2015, 03:27 PM
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Originally Posted by LinusK View Post
In summary, the jury found that the couple had consensual sex, and convicted Owen for that.

Strangely, the reason he’s still facing a felony sentence is that at some point he contacted her over the internet. It’s also why he’ll have to register as a sex offender for the rest of his life.

Not quite. Here's the NYT summary of the sentence:
http://www.nytimes.com/2015/08/29/us...en-labrie.html

Quote:
The nine men and three women rejected the more serious accusations of aggravated sexual assault, as well as a misdemeanor assault charge of biting the girl’s chest, but convicted Mr. Labrie of three misdemeanors related to the girl’s age and involving penetration with his penis, mouth and finger. He was also convicted of endangering the welfare of a child, a misdemeanor, and a felony charge involving use of a computer to lure a minor.

<snip>


Even without a conviction on the most serious charges, Mr. Labrie now faces up to seven years in prison on the conviction related to computer use, and a year on each of the misdemeanor convictions.

Prosecutors said Mr. Labrie would also have to register as a sex offender because of the computer-related charge, though legal experts said he could eventually petition for removal.

So he's facing prison time for each of the four sex-related misdemeanors as well as the felony computer charge, although he wasn't convicted of the more serious charges that would have gotten him a longer sentence.

Also, it's possible that he will be able to get off the sex offender registry at some point, although I'm not sure when or what the process for that is.
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Old 08-30-2015, 03:28 PM
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Originally Posted by billfish678 View Post
I'm just a country bumpkin, but it seems to me that "duty of care" charge is getting charged for the same crime twice.

Kind of like "endangering" someone by pointing a gun at them. Because well, you know, you intended to shoot them (and you did and got charged for that).

Or am I missing something?
I hear what you're saying, but as a legal matter double jeopardy is a very complicated. I will say his convictions don't appear to violate double jeopardy, but... it's complicated.

If he appeals, his lawyers might include a double jeopardy argument, but even if they won, it would only get rid of one of the four misdemeanors. The real problem is the felony.
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Old 08-30-2015, 03:34 PM
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Originally Posted by clairobscur View Post
You find it fair? Having a teen register for life as a sex offender beause he had sex with his gf?

And of top of it, if the OP is right, two underage teens having sex will be considered for life as a dangerous sex offender. It makes any sense to you?
Not addressed to me, but... it seems stupid to me. I understand prosecutorial discretion, but relying on prosecutorial discretion when you're writing a law is, imo, a mistake. Plenty of prosecutor fail to use their discretion. They get in the mindset of, "I'm going to win this, and I'm going to use all the tools available," and discretion goes right out the window.
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Old 08-30-2015, 03:41 PM
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Originally Posted by Tamerlane View Post
We should be entirely clear that in this case it wasn't his girlfriend but rather a casual acquaintance, she claimed pretty vociferously ( she was very emotional in court ) he raped her and was rough ( she had bruises on her chest ), but she froze up rather than fight him off. Now apparently there was enough doubt swirling around that he wasn't convicted of the felony rape charges. But this was not two lovebirds caught canoodling, but rather an accusation of assault by one of the parties.
It was an accusation. Not all accusations are true. If they were, we wouldn't need juries or a justice system.

They both testified. You - it seems - believe her testimony, but not his. That's fine. You're entitled to your opinion.

But the jury, who saw all the evidence, heard all the testimony, and was there to see it, didn't believe her.

His lawyer said, and I'm paraphrasing here, that at some point she realized somebody's reputation at the school was about to get shredded. She made the rational (though self-interested) decision it would be his reputation, and not hers.
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Old 08-30-2015, 03:49 PM
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I hear what you're saying, but as a legal matter double jeopardy is a very complicated. I will say his convictions don't appear to violate double jeopardy, but... it's complicated.

If he appeals, his lawyers might include a double jeopardy argument, but even if they won, it would only get rid of one of the four misdemeanors. The real problem is the felony.

But it's really not double jeopardy either.

Seems to me its like saying "you had sex with a minor and that's a bad thing" and "you purposely allowed something bad to happen to a minor because you had sex with them".

