St. Paul's pushes back on Senior Salute civil lawsuit
Miss X's parents sue St. Paul's School for failure to protect daughter from Owen Labrie's sexual advances
School wants to limit media coverage
By Mary Ann Mueller
VOL Special Correspondent
www.virtueonline.org
Aug. 24, 2016
St. Paul's School's Senior Salute Sex Scandal story just doesn't seem to go away. Every few weeks the story, or an aspect of the story, again creates headlines, making it almost impossible for the elite Episcopal preparatory school to shake the consequences from the 2014 impropriate actions of a graduating senior with an underage student.
Last year about this time -- late August -- that graduating senior, Owen Labrie, was convicted of three counts of misdemeanor Sexual Assault, one misdemeanor count of Endangering the Welfare of a Child and one felony count of Prohibited Use of Computer Equipment. The final count brought with it a one-year jail sentence, five-year probation, and the requirement to register as a sex offender in Vermont.
However, the convicted St. Paul's student was released on bail pending the outcome of his appeal.
It didn't take long for Labrie to violate his bail curfew, and earlier this year he was seen on a Boston train by a magazine reporter. This did not sit well with the New Hampshire judge, who revoked his bail, and Labrie was sent to cool his heels in the Merrimack County House of Corrections in Boscawen, NH. There, the former St. Paul's student was confined to solitary because of his notoriety. The convicted felon was subsequently released by the judge so that he could pursue his appeal, otherwise he could have possibly served out the remainder of his sentence before his appeal was heard.
Since being fitted with a court-ordered electronic ankle bracelet to keep track of his movement, Labrie has seemingly disappeared from view, and he is apparently living quietly in Tunbridge, Vermont. There are no more chance encounters with reporters on Boston trains, or detailed stories of his post conviction life in Newsweek, nor elaborate television news interviews. Even though he is keeping a low profile, he is actively fighting his conviction and is keeping the courts busy with his briefs and legal filings.
But there are two sides to this story -- the girl -- Miss X. On June 1, her parents, John and Jane Doe (The Does), filed a civil lawsuit in the United States District Court in New Hampshire against St. Paul's for breach of fiduciary duty, negligence, liability, and emotional distress, in failing to protect their daughter from sexual abuse while she was a student at the School. St. Paul's is pushing back.
On Aug. 11, St. Paul's filed a response to The Does' initial lawsuit. In it, the School seeks, in part, to identify Miss X as the litigation unfolds. Miss X, who is identified as "J.D." in her parents' lawsuit, turns 18 in October and legally becomes an adult. Attorneys for The Does' lawsuit are: Charles Douglas III of Douglas, Leonard and Garvey in Concord, NH; and Steven Kelly, Steven Silverman and Stephen Grygiel pro hac vice attorneys from Silverman, Thompson, Slutkin & White in Baltimore, Maryland.
As the School's legal response broke, the media quickly noted that St. Paul's is requesting: 1). "The Court must balance the interests of plaintiffs, the School, the public in determining whether plaintiffs are entitled to the exceptional relief of remaining anonymous in public legal proceedings;" 2). "Plaintiffs should not be allows the use the Court to wage a media campaign behind a cloak of anonymity;" 3). "The School should be allowed to identify the plaintiffs during discovery;" and 4). "Plaintiffs should not be allowed to use pseudonyms at trial."
Early headlines read: High School Asks Court To Identify Sexual Assault Victim At Trial (MOTTO by TIME); St. Paul's demands identity of Owen Labrie's victim to be made public (Boston Globe); Will Elite School Sex Assault Victim Be Named in Court? (The Daily Beast); St. Paul's School: Underage sexual assault victim should be identified in lawsuit (New Hampshire Union Leader); St. Paul's School contests continued anonymity of sexual assault victim in federal civil suit (Concord Monitor); St. Paul's prep school wants to release accused rapist's ID (The Daily Mail); School wants to publicly ID Labrie victim if suit goes to trial (New York Daily News); St. Paul's Wants Owen Labrie's Victim to Be Named (YAHOO! News); St. Paul's Wants Victim's Name (Valley News); School: Make rape accuser's ID public if case goes to trial (Washington Post); N.H. prep school: Make rape accuser's ID public if case goes to federal trial (Portland Press-Herald); St. Paul's School Wants to Name Owen Labrie's Victim at Trial (NEW YORK Magazine) St. Paul's School asks court to reveal name of victim in Owen Labrie's sexual assault case (MASS Live); St. Paul's pushes for victim identification in Labrie case (NH1 News); and N.H. prep school asks victim to be named in sex assault lawsuit (CBS This Morning).
St. Paul's quickly pushed back, claiming the media is misunderstanding its legal response to The Does' 34-page lawsuit.
"It appears the media has not read, or is not accurately reporting about our filing," St. Paul's School's Board of Trustees President Archibald Cox, Jr. posted on St. Paul's website on Aug. 15. "We did not oppose the family's use of pseudonyms, and certainly did not request that the young woman's name be made public."
Cox's contention is that The Does had blindsided St. Paul's with the timing of their initial lawsuit, which was filed as the School was preparing for its 2016 Graduation Weekend activities.
"Plaintiffs' carefully coordinated media campaign will have a prejudicial effect on the adjudication of this case and prospective jurors," St. Paul's 19-page response contends. "Plaintiffs seeks to try this case in public from behind a curtain of secrecy ..."
