Former Belknap County sheriff’s deputy Ernest Justin Blanchette sits at his trial in Hillsborough County Superior Court North in Manchester on Thursday, April 28, 2016. Blanchette was convicted last year of raping a female inmate en route to prison. ELIZABETH FRANTZ / Monitor staff

There’s no doubt former Belknap County sheriff’s deputy Ernest Justin Blanchette had sex with a prisoner when he was tasked with returning her to the women’s state prison.

There’s also no doubt Blanchette gave the prisoner privileges she couldn’t have inside the facility, such as cigarettes or the use of a cellphone.

But he never had direct control over her life or her choices because he was not employed by the prison, argues Blanchette’s lawyer Brad Davis.

State assistant attorney general Elizabeth Woodcock disagrees. It doesn’t matter, she said, whether Blanchette was directly employed by the correctional facility, because he was acting as an agent of the facility. Moreover, the inmate was shackled and no longer had any power over her choices, and was therefore unable to consent to the sexual activity.

Both arguments went before the state’s Supreme Court on Thursday morning as part of the appeals process for Blanchette, who was sentenced in May to 10 to 20 years in prison for aggravated felonious sexual assault for having sex with an inmate during transport. Depending on the Supreme Court’s ruling, Blanchette’s conviction could be thrown out.

The sexual encounter occurred at an abandoned home in Bedford in July 2015 when Blanchette was transporting the woman from a Belknap County courthouse to the Goffstown women’s prison. Neither side disagreed the two had sex, but prosecutors argued Blanchette groomed the woman with gifts and used his authority to coerce her into having sex with him at an abandoned building in Bedford.

Blanchette faces additional charges for similar allegations in Belknap County, which Davis has said should be dismissed. In addition, he argued that the trial court erred by considering those pending charges as part of the sentencing process, which he called prejudicial to Blanchette.

Davis said that state law technically defines a rape through coercion as occurring when a defendant has direct supervision over the victim and the victim is incarcerated in a correctional facility “where the actor is employed.” Because Blanchette was “employed” by the county sheriff, rather than the prison, he should be exempt from the law, Davis argued. Furthermore, he said the order to transport the prisoner after her sentencing came from the court, not the prison.

Chief Justice Linda Dalianis questioned that idea. She noted Blanchette transported the inmate at the prison’s behest to a dentist appointment, a trip where sexual activity is also said to have occurred, despite not being technically “employed” by the prison.

“There’s a number of ways to be employed,” she said. “I employ my broom to sweep my floor, but I don’t pay it.”

Davis also said RSA 632-A:2 specifically cites correctional officers and probation parole officers – people who have direct control over an inmate’s life in a correctional facility – from engaging in sexual or romantic conduct with inmates. Moreover, the Legislature could have easily included sheriffs or other law enforcement officers in the statute, but didn’t, Davis said.

Blanchette, Davis said, never had that degree of control over the inmate, and was only responsible for making sure the inmate got to where she needed to go.

“But why doesn’t the sheriff have extreme control over the inmate’s life in transport?” asked Associate Justice James Bassett. “It’s a short while, but it’s pretty complete in that moment of time – isn’t that all that matters?”

“He couldn’t extend any of those favors to her in the institution,” Davis said.

But Woodcock said it was hard to imagine someone who would have had more control over the inmate than Blanchette when the two were alone in a vehicle and one was shackled. She also noted that, from the moment the inmate was convicted, she was under the control of the prison, and unable to make life decisions for herself.

“If it was criminal for him to have sex with her while bringing her to the dentist, it’s criminal for him to have sex with her coming from a sentencing,” she said.

But Associate Justice Robert Lynn said that might not be the case, given the way the law is written.

“You don’t have to convince me the law should cover it,” Lynn said. “You have to convince me that it does.”

(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)