The attorney representing a former Belknap County deputy sheriff charged with sexually assaulting an inmate asked the State Supreme Court to throw out the case because a part of the law under which his client is charged is unconstitutionally vague.

In oral arguments before the high court on Thursday, Brad Davis, who is representing Ernest Justin Blanchette, said his client was not an employee of the Belknap County Jail in the traditional sense at the time Blanchette is alleged to have raped a female inmate as he was transporting the woman back from a dental appointment in 2014.

Davis said the issue before the court is how to define employment for a jury.

“Either the definition is ambiguous and void for vagueness or (the definition is) the common understanding (that) it is where you earn your wages,” Davis told the justices during the 30-minute hearing.

But Assistant Attorney General Elizabeth Woodcock told the court the charges against Blanchette should be allowed to stand because at the time the alleged victim was in his custody he was clearly acting at the direction of the county Corrections Department.

Blanchette, 42, is charged with two counts of aggravated felonious sexual assault, and one charge of felonious sexual assault.

Blanchette has argued the current case is improper based on the state Supreme Court’s 2017 decision which overturned his conviction on a similar charge in Hillsborough County.

He was indicted on the current charges by the Belknap County Attorney’s Office in 2020.

“It’s a different case, but it’s the same people,” Woodcock told the court, saying that since Blanchette “was directed” by the Corrections Department, “he was employed.”

But Davis countered that in its 2017 ruling the Supreme Court urged the Legislature to correct the ambiguity in the law that at the time specifically stated it applied to corrections and probation officers.

“They never thought of law enforcement until this case,” Davis said, “and the legislative history shows this.”

But Associate Justice Patrick Donovan interjected, “You can see that the Legislature would not have condoned this type of behavior.”

Davis said that since the high court’s 2017 ruling the Legislature amended the statute to specifically include law enforcement officers.

“But why,” Associate Justice James Bassett asked, “would the Legislature carve out (a category of officials) to protect people who would give rise to this risk?”

Blanchette’s conviction in Hillsborough County in 2016 stemmed from charges that he sexually assaulted a female victim who was under the court’s custody at the time. The current charges, however, involve an alleged victim who, at the time, was an inmate in the Belknap County Jail, and so prosecutors argue covered by the prior law that states that inmates cannot legally consent to sexual acts with those overseeing their custody, Woodcock said.

Davis said the fact that Superior Court Judge James D. O’Neill III referred the matter to the Supreme Court suggested the judge had serious doubts whether the charges against Blanchette could be sustained.

But Woodcock said it could also be argued that O’Neill sent the case to the high court under interlocutory appeal not so much because he doubted the charges against Blanchette were proper, but because he did not want to put the alleged victim as well as Blanchette through the ordeal of a trial if he knew the question of Blanchette’s status in relation to the Corrections Department was going to end up the before the Supreme Court anyway.

“I think the court was being compassionate,” she said.

The case was heard by four of the court’s five justices, with Chief Justice Gordon MacDonald recusing himself.

The Supreme Court generally issues an opinion within four months of the oral argument, but in some cases, it may take longer, according to the court’s website.

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