Its the same thing.
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Old 08-30-2015, 03:50 PM
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Yeah, this was not the scenario at all. The general idea was that senior boys try to have sex with five girls--virgins?--before graduating. And the girls--so he claimed--think this is a real honor. The girl in question did not.
I don't know exactly what the "senior salute" tradition means at St. Paul's - and probably never will know, since I didn't go there and never will. (And probably not all the students at St. Paul's agree about what it is.) But the question is, to use your words, when did she decide it wasn't an "honor"? Because if it was after they had sex, it wasn't rape. Or rather, it wasn't "felony sexual assault" under NH law. It was - as the jury decided - misdemeanor sexual assault. Because she was 15 (therefore under 16) at the time. In that case, consent is irrelevant. IOW, it doesn't matter if she consented, because she was 15 at the time.
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Old 08-30-2015, 04:10 PM
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But the jury, who saw all the evidence, heard all the testimony, and was there to see it, didn't believe her.
Again - this is not quite accurate. The jury convicted him of multiple lesser charges. Labrie could face eight years or so in prison for the various convictions. Just like in any other trial, this doesn't mean that the jury didn't believe the plaintiff. It certainly doesn't mean that the jury thought Labrie was innocent.
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Old 08-30-2015, 04:24 PM
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Not quite. Here's the NYT summary of the sentence:
http://www.nytimes.com/2015/08/29/us...en-labrie.html




So he's facing prison time for each of the four sex-related misdemeanors as well as the felony computer charge, although he wasn't convicted of the more serious charges that would have gotten him a longer sentence.

Also, it's possible that he will be able to get off the sex offender registry at some point, although I'm not sure when or what the process for that is.
I'm not sure what part is incorrect. The only difference I see is "though legal experts said he could eventually petition for removal." If there's a process for removal from the sexual offender registry in NH (and I assume there is, since the NYT is usually pretty reliable), I don't know anything about it.

You said he's "facing prison time for each of the four sex-related misdemeanors." That's incorrect. Prison is for felonies, not misdemeanors.
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Old 08-30-2015, 04:28 PM
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I'm not sure what part is incorrect. The only difference I see is "though legal experts said he could eventually petition for removal." If there's a process for removal from the sexual offender registry in NH (and I assume there is, since the NYT is usually pretty reliable), I don't know anything about it.

You said he's "facing prison time for each of the four sex-related misdemeanors." That's incorrect. Prison is for felonies, not misdemeanors.
From the article:

Quote:
Even without a conviction on the most serious charges, Mr. Labrie now faces up to seven years in prison on the conviction related to computer use [a felony], and a year on each of the misdemeanor convictions.
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Old 08-30-2015, 04:30 PM
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Originally Posted by LinusK View Post
I'm not quite sure what you're asking, but if it's what I think it is:

The reason I think they based their decision on the part of the statute that reads:



rather than the part that says:
is that I don't thing he (or any student) a has a legal duty to care for, protect, or support another student, just because they go to the same school.

The duty to care for, protect or support someone usually comes from a parent-child relationship, or a duty you've voluntarily taken on - like caring for an elderly person in a nursing home.
That's not what I asked. I wondered on what you base your claim that the statue is unclear.

That the victim in this case wasn't someone he had a legal duty to care for, protect or support is blindingly obvious, but you appeared to be confused about the statue in general.
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Old 08-30-2015, 04:39 PM
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In summary, the jury found that the couple had consensual sex, and convicted Owen for that.
Not exactly. The not guilty verdict doesn't mean "the jury found that the couple had consensual sex," it means the jury found that the prosecution didn't prove the sex wasn't consensual.
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Old 08-30-2015, 04:54 PM
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But it's really not double jeopardy either.

Seems to me its like saying "you had sex with a minor and that's a bad thing" and "you purposely allowed something bad to happen to a minor because you had sex with them".

Its the same thing.
But, would it be possible for someone to have sex with a minor but not purposely allow that bad thing to happen?
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Old 08-30-2015, 05:20 PM
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You - it seems - believe her testimony, but not his. That's fine. You're entitled to your opinion.
Your perception is mistaken. I have no strong opinion of whether he was guilty of assault or not and I'm fully prepared to accept the court's judgement ( including the convictions they did hand down ). I do think the guy comes off as a tremendous douche - but being a douchebag is not a crime and is besides the point. I was just correcting the notion that this may have been some Romeo and Juliet prosecution of a couple of harmless star-crossed lovers. Rather it was an explicit accusation of assault.

Quote:
But the jury, who saw all the evidence, heard all the testimony, and was there to see it, didn't believe her.
As noted you shouldn't jump to this conclusion either. A "innocent" verdict doesn't necessarily indicate a disbelief in guilt. I once served on a seven and half week federal white-collar crime case. There were two charges and we convicted on one. I did and do believe that the accused was guilty of both charges, but argued strongly ( initially with only two other supporters on the jury ) that the evidence just wasn't there to clearly convict on the second charge. IMHO he was very likely guilty as sin, but you have to separate what can be proven from what is believed.

