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“A problematic nominee”

February 1, 2023

by Yvonne Abraham, The Boston Globe
4 minute read

His supporters say federal appeals court nominee Michael Delaney is a dedicated advocate for sexual assault survivors. The family of one high-profile survivor would beg to differ.

When Michael A. Delaney, President Biden’s nominee to the US Court of Appeals in Boston, appears before the Senate Judiciary Committee at his upcoming confirmation hearing sometime soon, Alexander Prout will be there.

Many think Delaney, a former New Hampshire attorney general, is a stellar candidate. When his nomination was announced on Jan. 18, Democratic Senators Jeanne Shaheen and Maggie Hassan called Delaney “exceedingly qualified,” by virtue of his long career in public service and his “commitment to justice.”

Prout takes a different view.

“Michael Delaney is not qualified to sit on the bench,” he said. “If he is confirmed, it will send a chilling message to survivors of sexual assault and their advocates.”

In 2014, when Prout’s daughter Chessy was a 15-year-old freshman at St. Paul’s, a prep school in Concord, N.H., she was assaulted by senior Owen Labrie as part of a campus custom known as “the senior salute,” a game where upperclassmen competed to have sex with younger students. In 2015, Labrie was acquitted of felony rape in the incident, but found guilty of misdemeanor sexual assault and endangering the welfare of a child.

The Prouts, and others, saw the assault as part of a larger culture of sexual abuse at the school, and wanted to force wider changes at St. Paul’s to prevent harm to other kids. When the school resisted those efforts, Alex Prout said, he sued St. Paul’s, blaming the school for failing to protect Chessy.

Delaney represented the school in that case. And in response to Prout’s claims, he used a

hardball tactic too frequently deployed by those sued by victims of sexual assault: He moved to have Chessy Prout — who until then had been known only as “Jane Doe” — named publicly.

In Delaney’s motion, St. Paul’s was the victim, and the teenager and her family were the aggressors. He accused the Prouts and their attorney of engaging in “a national media campaign attacking the character, credibility and reputation of the School while simultaneously extolling Plaintiffs’ own character, credibility and reputation.”

On behalf of the school, he argued that Prout should remain anonymous before trial only if her advocates refrained from speaking publicly about the case. At the trial, he said, she should be named.

The motion was roundly criticized by advocates for assault victims as a transparent attempt to intimidate the Prouts, and one that would discourage other survivors from coming forward.

“It takes a callous attitude for a defendant to ask a victim’s identity be revealed,” attorney Mitchell Garabedian, who has represented many abuse victims, told the Globe at the time.

Plenty of institutions sued by sexual abuse survivors leverage the persistent stigma that comes with being assaulted as a way to protect themselves. But St. Paul’s exists for the good of children; for a school to use this tactic on one of its own was inexcusable.

“This wasn’t a legal tactic,” Alex Prout said of the motion to name his daughter. “This was a threat, and Chessy took that threat to heart. Think what that does to a child and her ability to trust a system that is supposed to protect her.”

But instead of being intimidated by Delaney’s motion to name her, Chessy Prout decided to go public, to out herself, even though doing so meant her name would forever be associated with the worst thing that happened to her.

“They had a choice here,” Alex Prout said of the school. “They could have taken the high road, worked with us to make the school a safer place. Instead they chose to play in the mud, and bring us down there with them.”

In the end, the case did not go to court. The Prouts settled with St. Paul’s.

Whether the school has learned anything since then is a matter of some debate. In 2018, after an investigation found credible evidence of sexual abuse against students, including by faculty, going back decades, St. Paul’s entered into a settlement agreement with the

New Hampshire attorney general’s office, which required, in part, the appointment of an independent monitor to oversee its efforts to better protect its students. That monitor, Jeffrey Maher, quit in 2020, citing “an intolerable working environment,” in which school officials interfered with his investigations. The school vehemently denied the allegations, and is working with a new overseer.

And now Delaney is likely headed to the federal bench, nominated by a president who has been a longtime advocate for victims of sexual violence.

Alex Prout has made his case against Delaney to Senators Shaheen and Hassan. Both senators remained squarely behind the nominee on Wednesday, citing his work on behalf of victims of sexual violence, as did a spokesman for President Biden.

“The White House has the utmost respect for sexual assault and domestic violence survivors, and expects Senators to take Mr. Delaney’s full record into account when considering his nomination,” e-mailed spokesman Seth Schuster.

Shaheen’s spokesperson and the White House shared several letters of support for Delaney from advocates praising his work as attorney general, especially for victims of sexual assault. Shaheen “believes his record of defending survivors and helping them seek justice speaks for itself,” her spokesperson said.

So what does Delaney’s defense of St. Paul’s say about him?

Perhaps his hardball tactics there were an aberration, and Delaney really is the champion for victims his supporters say he is. In that case, he’d be a terrific federal judge.

But, given the fact that cases like Chessy Prout’s could well come before him on the bench, he ought to fully explain to the Senate why he did what he did to her.

Her father will be watching.

A call to action for all advocates and allies of sexual assault survivors.

A problematic nominee – The Boston Globe

Globe columnist Yvonne Abraham can be reached at Follow her on Twitter @GlobeAbraham.

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