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Bill aiming to close rape case loophole goes uncontested at hearing

  • Former Belknap County sheriff’s deputy Ernest Justin Blanchette appears in Belknap County Superior Court in Laconia on Aug. 30. Monitor file



Monitor staff
Thursday, January 11, 2018

A bill aimed at closing a loophole in one of New Hampshire’s sexual assault laws sailed through a public hearing Thursday without anyone expressing opposition to the measure.

State Rep. Renny Cushing, D-Hampton, put forward the bill with guidance from the state’s Department of Justice after the New Hampshire Supreme Court overturned former Belknap County deputy sheriff Ernest Justin Blanchette’s rape conviction in Hillsborough County in May 2017. The justices cited ambiguities in the aggravated felonious sexual assault statute and advised the Legislature to clarify the law for future cases.

As the law stands now, a law enforcement officer transporting an inmate to and from a correctional facility can have sex with that inmate and escape prosecution, Cushing told fellow members of the House Criminal Justice and Public Safety Committee. While that was never the legislative intent, litigation of the Blanchette case exposed weaknesses in the statute that weren’t foreseen at the time of its passage, he said.

Blanchette’s attorneys argued that prosecutors failed to prove he was working under the direction of either the Belknap County jail or the New Hampshire State Prison for Women when he had sex with an inmate he transported to and from the prison.

Cushing’s proposed bill includes new language stressing that the law is applicable to anyone in a supervisory role, regardless of whether they’re employed by the state’s Department of Corrections, a county jail or other law enforcement agency.

Michelle Edmark, the warden of the Northern New Hampshire Correctional Facility in Berlin, said she believes the bill, as proposed, will ensure “the rights of a very vulnerable population is protected.” She said the gaps in the current law are of serious concern because they put prisoners’ basic safety in jeopardy.

“People in our custody are not free to consent to any sexual act at all,” she said.

Assistant Attorney General Elizabeth Woodcock was one of three prosecutors to draft House Bill 1564, which quickly gained bipartisan support in both the House and Senate.

Woodcock, who represented the state during oral arguments on Blanchette’s appeal, told the committee Thursday that she believes the case was the first of its kind in the state.

“This was the first time a person was charged this way and challenged it,” she said.

Woodcock recalled for the committee how she told the Supreme Court that the Legislature could not have intended such an outcome. While the court was sympathetic, she said, it ultimately ruled that it could not hold Blanchette accountable under the law as written.

The justices said in their ruling that both the state and Blanchette’s defense had presented plausible arguments about the meaning of the law and the inclusion of the phrase “where the actor is employed.”

Blanchette had faced additional sexual assault charges in Belknap County; however, a judge dismissed the case after the Supreme Court’s ruling. Judge James O’Neill III found that a person’s employment at a correctional facility where the victim is incarcerated is a necessary element of each charge and that county prosecutors failed to account for it.