As far as we know this jury could have thought this defendant was also guilty as sin, they just didn't think the prosecution proved the case.
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Old 08-30-2015, 06:31 PM
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Based on the same evidence, if she was 17 he would be not guilty of everything?
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Old 08-31-2015, 07:43 AM
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Based on the same evidence, if she was 17 he would be not guilty of everything?

Legally? Apparently yes.

In terms of what actually happened? I don't know, but it's entirely possible.
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Old 08-31-2015, 09:04 AM
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Yes & yes. I quoted the relevant statutes, and looked them up, using a simple google search. You can do that too.
Your standard for statutory interpretation seems to be "if I can misconstrue it, it's an evil law." Someone else isn't the solution to your problem here.

Among other problems, the statute says "sexual penetration or sexual contact on himself or herself or another in the presence of a child;" you said two 15 year olds making out. Making out and sex aren't the same thing, obviously. And if it weren't obvious, the statute defines what sexual contact is, and "making out" doesn't come close, unless by making out you meant penetration of a genital or anal orifice, in which case the solution is to stop saying one thing and meaning another, and this law will seem much less preposterous.

You're also mistaken about the difference between misdemeanor and felony sexual assault, which is also made clear in the statutes you cite. Even if what you were saying about that point were true (that there's some consent-based difference), it's clearly not the difference, given all the different permutations of offenses that are possible. But the real kicker is it isn't even A difference. First of all, it's a preposterous thing to say -- how does one consent to sexual assault? What would that even mean, given what assault is? And again, if that weren't obvious, it's right in both statutes, in identical language:

Quote:
(b) Consent of the victim under any of the circumstances set forth in this paragraph shall not be considered a defense.
Quote:
(b) Consent of the victim under any of the circumstances set forth in this paragraph shall not be considered a defense.
Your legal analysis appears to consist in large part of just saying extremely reductive things that aren't at all true about the stuff that, as you point out, you googled for yourself and then reproduced for the purposes of the analysis. In several cases, they're things that you acknowledge aren't true in other places in the same post. I don't know why anyone would do that.

Last edited by Jimmy Chitwood; 08-31-2015 at 09:08 AM.
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Old 08-31-2015, 11:43 AM
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Originally Posted by Tamerlane View Post
We should be entirely clear that in this case it wasn't his girlfriend but rather a casual acquaintance, she claimed pretty vociferously ( she was very emotional in court ) he raped her and was rough ( she had bruises on her chest ), but she froze up rather than fight him off. Now apparently there was enough doubt swirling around that he wasn't convicted of the felony rape charges. But this was not two lovebirds caught canoodling, but rather an accusation of assault by one of the parties.
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Originally Posted by Emiliana View Post
Yeah, this was not the scenario at all. The general idea was that senior boys try to have sex with five girls--virgins?--before graduating. And the girls--so he claimed--think this is a real honor. The girl in question did not.

I stand corrected.

However, apparently, this law could similarly be used if the sex was consensual. Which seems extremely problematic to me.

And in fact, it's what happened. He got sentenced despite the jury deciding the sex wasn't non consensual. Possibly because they weren't very sure of his guilt, and a half-assed sentence was the most comfortable choice, possibly because what happened, even if consensual, would fit the legal definition and they felt they had no choice, possiby even because they thought 15 yo shouldn't have sex and the "seducer" should pay for it if they do. And I find all these options wrong.

So, it seems to me this law is indeed a bad law. Is there a reading of this law that would preclude a prison sentence and a registration as sex offender if the sex was clearly consensual? In the case of a 18 yo having sex with a 15 yo? I the case of two 15 yo having sex?
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Old 08-31-2015, 11:55 AM
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We don't know if the jury thinks that the sex was consensual or not. All we know is that they did not feel that there was not enough evidence to convict, which is not uncommon in sexual assault.

Nobody has to have sex with a 15 year old. Even if said 15 is their girlfriend. It's actually totally fine to have a non-sexual relationship, or choose a more age-appropriate partner.
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Old 08-31-2015, 12:46 PM
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However, apparently, this law could similarly be used if the sex was consensual. Which seems extremely problematic to me.