The School alleges that the plaintiffs purposely filed their lawsuit at 4:12 PM on June 1, only 18 minutes before the courthouse closed, and then leaked that information to the media, even before the School, itself, knew about the suit, causing a media feeding frenzy coming from such news outlets as the Concord Monitor, the Wall Street Journal, NBC News and the TODAY Show, the Boston Globe, Huffington Post, the Associated Press, VICE, and WRKO -- the Voice of Boston radio. The School's response shows that The Concord Monitor posted its first story at 5:46 PM and that St. Paul's legal counsel was not able to secure a copy of the plaintiff's lawsuit until 7 PM that evening. Allegedly The Does' lawsuit wasn't officially made a matter of public record until after the courthouse reopened on June 2.
St. Paul's said that its Manchester, NH-based legal team at McLane Middleton, and headed up by former New Hampshire Attorney General Michael Delaney, has "agreed to the family's use of pseudonyms during pretrial phases of the litigation" but they take issue with The Doe family's "improperly attacking the School's character in statements to the press."
The School's reply documented that the Silverman, Thompson, Slutkin & White law firm has run into trouble before with a federal district court in eastern Missouri in the lawsuit named Doe v. Cabrera "for engaging in a media campaign, similar to that waged here, upon filing a sexual assault complaint on behalf of an anonymous plaintiff."
"The Court is deeply concerned and troubled by the public statement made by the plaintiff--presumably with the plaintiff's consent--to the media after the plaintiff filed the complaint. It appears that the plaintiff, her attorney, and others operating on her behalf, are attempting to try her case in the media or gain a tactical advantage through their public statements," the United States District Court in Eastern Missouri chastised in 2014. "Upon the filing of the complaint, the plaintiff and any counsel representing the plaintiff or otherwise acting on her behalf should have remained silent about the case. Although the Court appreciates zealous advocacy, counsel for the plaintiff and other attorneys acting on her behalf should have known better than to publicize the plaintiff's case."
"The point of (St. Paul's) pleading was to suggest that the family's request to proceed anonymously should incorporate the School's desire for the matter to be handled responsibly in court and not through coordinated media attacks," Cox explained in his letter to alumni on behalf of St. Paul's. "No one at the School has any desire or intention to reveal the identity of the young woman or her family. However, we have taken steps to ensure the case is fairly considered in court proceedings and not through media attacks."
After addressing the Miss X's privacy issue St. Paul's response goes on to defend the School against The Does' charge that the School acted negligently in failing to prevent Miss X's sexual misconduct by Owen Labrie.
"The pleadings we filed strongly deny all claims that the School is somehow responsible for, or could have prevented, Owen Labrie's misconduct," Cox posted. "While it will be difficult for us to brief you on each development during the litigation, which may go on for some time, please be assured we intend, if necessary, to strongly defend the School in court, and we will not engage in efforts to try this case in the media."
Subsequent headlines read: Trustee tells St. Paul's School community the media got it wrong (the Bedford Bulletin); Prep school denies it wants sex assault victim's name made public (Boston Globe); St. Paul's School: Sexual assault victim's attorneys should stop commenting publicly (Boston Globe); St. Paul's School responds to lawsuit filed by assault victim's parents (WMUR); St. Paul's Denies All Blame for Sexual Assault In Civil Lawsuit (New Hampshire Public Radio); St. Paul's denies liability in lawsuit; says only Labrie and freshman know what happened (New Hampshire Union Leader); The Owen Labrie/St. Paul's trial fallout just keeps getting worse (Mic Daily); St. Paul's responds to lawsuit, denies any liability in Labrie sex assault case (Concord Monitor); St. Paul's School Denies to Alums They're Threatening to Expose a Sexual Assault Victim (Jezebel); St. Paul's answers claims, allegations filed against them by sexual assault victim's family (NH1 News); St. Paul's School Denies It Could Have Prevented Alleged Sexual Assault (NBC News); and Why did the St. Paul's School sexual assault trial attract such widespread media coverage? (NBC Dateline).
Even though the media has changed its headlines, it is not taking St. Paul's legal reasoning to heart.
"Media coverage of the school's motion has not been favorable, given that revealing a victim's identity could prevent future sexual assault victims from coming forward," Mic Daily reports.
CBS News legal analyst Rikki Klieman explained on a recent CBS This Morning news program, that what the School is doing is tantamount to attempting to slap a gag order on the parents to prevent them from talking with the press.
"[St. Paul's] motion is looking for a gag order," Ms. Klieman explained. "And that's really what these defense lawyers are really mad about. They (St. Paul's attorneys) say they were 'sabotaged.' What they want, is to get the plaintiff's lawyers to stop talking."
She explained that St. Paul's legal team is willing to let Miss X and her parents remain anonymous, but with conditions.
CBS' legal analyst clarified that St. Paul's defense attorneys are saying: "Look, we'll let you go under a pseudonym, that's OK. You can be 'Jane and John Doe parents of J.D.' but in exchange -- our little quid pro quo -- you've got to stop talking."
"But that's really not how this should be done," Ms. Klieman noted.
Victims' right advocates are also dismayed at St. Paul's attempt to publically identify Miss X. They feel that if her identity is made known, it would make it harder for other young assault victims to come forward and reveal sexual assault.
"Someone as young as she is (Miss X) shouldn't have to choose between getting justice and publishing her name," Colby Bruno, a senior legal counsel at the Boston-based Victim Rights Law Center, told the Concord Monitor. "Not only can she not undo the assault that happened to her, but by publishing her name, she can't put the cat back into the bag. In the days of Internet searches, there is the concern that this will follow her for the rest of her life."
The next step in the on-going St. Paul's Senior Salute aftermath is a pretrial conference which is slated for Sept. 21, in the United States District Court in Concord.
Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline