Defense to accuser: 'You didn't tell Owen you were scared'

By Dale Vincent
New Hampshire UniLeader
August 21, 2015

http://www.unionleader.com/article/20150820/NEWS03/150829923

Former St. Paul's School student Owen Labrie looks around Merrimack County Superior Court in Concord on Tuesday.

CONCORD — During his cross-examination of an alleged rape victim Thursday, defense attorney J.W. Carney focused on what he said the girl didn't do.

"You didn't tell Owen you were scared," he said of his client, former St. Paul School student Owen Labrie, now 19.

The 16-year-old who says Labrie sexually assaulted her two days before graduation last year has testified that she told Labrie "no" three times, but he continued the assault.

The alleged victim was a freshman at St. Paul's School when she accepted a traditional "Senior Salute" from Labrie, then 18, an athlete headed for Harvard and later divinity school. The girl said her expectation was that there would be kissing and "making out," but that Labrie's actions went way beyond that and were unwelcome

In Merrimack County Superior Court on Thursday, Carney cited the girl's seemingly friendly emails and Facebook messages to Labrie both before and after their encounter.

But she maintained, as she did under direct questioning the previous day, that she was trying to appear smart and cool, although she didn't necessarily feel that way.

"I was hiding behind a computer screen," she told Carney.

Drawing on the girl's statements in her interview with a Concord Police detective, Carney sought to show inconsistencies in what she said on the witness stand and what she told the detective. He asked how Labrie was supposed to know she wasn't happy when she admitted she was laughing during the encounter. She said, and a friend later testified, that she is a "nervous giggler."

Carney asked the girl if there is a way to tell when she is lying.

"When you are not being truthful, do you have a ‘tell'," he asked.

The alleged victim's best friend and former roommate at St. Paul's School testified: "When she gets nervous, she does this giggly kind of thing."

The friend also said that when the alleged victim returned from her encounter with Labrie, she was "nervously babbling."

The friend said she and the other girls directed the alleged victim to email Labrie to find out if he'd used a condom. And when he responded that he put it on part way, they urged her to go to the school nurse to get Plan B emergency contraception.

The friend said saying "yes" to a "Senior Salute" doesn't mean "yes" to anything that might happen.

A SANE (Sexual Assault Nurse Examiner) who works at Concord Hospital testified about interviewing the alleged victim and examining her. Nurse Samantha Hawkins offered jurors an anatomy lesson, using a visual aid to explain how she found a slight abrasion at the rear of the vagina exterior.

"It would be consistent with penetration," she said.

Defense attorney Sam Zaganjori pressed her. Could it have happened any day between the encounter and the examination four days later? The answer was "yes," but Hawkins also said: "It could have been something more significant before I saw it."

Dr. Robert Rix, an emergency physician at Concord Hospital, did the internal examination of the alleged victim.

He said he found no sign of internal injury, but he also said in most cases of sexual assault, there is no visible trauma.

"She was appropriately emotional, not hysterical, a little bit withdrawn," Rix said of the alleged victim.

Carney is trying to convince jurors that Labrie did not sexually penetrate the girl, because the age of consent in New Hampshire is 16 and the girl was 15 at the time of the alleged encounter.

There will be no trial session today. Jurors were told to return Monday at 9 a.m.