And in fact, it's what happened. He got sentenced despite the jury deciding the sex wasn't non consensual. Possibly because they weren't very sure of his guilt, and a half-assed sentence was the most comfortable choice, possibly because what happened, even if consensual, would fit the legal definition and they felt they had no choice, possiby even because they thought 15 yo shouldn't have sex and the "seducer" should pay for it if they do. And I find all these options wrong.

So, it seems to me this law is indeed a bad law. Is there a reading of this law that would preclude a prison sentence and a registration as sex offender if the sex was clearly consensual? In the case of a 18 yo having sex with a 15 yo? I the case of two 15 yo having sex?
Consent doesn't matter. The jury wouldn't have even decided on it. The crime happens if
Quote:
the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.
So to answer your questions - no, no, and no, on the face of it, although in the case of the two 15 year olds, it would be a case where prosecutorial discretion would almost certainly come into play. The intent of the statute (which as you point out, isn't exactly the most high-minded of intents) is to punish a predatory older party for taking advantage of an imbalance in power due to age. If the older person is older by a trivial amount, they just aren't going to take that anywhere, most likely. I don't bring that up as a defense of it on policy terms, just as the answer in practical terms to the question.
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Old 08-31-2015, 01:22 PM
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LinusK, you googled the statutes. Did you google the standard jury instructions for these offenses? There's a bit more to jury instruction than, "you heard the evidence, here's the statute, go and deliberate."
  #32  
Old 08-31-2015, 01:37 PM
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However, apparently, this law could similarly be used if the sex was consensual. Which seems extremely problematic to me.
Jimmy is right when he says consent doesn't matter - but this law is really just a different way of saying that certain people cannot legally consent. Some states have a section of the law that specifically says that certain persons are deemed incapable of consent * and other states define it in the crime itself




* NYS Penal Law 130.05
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless;
... ( more sections having to do with imates , patients etc)

Last edited by doreen; 08-31-2015 at 01:38 PM.
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Old 08-31-2015, 03:35 PM
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That's not what I asked. I wondered on what you base your claim that the statue is unclear.

That the victim in this case wasn't someone he had a legal duty to care for, protect or support is blindingly obvious, but you appeared to be confused about the statue in general.
I said the statute was poorly written, because it was open to more than one interpretation.
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Old 08-31-2015, 03:46 PM
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Not exactly. The not guilty verdict doesn't mean "the jury found that the couple had consensual sex," it means the jury found that the prosecution didn't prove the sex wasn't consensual.
You're right of course. They could have thought there was no way he used force, that he might have used force, or even that it was likely that he used force. But - assuming they followed the law - acquitals show they didn't believe it beyond a reasonable doubt.

Without access to the jurors, it's impossible to know exactly what they thought - other than that the state had failed to meet its burden.
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Old 08-31-2015, 03:46 PM
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Prison is for felonies, not misdemeanors.
A misdemeanor carries a maximum sentence of 1 year. I don't know if you are drawing a distinction between "prison" and "jail", but misdemeanors absolutely can, and do, involve jail time.

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Originally Posted by clairobscur
Is there a reading of this law that would preclude a prison sentence and a registration as sex offender if the sex was clearly consensual? In the case of a 18 yo having sex with a 15 yo? I the case of two 15 yo having sex?
The law never just exists in a vacuum. There is always prosecutorial discretion, to say nothing of specific facts that may lead the prosecutor to make a decision one way or the other.

So, suppose it is two teenagers having consensual sex. How will that result in charges if neither claims to have been assaulted, and so neither complains? Let's suppose that, despite it being consensual, one of the parents finds out (i.e. they catch them) and insists the prosecutor press charges. If neither teenager cooperates (i.e. "he never tried to have sex with me! We were just kissing! And I luuuurve him!"), how far do you think the case will go?

(Admittedly, there are examples of this type of over-reach; I'm recalling a case where a Black football player had his future ruined because he got a BJ from a pretty white girl. But that's thankfully not the norm.)

...

Meanwhile, did anyone else notice the dichotomy between his mug shot (where he looked like a "cool kid") and his appearance in court (where he wore glasses and his hair was combed to give him a dorky appearance)? It's fascinating to me how the attorneys "stage" the defendant's appearance in court.
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Old 08-31-2015, 03:55 PM
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Your perception is mistaken. I have no strong opinion of whether he was guilty of assault or not and I'm fully prepared to accept the court's judgement ( including the convictions they did hand down ). I do think the guy comes off as a tremendous douche - but being a douchebag is not a crime and is besides the point. I was just correcting the notion that this may have been some Romeo and Juliet prosecution of a couple of harmless star-crossed lovers. Rather it was an explicit accusation of assault.



As noted you shouldn't jump to this conclusion either. A "innocent" verdict doesn't necessarily indicate a disbelief in guilt. I once served on a seven and half week federal white-collar crime case. There were two charges and we convicted on one. I did and do believe that the accused was guilty of both charges, but argued strongly ( initially with only two other supporters on the jury ) that the evidence just wasn't there to clearly convict on the second charge. IMHO he was very likely guilty as sin, but you have to separate what can be proven from what is believed.

As far as we know this jury could have thought this defendant was also guilty as sin, they just didn't think the prosecution proved the case.
That is possible. It's also possible they believed the defense argument - that she was lying to protect her reputation.

I've never served on a jury, but I've often wondered whether jurors actually follow the "beyond a reasonable doubt" instruction - so I'm happy, at least in your case, you did. Many defense attorneys believe the more serious the allegation, the less likely it is that the jury will actually follow it.
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Old 08-31-2015, 03:59 PM
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Meanwhile, did anyone else notice the dichotomy between his mug shot (where he looked like a "cool kid") and his appearance in court (where he wore glasses and his hair was combed to give him a dorky appearance)? It's fascinating to me how the attorneys "stage" the defendant's appearance in court.
Huh, that is interesting. IMO the "dorky" look seems to fit the elite-prep stereotype which I would have thought was bad.
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Old 08-31-2015, 04:02 PM
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Huh, that is interesting. IMO the "dorky" look seems to fit the elite-prep stereotype which I would have thought was bad.
I saw it more as, "no way this kid would have been confident enough with girls to force himself on this young lady." The kid in the mug shot looks like a self-entitled brat. The kid in court looks like a bookworm who would have a hard time looking a pretty girl in the eye.
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Old 08-31-2015, 05:58 PM
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Originally Posted by even sven View Post
We don't know if the jury thinks that the sex was consensual or not. All we know is that they did not feel that there was not enough evidence to convict, which is not uncommon in sexual assault.

Nobody has to have sex with a 15 year old. Even if said 15 is their girlfriend. It's actually totally fine to have a non-sexual relationship, or choose a more age-appropriate partner.
And it's also perfectly fine for teens to have sex without being branded as sex offenders, don't you think?

Given the number of times we've argued on this I begin to suspect that in fact you think that teens shouldn't have sex and that pretty much anything that might frighten them into staying chaste is a net positive. Is it the case? And if so, why? I don't think it's for religious reasons.

(and if not, how do you reconcile accepting teen sexuality and defending a law that can send them to jail and the sex offender registry for actually having sex?)
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Old 08-31-2015, 06:12 PM
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Originally Posted by Jimmy Chitwood View Post
If the older person is older by a trivial amount, they just aren't going to take that anywhere, most likely.
Quote:
Originally Posted by Moriarty View Post
There is always prosecutorial discretion,
That's what I thought : the only thing preventing two kids having sex from going to jail and being registered for life as sex offenders is "prosecutorial discretion". Which means it can happen at any time. And that it's a bad law. And I'm not convinced at all that it's a bad law by mistake. It would have been extremely easy to make sure it couldn't happen.


Quote:
So, suppose it is two teenagers having consensual sex. How will that result in charges if neither claims to have been assaulted, and so neither complains? Let's suppose that, despite it being consensual, one of the parents finds out (i.e. they catch them) and insists the prosecutor press charges. If neither teenager cooperates (i.e. "he never tried to have sex with me! We were just kissing! And I luuuurve him!"), how far do you think the case will go?
Yes, sure...no police officer/prosecutor/parent will ever be able to convince one of two 15 yo to admit that he had sex with the other. Teens are much much brighter than they used to be, apparently.

Quote:
(Admittedly, there are examples of this type of over-reach; I'm recalling a case where a Black football player had his future ruined because he got a BJ from a pretty white girl. But that's thankfully not the norm.)
If the law allows the prosecution of teens for having sex, some will inevitably end up prosecuted and sentenced. If you don't want a teen going to jail for not staying chaste enough, you don't rely on prosecutorial discretion and pray, you make sure the law doesn't allow such a prosecution to happen.

Last edited by clairobscur; 08-31-2015 at 06:12 PM.
  #41  
Old 08-31-2015, 09:02 PM
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Originally Posted by clairobscur View Post
And it's also perfectly fine for teens to have sex without being branded as sex offenders, don't you think?



Given the number of times we've argued on this I begin to suspect that in fact you think that teens shouldn't have sex and that pretty much anything that might frighten them into staying chaste is a net positive. Is it the case? And if so, why? I don't think it's for religious reasons.



(and if not, how do you reconcile accepting teen sexuality and defending a law that can send them to jail and the sex offender registry for actually having sex?)

I'm not particularly against teens having sex. I am against older people having sex with younger teens, and I am against people who argue that it's impossible to expect a grown adult to put some thought into what they are doing before they bang out a sophmore.

If you can show me a case where two 15 year olds are convicted of sexual assault for having sex with each other, I'm happy to put some more thought into that scenario. But right now, that's not what I am seeing happening.
  #42  
Old 08-31-2015, 09:52 PM
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Originally Posted by Jimmy Chitwood View Post
Your standard for statutory interpretation seems to be "if I can misconstrue it, it's an evil law." Someone else isn't the solution to your problem here.

Among other problems, the statute says "sexual penetration or sexual contact on himself or herself or another in the presence of a child;" you said two 15 year olds making out. Making out and sex aren't the same thing, obviously. And if it weren't obvious, the statute defines what sexual contact is, and "making out" doesn't come close, unless by making out you meant penetration of a genital or anal orifice, in which case the solution is to stop saying one thing and meaning another, and this law will seem much less preposterous.

You're also mistaken about the difference between misdemeanor and felony sexual assault, which is also made clear in the statutes you cite. Even if what you were saying about that point were true (that there's some consent-based difference), it's clearly not the difference, given all the different permutations of offenses that are possible. But the real kicker is it isn't even A difference. First of all, it's a preposterous thing to say -- how does one consent to sexual assault? What would that even mean, given what assault is? And again, if that weren't obvious, it's right in both statutes, in identical language:




Your legal analysis appears to consist in large part of just saying extremely reductive things that aren't at all true about the stuff that, as you point out, you googled for yourself and then reproduced for the purposes of the analysis. In several cases, they're things that you acknowledge aren't true in other places in the same post. I don't know why anyone would do that.
Go back and look at what I wrote again.

Here's the first part:

Quote:
In New Hampshire, it is illegal to have sex with a person between the ages of 13 and 15. If the age difference is less than 4 years, it’s a misdemeanor. If it’s more than 4 years, it’s a felony. (Legally, it is a crime for two 15 year olds to have sex, and they could both be convicted. Though it’s possible, I doubt NH prosecutors prosecute those cases very often.) Consent is irrelevant.
Here's the law I was referring to:

Quote:
632-A:4 Sexual Assault. –
I. A person is guilty of a class A misdemeanor under any of the following circumstances:
...
(c) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.
The statute says it's a misdemeanor if:

1.) if RSA 632-A:2 doesn't apply. RSA 632-A:2 is Aggravated Felonious Sexual Assault. I'm not going to quote it, because it's too long. But you can follow the link and read it yourself.

2.) when "the actor" has intercourse with someone between the ages of 13 and 15, and

3.) the difference in ages is 4 years or less.

Owen was found guilty of 3 counts of misdemeanor sexual assault, because (1.) he wasn't guilty of felony sexual assault (using force or otherwise committing sex acts without consent) (2.) the girl was 15, and (3.) he was less than 4 years older than (he was 18).

If he'd used force, she'd been younger than 13, or he'd been a older, it would have been a felony.

When you say I'm "mistaken about the difference between misdemeanor and felony sexual assault" what do you mean? What mistake am I making?

You also say:
Quote:
Among other problems, the statute says "sexual penetration or sexual contact on himself or herself or another in the presence of a child;"
The statute you're referring to I think is this one:

Quote:
645:1 Indecent Exposure and Lewdness. –
I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.
II. A person is guilty of a class B felony if:
(a) Such person purposely performs any act of sexual penetration or sexual contact on himself or herself or another in the presence of a child who is less than 16 years of age.
You go to say: "Making out and sex aren't the same thing, obviously."

Yes, that is obvious.

You also say, "the statute defines what sexual contact is," and "making out" doesn't come close, unless by making out you meant penetration of a genital or anal orifice."

The problem is that 1.) the statute doesn't define what sexual contact is, and 2.) it does not define sexual contact as penetration. Penetration and sexual contact are two different things.

Look at the statute again:

Quote:
sexual penetration or sexual contact
I can't make sense of your comments, unless you think "or" defines sexual contact as sexual penetration. It doesn't.

What it's actually saying is either contact or penetration violates the statute.

You conclude by saying:

Quote:
Your legal analysis appears to consist in large part of just saying extremely reductive things that aren't at all true about the stuff that, as you point out, you googled for yourself and then reproduced for the purposes of the analysis. In several cases, they're things that you acknowledge aren't true in other places in the same post. I don't know why anyone would do that.
I don't know why anyone would do that either. Fortunately, I didn't do them.

Except for using google, of course.
  #43  
Old 08-31-2015, 10:10 PM
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Originally Posted by even sven View Post
We don't know if the jury thinks that the sex was consensual or not. All we know is that they did not feel that there was not enough evidence to convict, which is not uncommon in sexual assault.

Nobody has to have sex with a 15 year old. Even if said 15 is their girlfriend. It's actually totally fine to have a non-sexual relationship, or choose a more age-appropriate partner.
It's totally fine for 15 year olds not to have sex. It's not fine to have a law that - if enforced - would make them criminals.

What you might be forgetting is that the law is gender-neutral: 15 year old girls - again, if the law was enforced - could be prosecuted & sentenced too. Not just boys.
  #44  
Old 08-31-2015, 10:36 PM
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I don't know why anyone would do that either. Fortunately, I didn't do them.

Except for using google, of course.
I'm not going to argue with you about this; I know where that goes. You're mistaken and I pointed out where. If you can't or don't or won't correct your understanding, it's because you don't want to.

One more freebie, though: 632 A1 is subtitled "Definitions." Maybe you could google it.
  #45  
Old 08-31-2015, 11:13 PM
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It's totally fine for 15 year olds not to have sex. It's not fine to have a law that - if enforced - would make them criminals.

What you might be forgetting is that the law is gender-neutral: 15 year old girls - again, if the law was enforced - could be prosecuted & sentenced too. Not just boys.
Why is there an argument for two 15 year olds? Easier to confound the premise? That isn't what this case was about. The accused was 18 and the victim 15. It could have been an 18 year old young woman and a 15 year old boy. Gender doesn't change that. I too agree that no one has to have sex with a 15 year old.

Last edited by Andiethewestie; 08-31-2015 at 11:16 PM.
  #46  
Old 08-31-2015, 11:23 PM
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Originally Posted by Moriarty View Post
I saw it more as, "no way this kid would have been confident enough with girls to force himself on this young lady." The kid in the mug shot looks like a self-entitled brat. The kid in court looks like a bookworm who would have a hard time looking a pretty girl in the eye.
I kinda' looked at it the opposite way. I would think a jury more likely to believe that the sex was consensual if the defendant looked hot (or how they imagine the defendant would look hot to a 15-year-old girl).
  #47  
Old 09-01-2015, 06:33 AM
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Me, I think that we should just go ahead and enforce the law as written. Let's do an inquest into every teenager experimenting with their sexuality and prosecute every teen who masturbates while under the age of consent in their state. Any teens who look up porn under the age of consent? Get 'em for child grooming.

That's how this works, isn't it? Teenagers having sex under a particular age is necessarily evidence of assault, right? They can't consent to sex, so there are uncountable thousands of cases of molestation in which the victim and the perpetrator are the same person, right?
  #48  
Old 09-01-2015, 07:04 AM
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Originally Posted by clairobscur View Post
I stand corrected.

However, apparently, this law could similarly be used if the sex was consensual. Which seems extremely problematic to me.

And in fact, it's what happened. He got sentenced despite the jury deciding the sex wasn't non consensual. Possibly because they weren't very sure of his guilt, and a half-assed sentence was the most comfortable choice, possibly because what happened, even if consensual, would fit the legal definition and they felt they had no choice, possiby even because they thought 15 yo shouldn't have sex and the "seducer" should pay for it if they do. And I find all these options wrong.

So, it seems to me this law is indeed a bad law. Is there a reading of this law that would preclude a prison sentence and a registration as sex offender if the sex was clearly consensual? In the case of a 18 yo having sex with a 15 yo? I the case of two 15 yo having sex?
In NH, it's illegal for anyone to have sex - or engage in sexual penetration - with a 15 year old - including another 15 year old.

Quote:
632-A:4 Sexual Assault. –
I. A person is guilty of a class A misdemeanor under any of the following circumstances:
...
(c) In the absence of any of the circumstances set forth in RSA 632-A:2, when the actor engages in sexual penetration with a person, other than the actor's legal spouse, who is 13 years of age or older and under 16 years of age where the age difference between the actor and the other person is 4 years or less.
I don't know, since I don't live in NH: but I suspect that the law is not enforced uniformly. In other words, I suspect that in most cases it's not enforced. (If it was, the jails would be full of 15 yo kids.)

It may be that prosecutors charged Owen with misdemeanor sexual assault, because they wanted to make sure he was convicted of something. Even if - as was the case - he was acquitted of the most serious charges.

The requirement that Owen register as a sex offender comes not from his convictions for misdemeanor sexual assault, but from his conviction for using a computer:

Quote:
649-B:4 Certain Uses of Computer Services Prohibited. –
I. 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.
II. (a) A person who violates the provisions of paragraph I shall be guilty of a class A felony if such person believed the child was under the age of 13, otherwise such person shall be guilty of a class B felony.
A person who violates 649-B:4 is required to register as a sex offender, under 651-B, REGISTRATION OF CRIMINAL OFFENDERS:

Quote:
VI. "Offender against children'' means a person who is required to register for an offense against a child.
VII. "Offense against a child'' means the following offenses, including an accomplice to, or an attempt, conspiracy, or solicitation to commit, any of the following offenses:
(a) Any of the following offenses, where the victim was under the age of 18 at the time of the offense: capital murder, RSA 630:1, I(e); first degree murder, RSA 630:1-a, 1(b)(1); aggravated felonious sexual assault, RSA 632-A:2; felonious sexual assault, RSA 632-A:3; sexual assault, RSA 632-A:4, I(a) or RSA 632-A:4, III; kidnapping, RSA 633:1; criminal restraint, RSA 633:2; false imprisonment, RSA 633:3; incest, RSA 639:2; violation of privacy, RSA 644:9, I(a) or RSA 644:9, III-a; a second or subsequent offense within a 5-year period for indecent exposure and lewdness, RSA 645:1, I; indecent exposure and lewdness, RSA 645:1, II and RSA 645:1, III; or prostitution, RSA 645:2.
(b) Intentional contribution to the delinquency of a minor, RSA 169-B:41, II; sexual assault, RSA 632-A:4, I(b) if the actor was 18 years of age or older at the time of the offense; endangering the welfare of a child, RSA 639:3, III; possession of child sexual abuse images, RSA 649-A:3; distribution of child sexual abuse images, RSA 649-A:3-a; manufacture of child sexual abuse images, RSA 649-A:3-b; computer pornography, RSA 649-B:3; certain uses of computer services prohibited, RSA 649-B:4; or obscene matters, RSA 650:2, II.
Using a "computer on-line service [or] internet service" would presumably include sending text messages or email.

Also, I want to fix a mistake I made earlier: RSA 632-A includes RSA 632-A:4 (duh), so the jury could have found Owen guilty of violating 649-B:4 (Certain Uses of Computer Services Prohibited) because they found him guilty of misdemeanor sexual assault [632-A:4, I(c)], and they also believe he'd sent a text or email that "lured" her or "solicited" her to have sex with him.
  #49  
Old 09-01-2015, 07:28 AM
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Originally Posted by Really Not All That Bright View Post
LinusK, you googled the statutes. Did you google the standard jury instructions for these offenses? There's a bit more to jury instruction than, "you heard the evidence, here's the statute, go and deliberate."
Nope. A quick google search for the jury instructions in this case doesn't seem to show they're online. You're free to look for them, though.

And of course, you're right: the jury instructions in a case like this - a high-profile case where the defendant is charged with 9 crimes - would consume many pages.

I did find this, though:

Quote:
In his instructions to the jury, Judge Larry Smukler noted the age of consent in New Hampshire is 16.

Grady Sexton said that was to remind jurors that if they believed sexual penetration did occur, because the victim was a minor, “that alone would be an offense.”
  #50  
Old 09-01-2015, 07:37 AM
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Originally Posted by doreen View Post
Jimmy is right when he says consent doesn't matter - but this law is really just a different way of saying that certain people cannot legally consent. Some states have a section of the law that specifically says that certain persons are deemed incapable of consent * and other states define it in the crime itself




* NYS Penal Law 130.05
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless;
... ( more sections having to do with imates , patients etc)
All states have laws that say certain people can't consent.

The difference here is that most states have an exception or defense when two teenagers have sex. For example: if they're within three or four years of age. In NH, age is not a defense. If two 15 year olds have sex, they're committing a crime. In fact, they're committing the same crime.
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